Malanchuk, I., Aplt. v. Sivchuk, I.

[J-30-2016]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

SAYLOR, C.J., EAKIN, BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

IHOR MALANCHUK, : No. 22 EAP 2015

:

Appellant : Appeal from the Judgment of Superior

: Court entered on 12/17/14 at No. 1379

v. : EDA 2012 quashing the appeal from the

: orders entered on 3/26/12 in the Court

: of Common Pleas, Philadelphia County,

ALEX TSIMURA, : Civil Division at Nos. 3249 May term,

: 2009 and 4727 April term, 2010

Appellee :

:

:

: ARGUED: March 8, 2016

OPINION1

CHIEF JUSTICE SAYLOR

The question presented concerns whether an order awarding summary judgment

in one of two civil cases consolidated for purposes of discovery and trial was appealable

immediately as of right.

Appellant, a carpenter, fell from scaffolding at a residence where he was working

and suffered injury. Initially, he commenced a civil action against the owner of the

premises, Ilya Sivchuk. Later, Appellant initiated a separate proceeding against another

worker, Appellee Alex Tsimura.2

1

The above caption has been corrected to reflect the disposition, below.

2

A various times, Appellant performed work for a construction company of which Mr.

Sivchuk was the principal and Appellee was a field manager. For these reasons, and in

(continued>)

Mr. Sivchuk filed a motion requesting that the two actions be consolidated

pursuant to Rule of Civil Procedure 213(a), which prescribes:

In actions pending in a county which involve a common

question of law or fact or which arise from the same

transaction or occurrence, the court on its own motion or on

the motion of any party may order a joint hearing or trial of

any matter in issue in the actions, may order the actions

consolidated, and may make orders that avoid unnecessary

cost or delay.

Pa.R.C.P. No. 213(a). In response, the common pleas court entered an order

consolidating the actions “for purposes of discovery, arbitration, and if appealed, trial.”

Order dated June 6, 2011, in Malanchuk v. Sivchuk, No. 3249 May Term 2009 (C.P.

Phila.), and Malanchuk v. Tsimura, No. 4727 April Term 2010 (C.P. Phila).

After the completion of discovery, Appellee and Mr. Sivchuk pursued summary

judgment. The common pleas court issued a single order granting Appellee’s motion in

its entirety but awarding Sivchuk only partial relief. Accordingly, as against Sivchuk, the

litigation ripened toward trial.

Appellant filed a notice of appeal -- proceeding under the Tsimura case caption --

to challenge the summary relief Appellee had obtained. In an opinion per Rule of

Appellate Procedure 1925, the common pleas court expressed its belief that this appeal

was premature. The court explained that Rule of Appellate Procedure 341 establishes

(>continued)

light of the employer-immunity provision of the Workers’ Compensation Act, see 77 P.S.

§481, controversies arose concerning whether Appellant was performing as an

employee or an independent contractor when his injury occurred, as well as the

capacity in which Appellee was serving at this time. See generally Thompson v. WCAB

(USF&G Co.), 566 Pa. 420, 432, 781 A.2d 1146, 1153 (2001) (discussing the exclusivity

of remedies provision of the Workers’ Compensation Act). Such disputes, however, are

not relevant for purposes of our consideration of the question of appealability presently

before this Court.

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the general rule that appeals lie from final orders which dispose of all claims and of all

parties, are expressly defined as final orders per statute, or are entered as final orders

under Rule 341(c). See Pa.R.A.P. 341(b).3

The common pleas court also noted that appeals from non-final orders are

subject to categorical limitations for interlocutory appeals as of right under Rule 311 and

the requirement for appropriate threshold requests relative to an interlocutory appeal by

permission per Rule 312.4 The court concluded that Appellant’s appeal was not a final

one for purposes of Rule 341, implicitly contemplating that the consolidation of the

actions against Appellee and Mr. Sivchuk was effective at the summary judgment stage

and extended into the appeal. For this reason -- and since the summary judgment order

was not of a type that would support an interlocutory appeal as of right and Appellant

had not filed a petition for permission to appeal -- the common pleas court found the

appeal to be an impermissible, interlocutory one.

Appellee filed a motion in the Superior Court asking that the appeal caption be

amended to reflect the Sivchuk case rather than the Tsimura one, given that the latter

was the lead case under the common pleas court’s consolidation order. Citing to Kincy

v. Petro, 606 Pa. 524, 2 A.3d 490 (2010), Appellant opposed this amendment on the

basis that a consolidation order cannot effect a complete consolidation of two separate

actions or otherwise impose a single identity upon actions, where the parties and claims

3

Since the issuance of the common pleas court’s opinion, the second of these

categories was removed from Rule 341(b), and appeals from orders that do not dispose

of all parties and all claims denominated as final orders by statute were converted into

interlocutory appeals as of right under Rule 311(a)(8).

