Horev, J. v. K-Mart 7293 ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JENNIFER LOCK HOREV IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
K-MART #7293: SEARS BRANDS, LLC,
SEARS HOLDING CORPORATION: KMART
HOLDING CORPORATION AND KMART
CORPORATION
Appellants No. 259 EDA 2015
Appeal from the Order December 19, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 0389 December Term 2013
BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 23, 2015
Appellants, K-Mart #7293, Sears Brands, LLC, Sears Holding
Corporation: Kmart Holding Corporation, and Kmart Corporation (collectively
K-Mart), appeal from the December 19, 2014 order denying their petition to
strike a discontinuance filed by Appellee, Jennifer Lock Horev. After careful
review, we affirm.
We summarize the procedural history of this case as follows. On
December 3, 2013, Horev began this action by filing a complaint in the trial
court, seeking damages as a result of injuries she sustained when she
slipped and fell at a K-Mart store in Clifton Heights, Pennsylvania. On
January 2, 2014, K-Mart removed the action to the United States District
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Court for the Eastern District of Pennsylvania. See generally 28 U.S.C.
§ 1446(a). After removal, the parties entered into a stipulation, approved
by the District Court, that the amount in controversy in the case was less
than $75,000.00. See generally id. § 1332(a). As a result, the District
Court remanded the case back to state court. Once the record was
returned, Horev underwent additional surgeries stemming from her alleged
injuries sustained from her slip-and-fall. On November 5, 2014, Horev filed
a praecipe to discontinue her case without prejudice pursuant to
Pennsylvania Rule of Civil Procedure 229.1 On November 12, 2014, K-Mart
filed a petition to strike the discontinuance, which the trial court denied on
December 19, 2014. On January 9, 2015, K-Mart filed a timely notice of
appeal.2
On appeal, K-Mart raises the following two issues for our review.
A. Did the [t]rial [c]ourt abuse it’s [sic] discretion
in denying [K-Mart]’s [p]etition to [s]trike [o]ff
the [d]iscontinuance pursuant to Pa.R.C.P.
____________________________________________
1
On November 17, 2014, Horev filed a new complaint in the Eastern
District. K-Mart filed a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1) for want of subject matter jurisdiction, based on the
prior stipulation. The District Court granted K-Mart’s motion to dismiss on
August 17, 2015. Horev v. K-Mart #7293, --- F. Supp. 2d ---, 2015 WL
4886429 (E.D. Pa. 2015). Horev has an appeal pending in the Court of
Appeals.
2
The trial court did not order K-Mart to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). The trial court filed its Rule 1925(a) opinion on June 11,
2015.
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229(c) on the basis that [K-Mart] failed to
show that they were unduly prejudiced where
the [t]rial [c]ourt determined that [Horev]’s
damages may now be in excess of
[$75,000.00], and where there exists a binding
stipulation between the parties and an [o]rder
of the [District Court] that damages do not
exceed [$75,000.00]?
B. Did the [t]rial [c]ourt abuse it’s [sic] discretion
in denying [K-Mart]’s [p]etition to [s]trike [o]ff
the [d]iscontinuance pursuant to Pa.R.C.P.
229(c) on the basis that [K-Mart] failed to
show that they were unduly prejudiced
pursuant to the [sic] Pa.R.C.P. 229(c) which
permits a court to strike off a discontinuance in
order to protect the rights of a party from
unreasonable inconvenience, vexation,
harassment, expense, or prejudice?
K-Mart’s Brief at 4.
We begin by noting our standard of review.
The decision to strike a praecipe to discontinue is
within the sound discretion of the trial court and we
will not reverse in the absence of an abuse of that
discretion. When the trial court reaches a conclusion
calling for the exercise of its discretion, the party
complaining on appeal has a heavy burden. An
abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised
is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will, as shown by the evidence
or the record, discretion is abused.
Tosi v. Kizis, 85 A.3d 585, 588 (Pa. Super 2014) (internal quotation marks
and citations omitted), appeal denied, 97 A.3d 745 (Pa. 2014).
