Judges Opinions Public Notices, — March 2, 2022 10:12 — 0 Comments

Public Notices, March 2, 2022

Volume 59, No. 31

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

NOTICE OF TRUST ADMINISTRATION

ORPHANS’ COURT DIVISION NOTICES

NOTICE OF DISSOLUTION

 

TABLE OF CONTENTS

In Re: 64 Vehicle Accident on Interstate 78 on February 13, 2016

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF GLENDA M. FOX, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Eric Fox, Co-Executor

 

Traci Long, Co-Executor

 

George E. Christianson, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF GEOFFREY R. KENNEDY, late of 310 W. Jackson Avenue, Jackson Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Georgene K. Hobwood, Administratrix

2327 Brownsville Road

Robesonia, PA 19551

 

Terry D. Weiler, Esquire

213 East Lancaster Avenue, Suite One

Shillington, PA 19607

 

ESTATE OF LUIS T. MORALES, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Melissa A. Morales, Executrix

 

Samuel G. Weiss, Jr, Esquire

Weiss Burkett, LLC

802 Walnut Street

Lebanon, PA 17042

 

ESTATE OF GORDON EDWARD HEISHMAN, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Steven E. Heishman, Executor

1109 Harvest Drive

Lebanon, PA 17046

 

Edward Coyle, Esquire

Buzgon Davis Law Offices

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF JAMES FABIOCHI, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF MARIAN J. MEILY, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Sheri A. Richard, Executrix

 

Jeffrey F. Arnold, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF JEAN E. MILLER, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Brenda A. Beegle, Executrix

118 East Queen Street

Jonestown, PA 17038

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF LYDIA M. MARTIN, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Larry M. Martin, Co-Executor

1010 Old Line Road

Manheim, PA 17545

 

Elmer M. Martin, Jr., Co-Executor

1222 Schaeffer Road

Lebanon, PA 17042

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF CLARENCE KRAMMES, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

William Buchanan, Jr., Executor

Ryan W.C. Buchanan, Esquire
Fink & Buchanan Law Offices, LLC
158 W. Gay Street, Suite 204
West Chester, PA 19380

 

ESTATE OF JARVIS K. SENSENIG, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrators.

 

William L. Sensenig, Administrator

 

Mary Jane Sensenig, Administrator

 

Ashley Glick, Esquire

Kling, Deibler & Glick, LLP

131 W. Main Street

New Holland, PA 17557

 

ESTATE OF NANCY E. WHIPPLE, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Carol A. Whipple, Executor

 

Megan C. Huff, Esquire

Nestico Druby, P.C.

1135 East Chocolate Avenue, Suite 300

Hershey, PA 17033

 

ESTATE OF VIVIAN M. DELUCA, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Kimberly A. Fogelman and Linda J. DeLuca, Co-Executors

 

George W. Porter, Esquire

909 E. Chocolate Ave.

Hershey, PA 17033

 

ESTATE OF RUSSELL DELUCA, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Kimberly A. Fogelman and Linda J. DeLuca, Co-Executors

 

George W. Porter, Esquire

909 E. Chocolate Ave.

Hershey, PA 17033

 

ESTATE OF CAROLYN S. THOMPSON a/k/a CAROLYN SUE THOMPSON, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased January 5, 2022. Letters Testamentary have been granted to the undersigned Executor.

 

Charles Ross, II, Executor

1350 Fox Glenn Drive

Hummelstown, PA 170326

 

Elizabeth H. Feather, Esquire

Caldwell & Kearns, P.C.

3631 North Front Street

Harrisburg, PA 17110

(717) 901-5948

 

SECOND PUBLICATION

 

ESTATE OF DEAN A. HECK, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Connie M. Heck, Executor

 

John M. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

ESTATE OF EDITH J. MILLER, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Chad L. Miller, Co-Executor

 

Linda Funk, Co-Executrix

 

Charles A. Ritchie, Jr., Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, PA 17003

ATTORNEY

 

ESTATE OF MARY S. LEHMAN, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Wilmer H. Lehman, Co-Executor

1207 Schaeffer Road

Lebanon, PA 17042

 

Linda Jean Martin, Co-Executor

500 Old Staver Road

Reinholds, PA 17569

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF DOROTHY L. SPURIGO, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Laura T. Spurigo, Executrix

124 Michters Road

Newmanstown, PA 17073

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF MICHAEL Z. HORNING, late of Richland Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Marie W. Martin, Executrix

1018 Rabbit Hill Rd.

Lititz, PA 17543

 

  1. Douglas Good, Esquire

Good & Harris, LLP

132 W. Main St.

New Holland, PA 17557

 

ESTATE OF HARRY C. KOLOSKI a/k/a HARRY KOLOSKI, late of Quentin Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Linda M. Fircha & Jan T.R. Bathurst, Co-Executors

2525 Quentin Road, Box 1069

Quentin, PA 17042

 

Eugene P. Koloski, Co-Executors

2768 W. Seneca Turnpike

Marcellus, NY 13108

 

Attorney for the Estate

Zachary D. Morahan, Esq.

Coughlin & Gerhart, LLP

21-23 Public Avenue

Montrose, PA 18801

 

ESTATE OF CARL H. SPITLER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Shari A. Lewis, Executrix

533 Windsor Court

Hummelstown, PA 17036

 

David R. Warner Jr., Esquire

Buzgon Davis Law Offices

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF SHIRLEY M. SHAAK, A/K/A SHIRLEY MAE SHAAK, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Darlene DeHart Kidder, Executrix

4 Village Drive

Newmanstown, PA 17073

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF AMANDA F. LESHER, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters of Administration, C.T.A., have been granted to the undersigned Administrator, C.T.A.

 

Raegan J. Lesher, Administrator, C.T.A

 

Samuel G. Weiss, Jr, Esquire

Weiss Burkett, LLC

802 Walnut Street

Lebanon, PA 17042

Attorney

 

ESTATE OF EDWARD P. ROZNOWSKI, JR., late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Edward P. Roznowski III, Executor

340 E. Pershing Avenue

Lebanon, PA 17042

 

Edward Coyle, Esquire

Buzgon Davis Law Offices

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF RICHARD A. ZELLERS, late of Jonestown Borough, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

James E. Zellers, Administrator

1001 E. Maple Street

Lebanon, PA 17046

 

Edward Coyle, Esquire

Buzgon Davis Law Offices

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF ESTHER B. JORDAN, a/k/a ESTHER ALMEDA JORDAN, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Karen J. Sandoe, Co-Executor

801 Hilltop Road

Myerstown, PA 17067

 

Roberta J. Hoffert, Co-Executor

69 Sweet Birch Lane

Womelsdorf, PA 19567

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF GLENN E. SCHAEFFER a/k/a GLENN EUGENE SCHAEFFER, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Pearl L. Mead, Executor

421 Sunnyside Road

Newmanstown, PA 17073

 

John D. Enck, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

Attorney

 

THIRD PUBLICATION

 

ESTATE OF LORETTA J. PETERS, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Virginia L. Keppley, Executrix

861 Stracks Dam Road

Myerstown, PA 17067

 

Edward Coyle, Esquire

Buzgon Davis Law Offices

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF CAROLE FAYE KOONS, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Scott D. Koons, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF GLENN L. MOYER, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Patricia L. Vogelsong, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF BETTY J. KLESS, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Barbara A. Matteson, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF JENNINGS A. HOPKINS, late of Jonestown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Brett A. Hopkins, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF CHRISTINE M. SHAY a/k/a CHRISTINE MARY SHAY, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Robert Bruce Shay, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF NANCY L. TORRES, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Jeffrey A. Miller, Executor

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF JAMES E. BALSBAUGH, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Danielle R. Short, Administratrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF KEVIN J. MIKELSON, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Jessica Sanders, Administratrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF BARRY R. DAVIS, late of Bethel Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Andrea M. Warner, Executrix

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF MARY C. ROBERTS, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Patricia J. Roberts, Executrix

 

Loreen M. Burkett, Esquire

Weiss Burkett, LLC

802 Walnut Street

Lebanon, PA 17042

Attorney

 

NOTICE OF TRUST ADMINISTRATION

 

NOTICE OF TRUST ADMINISTRATION of the Beverly M. Fortran Living Trust dated 7/10/2001, as amended (the “Trust”), following the death of Beverly M. Fortran, late of Lebanon, Lebanon County, Pennsylvania on January 2, 2022 (the “Decedent”), is hereby given.

 

All persons having claims against the Decedent or Trust are requested to present them for settlement and all persons indebted to the Decedent or Trust are requested to make immediate payment to:

 

Ellis Lee Hostetter and Shirley Hostetter, Successor Death Co-Trustees

660 Wedgewood Drive,

Lebanon, PA 17042

 

Or to:

Edward P. Seeber, Esquire

JSDC Law Offices

11 East Chocolate Avenue, Suite 300

Hershey, PA 17033

(717) 533-3280

 

ORPHANS’ COURT DIVISION NOTICES

 

Court of Common Pleas of Lebanon County

 

Notice is hereby given that the following accounts in decedents estates, Guardianships and trusts

have been filed in the Office of the Register of Wills and Clerk of Orphans’ Court of Lebanon

County, and that the same will be presented to the Court of Common Pleas-Orphans’ Court

Division of said County for Confirmation NISI on

 

Monday, February 4, 2022

At 10:00 A.M.

in Courtroom No. 1, Municipal Building, City of Lebanon

 

FIRST AND FINAL ACCOUNTS WITH PROPOSED SCHEDULE OF DISTRIBUTION

FILED BY EXECUTORS OR ADMINISTRATORS

 

  1. Barthalow, Frances J., dec’d., Joseph P. Renik, Jr., Exr., George Christianson, Atty.
  2. Edris, Ruth K., dec’d., Nancy L. Chandler, Exrx., John M. Zimmerman, Atty.er

 

All of the aforesaid accounts and statements of Proposed Distribution will be confirmed

ABSOLUTELY as of course by the said Orphans’ Court except those to which exemptions are

filed within twenty (20) days after the same are confirmed NISI.

 

Brian Craig

REGISTER OF WILLS AND CLERK OF ORPHANS’ COURT

LEBANON COUNTY, PENNSYLVANIA

 

 

NOTICE OF DISSOLUTION

Of NDM INVESTMENT LLC

 

Pursuant to 15 Pa.C.S. §8875, NDM Investment LLC has elected to dissolve and is now

winding up its affairs. All claims must be made in writing and include the amount, origination

date and basis of the claim and must be sent to 249 Oak Lane, Palmyra PA 17078. All claims

against the limited liability company are barred unless an action to enforce is commenced within

two years after the date of this publication.

 

Raymond A. Durkin, Jr.