4

As noted in ensuing opinions by three-judge and en banc Superior Court panels, the

collateral order doctrine serves as another avenue for pursuing interlocutory appellate

review as of right. See Pa.R.A.P. 313. This doctrine, however, is not implicated

presently.

[J-30-2016] - 3

are not identical. See id. at 532-33, 2 A.3d at 495. The Superior Court nonetheless

granted Appellee’s motion to amend via a per curiam order.

Subsequently, a divided, three-judge panel of the Superior Court overturned the

common pleas court’s award of summary judgment in favor of Appellee. As to the

jurisdictional aspect (appealability), the majority explained that, in the Kincy decision,

this Court held that an order issued under Rule of Civil Procedure 213(a) purporting to

consolidate two separate actions “for all purposes” could not be accorded such effect,

where different parties and different theories of liability were involved. See Malanchuk

v. Sivchuk, 1379 EDA 2012, slip op. at 8 (Pa. Super. Dec. 4, 2013) (explaining that

“Kincy holds that each action retains its separate identity despite the entry of a

consolidation order under Pa.R.C.P. 213”). In the majority’s view, absent a complete

consolidation -- which only can occur among cases sharing the same parties and claims

-- “consolidated” cases simply do not merge, and their separate identities remain extant

for purposes of judgment and appealability. Since the Sivchuk and Tsimura cases

involved different defendants, the majority found that the appeal from the final

disposition of the latter was proper.

In dissent, Judge Ott took the position that Kincy was distinguishable, since that

matter concerned a plaintiff’s effort to attain a merger of pleadings in order to

circumvent a bar to her advancement of a particular cause of action imposed by the

relevant statute of limitations. See Kincy, 606 Pa. at 536-37, 2 A.3d at 497-98. In terms

of the appealability issue presented in the circumstances at hand, Judge Ott saw no

reason to distinguish cases in which a plaintiff commences a single action arising out of

the same set of factual circumstances against multiple defendants from a circumstance

in which the plaintiff would hale multiple defendants into court via separate actions. In

this regard, the dissent highlighted the policy of limiting piecemeal appeals. See

[J-30-2016] - 4

generally Rae v. Pa. Funeral Dirs. Ass’n, 602 Pa. 65, 78-79, 977 A.2d 1121, 1129-30

(2009).

On Appellee’s motion, the Superior Court granted en banc reargument,

overturned the panel decision, and quashed the appeal. See Malanchuk v. Sivchuk,

106 A.3d 789 (Pa. Super. 2014). In this unanimous decision, the intermediate court

employed reasoning consistent with the position developed by Judge Ott in her previous

dissent. In this regard, the en banc court similarly distinguished Kincy, see id. at 795

(“Key to understanding Kincy is that by the time the cases were consolidated, the

statute of limitations had expired.”), and found it unreasonable that an “otherwise

interlocutory order is final and appealable based solely on the manner in which the

claims were originally presented.” Id.

We allowed appeal on Appellant’s petition to consider the impact of the

consolidation order upon appealability. As the issue is one of law, our present review is

plenary.

At the outset, we find the Superior Court’s discounting of Kincy’s main rationale

to be unpersuasive. Although Kincy encompassed a statute-of-limitations concern, that

was not the basis for the primary holding in the case.5 Rather, the Kincy majority

grounded its initial holding in a reaffirmation of Azinger v. Pennsylvania R. Co., 262 Pa.

242, 105 A. 87 (1918), which explained in plain terms:

5

The majority opinion in Kincy does contain an alternative holding premised on the

statute of limitations aspect. See Kincy, 606 Pa. at 497, 2 A.3d at 536-37. Both

alternative holdings in the case, however, maintain independent viability. See, e.g.,

Commonwealth v. Markman, 591 Pa. 249, 282, 916 A.2d 586, 606 (2007) (quoting

Commonwealth v. Swing, 409 Pa. 241, 245, 186 A.2d 24, 26 (1962), for the proposition

that “[w]here a decision rests on two or more grounds equally valid, none may be

relegated to the inferior status of obiter dictum”).

