*1 488 in a may, videos risks. Such by patent accompanied
can be that, their images depictions case, accentuate given prejudice unfair disturbing impart nature, are so very Pennsylva As value. one probative the video’s outweighs sense, motion frame noted, all slow and freeze nia “[i]n court way it in the same It distorts reality. distorts video photograph reality. distorts Such distortion magnification it understanding may do jury’s may enhance Hindi, 169, 631 v. Pa.Super. opposite.” Commonwealth (1993). course, this does render slow Of se, in this nor do our decisions per inadmissible motion videos in all videos are admissible case and in Jordan mean short, requires of slow motion video admissibility In cases. trial decision-making by our and individualized calibrated or admission. prohibition than rules rather blanket courts weigh ascertain and both carefully Trial courts must motion value of slow probative and the impact prejudicial doing to Rule In pursuant 403. each instance videography assess, contextually within so, must scrupulously сourts case, of the whether facts and circumstances the particular significantly enhances speed of a video decreasing crime to the at which point of the graphic depiction violent and outweighing evi- unfairly prejudicial, the video becomes of the threatening the fairness value and probative dence’s trial. A.3d 1283 MALANCHUK, Appellant
Ihor TSIMURA, Appellee. Alex Pennsylvania. Supreme Court of Argued March 2016. May
Decided *2 Manuel A. Spigler, Esq., Trask, William Esq., Howard Gross, Spigler LLP, & for Ihor Malanchuk. Horn, Exton, Esq., Law,
Robert F. LLP, Connors for Alex Tsimura, Tsimura and Tatyana Individually trading as Windows, Impressive et al. Warner, Marshall, Dennehey, Remick, Esq.,
Bradley Dean P.C., Goggin, Ilya Sivchuk. Coleman & DONOHUE, EAKIN, BAER, TODD, SAYLOR, C.J., DOUGHERTY, WECHT, JJ.
OPINION1 Chief Justice SAYLOR. award- an order concerns whether question presented cases consolidated in one of judgment two civil
ing summary immediately trial was discovery appealable for purposes right. scaffolding at residence fell from carpenter, Appellant, Initially, he injury. working and suffered he was where of the premises, the owner a civil action commenced separate proceed- Later, initiated Appellant Ilya Sivchuk. *3 worker, Tsimura.2 Alex Appellee another ing against that the two requesting a motion Sivchuk filed Mr. 213(a), Procedure to Rule of Civil pursuant consolidated prescribes: common county which involve pending In actions fact or which from the same arise question law occurrence, on its own motion or on the court transaction or or trial of joint hearing any party may motion of order actions, the actions may in the matter issue any disposition, caption been corrected to reflect The above has 1. below. times, compa- Appellant performed for a construction A work various Appellee principal was a field ny Mr. was the and of which Sivchuk reasons, light employer-immunity manager. For these Act, Compensation § 77 contro- provision of Workers’ see P.S. performing concerning Appellant as an whether was versies arose occurred, injury independent when his employee or an contractor serving See at this time. capacity in which was well as the 420, 432, (USF&G Co.), Thompson WCAB 781 generally (2001) provision (discussing exclusivity remedies Act). however, Compensation disputes, are not Such the Workers' question appealabil- purposes for of our of the relevant consideration ity presently before this Court. consolidated, and may make orders that avoid unnecessary cost or delay. 213(a).
Pa.R.C.P. No. In response, the common pleas court entered an order consolidating the actions “for purposes of discovery, arbitration, if appealed, trial.” Order dated 6, 2011, Sivchuk, June Malanchuk v. May No. 3249 Term Tsimura, (C.P.Phila.), and Malanchuk v. No. April (C.P.Phila). Term 2010
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 only partial Sivchuk relief. Accordingly, as against Sivchuk, the litigation ripened toward trial.
Appellant filed a notice of appeal—proceeding under the Tsimura caption—to case challenge the summary Ap- relief pellee had In an opinion obtained. per of Appellate Rule Procedure the common pleas court expressed its belief this appeal premature. was The court explained that Appellate Rule of Procedure 341 general establishes the rule that appeals from lie final orders which dispose of all claims parties, аll expressly are defined as final orders per statute, or 341(c). are entered as final orders under Rule 341(b).3 Pa.R.A.P.
