Gardner, F. v. Consolidated Rail Corporation , 2014 Pa. Super. 193 ( 2014 )

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2014 PA Super 193FRANK E. GARDNER AND THOMAS C. IN THE SUPERIOR COURT OF
COSTEA, PENNSYLVANIA
Appellees
v.
CONSOLIDATED RAIL CORPORATION
AND NORFOLK SOUTHERN RAILWAY
COMPANY,
Appellants Nos. 1211 & 1212 EDA 2013
Appeal from the Order Dated April 10, 2013
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): June Term, 2012, No. 04013
BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.
OPINION BY BOWES, J.: FILED SEPTEMBER 09, 2014
Consolidated Rail Corporation and Norfolk Southern Railway Company
appeal from the April 10, 2013 order that granted reconsideration of a final
appealable order entered on February 19, 2013. As the court was without
jurisdiction to modify its February 19, 2013 order, we vacate the order dated
April 10, 2013 and remand for entry of an order transferring this action to
the Court of Common Pleas of Blair County.
Appellees, Frank E. Gardner and Thomas C. Costea, instituted this
action on June 29, 2012 by writ of summons. In their September 14, 2012
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*
Retired Senior Judge assigned to the Superior Court.
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complaint, Appellees alleged that this lawsuit was brought pursuant to the
et seq. and that, due to
bodily injury during the course of their employment with Appellants.
Mr. Gardner allegedly sustained degenerative joint disease in his right
shoulder and osteoarthritis of the right knee during his employment with
Appellants, while Mr. Costea purportedly contracted degenerative disc and
joint disease and other similar injuries performing services for them.
Appellants filed an answer and new matter, including a request that the case
be transferred due to improper venue.
After Appellees filed a response to the new matter, Appellants filed a
motion to transfer venue of this matter based upon forum non conveniens
pursuant to Pa.R.C.P. 1006(d)(1). Appellants averred that Appellees lived
and worked in Blair County during the course and scope of their employment
with Appellants. In an order dated February 19, 2013 and entered February
20, 2013, the trial court granted the motion to transfer venue. The docket
establishes that notice of the February 19, 2013 order was given by the
prothonotary pursuant to Pa.R.C.P. 236. Appellees filed a motion for
reconsideration on February 21, 2013, but they failed to file a direct appeal.
On April 10, 2013, the trial court granted the motion for reconsideration and
vacated its February 19, 2013 order. This timely appeal followed.
Appellants raise the following contentions:
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1. Whether the trial court erred in considering and granting
Plaintiffs' Motion for Reconsideration of its February 19, 2013
Order of Court transferring this matter to Blair County,
Pennsylvania more than thirty (30) days after entering this
Order?
2. Whether the trial court erred in vacating its initial
decision to grant the Railroad Defendants Motion to Transfer this
case to Blair County, Pennsylvania, when it issued its reversal
order more than thirty (30) days after initially granting
Defendants' Motion, in violation of 42 Pa. C.S. § 5505?
We agree that on April 10, 2013, the trial court no longer had
jurisdiction to reconsider and vacate its order transferring venue since more
than thirty days had lapsed since entry of the order. We therefore vacate
the April 10, 2013 order and remand this case for transfer to the Court of
Common Pleas of Blair County. Initially, we note that a motion granting a
forum non conveniens is a
final appealable order. Bratic v. Rubendall, 43 A.3d 497, 499 n.2
(Pa.Super. 2012) reversed on other grounds, 2014 WL 4064028 (Pa. 2014);
civil action or proceeding changing venue . . . on the basis of forum non
conveniens. (g)(1)(ii) ( Where an interlocutory order is
immediately appealable under this rule, failure to appeal . . . shall constitute
a waiver of all objections to jurisdiction over the person or over the property
involved or to venue, etc. and the question of jurisdiction or venue shall not
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t 4.1
The February 19, 2013 order, which was adverse to Appellees, had to
be appealed within thirty days. Pa.R.A.P. 903(a). The failure to file a timely
appeal from a final order results in that order becoming res judicata on the
issue decided therein. In re Estate of Karschner, 919 A.2d 252, 256
renders the doctrine of res judicata
Additionally, it is well-settled that a motion for reconsideration, unless
expressly granted within the thirty-day appeal period, does not toll the time
period for taking an appeal from a final, appealable order. Valley Forge
Center Associates v. Rib-It/K.P., Inc., 693 A.2d 242 (Pa.Super. 1997).
As we noted in Valley Forge ere filing of a motion for
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Id. at 245.
Co
original order, or the filing of a notice of appeal will vitiate the jurisdiction of
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We note that Appellees cite to a Delaware case in arguing that the order
granting the motion to change venue was not a final order.
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Id rial court fails to grant reconsideration expressly within the
prescribed 30 days, it loses the power to act upon both the petition [for
Id.; see also PNC Bank, N.A. v.
Unknown Heirs, 929 A.2d 219, 226 (Pa.Super. 2007). These principles are
premised upon application of 42 Pa.C.S. § 5505, which is invoked by
may modify or rescind any order within 30 days after its entry . . . if no
appea
In this case, the February 19, 2013 order transferring venue was
entered on February 20, 2013, and proper notice was sent to the parties
that day. Thus, the trial court herein lost jurisdiction to alter the February
20, 2013 order after March 22, 2013. On April 10, 2013, the trial court
could no longer grant the petition for reconsideration of the February 20,
2013 order, nor did it have the power to change that order. The April 10,
2013 order is invalid since it was entered after the trial court was divested of
jurisdiction to act in this case.
The April 10, 2013 order is vacated. This action is to be transferred to
the Court of Common Pleas of Blair County pursuant to the February 19,
2013 order. Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2014
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