Travelers Casualty v. Reginella Constr. v. Moon ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TRAVELERS CASUALTY AND SURETY IN THE SUPERIOR COURT OF
COMPANY OF AMERICA PENNSYLVANIA
v.
REGINELLA CONSTRUCTION COMPANY,
LTD.; REGCON CORP.; REGINELLA
CONSTRUCTION COMPANY, INC.;
JOSEPH A REGINELLA; AND DONNA M.
REGINELLA, INDIVIDUALS
v.
MOON AREA SCHOOL DISTRICT AEGIS
SECURITY INSURANCE COMPANY;
DERRY AREA SCHOOL DISTRICT; OHIO
TURNPIKE COMMISSION; 21ST CENTURY
CONCRETE CONSTRUCTION INC.; J. J.
CONNOR CO., INC.; BCS CONTRACTORS,
INC.; GIVENS CONSTRUCTION, LLC;
MOHAWK RE-BAR SERVICES, INC.; THE
WHITACRE ENGINEERING CO.: P&L
PARIS CORPORATION; AND LEWIS LAND
PROFESSIONALS, INC.
APPEAL OF: REGINELLA CONSTRUCTION
COMPANY, LTD., REGINELLA
CONSTRUCTION COMPANY, INC.,
JOSEPH A. REGINELLA AND DONNA M.
REGINELLA
No. 1599 WDA 2013
Appeal from the Order of September 19, 2013
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 12-012196
BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 05, 2014
* Former Justice specially assigned to the Superior Court.
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Appellants, Reginella Construction Company, Ltd., Reginella
Construction Company, Inc., Joseph A. Reginella, and Donna M. Reginella,
appeal from the order entered on September 19, 2013. We quash this
appeal.
On July 16, 2012, Travelers Casualty and Surety Company of America
following. Reginella Construction Company, Ltd. (hereinafter individually
) is a general contractor that is engaged in construction within the
7/16/12, at ¶ 8. In 2009, Appellants approached Travelers and requested
that Travelers issue them surety bonds for their public and private
construction projects. Id. at ¶ 10. Travelers then issued certain surety
the Derry Area School District (in Pennsylvania). Id. at ¶ 16. Further,
Appellants and Travelers executed a general agreement of indemnity,
Id. at ¶ 14.
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According to Travelers, Appellants defaulted upon the construction
contracts with the Ohio Turnpike Commission and the Moon Area School
District by doing such things as: failing to pay their subcontractors and
suppliers for work performed and material furnished on the projects; failing
to complete the work on the projects in a competent and timely manner;
and, improperly staffing the work sites. Id. at ¶¶ 19-64. As a result of
these defaults, Appellants defaulted under the terms of the Traveler
bonds and, moreover, exposed Travelers to liability under the bonds.
Travelers thus levied a number of claims against Appellants, including:
breach of contract, common law indemnification, contractual indemnification,
and exoneration. Id. at ¶¶ 65-85.
Counterclaim, and Complaint to Join Additional Defendants Pursuant to 42
Pa.C.S.A. §
asserted five counterclaims agains -party
the three-party bond agreement for the Ohio Turnpike [Commission]
-party bond agreement for the Derry [Area
indemnification agreement] and the implied covenant of good faith and fair
to Join, 12/21/12, at ¶¶ 67-105.
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contractual claims against a host of additional defendants, including: the
Ohio Turnpike Commission, various subcontractors on the Ohio Turnpike
project, the Moon Area School District, and the Derry Area School District.
Id. at 149-265.
On January 23, 2013, the Ohio Turnpike Commission filed preliminary
objections, the Commission asserted a number of grounds for relief. The
Pennsylvania courts lack subject matter jurisdiction over the Commission.
The Commission 21-26. As the
and be sued . . . in the court of common pleas of the county in which the
principal office of the commission is located, or in the court of common pleas
of the county in which the cause of action arose if that county is located
Id. at ¶ 22; Ohio Rev. Code § 5537.04(a). Since Appellants
did not bring their action against the Commission in either of the two
designated fora, the Commission claimed that the complaint against it must
Preliminary Objections, 1/23/13, at ¶¶ 21-26.
The Commission also claimed that the trial court must dismiss
Appellants Id. at ¶¶ 27-30.
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Specifically, the Commission claimed its contract with Appellants contains a
[between the parties] shall be brought only in the court of common pleas of
Cuyahoga County, Ohio or of the county in the State in which the Project is
Id. at
¶ 29.
On September 19, 2013, the trial court issued a memorandum and
or
above-summarized preliminary objections. Thus, the trial court concluded
upon lack of subject matter jurisdiction and the forum selection clause. Trial
Court Memorandum and Order of Court, 9/19/13, at 2-5.
Notwithstanding the fact that the underlying lawsuit is still ongoing
Turnpike Commission on October 7, 2013, Appellants filed a notice of
claim that the trial court erred in dismissing its complaint against the
Commission. We, however, lack jurisdiction to consider the current appeal.
whether the [order appealed from] is properly appealable, because the
Commonwealth v. Borrero
general rule is that, unless otherwise permitted by statute, only appeals
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Commonwealth v.
Sartin, 708 A.2d 121, 122 (Pa. Super. 1998). In relevant part, Pennsylvania
1
not final, as it
Turnpike Commission; all of the other parties and claims in the case remain
active and pending in the trial court. Therefore, the current order
constitutes a non-final, interlocutory order.