A discontinuance in strict law must be by leave of
court, but it is the universal practice in Pennsylvania
to assume such leave in the first instance. The
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causes which will move the court to withdraw its
assumed leave and set aside the discontinuance are
addressed to its discretion, and usually involve some
unjust disadvantage to the defendant or some other
interested party. In determining whether to strike a
discontinuance, the trial court must consider all facts
and weigh equities. Further, the trial court must
consider the benefits or injuries which may result to
the respective sides if a discontinuance is granted.
Becker v. M.S. Reilly, Inc., --- A.3d ---, 2015 WL 4760627, at *2 (Pa.
Super. 2015).
Discontinuances are governed by Rule 229, which provides in relevant
part, as follows.
Rule 229. Discontinuance
(a) A discontinuance shall be the exclusive method of
voluntary termination of an action, in whole or in
part, by the plaintiff before commencement of the
trial.
…
(c) The court, upon petition and after notice, may
strike off a discontinuance in order to protect the
rights of any party from unreasonable inconvenience,
vexation, harassment, expense, or prejudice.
Pa.R.C.P. 229.
Although K-Mart presents two questions in its brief, we elect to
address them concomitantly. K-Mart argues that it was prejudiced by
Horev’s discontinuance on two grounds. First, K-Mart avers that the trial
court erred in denying its petition to strike because in its view Horev “is
estopped from voiding the stipulation entered by the parties and made an
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order of [the Eastern District].” K-Mart’s Brief at 14. K-Mart proceeds to
argue in its brief that Horev should not be permitted to void the stipulation
she agreed to, discussing the federal law standards for stipulations. K-
Mart’s Brief 14-23. K-Mart further argues that “[Horev]’s stated purpose in
seeking the discontinuance is to avoid the binding implications of the
stipulation and [o]rder of the federal court.” Id. at 13. K-Mart argues that
Horev should not be permitted to “forum shop.” Id. at 12. Second, K-Mart
avers that it has suffered prejudice as a result of the discontinuance because
it “has been inconvenienced and has incurred significant expense defending
the civil action.” Id. at 24.
At the outset, we note that the propriety of the stipulation and its
admissibility are not before this Court at this juncture. The discontinuance
by Horev of her case does not affect the validity or legal effect of the
stipulation, and K-Mart has cited no legal authority for this proposition.
Therefore, we find that K-Mart’s argument that it was unduly prejudiced in
this regard is meritless.
We now turn to K-Mart’s prejudice argument regarding the expense it
has incurred. As noted above, K-Mart avers that it was prejudiced by the
discontinuance because it is now inconvenienced and “has incurred
significant expense defending the civil action.” K-Mart’s Brief at 24.
However, as the trial court pointed out, should the Court of Appeals permit
Horev’s case to proceed in federal court, it will be based on the same issues,
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and any discovery that has been used in state court proceedings can be
utilized in the Eastern District.
Here, [K-Mart has] not shown any reason for
the [trial c]ourt to strike off the discontinuance.
Time, money, and resources spent on the discovery
process in this case may be used in the subsequent
action. The new action initiated by [Horev] in
[f]ederal [c]ourt will involve the same issues as the
present case, and no discovery needs to be
duplicated.
Trial Court Opinion, 6/11/15, at 3.
Furthermore, K-Mart’s reliance on Truesdale v. Albert Einstein Med.
Ctr., 767 A.2d 1060 (Pa. Super. 2001) is misplaced. In Truesdale, the
plaintiff’s discontinuance was one that suspended the statute of limitations
and was “without prejudice to be re-opened if [the ward was] ever declared
mentally competent.” Id. at 1062. Here, the discontinuance is without
prejudice, but does not toll the statute of limitations. We therefore
conclude, for all of the aforementioned reasons, that K-Mart has not suffered
any prejudice as a result of Horev marking her case discontinued in the trial
court.
Based on the foregoing, we conclude the trial court did not abuse its
discretion when it denied K-Mart’s Rule 229(c) petition to strike. See
Becker, supra; Tosi, supra. Accordingly, the trial court’s December 19,
2014 order is affirmed.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2015
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