Appel, Yost & Zee LLP

Attorneys

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGE’S OPINION

 

In Re: 64 Vehicle Accident on Interstate 78 on February 13, 2016

 

Civil Action-Law-Motor Vehicle Accident-Tort-Multiple Actions-Multiple Jurisdictions-Motion to Coordinate-Fair and Efficient Adjudication-Choice of Forum-Due Process-Site of the Accident-Liability-Damages

 

A Motion to Coordinate all litigation in Lebanon County, Pennsylvania, was filed by multiple Defendants involved in litigation filed in five (5) jurisdictions relating to a sixty-four (64) vehicle pile-up accident that occurred during a snow squall on February 13, 2016 on Interstate 78 in Lebanon County through which three (3) individuals died and numerous individuals sustained injuries.

 

  1. Pa.R.C.P. Rule 213.1(a) provides that to seek coordination of actions, a party must file a motion to coordinate actions in different counties that all involve a common question or law or fact or that arise from the same transaction or occurrence.

 

  1. The purpose of a motion to coordinate is to prevent duplication of efforts by the courts and inconsistent rulings.

 

  1. The trial court has great discretion in determining whether to grant a motion for coordination.

 

  1. The court must determine whether coordination is a fair and efficient method of adjudicating the controversy despite the deference that must be given to a plaintiff’s chosen forum.

 

  1. In determining whether to coordinate actions, Rule 213.1 requires that the court consider whether the common question or fact or law is predominating and significant to the litigation, the convenience of the parties, witness and counsel, whether coordination will result in unreasonable delay or expense to a party or otherwise prejudice a party in an action subject to coordination, the efficient utilization of judicial facilities and personnel including the just and efficient conduct of the actions, the disadvantages of duplicative and inconsistent rulings and the likelihood of settlement of the actions without further litigation without coordination.

 

  1. Under Pennsylvania law, there is no due process prohibition against complex trials.

 

  1. In light of the fact that common issues of law and fact govern all of the collisions that are subject to coordination, the accident occurred in Lebanon County, the majority of first responders at the accident who will be called to provide testimony at trial reside or work in Lebanon County, Defendants all indicated that discovery has progressed more expeditiously under the Coordination Order than it would have in separate cases, Lebanon County has only a minimal civil case backlog and is capable of setting aside five (5) full weeks in 2022 for a coordinated trial, there is a strong likelihood of inconsistent verdicts with separate trials and settlement likelihood with trial anticipated in 2022 would be enhanced by coordination, all factors except for Plaintiffs’ choice of forum support coordination of the actions in Lebanon County.

 

  1. Since there is a clear preference under both Federal and Pennsylvania law for the same jury to determine both liability and damages, liability and damages will be determined by the same jury in Lebanon County.

 

L.C.C.C.P. No. 2018-00326, Opinion by Bradford H. Charles, Judge, August 25, 2021.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF

LEBANON COUNTY, PENNSYLVANIA

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL ACTION – LAW

 

In Re: 64 Vehicle Accident on                            :  NO. 2018-00326

Interstate 78 on February 13, 2016           :

                                                                              

 

ORDER OF COURT

 

AND NOW, this 25th day of August 2021, in accordance with the attached Opinion, the Defendants’ Motion to Coordinate all State Court litigation in Lebanon County is GRANTED.  The further Order of this Court is as follows:

  1. A certified copy of this Order and Opinion are to be provided directly to the judges who are overseeing cases involving the above-captioned accident in the Pennsylvania Middle District Federal Court, Philadelphia County, Lackawanna County and Northampton County. In addition, a copy of this Order and Opinion is to be filed in all twenty-five (25) dockets that arose as a result of the accident in Lebanon County on February 13, 2016.
  2. Discovery shall remain open until December 1, 2021. Any issues or disputes regarding discovery are to be referred to this jurist.
  3. Another Status Conference is to be conducted on the 22nd day of November, 2021 at 1:30pm in Courtroom #3. Two hours has been set aside for this conference.  All counsel of record for all active cases covered under the umbrella of this Order are to appear at the Status Conference.  The plan of this Court is to establish deadlines for disclosure of expert reports, deadlines for dispositive motions, deadlines for motions in limine, a Pre-Trial Conference date and a trial date.

 

BY THE COURT:

 

BRADFORD H. CHARLES

 

BHC/pmd

cc:     Court Administration

All counsel by email – Certificate of Service Attached

All Judges by email

President Judge John C. Tylwalk

 

 

 

 

 

 

 

 

 

 

 

 

 

In Re: 64 Vehicle Accident on                            :        No. 2018-00326

Interstate 78 on February 13, 2016           :

                                                                              

 

CERTIFICATION OF SERVICE

I certify that a true and correct copy of the above-referenced Order was sent via email to the persons listed below on the date indicated:

 

M. Lee Albright Esquire malbright@geico.com
Kevin Allen Esquire kevin@crystleallen.com
Matthew Allen Esquire matthew.allen@courts.phila.gov
Jamie Anzalone Esquire Jamie.Anzalone@anzalonelaw.com
Zachary Ballard Esquire zballard@srstlaw.com
Stephen Baratta Judge NJones@Northamptoncounty.org
Michael Barrasse Judge mbarrasse@gmail.com
William Barrett Esquire barretw@nationwide.com
Jenna Mintzer Benton Esquire jbenton@defensecounsel.com
Mitchell Berger Esquire berger@ryanbrown.com
Seth Black Esquire sblack@summersmcdonnell.com
Joseph Bonfig Esquire jrbonfig@zarwin.com
Jessica Bowman Esquire jbowman@themayersfirm.com
Thomas Bracaglia Esquire tpbracaglia@mdwcg.com
Gary Brascetta Esquire GBrascetta@lowenthalabrams.com
Josh Brick Esquire Brick@LitchfieldCavo.com
Joseph Swist Esquire jswist@best-lawyers.com
Joanna Buchanico Esquire jdbuchanico@mdwcg.com
Patricia Burns Horn Esquire pattihorn@burnshorn.com
Cynthia Certo Esquire certo@ryanbrown.com
Ed Ciarimboli Esquire ejc@fclawpc.com
Samuel Cohen Esquire scohen@grossmcginley.com
Adrian Cousens Esquire acousens@grossmcginley.com
Daniel Cummins Esquire dancummins@cumminslaw.net
Kathleen Dapper Esquire kpdapper@burnswhite.com
Robert Dapper Esquire redapper@burnswhite.com
Bryson Datt, Jr. Esquire bfdatt@burnswhite.com
James DeCinti Esquire jdecinti@pionlaw.com
Lisa DiBernardo Esquire lisa@flandilaw.com
Dawn Doherty Esquire ddoherty@moodklaw.com
Glenn Dolfi Esquire gddmfd@verizon.net
Matthew Dolfi Esquire mdolfi@dolfilawpc.com
Donald Dorer Esquire dorerd@nationwide.com
George Eager Esquire geager@esqslaw.com
Kathleen Eager Esquire keager@esqslaw.com
Susan Engle Esquire sengle@defensecounsel.com
June Essis Esquire jessis@wglaw.com
Patrick Fitzgerald Esquire Patrick.Fitzgerald@KlineSpecter.com
Charles Fonzone Esquire cfonzone@grossmcginley.com
Kenneth Fromson Esquire kfromson@lawampm.com
Anthony Gabriel Esquire agabriel@margolisedelstein.com
Matthew Garson Esquire mgarson@lavin-law.com
Mark Giannotti Esquire Mgiannotti@moodklaw.com
John Giunta Esquire jgiunta@tthlaw.com
John Croumer Esquire jcroumer@postschell.com
E. Patrick Heffron Esquire pheffron@chartwelllaw.com
Karl Hildabrand Esquire khildabrand@laverylaw.com
John Hohenadel Esquire jphohenadel@n-hlaw.com
Eric Holmes Esquire Eholmes@meyner.com
Joseph Hudock, Jr. Esquire jhudock@summersmcdonnell.com
Bryon Kaster Esquire bkaster@dmclaw.com
Rolf Kroll Esquire rkroll@margolisedelstein.com
Daniel Leister Esquire Dan.leister@lewisbrisbois.com
Karl Longenbach Esquire karl.longenbach1@gmail.com
William Longo Esquire wlongo@margolisedelstein.com
David Lutz Esquire lutz@hhrlaw.com
Wade Manley Esquire wmanley@johnsonduffie.com
Thomas Martin Esquire tmartin@feldmanshepherd.com
Joseph B. Mayers Esquire jmayers@themayersfirm.com
Joe McHale Esquire jmchale@travelers.com
Edward McKarski Esquire info@mckarski-law.com
Slade McLaughlin Esquire shm@best-lawyers.com
Claire Cookinham Esquire cmcookinham@burnswhite.com
Andrew Moore Esquire amoore@moore4law.com
Robert Munley III Esquire bobm@munley.com
Joseph Murphy Esquire murphy@bbs-law.com
Patrick Murphy Esquire pmurphy@bbclawfirm.com
Katie Nealon Esquire knealon@munley.com
Arnold New Judge Arnold.New@courts.phila.gov
Ben Novak Esquire bnovak@fhmslaw.com
Nicolas Ortiz Esquire nlo@wlbdeflaw.com
John Pion Esquire jpion@pionlaw.com
Darren Powell Esquire dpowell@johnsonduffie.com
Robert Prignoli Esquire prignoli@aol.com
Frank Procyk Esquire fprocyk@knafo.com
Joseph Pulcini Esquire jpulcini@tthlaw.com
Glenn Ricketti Esquire gricketti@margolisedelstein.com
Brett Riegel Esquire brett@armlawyers.com
Theodore Schaer Esquire tmschaer@zarwin.com
Timothy Schipske Esquire tschipske@srstlaw.com
Edward Shaughnessy Esquire office@edshau.com
Matthew Shusterman Esquire mshusterman@billetlaw.com
Matthew Siegel Esquire msiegel@cozen.com
Bryan J Smith Esquire bjs@dellmoser.com
Steven Snyder Esquire ssnyder@c-law.com
John Statler Esquire johnstatler@johnsonduffie.com
Joseph Swist Esquire JSwist@best-lawyers.com
Andrew VanWagner Esquire avanwagner@lundylaw.com
Thomas Vaughan Esquire tgvaughan@mdwcg.com
James Waldenberger Esquire jim.waldenberger@klinespecter.com
Andre Webb Esquire webba@ggmfirm.com
Ezra Wohlgelernter Esquire ezra@feldmanshepherd.com
Danyelle Yondura Esquire dyondura@moore4law.com

 

 

 

_____________, 2021                          By:_____________________________

Patricia M. Daubert, Office of the

Honorable Bradford H. Charles, J.