The common pleas court also
noted
appeals from non-
final
subject
orders are
to categorical
for
limitations
interlocu-
tory 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
Appellant’s
appеal was
a final one for
Rule
341, implicitly contemplating that
the consolidation of the
*4
pleas
3. Since the issuance
the
opinion,
common
court’s
the second of
categories
341(b),
appeals
was removed from Rule
and
from
dispose
parties
orders
do
that
not
of all
and all claims denominated as
final orders
interlocutory
statute were converted into
appeals as of
311(a)(8).
right under Rule
ensuing
4. As noted in
opinions
three-judge
Superior
and en banc
pаnels,
Court
the collateral order doctrine serves as another avenue for
Pa.R.A.P,
pursuing interlocutory appellate
right.
review as of
See
doctrine, however,
implicated
This
presently.
is not
at the
and Mr. Sivchuk was effective
against Appellee
For
appeal.
into the
stage and extended
summary judgment
not
summary
order was
judgment
since the
this reason—and
an
interlocutory appeal
that
type
support
a
to
petition
permission
not filed
for
right
Appellаnt
and
had
to
an
appeal
common
court
the
appeal—the
pleas
found
one.
interlocutory
impermissible,
asking
Superior
filed motion in the
Court
a
Sivchuk
the
case
appeal caption be amended
reflect
the
one, given
Tsimura
than the
that the
was the
rather
latter
common
order.
pleas
lead case under the
court’s consolidation
Petro,
Kincy
v.
Citing
A.3d
on
consoli-
opposed
a
Appellant
this amendment
the
basis
complete
ordеr
of two
dation
cannot effect a
consolidation
upon
impose
single identity
actions or
separate
otherwise
id.
actions,
the
claims
parties
where
are not identical.
and
532-33, 2
Superior
at 495. The
Court nonetheless
curiam order.
per
granted Appellee’s motion to amend via a
divided,
Subsequently,
three-judge
the
panel
pleas
summary
the common
Court overturned
court’s award
aspect
As to
judgment
jurisdictional
in favor of
Appellee.
Kincy
(appealability),
explained that,
deci-
majority
sion, this Court
Rule of Civil
held that an
issued under
213(a)
ac-
Procedure
purporting
separate
to consolidate two
effect,
“for all
not
purposes”
tions
could
be accorded
liability
parties
different
and different theories
where
were
Sivchuk,
2012, slip op.
involved. See Malanchuk
1379 EDA
“Kincy
2013)
(Pa.Super.
(explaining
at 8
Dec.
holds
separate identity despite
entry
that each
retains its
213”).
majori-
In
of a consolidation order
Pa.R.C.P.
under
view,
can
ty’s
complete
only
consolidation—which
absent
the same
claims—
among
sharing
occur
cases
their
simply
merge,
“consolidated” cases
do
appeal-
remain
for
judgment
identities
extant
and Tsimura eases involved
differ-
Sivchuk
ability. Since
defendants,
from
majority
appeal
found that the
ent
disposition
proper.
final
the latter was
*5
In dissent, Judge
took
position
Ott
that Kincy was
distinguishable, since that matter concerned plaintiffs
a
effort
to attain merger
of
in
pleadings
order to
circumvent bar
her advancement of a particular
cause
action imposed by
the relevant
statute
limitations. See Kincy,
single arising out of the same set factual circum- against stances multiple defendants from a circumstance which the plaintiff would hale multiple defendants into court via separate In this regаrd, actions. the dissent highlighted policy of limiting piecemeal appeals. See generally Rae v. Ass’n, Pa. Funeral Dirs. 78-79, 977 A.2d (2009). 1129-30
On Appellee’s motion,
Superior
Court granted en banc
reargument,
the panel decision,
overturned
quashed
appeal.
Sivchuk,
(Pa.Su-
See Malanchuk v.
We allowed
petition to consid
er the impact of the consolidation order upon appealability.
As
law,
the issue
is one
our present review is plenary.
At
outset,
we find the
Court’s
discоunting
Kincy n main
unpersuasive.
rationale to Although Kincy
encompassed concern,
statute-of-limitations
that was not the
basis for the
primary holding
Rather,
the case.5
the Kincy
majority opinion Kincy
5. The
holding
does contain an alternative
premised
aspect.
Kincy,
on the
statute
limitations
Id. at of actions im- or fusion effectuating merger consolidation only them can occur where identity upon a single pressing causes among and complete overlap parties is a there (“[Different consolidated actions cannot be action. See id. the same involving and the same unless between defenses.”). Otherwise, Azing- issues, and subject-matter, only for may consolidated actions be explained, er Court trial See administration. pretrial of convenient id.6 majority explicitly de- Kincy import, further direct
Of
Rule of
particular
procedural
that modern
rules—in
termined
213(a)—do
Azinger.