[J-30-2016] - 5

[W]here separate actions in favor of or against two or more

persons have arisen out of a single transaction, and the

evidence by which they are supported is largely the same,

although the rights and liabilities of parties may differ, it is

within the discretion of the trial judge to order all to be tried

together, though in every other respect the actions remain

distinct and require separate verdicts and judgments.

Id. at 246, 105 A. at 88 (emphasis added). Under Azinger, consolidation effectuating a

merger or fusion of actions impressing a single identity upon them can occur only where

there is a complete overlap among parties and causes of action. See id. (“[D]ifferent

actions cannot be consolidated unless between the same parties and involving the

same subject-matter, issues, and defenses.”). Otherwise, the Azinger Court explained,

actions may be consolidated only for purposes of convenient pretrial and trial

administration. See id.6

Of further direct import, the Kincy majority explicitly determined that modern

procedural rules -- in particular Rule of Civil Procedure 213(a) – do not supplant

Azinger. See Kincy, 606 Pa. at 528-32, 2 A.3d at 492-95 (discussing Rule 213(a) and

Azinger in tandem and explaining that “a conclusion that Rule 213(a) contemplates

complete consolidation between actions involving non-identical parties, subject matter,

issues and defenses, is simply untenable”). Significantly, as well, the Kincy majority

expressly discussed Azinger’s applicability in the context of an appealability

assessment. See id. at 534, 2 A.3d at 496 (applying Azinger as an alternative basis for

crediting the holding in Keefer v. Keefer, 741 A.2d 808 (Pa. Super. 1999), that a

dispositive pretrial order relative to one of several consolidated cases was not

immediately appealable as of right). Thus, the en banc Superior Court’s position in the

6

We use the term “convenient pretrial and trial administration” here to subsume a third

category of consolidation identified in Azinger, namely, implementation of a stay of

several actions through trial of another raising common questions. See Azinger, 262

Pa. at 245, 105 A. at 88.

[J-30-2016] - 6

present case, that Kincy’s consolidation analysis does not extend into the arena of

appealability, is not well taken.

Per Kincy and its reaffirmation of Azinger, the question of whether a separate-

judgment rule pertains hinges upon whether or not consolidated actions merge, thereby

erasing the separate identities of the actions.7 Accordingly, it was not appropriate for

the en banc Superior Court to displace this central consideration by fashioning a

separate and independent merger inquiry relative to the appealability concern.

We recognize that the holding of a decision is to be read against its facts, such

that Kincy may not be absolutely binding upon us here (given that the factual

circumstances directly before the Court in Kincy did not implicate appealability).

However, the reasoning applied in Kincy, as well as in the seminal Azinger decision,

carried broader-scale implications, and neither the Superior Court nor Appellee has

supplied an adequate basis for discounting these wider ramifications.

In terms of the policy considerations discussed by the intermediate court, we

recognize that the application of Azinger in the present setting is in tension with the

general policy disfavoring piecemeal appeals and that, under Azinger, a plaintiff’s

decision to commence separate actions which are later consolidated alters the

appealability calculus. Nevertheless, there may be substantial inefficiencies associated

with postponing appellate review in circumstances such as those presented here.

Notably, the Superior Court already has determined that Appellant’s substantive

challenge to the award of summary judgment against him was meritorious. Accordingly,

7

This is essentially the approach which has been applied by the Commonwealth Court.

See, e.g., Knox v. SEPTA, 81 A.3d 1016, 1019-20 (Pa. Cmwlth. 2013) (holding that

judgments arising out of separate but consolidated actions that had been commenced

by multiple plaintiffs arising out of the same occurrence but against different defendants

must be appealed independently, where the parties were not identical and, accordingly,

the actions did not merge).

[J-30-2016] - 7

were Appellee’s position regarding appealability to prevail, the matter would proceed to

trial against Sivchuk, subject to another potential round of appellate review, only to be

ultimately returned to the common pleas court for another trial relative to the claim

against Appellee.

Moreover, given that our procedural rules do not universally compel joinder of all

defendants in a single action although the claims against them arise from the same set

of factual circumstances,8 it is not unreasonable to permit plaintiffs’ choices about how

to proceed to carry their normal, attendant consequences per governing legal doctrines,

such as the precepts enunciated in Azinger. For these reasons, the Superior Court was

not at liberty to implement a freestanding policy determination without a closer analysis

of Kincy and its salient treatment of Azinger.