 

Table of Contents

 

INTRODUCTION………………………………………………………………………………………………………….. 1

  1. Brief Summary of Facts…………………………………………………………………………………………. 2

Diagram of Accident………………………………………………………………………………………………………. 3

  1. Procedural History……………………………………………………………………………………………. 4-10

III. Legal Principles………………………………………………………………………………………………. 10-19

  1. Analysis………………………………………………………………………………………………………….. 19-39

(1) Common Issue of Fact or Law………………………………………………………………………………… 20-21

(2) Convenience of Parties, Witnesses and Counsel…………………………………………………………. 21-23

(3) Unreasonable Delay or Prejudice……………………………………………………………………………. 23-26

(4) Efficient Use of Judicial Facilities…………………………………………………………………………….. 26-27

(5) Inconsistent Decisions………………………………………………………………………………………….. 27-30

(6) The Likelihood of Settlement…………………………………………………………………………………. 30-31

Additional Considerations……………………………………………………………………………………….. 31

(1) Plaintiff’s Choice of a Forum………………………………………………………………………………………. 32

(2) Situs of the Accident…………………………………………………………………………………………….. 33-34

(3) Dispositive Motions and Evidence Rulings………………………………………………………………… 34-37

(4) Due Process……………………………………………………………………………………………………….. 37-39

  1. Coordination of Liability Only……………………………………………………………………….. 39-44
  2. Methodology of Trial……………………………………………………………………………………… 44-45

VII. Conclusion…………………………………………………………………………………………………….. 45-46

 

End Notes…………………………………………………………………………………………………………….. 47-50

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF

LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION – LAW

 

In Re: 64 Vehicle Accident on                            :  NO. 2018-00326

Interstate 78 on February 13, 2016           :

                                                                              

                  

 

 

OPINION BY CHARLES, J., August 25, 2021

 

On February 13, 2016, sixty-four vehicles became involved in a pile-up accident on Interstate 78 in northern Lebanon County.  As a result of that accident, twenty-three (23) lawsuits were filed in five (5) jurisdictions.[1]  A  Motion to Coordinate all litigation in Lebanon County was filed by multiple defendants.  After consultation with all counsel, this Court rendered a decision to coordinate discovery in Lebanon County.  We deferred a final decision about coordination of trial until a later date.  Today is that later date.  For reasons we will articulate comprehensively below, we will grant the Motion to Coordinate all future proceedings.

 

 

 

 

  1. BRIEF SUMMARY OF FACTS

On February 13, 2016, a snow squall developed in northern Lebanon County where it is traversed by Interstate 78.  A group of motorists were traveling west-bound on I-78 at the time the snow squall developed.  Unfortunately, sixty-four (64) of these motorists were unable to avoid colliding with one another.  Sadly, three (3) died and numerous people were injured in the ensuing vehicular melee.

A Pennsylvania State Police helicopter took an aerial photograph depicting the aftermath of the 64-vehicle pile-up.  That photograph was provided to the Court.  Using part of the 3,500 page police report, a law clerk for the undersigned undertook the labor-intensive job of labeling each vehicle and creating an index with each driver’s name.[2]  This visual aid has been used by the parties and the Court in multiple contexts since its creation.  It is included as part of this Opinion on the next page:

 

 

 

 

 

 

 

 

 

 
 

 

 

 
3

 

  1. PROCEDURAL HISTORY

 

Very shortly after the accident occurred, numerous lawsuits were commenced.  Eventually, twenty-three (23) lawsuits were filed in five (5) different venues.  A chart depicting these lawsuits is as follows:

  • In the Court of Common Pleas of Lebanon County:
  • Pear, No. 2017-00059
  • Figueroa, No. 2017-01788
  • Figueroa, No. 2018-00059,
  • Figueroa, No. 2018-00180

o  Young, No. 2018-00304 (settled)

o  Ehler, No. 2018-00307

o  Total Transportation, No. 2018-00313

o  Napolitano, No. 2018-00314 (settled)

  • Anderson and Buckley, No. 2018-00118
  • In the Court of Common Pleas of Philadelphia County:

o Bellacicco, No. 170104867

o Casale & Mollenkopf, Nos. 170601175 and 180105396

o Cichocki, No. 180105714

o Pear, No. 1801034954

o Ruck-Perry, Nos. 170601412 and 180200983

o Sepe, No. 1801051566 (settled)

  • In the Court of Common Pleas of Lackawanna County:

o Vidito, No. 18-cv-l 118

  • In the Court of Common Pleas of Northampton County:

o Holland, No. C-0048-CV-2016-01521

  • In the United States District Court for the Middle District of Pennsylvania:

o Lesko, No. l:18-cv-00064 (settled)

o Anderson, No. 1:17-cv-01904

o Petit, No. l:18-cv-00187

o Montemarano, No. 1:16-cv-02181

o New Prime, No. l:18-cv-00226

 

Although each lawsuit identified different defendants, there were several defendants identified in practically every lawsuit.  Those defendants were:

  • Fed-Ex and its driver Shota Manvelidze
  • Old Dominion and its driver Danny Fantom
  • Penske and its driver Alfred Kinnick
  • Transervice Logistics

 

On August 17, 2017, a Motion to Coordinate litigation in Lebanon County was filed by Defendants FedEx Ground Package System, Inc., Shota Manvelidze, and OMG Trucking Corp.  We entered an order temporarily staying each of the cases affected and we scheduled a conference/oral argument with all counsel for the 27th day of November, 2017.  At that conference, a general consensus was reached that discovery should be coordinated in Lebanon County and that a final decision regarding coordination for trial should be deferred until after that discovery had been concluded.

We issued an extensive Court Order dated February 21, 2018 to facilitate coordination of discovery.  Among other things, we directed the following:

  • We created an omnibus docket at which documents pertaining to discovery, case management and scheduling could be filed so that duplicative documents need not be filed in every single individual docket. The omnibus docket was designated as 2018-00326.
  • We directed that periodic status conferences be conducted regarding discovery.
  • The question of “how, where and when” trial will occur was deferred until a later date.

We will not kill trees by summarizing everything that was filed within the past several years in what we have characterized as the “Omnibus I-78 Docket”.  However, it is worth noting that identical decisions were rendered in both Lebanon County and Philadelphia County approving the joinder of Leonid Samsonenko as an additional party based upon information that Mr. Samsonenko had moved the vehicle he was driving from where it had been located immediately following the accident to a location that was not depicted in the aerial photograph included earlier in this Opinion.

Throughout the coordinated discovery process, this jurist has been in communication with judges located in all the other counties where lawsuits were filed.  In addition, this jurist has remained in communication with Judge Christopher Connor, who is the Administrative Judge for the Federal Court for the Middle District of Pennsylvania.  In mid-2020, this Court extended the deadline for discovery because the pandemic had impacted the parties’ discovery efforts.  At the same time, we became sensitive to the fact that other jurisdictions were maintaining cases involving the I-78 accident on their dockets.  We therefore committed to all of our colleagues that we would render a decision regarding coordination of trial by the end of the summer or 2021.  We advised all counsel of our commitment to our colleagues.  We set an initial deadline of March 1 for briefs and factual submissions regarding coordination.  That deadline was then extended until June 1 and then for a final time until June 15.  By June 15, we received briefs from all interested parties.  After review of those briefs, we determined that a Factual Hearing regarding coordination would not be needed.  However, we did perceive the value of oral argument.  Oral argument was therefore scheduled for July 16, 2021.  We appointed three lead counsel to argue the primary positions advocated by all concerned.

On July 16, 2021, this Court received the benefit of oral argument regarding the Motion for Coordination.  Several counsel requested that we delay a coordination decision.  Citing the promise we had made to our colleagues in other jurisdictions, we declined further delay and reiterated our promise to render a coordination decision prior to September of 2021.

At oral argument, the Defendants were united in their request for coordination.  The Defendants argued that coordination was the only way to ensure consistency with respect to dispositive motions, pre-trial motions in limine and evidentiary rulings at trial.  The Defendants argued that a coordinated trial would be more convenient for everyone involved in the litigation.  They also were unanimous in their belief that a coordinated trial in Lebanon could be conducted far sooner than all of the separate trials could be completed.

The defense acknowledged that a coordinated trial would be difficult to conduct.  However, the Defendants were confident that settlement could be reached in many of the still-pending cases.  The defense predicted that once a decision was made regarding coordination and summary judgment, settlements would likely occur, especially if the Defendants could be assured that predictable, consistent decisions would be rendered on all dispositive and in limine motions.

Plaintiffs responded that convenience does not necessarily favor coordination.  Plaintiffs pointed out that many of the attorneys involved in this litigation have their offices in Philadelphia.  Plaintiffs also pointed out that none of the Plaintiffs or the Defendant drivers resided in Lebanon County.  Plaintiffs argued that litigation in Philadelphia would be more convenient for most of the people involved in this litigation.

Plaintiffs also pointed out how difficult a coordinated trial would be to conduct.  According to Plaintiffs, it would be impossible for a jury to be able to separate and independently analyze the situations confronting each individual driver.  One of the Plaintiff’s counsel even went so far as to argue that a joint trial would violate his client’s Constitutional right to Due Process of Law.

Most counsel agreed that if the proceedings were to be coordinated, a final decision about the methodology of trial could be deferred until the Pre-Trial Conference, when everyone would have a better sense of how many cases will actually have to be tried.[iii]  Because we requested it, however, all counsel proffered ideas as to how a coordinated trial could be conducted.  One Defendant suggested the selection of a so-called “bellwether trial” that could serve as a laboratory experiment of sorts.  This Defendant argued that a bellwether would afford everyone with solid information about how a Lebanon County jury would view the facts of this case.  Other attorneys pointed out that conducting a bellwether trial does not guarantee settlement and opens the door to many of the same problems that coordination is designed to mitigate.  Another Defendant offered the idea of “grouping” cases together predicated upon which of the so-called “blocking defendants” impeded the progress of that grouping.  Other litigants pointed out that selecting groups to be tried would be difficult and maybe impossible.  Of course, everyone acknowledged that establishing groupings at this early date would not be appropriate given the possibility that some cases will settle.

For their part, Plaintiffs also proffered a back-up position to their request for non-coordination.  According to Plaintiffs, Lebanon County could undertake a coordinated liability trial and then shift responsibility to determine damages back to the individual jurisdictions where Plaintiffs chose to file.  The defense pointed out that such a process would still implicate inconvenience for first responders who would undoubtedly be required to testify with respect to both liability and damages.

Following oral argument, we took the issue presented under advisement.  Today, we issue this Opinion to explain and support our decision to undertake a coordinated trial within Lebanon County.

 

 

III.     LEGAL PRINCIPLES

 

A motion for coordination requires careful analysis of many factors, including those explicitly stated in Pa.R.C.P 213.1. (Hereafter “Rule 213.1”) Wohlsen/Crow v. Pettinato Associated Contractors & Eng’rs, Inc., 666 A.2d 701, 704 (Pa. Super. Ct. 1995). To seek coordination, one party must file a motion to coordinate actions in different counties which all “involve a common question of law or fact or which arise from the same transaction or occurrence.” Rule 213.1(a). The general purpose of a motion to coordinate is “to prevent duplication of efforts by the courts and inconsistent rulings.”[iv] Lincoln Gen. Ins. Co. v. Donahue, 616 A.2d 1076, 1079 (Pa. Cmwlth. 1992). This court’s North Star, however, is “whether coordination is a fair and efficient method of adjudicating the controversy” despite the deference that is given to the plaintiff’s chosen forum. Washington v. FedEx Ground Package Sys., Inc., 995 A.2d 1271 (Pa. Super Ct. 2010) (quoting Pa. R.C.P. 213.1 Explanatory Comment 1990). See Lincoln Gen. Ins. Co., 616 A.2d at 1081.