Interlocutory orders are appealable in certain circumstances. Our
Supreme Court has explained:
in addition to an appeal from final orders of the Court of
Common Pleas, our rules provide the Superior Court with
jurisdiction in the following situations: interlocutory appeals
that may be taken as of right, Pa.R.A.P. 311; interlocutory
appeals that may be taken by permission, Pa.R.A.P. [312];
appeals that may be taken from a collateral order, Pa.R.A.P.
313; and appeals that may be taken from certain
342.
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1
e two
categories are not applicable to the current appeal.
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Commonwealth v. Garcia, 43 A.3d 470, 478 n.7 (Pa. 2012) (internal
quotations omitted), quoting McCutcheon v. Phila. Elec. Co., 788 A.2d
345, 349 n.6 (Pa. 2002).
Here, Appellants did not ask for or receive permission to appeal the
interlocutory order (per Pa.R.A.P. 312) and Appellants have not provided this
Court with any argument as to whether or how the order could satisfy
the collateral order doctrine (per Pa.R.A.P. 313).
Appellants do, however, claim that the September 19, 2013 order is
appealable under Pennsylvania Rule of Appellate Procedure 311(c). This rule
declares:
(c) Changes of venue, etc. An appeal may be taken as of
right from an order in a civil action or proceeding changing
venue, transferring the matter to another court of
coordinate jurisdiction, or declining to proceed in the matter
on the basis of forum non conveniens or analogous
principles.
Pa.R.A.P. 311(c).
The note to Rule 311(c) provides further explanation as to the types of
orders to which the rule applies:
Subdivision (c) covers orders that do not sustain venue,
e.g., orders under Pa.R.C.P. 1006(d) and (e).
However, the subdivision does not relate to a transfer under
42 Pa.C.S. § 933(c)(1) (concurrent and exclusive
jurisdiction), 42 Pa.C.S. § 5103 (transfer of erroneously
filed matter) or under any other similar provision of law,
beca
that there shall be no right of appeal from a transfer order
based on improper subject matter jurisdiction. Such orders
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may be appealed by permission under [Pa.R.A.P.] 312, or
an appeal as of right may be taken from an order dismissing
the matter for lack of jurisdiction. Balshy v. Rank, 490
A.2d 415 (Pa. 1985).
Other orders relating to subject matter jurisdiction (which
for this purpose does not include questions as to the form of
action, e.g., as between law and equity, or divisional
assignment, see 42 Pa.C.S. § 952 (status of court
divisions)) will be appealable under Rule 341 if jurisdiction
is not sustained, and otherwise will be subject to Rule 312.
Pa.R.A.P. 311(c) note.
At the outset, we reiterate the fact that the trial court dismissed
clause and because it concluded that it lacked subject matter jurisdiction
over the action. Hence, even if we were to conclude that we had jurisdiction
error, we would still be unable to provide Appellants with any practical relief
in this case. This is because we unquestionably have no jurisdiction to
jurisdiction grounds.2 Therefore, even if the trial court erred in dismissing
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effectively a ruling on venue based on the venue provision of the Ohio
diction
over that portion of the order. See, e.g., Sheard v. J.J. DeLuca Co., 92
competency of a court to hear and decide the type of controversy
(Footnote Continued Next Page)
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the complaint on the basis of the forum selection clause, the complaint
would remain dismissed
jurisdiction ruling.
Regardless, we conclude that Rule 311(c) does not encompass the trial
its entirety.
When the trial court determined that the forum selection clause
in Ohio, the trial co
lack authority to transfer cases to the courts of our sister states, dismissal of
the action is the only permissible resul Alford v. Phila. Coca-Cola
Bottling Co., 531 A.2d 792, 794 (Pa. Super. 1987). As Rule 311(c)
declares, it allows for an interlocutory appeal as of right from an order
changing venue, transferring the matter to another court of coordinate
jurisdiction, or declining to proceed in the matter on the basis of forum non
_______________________
(Footnote Continued)
ned above, we clearly do not possess subject
subject matter jurisdiction grounds. Therefore, we simply have no power to
consider the portion of the order dismissing the complaint on subject matter
jurisdiction grounds and we have no power to determine whether the trial
See In re Adoption of Z.S.H.G., 34
A.3d 1283, subject matter jurisdiction concerns
the court's authority to consider cases of a given nature and grant the type
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conveniens
and it did so because of a contractual
provision that required Appellants to bring its action against the Commission
in Ohio.
the
basis of forum non conveniens
As our Supreme Court has held, the doctrine of forum non conveniens
permits a court to
Bratic v.
Rubendall, ___ A.3d ___, 2014 WL 4064028, at *4 (Pa. 2014), quoting
Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156 (Pa. 1997)
(internal quotations omitted).
n
the Ohio courts of common pleas not because of any concerns about
oppressiveness or vexation to the defendant. Id.
thus analogous to the dismissal of a complaint based upon the lack of
subject matter jurisdiction and, as we have explained, Pennsylvania Rule
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of Appellate Procedure 311 does not encompass such an order. We must
therefore quash this appeal.
Appeal quashed.
Bender, P.J.E., joins the memorandum.
Fitzgerald, J., concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/5/2014
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