Kincy,
See
supplant
not
Civil Procedure
213(a)
Rule
528-32,
(discussing
2
at 492-95
Pa. at
A.3d
606
that “a conclusion that
explaining
Azinger
tandem
213(a)
ac-
consolidation between
contemplates complete
Rule
matter, issues and
subject
parties,
non-identical
involving
tions
untenable”).
well, the
defenses,
Significantly,
is simply
Azinger’s applicability
majority expressly discussed
Kincy
586,
(2007)
249, 282,
(quoting Commonwealth v.
A.2d
606
591 Pa.
245,
24,
proposition
for the
Swing,
186 A.2d
valid,
grounds equally
rests on two or more
a decision
"[w]here
dictum”).
may
relegated
inferior status of obitеr
none
be
to the
here
pretrial
administration”
"convenient
and trial
6. We use the term
Azinger,
category
identified in
third
of consolidation
to subsume a
through
stay
trial of
namely, implementation
of several actions
questions.
Azinger,
Per and its reaffirmation of Azinger, the question whether a separate-judgment pertains rule hinges upon whether not consolidated merge, thereby erasing the separate identities of the actions.7 it Accordingly, was not for appropriate the en banc Superior Court to displace this central consideration fashioning a separate and indepen- dent merger inquiry relative to the appealability concern. recognize
We holding of a decision is to be read facts, its such that Kincy may absolutely binding us upon here (given that the factual circumstances *7 directly before the Court in Kincy not implicate did appeala- bility). However, the reasoning applied Kincy, as as in well Azinger deсision, the seminal carried implica- broader-scale tions, and neither the Superior Court nor sup- has plied an adequate basis for discounting these wider ramifica- tions.
In terms of the policy considerations discussed the court, intermediate recognize we that application Azing- the of er in the present setting is in general tension with the policy disfavoring piecemeal appeals that, under Azinger, a plaintiffs decision to separate commence actions which are later consolidated alters the appealability calculus. Neverthe- less, may there be substantial inefficiencies with associated postponing appellate review circumstances such as those essentially 7. This approach applied by is which has been See, SEPTA, e.g., Commonwealth Court. 81 Knox v. 1019- (Pa.Cmwlth.2013) (holding judgments arising of out but consolidated actions multiple plain- that had been commenced arising against tiffs out of the same occurrence but different defendants appealed independently, must be where the were not identical and, accordingly, merge). the actions did not already has Superior Court Notably, presented here. to the challenge Appellant’s substantive determined against him was meritorious. summary judgment award regarding appealability Appellee’s position Accordingly, were Sivchuk, to trial proceed against to the matter prevail, review, only to appellate subject potential to another round for another pleas to the common court ultimately returned be against Appellee. trial relative to the claim universally not that our rules do Moreover, given procedural although single of all a joinder defendants compel circum- from the same of factual them arise set claims to choices permit plaintiffs’ it stances,8 unreasonable normal, attendant conse- carry to to their proceed how about doctrines, precepts legal such as per governing quences Court reasons, For Azinger. enunciated determi- implement freestanding policy liberty was not at its salient analysis Kincy closer nation without a Azinger. treatment questions generated have realize consolidation
We levels, and state controversy at federal great deal both wheth- split authority regarding in a persistent as reflected extent, merger claims er, or to consolidation effects what of immediate and otherwise. appealability for purposes Massachusetts, Family Dollar Stores generally Trenz (2009) Inc., (collecting 900 N.E.2d Mass.App.Ct. cases). relative to each may there be merits While bottom, among jurisdictions, taken the various approaches within most that a clear rule maintained important it is a fair litigants so that are afforded jurisdictions, individual Accord Joan protect rights their and interests. opportunity Steinman, on the Procedur- Case Consolidation Effects of Are, They Might Be Litigants: They Rights al What What *8 Appel- and Justiciability (Original and Jurisdiction Part 1: (1996) (“To late), partici- 42 UCLA L. Rev. enable interests, actual to their the legal system protect in the pants of Civil compulsory joinder principles are embodied in Rules General 8. 1020(d) action) and 2228 (joinder of causes of and 2227 Procedure pertains presently. parties), (joinder of none of effects on litigants’ procedural consolidation rights to need understood.”). Azinger establishes such a Pennsylvania, be In rule, clear as Kincy.9 by and reinvigorated maintained Kincy, In Azinger summary, good law, after remains and 213(a) consolidation under Rule Civil Procedure must be in light Azinger’s plain dictates, read unless such and until is decision overturned upon specific challenge based contain- ing directed or advocacy,10 displaced and focused upon overt rulemaking by this Accordingly, complete Court. consolida- (or actions) merger tion or fusion does occur absent complete claims; identity separate actions retain lacking overlap such identities and re- their quire distinct judgments; principles pertain equally determinations; appealability they to operate continue in even the an purporting face of order the consolidate “for actions all purposes.”11 213(a) face, posits that on
9.