To make this determination, Rule 213.1 requires that we consider, inter alia, the following:

  • whether the common question of fact or law is predominating and significant to the litigation;
  • the convenience of the parties, witnesses and counsel;
  • whether coordination will result in unreasonable delay or expense to a party or otherwise prejudice a party in an action which would be subject to coordination;
  • the efficient utilization of judicial facilities and personnel and the just and efficient conduct of the actions;
  • the disadvantages of duplicative and inconsistent rulings, orders or judgments;
  • the likelihood of settlement of the actions without further litigation should coordination be denied.

 

Rule 213.1(c). Should we decide to grant the motion, we may “(1) stay any or all of the proceedings in any action subject to the order, or (2) transfer any or all further proceedings in the actions to the court or courts in which any of the actions is pending, or (3) make any other appropriate order.” Pa. R.C.P. 213.1(d).

From here, the guidance becomes sparse. The Superior Court has consistently held trial courts have great discretion in determining whether to grant a motion for coordination and which unenumerated factors should be considered. Abrams v. Uchitel, 806 A.2d 1, 7 (Pa. Super. Ct. 2002). The explanatory comment to Rule 213.1 also provides helpful insight by describing a court’s ability to “make any other appropriate order” and employ “creative judicial management.” Rule 213.1 Explanatory Comment 1990. In order to help us determine the state of the law, we have conducted a survey of all Pennsylvania cases involving Coordination motions:

  • Abrams v. Uchtel, 806 A.2d 1 (Pa. Super. Ct. 2002): This case involved several suits arising from a web of deals between several partnerships and corporations. The first three (3) suits were filed in Bucks County and were consolidated. The next three (3) suits were filed in Philadelphia County and were transferred to Bucks County. A final suit was filed in Philadelphia County and a motion for coordination was filed in Bucks County for the seventh suit and the first six (6) suits. The trial court granted the motion without holding a factual hearing. The Superior Court affirmed and noted a trial court has significant discretion over these matters.
  • Geiger v. Rouse, 715 A.2d 454 (Pa. Super. Ct. 1998): Two (2) cases arose from a failure to pay medical bills from a hospital in Montgomery County. The hospital sued its patient, Rouse, and Rouse sued the hospital and her doctor, Geiger. The first of these cases was from Philadelphia County and the second was from Montgomery County, but was consolidated with the first action. Geiger later sued Rouse in Montgomery County. In the “eleventh hour,” Rouse moved to coordinate the third action. The trial court denied the motion due to the unfairness of the motion as a delaying tactic. The Superior Court affirmed due to the trial court’s discretion.
  • Greyhound Lines, Inc. v. TransAm Trucking, Inc., 44 Pa. D & C.4th 353 (Pa. Com. Pl. 2000): Three (3) cases, across several counties, arose from a collision between a Greyhound bus and tractor-trailer that occurred in Huntingdon County. Greyhound moved to coordinate the cases in Huntingdon County. The trial court denied the motion due to the weightiness of Plaintiff’s choice of forum[v] and the purely strategic nature of the motion to coordinate into a rural county.
  • Lampley v. Schaeffer, No. 05-01242, 2005 WL 49847775 (Pa. Com. Pl. Nov. 4, 2005): There is no clear factual background here. There were four (4) cases filed—three (3) in Philadelphia County and one (1) in Chester County. The Chester County plaintiff moved to coordinate in Chester County. The trial court granted the motion by considering the totality of the circumstances including its heavy factual connection between the cases and the tenuous connection to Philadelphia County.
  • Lincoln Gen. Ins. Co. v. Donahue, 616 A.2d 1076 (Pa. Cmwlth. 1992): Several tort suits arose in Delaware County from a car accident. The tort defendants’ insurance agency, Lincoln General, filed an interpleader against the defendants in Lancaster County. The plaintiff moved to coordinate all suits in Delaware County. The trial court granted the motion. The Commonwealth Court affirmed due to the weight given to the plaintiff’s chosen forum, and the overwhelming efficiency of the coordinated forum despite fairness indicating to not coordinate.
  • Orsulak v. Penn Nat’l Mut. Cas. Ins. Co., 24 Pa. D. & C.5th 179 (Pa. Com. Pl. 2011): Two (2) cases, one (1) in Monroe County and one (1) in Luzerne County, arose from a collision in Monroe Country. The first complaint, a breach of contract complaint, was filed in Luzerne County against the Orsulak’s insurance agency. The Orsulaks moved to coordinate the action in Monroe County, where the personal injury suit was filed. The trial court granted the motion by considering the totality of the circumstances.
  • Mfrs.’ Ass’n Ins. Co. v. Pa. State Univ., 63 A.2d 792 (Pa. Super. Ct. 2013): This case involved a Motion to Coordinate a Philadelphia County insurance coverage dispute with a Centre County dispute involving the Gerald Sandusky sexual abuse scandal. The trial court granted the Motion to Coordinate solely on Rule 213.1, plus tangential considerations, and rejected the respondent’s efforts to analyze the issue based solely upon forum non conveniens. The Superior Court affirmed on the basis of the trial court’s discretion and noted that convenience is not an overriding factor.
  • Rogers v. Thomas, No. 12 CV 1464, 2016 WL 6136619 (Pa. Com. Pl. Oct. 21, 2016): This case involved a Motion to Coordinate a Lackawanna County suit with a Susquehanna County suit. Both suits arose from the same shooting incident. The trial court granted the motion by systematically analyzing the six (6) Rule 213.1(c) factors and finding them all in favor of or not impacting coordination. The trial court also noted the burden a foreign case has on a native jury and chose the venue based on which venue was more convenient and which venue was more familiar with the case.
  • Smith v. Donahue, No. 90-14626, 1991 WL 429356 (Pa. Com. Pl. Mar. 11, 1991): This case involved a Motion to Coordinate several Lancaster County interpleaders with Delaware County suits that arose from a single automobile accident. The trial court granted the motion by finding that all six Rule 213.1(c) factors weighed in favor of coordination. The trial court also rejected an assertion that a forum non conveniens motion should impact the Motion for Coordination.
  • Susquehanna Bank v. BPC Partners, No. CI-10-04899, 2011 WL 8908924 (Pa. Com. Pl. Sept. 19, 2011): This suit involved a complex set of facts where Susquehanna Bank filed an action in Lancaster County followed by seventeen (17) additional actions against various defendants, all of whom were owned by or related to the same person, for defaults on loans. The defendants in the Lancaster action, then, filed suit in Delaware County against Susquehanna bank regarding the same loans. And one of the defendants in the Lancaster action filed suit against a lessee for rent. Susquehanna Bank moved to coordinate all actions in Lancaster County. The motion was granted with regard to the Delaware County actions and denied with respect to the Philadelphia County action because Susquehanna was not a party to that suit. The trial court determined five (5) of the six (6) Rule 213.1(c) factors were in favor of coordination. The trial court also noted the only thing necessary for coordination was for the case being coordinated to share common questions of fact or law with one of the actions in the coordinating forum.
  • Joseph Trambellini, Inc. v. Erie Ins. Exch., Nos. G.D. 20-005137, G.D. 20-006901, 2020 WL 7685913 (Pa. Com. Pl. Nov. 19, 2020): This case involved actions in Philadelphia County, Allegheny County, and an action in Lancaster County all alleging Erie wrongfully denied the plaintiffs’ claims for coverage under provisions of Erie’s standard business insurance policies. Several plaintiffs filed a joint Motion to Coordinate the cases in Allegheny County. The trial court granted the motion by systematically determining all six (6) of the 213.1(a) factors were in favor of coordination.
  • Washington v. FedEx Ground Package Sys., Inc., 995 A.2d 1271 (Pa. Super. Ct. 2010): This case involved ten (10) drivers for FedEx Ground suing the company and the CEO in Philadelphia County and two (2) drivers suing in Allegheny County. The drivers were suing over their classification as independent contractors. FedEx moved to coordinate the Philadelphia County actions with the earlier filed Allegheny County actions. The trial court granted the motion. The Superior Court affirmed due to the discretion afforded to the trial court and noted trial courts should take guidance from Rule 213.1’s explanatory comment’s fairness and efficiency considerations.
  • Wohlsen/Crow v. Pettinato Associated Contractors & Eng’rs, Inc., 666 A.2d 701 (Pa. Super. Ct. 1995): This case arose from a contract dispute between a contractor and subcontractor. Wohlsen/Crow, the contractor, filed a primary breach of contract case against Pettinato, the subcontractor, in Lancaster County. Pettinato filed two (2) secondary cases against Wohlsen/Crow over the same contract in Schuylkill County. Then, there were three (3) tertiary cases filed in Schulykill County from third parties against either, or both, Wohlen/Crow and Pettinato. Wohlsen/Crow moved to coordinate the primary case and secondary cases in Lancaster County and the opposing brief argued to coordinate in Schuylkill. The trial court coordinated all six (6) actions in Schuylkill County. The Superior Court affirmed as to the primary and secondary cases but reversed as to the tertiary cases because the motion did not mention those cases. The Superior Court also noted the discretion given to the trial court to consider the totality of the circumstances.

From the above, we glean that the following legal principles govern our analysis in this case:

  • Our primary focus must be upon the six factors enumerated in Rule 213.1;
  • After considering all of the Rule 213.1 factors, we are permitted and encouraged to also consider other scenario-specific factors;
  • We must afford due deference to the plaintiffs’ chosen forum, but the plaintiffs’ choice of venue can be overcome if the coordinating forum is deemed most appropriate based upon all relevant factors;
  • When deciding upon coordination motions, most courts have implicitly or overtly placed emphasis upon the question of where the cause of action accrued. Almost all cases where coordination was approved resulted in a trial within a venue where the accident or cause of action arose;
  • The decision of how and whether to coordinate is within the sound discretion of the court, and trial judges are authorized and urged to use procedural creativity in order to promote fairness and efficiency.