We realize that consolidation questions have generated a great deal of

controversy at both the federal and state levels, as reflected in a persistent split of

authority regarding whether, or to what extent, consolidation effects a merger of claims

for purposes of immediate appealability and otherwise. See generally Trenz v. Family

Dollar Stores of Massachusetts, Inc., 900 N.E.2d 97, 99 (Mass. App. Ct. 2009)

(collecting cases). While there may be relative merits to each of the approaches taken

among the various jurisdictions, at bottom, it is most important that a clear rule be

maintained within individual jurisdictions, so that litigants are afforded a fair opportunity

to protect their rights and interests. Accord Joan Steinman, The Effects of Case

Consolidation on the Procedural Rights of Litigants: What They Are, What They Might

Be Part 1: Justiciability and Jurisdiction (Original and Appellate), 42 UCLA L. REV. 717,

832 (1995) (“To enable participants in the legal system to protect their interests, the

8

General compulsory joinder principles are embodied in Rules of Civil Procedure

1020(d) (joinder of causes of action) and 2227 and 2228 (joinder of parties), none of

which pertains presently.

[J-30-2016] - 8

actual effects of consolidation on litigants' procedural rights need to be understood.”). In

Pennsylvania, Azinger establishes such a clear rule, as reinvigorated and maintained by

Kincy.9

In summary, after Kincy, Azinger remains good law, and consolidation under

Rule of Civil Procedure 213(a) must be read in light of Azinger’s plain dictates, unless

and until such decision is overturned based upon a specific challenge containing

directed and focused advocacy,10 or displaced upon overt rulemaking by this Court.

Accordingly, complete consolidation (or merger or fusion of actions) does not occur

absent a complete identity of parties and claims; separate actions lacking such overlap

9

The concurrence posits that Rule 213(a) is clear on its face, and that the rule

“advise[s] that the discretionary consolidation of different actions simply operates as an

administrative convenience, while the consolidated actions keep their individual

identities.” Concurring Opinion at 2 (citing Pa.R.C.P. No. 213(a)). With respect,

however, Rule 213(a) simply does not contain this information. Rather, in relevant part,

the rule only prescribes, in far more general terms, that trial courts “may order the

actions consolidated.” Pa.R.C.P. No. 213(a).

Indeed, it is because Rule 213(a) does not elaborate on what is meant by “consolidated”

that it was necessary, in Kincy, to consider the various forms of consolidation and clarify

that Rule 213(a) largely (or wholly) excludes one strain -- i.e., complete consolidation of

previously separate actions -- since such consolidation is effectively obviated by the

requirement for mandatory joinder in a single action of causes of action arising out of

the same transaction or occurrence against the same person, per Rule 1020(d). See

Kincy, 606 Pa. at 531, 2 A.3d at 494.

For this reason, implementation of the concurrence’s suggestion that the Kincy/Azinger

analysis of consolidation should be jettisoned would restore the ambiguity to Rule

213(a)’s generalized authorization for trial courts to order “the actions consolidated.”

Pa.R.C.P. No. 213(a).

10

It is worth noting that no such challenge was presented in Kincy, see Kincy, 606 Pa.

at 533, 2 A.3d at 495 (“Notably, [the appellant] does not dispute the ongoing validity of

Azinger, and, indeed, does not cite the case in her brief.”), nor is one presented here, as

Appellee also does not offer any developed, critical commentary relative to Azinger.

[J-30-2016] - 9

retain their separate identities and require distinct judgments; these principles pertain

equally to appealability determinations; and they continue to operate even in the face of

an order purporting to consolidate the actions “for all purposes.”11

Presently, since complete consolidation did not occur, the common pleas court’s

order awarding summary judgment in favor of Appellee was a final one as to the

Tsimura case.

The order of the Superior Court is reversed and the matter is remanded for

further proceedings consistent with this opinion.

Justices Todd, Donohue and Dougherty join the opinion.

Justice Baer files a concurring opinion.

Former Justice Eakin and Justice Wecht did not participate in the consideration

or decision of this case.

11

Arguably, even for purposes of convenient pretrial and trial administration, the present

consolidation order did not extend to the summary judgment stage, since the order was

couched only in terms of discovery, arbitration, and trial. Although Kincy held that a

broader order (consolidating cases “for all purposes”) would be ineffective for its stated

purposes in any event in light of the legal limitations established by Azinger, we know of

no principle which would operate to extend the effect of a consolidation order beyond its

own express terms.

Along these lines, it would be helpful if common pleas courts wishing to implement

consolidation encompassing all pretrial proceedings would say so clearly (albeit that, in

light of Kincy and Azinger, such order would not supplant the requirement for separate

judgments in the absence of identical parties and claims). At the very least, applying

such precision would clarify what is being consolidated, if only for administrative

convenience at the common pleas level.

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