 

 

  1. ANALYSIS

 

Because our decision today will be exclusively predicated on coordination under Rule 213.1, and because the parties have directed their arguments almost exclusively upon coordination, we will focus our analysis on the Defendants’ Motion for Coordination.[vi]  Because any analysis of coordination must begin with the factors set forth in Rule 213.1, we will first discuss each of the six factors set forth in that Rule:

 

 

  • Common Issue of Fact or Law

Every case at issue stems from a sixty-four (64) vehicle pile-up accident that occurred on Interstate 78 in northern Lebanon County on February 13, 2016.  Each and every vehicle involved in the pile-up encountered a sudden snow-squall and slippery road conditions.  Every plaintiff who has initiated suit has alleged vehicular negligence as the theory by which recovery is sought.  Every defendant has alleged comparative fault as a defense.  It is beyond debate that substantial commonality exists between each and every one of the I-78 accident lawsuits that are within the umbrella of this Motion to Coordinate.

Having stated the obvious, a little deeper dive into the issues of this case is necessary.  The plaintiffs argue, with some justification, that each and every collision within the pile-up was separate and distinct.  Plaintiffs point out that each of their vehicles impacted with different vehicles at slightly different locations and in slightly different ways than other plaintiffs’ collisions.  Thus, plaintiffs argue that the cases to be coordinated should be analyzed separately instead of collectively.

While we understand plaintiffs’ arguments, we cannot accept them.  From the beginning of this litigation, it has been apparent to the Court that two separate and distinct theories of negligence have been proffered against each defendant.  We have euphemistically labeled these theories as “blocking”[vii] and “striking”.[viii]  The plaintiffs allege that “blocking defendants” suddenly and unexpectedly blocked oncoming traffic on an Interstate highway where speeds are expected to be in excess of fifty (50) miles per hour.  The “striking” theory is a bit more intuitive; drivers who cannot bring their vehicle to a stop within an “assured clear distance ahead” can be deemed to be negligent for driving at an unsafe speed.

There is some logic supporting plaintiffs’ argument that each striking defendant was confronted with a somewhat different set of circumstances.[ix]  Still, it is patently obvious that “blocking” negligence impacts every separate collision in a way that is inextricably linked.  In fact, it could be persuasively argued that the truth of what occurred in the pile-up accident could be obscured by forcing juries to evaluate only small pieces of a far larger puzzle.

It is the opinion of this Court that common issues of law and fact govern each and every one of the I-78 collisions that are subject to coordination.  Accordingly, the first factor of Rule 213.1 will be weighed in favor of coordination.

 

  • Convenience to Parties, Witnesses and Counsel

Under the unique facts of this case, the factor of convenience cannot be underestimated.  Plaintiffs suggest that this factor does not support coordination.  Plaintiffs point out that many of the lawyers involved in this litigation have offices in Philadelphia.  In addition, Plaintiffs indicate that none of the parties reside in Lebanon; all were fortuitously located on I-78 at the time of the accident because they were involved in interstate travel to and from their geographically disparate homes.[x]  While we recognize these arguments, we view convenience to witnesses as the most important component of this factor.

Lebanon is a relatively small county.  The northern one-third of our county is served almost exclusively by the Pennsylvania State Police and a handful of first responder EMS units.  Almost all of these first responders were mobilized for the crash that occurred on February 13, 2016.  In addition, first responders from central Lebanon County and adjoining areas in Berks and Schuylkill counties were also summoned.  Each and every one of these first responding men and women realize that being called to testify in a civil law suit is sometimes an occupational necessity.  And we are sure that each and every first responder could reasonably expect that an event as significant as the February 13, 2016 accident would require them to participate in a deposition and a trial.

The above being said, should any first responder be required to appear for trials in multiple jurisdictions at multiple times spread out over a wide geographic area?  We think not.  Aside from the obvious inconvenience that would be caused to individual first responders, the agencies employing those first responders would be deprived of trained personnel during each separate trial.  Moreover, because testifying in court is considered a component of a first responder’s job, the agencies would be required to pay each first responder on multiple occasions if they would be required to travel and testify multiple times in divergent jurisdictions.  These burdens are not ones that we believe any first responder or his/her employer should be required to bear.

Even more important than the question of “where?” is the question of “how many?”  A key factor favoring coordination is the reality that coordination will result in a far fewer number of court appearances for witnesses than would separate uncoordinated trials.  As it relates to Lebanon County first responders, the convenience of having to appear at only one trial instead of many cannot be understated.  We therefore view factor (2) of Rule 213.1 in favor of coordination.

 

  • Unreasonable Delay or Prejudice

This is a difficult factor to analyze.  Of necessity, it requires a court to embark on a “what if” type of analysis.  And asking the “what if” question becomes even more problematic when you inject a waning but not completely evaporated pandemic into the calculus.

We will begin our discussion by taking a look backwards at how coordination of discovery has effected the collective I-78 litigation thus far.  The Defendants have all indicated that discovery has progressed more expeditiously under the Coordination Order than it would have had cases been separated.  Plaintiffs do not strenuously refute this observation, but they also point out the logistical challenges that were created by coordinated discovery.  What we know for certain is that it has taken over three (3) years to get all of the I-78 cases to where they are today.  We know that coordination of discovery created logistical challenges for counsel that were significant.  We also know that the COVID-19 pandemic complicated everyone’s tasks in an almost incalculable manner.

What we cannot know is how the cases would have progressed had coordination of discovery not occurred.  What we do not know is precisely how or to what extent separate discovery in separate cases would have been impeded by the pandemic.

While we recognize that it would be impossible for us to declare definitively that coordinated discovery resulted in a more prompt and efficient pre-trial management paradigm, our belief is that it did just that.  Take, for example, the deposition of lead State Police Trooper Christopher Graf.  Even in a coordinated context, Trooper Graf’s deposition required days spread out over months to complete.  Had Trooper Graf been required to provide deposition testimony in twenty-three separate cases – as we are sure would have occurred – we are confident that the time needed to complete the deposition would have far exceeded what occurred in a coordinated context.  Moreover, given that Trooper Graf was the lead investigator, it is likely that his testimony in each case would have prompted/necessitated additional areas of discovery inquiry that would have taken time for the parties to explore.  On top of everything, Trooper Graf would have been forced during depositions to repeat some of the same information over and over and over again.  None of the above would have facilitated an efficient discovery process.

As interesting and informative as an analysis of discovery coordination might be, the truth is that discovery coordination is part of the history, and not the future, of this litigation.  In terms of factor (3) or Rule 213.1, we view our primary responsibility as discerning whether future delay or prejudice would occur from a coordination of trial.

We would expect any trial arising out of the February 13, 2016 accident to be lengthy.  It is unlikely that any of the nineteen (19) remaining cases could be tried in less than a week.  That being said, we also know that a coordinated trial would take far longer than each individual separate trial.  The question is whether nineteen (19) separate trials could be conducted in multiple jurisdictions faster than a coordinated trial could be conducted in Lebanon County.

Right now, Lebanon County has only a minimal civil case backlog.  Our pandemic-driven suspension of jury trials lasted only between February and June of 2020.  Using robust safety precautions,[xi] the Lebanon County Court of Common Pleas has conducted close to one hundred (100) civil and criminal jury trials since June of 2020.  This has enabled us to keep our trial backlog at a manageable level.  Today, we would have the capability of setting aside five (5) full weeks for a coordinated I-78 trial during calendar year 2022.

We do not know the extent to which our sister jurisdictions now face a pandemic-driven civil trial backlog.  However, even in normal times, we would find it difficult to perceive how nineteen (19) different cases could be separately tried in five (5) jurisdictions before the end of 2022, especially considering that separate trials could not be conducted simultaneously in different jurisdictions.[xii]

To be sure, requiring separate trials would result in some of those trials being concluded before a coordinated trial could be completed.  However, we are confident that a coordinated trial could be conducted in Lebanon County before all of the remaining nineteen (19) cases could be tried in separate jurisdictions.  Delay is not the most significant factor we will weigh today, but it is nevertheless a factor we will weigh in favor of coordination.

 

  • Efficient Use of Judicial Facilities

We will begin our discussion of this factor by acknowledging how a coordinated trial would affect the judicial system in Lebanon County.

Without question, a coordinated trial would tax the judicial system of Lebanon County.  Lebanon County has only four (4) judges and four (4) courtrooms.  Assigning one of those courtrooms and judges to one single case for a period of weeks would be difficult.  However, lengthy jury trials are not without precedent in Lebanon County.[xiii]    In addition, Lebanon County has the benefit of possessing a large auditorium that can seat several hundred people and could be used for jury selection.  Lebanon County also possesses a large ceremonial courtroom that could be used for a large trial involving multiple parties.  In weighing everything, we conclude that a coordinated trial would be difficult, but not impossible, for Lebanon County to complete.  That being said, the factor implicating judicial resources cannot be viewed in a box defined solely by the geographic boundaries of Lebanon County.  Our Commonwealth Court has declared that this factor can only be evaluated by considering whether or how coordination would affect all involved venues.  Lincoln General Insurance Company, Inc. v. Donahue, 616 A.2d 1076 (Pa. Cmwlth. 1992).

Nineteen (19) separate one-week trials in five (5) different jurisdictions would affect the judicial systems of five (5) separate counties/venues.  Each of these venues would have to devote time and judicial resources.  And we cannot understate how much effort it would take different judges and courts to familiarize themselves with the background and nuances of this accident.

When one takes a more global view of the Pennsylvania judicial system, factor (4) immediately morphs into a question of whether one (1) trial or nineteen (19) trials is more efficient.  Put this way, the answer is obvious.  One trial, even one that is more complex, is going to result in a more efficient administration of justice than would nineteen (19) separate trials.  For this reason alone, we weigh factor (4) in favor of coordination.

 

  • Inconsistent Decisions

If coordination is not undertaken, there WILL be inconsistent decisions rendered about who or what caused the February 13, 2016 pile-up accident.  Whenever a set of facts is evaluated separately by nineteen (19) groups of people, in different courtrooms at different times, divergent conclusions are inevitable.

Plaintiffs effectively respond to this inevitability by saying “So what?”  According to plaintiffs, unpredictability of judicial decisions and jury verdicts are hallmarks of our tort system.  The fact that one set of jurors would view a rear-end accident differently than another set of jurors is not something that should require that all rear-end accidents be evaluated by the same group of people.

From both a legal and a public policy perspective, Plaintiffs’ argument is shortsighted.  Already, from a legal perspective, several parties have pointed out that the Doctrine of Collateral Estoppel – one party called it “Issue Preclusion” – could be troggered if one jury implicates or absolves one of the so-called “blocking defendants” of all liability[xiv].  While we are skeptical about applicability of collateral estoppel in contexts involving separate lawsuits and separate parties, we cannot roll our eyes and dismiss the potentiality that such an argument could resonate.  In fact, all counsel on both sides have indicated that there is a possibility that issue preclusion/collateral estoppel could impact some of the parties in cases that are tried later in a continuum of separate trials.  As Defendants point out, issue preclusion/collateral estoppel could create unfairness to parties affected in subsequently-tried cases.

Even if collateral estoppel as a legal argument could be characterized as a “long shot”, the likelihood of inconsistent verdicts still is of considerable concern from a public policy standpoint.  When identically situated parties involved in the same incident receive disparate treatment, most citizens would proclaim “That is not fair.”  The more that citizens perceive that outcomes in a system of justice are unfair, the more that public confidence in the system is eroded.  In a very real sense, all stakeholders in the judicial system have a vested interest in minimizing situations where perceived unfairness is almost inevitable.  Nineteen (19)  different trials in different jurisdictions involving the same event practically guarantees that inevitable divergent results will be perceived by some as “unfair.”

Public perception aside, there is also an inherent unfairness whenever a party is required to have his/her conduct repeatedly questioned before different groups of people.  For any defendant sued based upon negligence, having the same conduct viewed as negligent by one jury and not negligent by another could seem arbitrary and perhaps even capricious.  Every party to civil litigation should have the ability to argue and/or defend his/her position.  Then, the chips fall where they may and everybody moves forward accepting the decision as final.  When an individual’s conduct is scrutinized multiple times, that individual will not leave the process with any sense of finality as it relates to the appropriateness of his/her conduct.

In the view of this Court, treating similarly situated people similarly should be a goal of any honorable system of justice.  Translated to the decision now before this Court, the only way to ensure consistency of outcome for similarly situated individuals would be through a coordinated trial.  Therefore, factor (5) will also be weighed in favor of coordination.

 

  • The Likelihood of Settlement

As noted at the outset of this Opinion, twenty-three (23) lawsuits were filed as a result of the February 13, 2016 pile-up accident.  As of today’s date, four (4) cases have settled and negotiations are ongoing with respect to the possible settlement of other cases.  We are confident that the able counsel who are involved in litigating this case will continue to pursue settlement negotiations regardless of whether trials are conducted in a separate or coordinated fashion.

With the above being said, it is a reality of civil jurisprudence that deadlines drive settlements.  As noted above, we are of the opinion that a coordinated trial could be conducted during 2022 when only a portion of the separate trials could be tried independently within that same time frame.  If in fact a jury trial would serve as a deadline—and we think it would—then the deadline for settlement in a coordinated context would loom sooner than would all of the deadlines in separate uncoordinated trials.

In addition to the above, we are cognizant of the fact that several defendants have proposed interpleader.  Thus far, this Court has resisted interpleader for a variety of reasons.  However, after the facts of this accident have been fleshed out in discovery and as trial looms, we would be open to interpleader as a way to focus trial on issues that are truly in dispute.  Interpleader would be nearly impossible if all of the above cases are tried separately in different jurisdictions.  To the extent that interpleader could promote settlement for at least some parties, coordination would be the only viable option to facilitate interpleader.

As with factor (3), this factor regarding settlement is not the most important one to this Court.  Nevertheless, we conclude that settlement likelihood would be enhanced by coordination.

 

Analyzing the six (6) factors set forth in Rule 213.1 does not end our assignment.  There are several other issues that are relevant to coordination that we must consider.  Those considerations include:

  • The plaintiff’s choice of a forum;
  • Situs of the accident;
  • Consistency in adjudicating dispositive motions and evidentiary rulings; and
  • Due Process

We will also separately discuss each of these considerations.

 

 

 

  • Plaintiff’s Choice of a Forum

Predictably, Plaintiffs’ counsel assert that we are required to afford their choice of forum with considerable weight.  It is certainly true that the Plaintiffs’ choice of forum is “of paramount consideration” with respect to a petition under Pa.R.C.P. 1006 for change of venue due to forum non conveniensSee, Petty v. Suburban General Hospital, 525 A.2d 1230 (Pa. Super. 1987).  However, the Plaintiff’s choice of forum is noticeably absent from the factors set forth in Rule 213.1.  Moreover, we have not found any Pennsylvania Appellate precedent that has elevated the Plaintiff’s choice of forum over the factors set forth in Rule 213.1.  Given these realities, we will not afford the Plaintiff’s choice of forum with decisive weight.

The above being said, we will nevertheless consider the Plaintiffs’ chosen forums to be a factor weighing against coordination.  We recognize that for some Plaintiffs, litigating a case in Lebanon County will be marginally more inconvenient than litigating the case in their home counties or in a transportation hub such as Philadelphia.  We also recognize that Plaintiffs likely will want to have jurors in places like Philadelphia assess their damages.  We understand why Plaintiffs seek to have their cases determined in venues other than Lebanon, and we will respect their choice as a factor contraindicative of coordination.

 

 

  • Situs of the Accident

Thus far, we have avoided talking about the so-called elephant in the room.  We will now identify and confront it directly.  Lebanon County has historically been a more conservative venue than have others selected by the plaintiffs.  Every single experienced civil litigator knows that juries in Lebanon County have historically been more stingy in their awards than have jurors in venues such as Philadelphia.  That is not said to cast any aspersions against Lebanon or Philadelphia jurors.  It is simply a reality that must be confronted by counsel who are trying to evaluate the value of a pending case.  This reality is a reason why plaintiffs’ counsel are seeking separate trials in separate venues.  We also have little doubt that this reality has impacted the defendants’ collective decision to seek coordination in Lebanon County.  The real world reality confronting everyone is that the collective value of the litigation filed as a result of the February 13, 2016 pile-up accident will be impacted – perhaps significantly – by the decision we render regarding coordination.

It is not the role of this Court to render a public policy judgment about whether a group of plaintiffs should receive more or less compensation.  Moreover, there is no constitutional, statutory or common law “right” to a jury that is more or less inclined philosophically to award more or less money.

We understand why Plaintiffs want to try this case away from Lebanon County.  Likewise, we are well aware of why all Defendants want to have a Lebanon County jury assess damages.  As we see it, this Court should not be placed in the position of having to make a decision regarding coordination that is impacted by whether Plaintiffs could possibly receive more or less compensation.

Lebanon County is where the sixty-four (64) vehicle pile-up occurred.  In a very real sense, the venue for this litigation was fortuitously selected because of the location where the 64 vehicles collided on February 13, 2016.  The venue of this litigation should not be selected based upon a plaintiff’s perception of where his/her chances of success would be greater, nor should it be selected by a defendant who might perceive that the venue would be more sympathetic to its own business interest. Lebanon County is the situs of the accident.  Nothing more.  Nothing less.  In the opinion of this Court, trying the above-referenced matter in the venue where the accident occurred is more objectively fair than selecting a venue based upon the historical approach of its jurors toward civil negligence cases.

 

  • Dispositive Motions and Evidence Rulings

Truthfully, this Court had not given much thought to the impact of judicial rulings prior to receiving the parties’ briefs.  In those briefs, multiple parties spoke about dispositive and in limine motions and the importance of having consistent decisions rendered regarding issues that are expected to be similar if not identical.  The more we contemplated the parties’ arguments regarding dispositive motions, the more those arguments resonated.

In one of the cases originally filed in Lebanon County, one of the defendants – John Casale – attempted to join all other 63 drivers who were involved in the pile-up accident.  This effort triggered an avalanche of Motions to Dismiss filed by many who were sought to be joined.  This Court expressed its ire at Mr. Casale’s tactics, but it forced us to contemplate and develop a consistent paradigm by which to evaluate whether a party could legitimately be deemed to have caused harm suffered by another.  In an Opinion we authored on October 25, 2018, this Court stated:

“[W]e would like to remind CASALE – and all other parties – that specific facts will need to be plead to link a party’s negligence with the harm at issue.  In reviewing the diagram of this accident set forth on page above, it is obvious that the actions of drivers immediately surrounding each vehicle could be causally linked to harms suffered by an occupant of the vehicle.  We also accept the premise that the initial vehicles which blocked Interstate 78 thereby leading to the pile-up behind can be guilty of negligence as it relates to everyone involved in the sixty-four (64) vehicle crash.  What we do not accept is the premise that simply because a driver was involved in a tragic accident, he/she must somehow be causally linked to the harm alleged by a Plaintiff.  With respect to the vehicles immediately surrounding the PLAINTIFF’s vehicle and with respect to drivers of the initial “blocking” vehicles, we accept that causation could be established via properly plead facts.  For any other vehicles, the parties seeking to establish negligence will have to very carefully outline in their Complaint the questions of how, where and why the driver’s negligence can be causally linked to the vehicle in which the harm is allegedly suffered.  As we send this matter back for re-pleading, we ask CASALE’s counsel to be cognizant of the above.” (10-25-18 Opinion at page 9-10)

Following the Opinion quoted above, we discovered that other parties immediately began using the language of our Opinion to decide whether he/she should be a legitimate party.  A multitude of “me, too” motions were filed and processed.  Eventually, even Mr. Casale began to voluntarily dismiss parties who had no apparent factual connection to harm within his vehicle.

As we contemplated the dynamic created by Mr. Casale’s improvident legal tactic, we realized that once discovery is completed, another avalanche of dispositive motions will likely be forthcoming.  We also realized that there is value to having one court – preferably one familiar with the litigation – render decisions regarding those dispositive motions.  Not only will the decisions be guaranteed to be consistent, but the not inconsequential work required to read depositions and expert reports in preparation for a dispositive motion decision will not have to be duplicated multiple times in multiple jurisdictions.  We therefore agree with counsel who cited dispositive motions as a reason why coordination should be granted.

Similarly, counsel have already identified anticipated evidentiary issues that will have to be decided at or prior to trial.  Some of these evidentiary issues were described as being “critically important”.  The Defendants assert that having one court analyze and decide these issues of evidence will enable everyone involved in this litigation to know the size, shape and boundaries of the evidentiary real estate within which this trial will be conducted.  The Defendants argue that separate trials in multiple jurisdictions could and likely would result in disparate evidentiary rulings that could cause confusion for all concerned.  We agree with the Defendants’ arguments.  Everyone involved in this accident should play by the same evidentiary rules, and that can best be accomplished within the context of a coordinated trial.

As a result of oral argument, we gained new appreciation for the importance of consistent judicial rulings in litigation like that spawned by the I-78 accident on February 13, 2016.  No longer will we underestimate the importance of having one court decide dispositive motions and evidentiary rulings.  We therefore view consistency of judicial rulings as an important factor that favors coordination.

 

  • Due Process

At oral argument, one of Plaintiff’s counsel proffered the interesting argument that coordination would deprive his client of Constitutional Due Process.  Counsel suggested that a jury in a coordinated trial would not be able to afford individualized attention to each plaintiff’s case due to “extreme confusion” that would be caused by the multitude of different collisions that will have to be assessed.

We have always had the utmost confidence in juries.  In the experience of this court, juries have been able to collectively apprehend and analyze even the most complicated of issues.  The key to the effectiveness of any jury decision is the quality of advocacy displayed by counsel.  In this case, we are beyond confident that the lawyers we have encountered will effectively educate and focus the jury with respect to the issues they need to address.  Moreover, while the accident itself involves an unusually large number of participants, the issues are far less complicated than ones that juries routinely decide in product liability and medical malpractice trials.  The bottom line is that we have great confidence that a Lebanon County jury would be able to fairly assess the rights and responsibilities of all parties to the cases now before the Court.

Under Pennsylvania law, there is no due process prohibition against complex trials.  In Commonwealth v. Evans, 154 A.2d 57 (Pa. Super. 1959), a court was confronted with multiple conflicting indictments against multiple defendants.  The defendant argued that the jury was “unfairly confused” to the extent that the trial violated his due process rights.  The Superior Court disagreed and found that mere complexity of a trial does not implicate Due Process considerations.

Several Federal cases also addressed the question of whether complicated trials can run afoul of the Due Process clause to the United States Constitution.  In U.S. v. Morrow, 177 F.2d 272 (5th. Cir. 1999), the Court actually noted that “a long and complicated trial [can] effectively cure [Due Process concerns].” Id at page 299.  In U.S. v. Hare, 873 F.2d 796, 801 (5th Cir. 1989), the Court recognized that complexity of a case can be a factor to be considered in a Due Process argument, but complex cases will of necessity involve a lengthy and complex trial process.  By itself, complexity of litigation will not trigger a violation of the Due Process clause.  U.S. v. Hare, supra at page 801.

Our research has not been able to reveal any published Opinion where a court found a Due Process violation based upon the complexity of the trial before it.  In fact, such a decision would be contrary to the 7th Amendment right to a trial by jury.  The truth is that our system of justice depends upon and relies upon juries.  And that dependence/reliance is not obviated merely because a case is deemed to be complicated.  For this reason and all of the others outlined above, we reject Plaintiffs’ argument that coordination would violated his/her Constitutional right to Due Process.

 

  1. COORDINATION OF LIABILTY ONLY

Plaintiffs have asserted as a “back-up position” that even if coordination is granted as to liability, each case should be sent back to its place of origin for a determination of damages.  According to Plaintiffs, this would enable each plaintiff to enjoy the benefit of his/her chosen forum as it relates to assessing harm.  The Defendants oppose this request.  According to the defense, the same jury that hears the underlying liability dispute should also determine damages.  The defense also points out that separating each individual case for a determination of damages would be inconvenient for first responders who may have relevant information as to both liability and damages.

Initially, we had considered deferring a decision regarding coordination for determining damages until after the dispositive motion phase of this litigation.  However, counsel for both sides pointed out that settlement negotiations will be impacted significantly depending upon whether the venue for damages will be in Lebanon County or in other venues such as Philadelphia.  In fact, one of Plaintiffs’ counsel argued that if the case is kept in Lebanon County, the defense will have no incentive whatsoever to settle because their risk will be so low that it will encourage the Defendants to “roll the dice at trial.”  While we consider this particular argument to be hyperbolic, we understand that many of the pending cases will have different settlement values depending upon whether they are tried in Lebanon or places like Philadelphia.  Therefore, if meaningful settlement negotiations are to occur, all parties will need to know as promptly as possible what jury pool will be assessing damages.

Pa.R.C.P. 213 affords trial courts with broad discretion with respect to how different components of a case are to be tried.  “A trial court may, in its discretion, order a separate trial on a separate issue in a cause of action in furtherance of convenience or to avoid prejudice.”  Ecksel v. Orleans Construction Company, 519 A.2d 1021, 1024 (Pa. Super. 1987).  That being said, our Commonwealth’s highest Court has recognized that “in the field of personal injury litigation, … the issues of liability and damages are generally interwoven and the evidence bearing upon the respective issues is comingled and overlapping.” Stevenson v. General Motors Corporations, 521 A.2d 413, 419 (Pa. 1987).

Almost all of the cases that have been decided regarding Pa.R.C.P. 213 involve bifurcation where the same jury separately decides issues pertaining to liability and damages.  In this case, sending the Plaintiffs’ damages claims back to their county of origin would, of necessity, result in a complete severance of liability and damages, with two separate juries deciding each separate component.  There is a paucity of Pennsylvania decisional precedent addressing the question of whether separate juries should decide issues of liability and damages.

In Wertz v. Kephart, 542 A.2d 1019 (Pa. Super. 1988), the trial court ordered separate trials on the issues of liability and damages, reasoning that the Defendant’s intoxication was relevant to some aspects of the litigation but not others.  The Superior Court disagreed with the trial court’s reasoning, declaring that two separate juries would not both have all information necessary to render a fair and informed decision.  The Superior Court thus undertook the almost unprecedented action of reversing a trial court’s decision under Pa.R.C.P. 213.  As we contemplated the Court’s decision in Wertz, it became obvious to us that the Superior Court would not have reversed the trial court’s bifurcation decision had the same jury heard and determined all of the issues in play.  In other words, it was the trial court’s decision to employ separate juries that was most troubling to the Superior Court.

In Federal Court, F.R.C.P. 42(b) affords trial courts with considerable discretion with respect to ordering separate trials on separate issues.  Generally speaking, Federal Courts have held that separate trials by separate juries regarding different aspects of the same case do not violate the 7th Amendment right to a trial by jury.  As summarized in Navelski v. International Paper Company, 261 F. Supp. 3rd 1212 (N.D. Fla. 2017):

“Bifurcating a case into separate trials on liability and damages…does not run afoul of the 7th Amendment simply because separate juries may consider some of the same evidence.  The re-examination prohibition ‘is not against having two juries review the same evidence, but rather [it is] against having two juries decide the same essential issues.’”

Id at page 1218-1219, citing Paine, Webber, Jackson and Curtis Inc. v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 587 F.Supp. 112, 117 (D.C. Del. 1984).

 

The United States Supreme Court has recognized that serial trials before separate juries can occur when each issue “is so distinct and separable from the others that a trial of it alone may be had without injustice.” Gasoline Products Company, Inc. v. Champlin Refining Company, 283 U.S. 494, 51 S.Ct. 513 (1931).[xv]  The Gasoline Products case has been used by Federal Courts to justify separate determinations by separate juries regarding liability and damages.  See, In Re: Master Key Antitrust Litigation, 70 F.R.D. 23 (D.C. Conn. 1975).  However, even these cases have expressed a preference for having the same jury decide all pending issues if that can be practically and fairly accomplished.  See, Martin v. Bell Helicopter Company, 85 F.R.D. 654 (D.C. Col. 1980); United Airlines v. Wiener, 286 F.2d 302 (9th Cir. 1961).

From all of the above, we conclude that we have the authority under Pa.R.C.P. 213 to order separate trials on damages in the forums chosen by each individual Plaintiff.  However, this authority should be exercised sparingly, because there is a clear preference under Federal and Pennsylvania common law for having the same jury determine both liability and damages.  In fact, if we order separate trials on the issue of damages, there is a risk that a party aggrieved by the damages verdict would seek to challenge it based upon the premise that liability and damages in a multi-car pile-up accident should be considered “inextricably linked.”[xvi]

The question of whether to send the question of damages back to the county of each lawsuit’s origin is admittedly a more difficult one than the general question of coordination.  Nevertheless, we will respect the so-called “general rule” that liability and damages should be decided by the same jury.  We also note that coordinating damages in Lebanon County would obviate the necessity for first responders to testify at multiple proceedings spread out over multiple jurisdictions.  In addition, coordination of damages will enable every Plaintiff’s claim to be finally adjudicated prior to 2023, and that would not be possible if we sent all of the individual cases back to their counties of origin following a decision on liability.  For these reasons and more, we reject the Plaintiffs’ request to schedule a liability trial in Lebanon County followed by individual damages trials in each county where the Plaintiffs initiated suit.

 

  1. METHODOLOGY OF TRIAL

In preparation for oral argument, we asked counsel to articulate ideas about how a coordinated trial could be conducted.  Multiple parties proffered their ideas.  Generally, the following options were identified:

  • Conducting a joint trial with all parties’ rights being decided within the same proceeding;
  • Selecting one case as a “bellwether” that can be tried first as a laboratory experiment of sorts so that all other parties could get an idea about how a Lebanon County jury would evaluate the facts of this case;
  • By grouping certain cases together based upon how the vehicles were blocked and where they came to a rest.

There were benefits and pitfalls to each of the options identified by the parties.

Everyone acknowledged that it is now premature to discuss how a coordinated trial should be conducted.  Most counsel articulated an expectation that additional cases will be settled.  Every settlement will impact a decision about how a coordinated trial should be conducted.  Today, it is impossible to know how many of the nineteen (19) remaining cases will need to actually be tried.

We perceive the wisdom of deferring a decision about the methodology of trial until a later date.  At this point, the parties do not need to know exactly how a coordinated trial will be conducted.  What is important is that everyone realizes that trial will be conducted in Lebanon County before Lebanon County jurors.  At or before the Pre-Trial Conference, we can render a final decision about how trial will appear.

 

VII.   CONCLUSION

All six (6) factors set forth in Rule 213.1 favor coordination of all cases stemming from the February 13, 2016 I-78 accident.  Additional factors, including the value of avoiding inconsistent judicial decisions, also weigh in favor of coordination.  Perhaps just as important as all of the above, we cannot and will not forget that the I-78 accident occurred within the borders of Lebanon County.  All other things being equal, anyone involved in an accident can and should realistically expect that his/her rights will be adjudicated in the venue where the accident occurred.  This is especially true when parties overtly suggest that a venue should be selected based upon its history of awarding money in tort cases.  We certainly understand the Plaintiffs’ financial motivation for steering this case away from Lebanon County.  Likewise, we understand that the Defendants may be motivated in part by a desire to try this litigation in a more conservative venue.  But pecuniary gain or loss for one class of litigants cannot be a factor that drives a judicial decision.  For us to consider the historical philosophical approach to awarding money of a given venue simply feels wrong.  Trying the I-78 litigation in the venue where it occurred removes our discomfort and any impression from third parties that the judiciary is motivated by a desire to favor one class of litigants over another.

In the opinion of this Court, coordination is necessary and appropriate in this case.  Every factor except one – honoring the Plaintiffs’ choice of forum – favors coordination.  And we cannot and will not elevate the Plaintiffs’ desire to try this case elsewhere above everything else.  For these reasons, we will grant the Defendants’ Motion for Coordination.  All further proceedings in the cases governed by this Opinion will be conducted here in Lebanon County.

 

 

 

 

 

 

 

 

 

 

 

Endnotes

 

 

[1] Thus far, four (4) lawsuits have been settled.

[2] Before this Court relied upon the diagram, we forwarded it to counsel and invited comment.  No one disputed the accuracy of the labeling.  However, several counsel indicated that one additional vehicle pulled away from the vehicular scrum before the aerial photo was taken.

[iii] As we repeatedly advised counsel at oral argument, we cannot today assume that any given percentage of cases will settle.

[iv] Fairness to plaintiffs is a factor. But fairness cannot be permitted to overpower the other considerations. Considerations of fairness are primary factors in a forum non conveniens motion. If fairness was the weightiest factor, a motion for coordination would be functionally indistinguishable from a forum non conveniens motion.

[v] The trial court here cited Cheeseman for this assertion. Cheeseman v. Lethal Exterminator Inc., 701 A.2d 156 (Pa. 1997). Cheeseman, along with the rest of forum non conveniens jurisprudence, is no longer considered proper precedence for Rule 213.1 motions. Washington v. FedEx Ground Package Sys., Inc., 995 A.2d 1271, 1279 (Pa. Super. 2010). Some consideration of the plaintiff’s choice of forum, however, has been supported by independent motion for coordination jurisprudence. Lincoln Gen. Ins. Co. v. Donahue, 616 A.2d 1076, 1081 (Pa. Cmwlth. 1992).

[vi] Many parties have also proffered arguments pertain to forum non conveniens.  Because our decision today is predicated upon Rule 213.1 and because all factors relevant to forum non convenines are encompassed with the analysis of a Motion for Coordination, we will not be separately addressing the issue of forum non conveniens  within this Opinion.

[vii] There is no rule of the road that addresses stopping on a roadway as a result of an accident or even generally stopping on a roadway. Several rules when read together and combined with common sense, shed light upon the establishment of negligence in a blocking claim. First, §3353 of the Motor Vehicle Code prevents a driver from “stopping, standing or parking” a motor vehicle in specified locations or in specified ways.  See, 75 Pa.C.S.A. §3353.  While §3353 does not specifically address a multi-vehicle pile-up scenario, it does indicate that motorists are not authorized to stop their vehicles whenever and wherever they please.  By implication, this establishes that a motorist can be negligent for the manner in which he/she stops or parks his/her vehicle. In addition, §3351 establishes a general prohibition against stopping, parking or standing a vehicle on a roadway “when it is practicable to stop, park or stand the vehicle off the roadway.”  See, 75 Pa.C.S.A. §3351(a).

In addition to the above, the vehicle code provides: “[e]xcept when reduced speed is necessary for safe operation or in compliance with law, no person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic.”[vii] 75 Pa. C.S.A. § 3364(a) (2012). This rule suggests that if slow driving[vii] impedes the normal and reasonable and reasonable movement of traffic, then blocking traffic could also violate the rule.

There is Appellate precedential authority for the precept that a motorist can be deemed negligent if he “voluntarily assumed a position which in fact blocked the free passage of [traffic], and that he remained there voluntarily until the moment of impact.” Corona v. Pittsburgh Railway Company, 209 A.2d 425, 427 (Pa. 1965).  In dicta that is specifically related to the facts of the case at hand, the Superior Court relied upon a hypothetical when addressing the intersection between the Assured Clear Distance Ahead Rule, the Sudden Emergency Doctrine and ordinary negligence.  The Court stated:

“The more effective manner of explanation is, perhaps, to rely upon a hypothetical: Two cars are traveling in the same direction on a one-lane highway.  The car in front, Car A, abruptly stops and is rear-ended by the second car, Car B.  The driver of Car A claims that a deer ran in front of her car creating a sudden emergency to which she reasonably responded under the circumstances.  The driver of Car B claims that the deer did not come anywhere near A’s vehicle and it was driver A’s negligence which caused the accident.  Driver A in turn claims that driver B was following too closely and it was this negligent act that caused the accident.  In this hypothetical, the facts do not conclusively establish the existence of an emergency.  The jury would first have to determine if such an emergency existed that would protect driver A by the application of the Sudden Emergency Doctrine.  The jury would then have to determine if driver B was in violation of the Assured Clear Distance Rule by following too closely to a car traveling in the same direction, an essentially static object.” Cannon v. Tabor, 642 A.2d 1108 (Pa. Super. 1994) at Footnote 4.

By holding out the axiom that Car A could be found negligent in the above hypothetical, the Pennsylvania Superior Court established that “blocking” conduct can trigger a finding of negligence.

In addition, the case of Burnett v. Swift Transportation, 2011 WL 533603 (M.D. Pa. 2011) is also instructive.  Burnett involved a collision that occurred on Interstate 81 in Schuylkill County at a time when heavy fog obstructed vision.  In Burnett, two tractor-trailers collided.  After the drivers had gotten out of their vehicles and were discussing what to do, another vehicle slammed into the rear of one of the stopped trucks.  The Court refused to dismiss the stopped drivers from the case, reasoning that a reasonable jury could find that a stopped vehicle could constitute a traffic hazard, especially when that stopped vehicle failed to use flashers or reflective signals to alert others that they were stopped.

Viewing all of the above together, we glean that there are no specific statutes in the Vehicle Code that directly govern a claim of blocking.  Thus, to prove a blocking claim, one must establish negligence under an ordinary negligence doctrine.  In other words, did the blocking party’s conduct fall below the reasonable standard of care that could have been expected of an ordinary and prudent driver faced with the same conditions?

 

[viii] Under Pennsylvania law, a motorist may be negligent if they violate the rules of the road. See, Glennon v. Ostroff, 24 A.2d 29, 30 (Pa. 1942). For striking, the rules provide:

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead.

 

75 Pa. C.S.A. § 3361 (West 1977). This is known as the assured clear distance ahead rule. See, Lockhart v. List, 665 A.2d 1176, 1179 (Pa. 1995) (noting “Assured does not mean guaranteed.” (quoting Fleischman v. City of Reading, 130 A.2d 429 (Pa. 1957))).

This rule, however is subject to two main exceptions. First, the rule only applies “to objects which are static or essentially static, including vehicles moving in the same direction.” Cannon v. Tabor, 642 A.2d 1108, 1112 (Pa. Super. Ct. 1994) (citing McKee v. Evans, 551 A.2d 260, 274 n.5 (Pa. Super. Ct. 1988)). But the rule is inapplicable if “the vehicles involved were moving in opposite directions toward one another.” Mickey v. Ayers, 485 A.2d 1199, 1203 (Pa. Super. Ct. 1984) (citing Adams v. Mackleer, 361 A.2d 439, 442 (Pa. Super. Ct. 1976)). Further, the rule reduces the assured clear distance “when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.” § 3361. See Unangst v. Whitehouse, 344 A.2d 695, 698 (Pa. Super. Ct. 1975) (“[T]he motorist driving at night must take care not to drive at a speed that is faster than would allow him to stop inside that range of vision. Where vision is so obscured by darkness, fog, smoke, steam or other limiting factors that the operator can see nothing, then there is no assured clear distance ahead and even a speed of five miles per hour may violate the rule.”).

Second, the sudden emergency doctrine serves as a defense to assured clear distance ahead rule. This doctrine applies in situations where an otherwise prudent driver “is confronted with a sudden or unexpected event which leaves little or no time to apprehend a situation and act accordingly.” Lockhart, 665 A.2d at 1180. When this kind of emergency arises within the area that was previously assured clear distance ahead, the assured clear distance ahead rule does not apply. Cannon, 642 A.2d at 1114. Further, the assured clear distance ahead rule and sudden emergency doctrine tend to be mutually exclusive unless the factual scenario makes it unclear whether a sudden emergency actually existed. Id. at 1114 n.4.

Thus, for a party to establish negligence in a striking claim they must show the vehicle ahead of the allegedly negligent party was a largely static object, the actions taken by the allegedly negligent party were not the result of a sudden emergency, and the striking vehicle was being driven “at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead.” § 3361.

 

[ix] Even acknowledging the above does not depreciate the fact that every striking defendant was at the same place at the same time confronting the same weather conditions as every other driver.

[x] We acknowledge that some, but not all, of the lawyers involved in this litigation practice primarily in Philadelphia.  We also acknowledge that none of the drivers involved in this litigation reside in Lebanon County, but Plaintiffs have failed to identify any who reside in Philadelphia either.  No matter where this case is tried, it will involve some degree of inconvenience for at least some of the parties and their counsel.

[xi] For example, we enforced strict masking rules.  All jurors were seated at least six (6) feet apart in the audience section of our ceremonial courtroom.  While witnesses were not permitted to be masked so that jurors could see their facial expressions, witnesses were placed behind Plexiglas shields while testifying.  In addition, we took more frequent breaks during trial.  During those breaks, we disinfected areas where people had been speaking.  At the end of every trial, we invited people to contact us if they believed they had contracted COVID as a result of the jury trial process.  To date, not one juror has complained that he/she believed they contracted COVID as a result of jury trial participation.

[xii] Witnesses could not be in two different places at the same time.

[xiii] Roughly ten (10) years ago, this jurist presided over nursing home malpractice litigation that required five (5) weeks to complete.  The wheels of justice in Lebanon County slowed somewhat during that five (5) week period of time, but they did not grind to a halt.

[xiv] Collateral estoppel may be granted if the requisite elements are met. Those elements are as follows:

(1)      The issue decided in the prior case is identical to the one presented in the later action;

(2)      There was a final adjudication on the merits;

(3)      The party against whom the plea is asserted was a party or in privity with a party in the prior case;

(4)      The party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding; and

(5)      The determination in the prior proceeding was essential to the judgment.

Off. of Disciplinary Couns. v. Kiesewetter, 889 A.2d 47, 50–51 (Pa. 2005) (citing Off. of Disciplinary Couns. v. Duffield, 644 A.2d 1186, 1189 (Pa. 1994)). Further, if the party attempting to assert collateral estoppel is attempting to use to doctrine offensively the doctrine must be asserted fairly as determined by the individual jurist. Fairness is tested using the following factors:

(1)      Whether the plaintiff could have joined the earlier action;

(2)      Whether the subsequent litigation was foreseeable and therefore the defendant had an incentive to defend the first action vigorously;

(3)      Whether the judgment relied upon as a basis for collateral estoppel is inconsistent with one or more previous judgments in favor of the defendant, and

(4)      Whether the second action would afford the defendant procedural opportunities unavailable in the first action that could produce a different result.

Kiesewetter, 889 A.2d at 51 (citing Parklane Hosiery Co. v. Shore, 439 U.S. at 329–331 (1979)).  Obviously, collateral estoppel is not an issue that we could or should decide today.  Yet we cannot be blind to the argument’s existence.

 

[xv] Gasoline Products addressed the issue of whether a different jury could assess only damages on a remand or whether a re-trial must as of right address both liability and damages.  Federal Courts have also addressed the issue of whether separate juries can render decisions regarding damages and liability when only one aspect of the underlying trial was challenged on appeal.  In Pryer v. C.O. 3 Slavic, 251 F.3d 448, 455 (3d Cir. 2001), the Third Circuit Court of Appeals indicated that both damages and liability should be retried because the issues were linked at the underlying trial and because “there is reason to think that the verdict may represent a compromise among jurors…”

[xvi] In a multi-vehicle accident, first responders are often prevented from providing prompt assistance to injured plaintiffs and the impact dynamics are unique and can rarely be analyzed in a vacuum that does not include context.

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