concurrence
Rule
is
its
and that
clear
discretionary
the
the rule
"advise[s] that
consolidation
different
convenience,
simply operates
actions
as an administrative
while
keep
Concurring
consolidated actions
their individual
identities.”
however,
213(a)).
Opinion
(citing
respect,
at 1289
No.
With
Pa.R.C.P.
213(a)
Rather,
Rule
simply does not
this
in
contain
information.
terms,
part,
only prescribes,
general
relevant
the rule
far more
that
“may
trial courts
actions consolidated.” Pa.R.C.P. No.
213(a).
Indeed,
213(a)
on
it because Rule
does not elaborate what is meant
necessary, Kincy,
"consolidated" that it
to consider
various
was
213(a)
(or
clarify
largely
wholly)
forms of consolidatiоn
Rule
strain—i.e., complete
previously separate
one
excludes
consolidation
require-
effectively
actions—since such consolidation is
obviated
joinder
single
arising
for mandatory
ment
in a
causes of
action of
per
person,
out of the same
occurrence
same
transaction
1020(d).
Kincy,
Rule
Pa.
at 494.
reason, implementation
suggestion
For this
of the concurrence’s
analysis
jettisoned
Kincy/Azinger
of consolidation
should
213(a)'s
ambiguity
generalized
restоre the
to Rule
authorization for
213(a).
courts to
Pa.R.C.P.
trial
order “the
consolidated.”
No.
noting
challenge
presented Kincy,
no
It is worth
see
10.
was
Kincy,
("Notably,
appellant]
Justices opinion. concurring opinion. BAER files a
Justice did not EAKIN and Justice WECHT Former Justice of this case. consideration decision in the participate BAER, concurring Justice write Majority reached but
I in the result concur Procedure I that the Rules Civil believe separately because to the inform the and bar effect bench appropriately Thus, through it is these together. trying trial court actions Azinger Pennsyl in than this decision rules, rather Court’s Co., 242, 105 nearly at R. Pa. A. 87 vania Proce of Civil formation the Rules years age predates in presented appeal. this dure, I examine the issue that would Azinger provided an initial in seminal decision This Court’s of a court understanding consequences for framework Howevеr, my multiple actions. simultaneously hearing in the judicially has since been codified view, this framework discovery, only in stage, was terms judgment since the order couched (con- arbitration, Although Kincy that a broader and trial. held solidating purposes”) for its stated "for all would ineffective cases light legal established any event in of the limitations operate Azinger, principle no which would extend we know of beyond express its own terms. effect of a consolidation order lines, wishing to helpful рleas common courts Along it would be if proceedings encompassing pretrial implement consolidation all that, (albeit Azinger, light Kincy such order say clearly so judgments requirement supplant for would not least, claims). very applying At the of identical absence consolidated, only if for clarify being precision would what is pleas common level. convenience administrative Rules Civil addressing joinder Procedure and consolidation of actions.1
A that, review these rules indicates when two or more subject actions are to mandatory joinder, they are deemed single action and move as if forward one. Pa.R.C.P. 1020(d) (providing that joinder is mandatory when “a transaction or gives occurrence rise more than one *10 cause of action heretofore asserted assumpsit and trespass, against the same person, including causes of action in the alternative”). The same is true in a permissive joinder sce- joinder nario when in fact occurs. See Pa.R.C.P. 2229 (ex- plaining the joinder various scenarios when the of a party is permitted, as, (c) under rule, subsection of “[pjarties may join joined or the alternative although the cause action asserted or against any or one more them is inconsistent with the cause of action by or against asserted any joined”).2 the others so The rules further advise that the discretionary consolidation of different actions simply op- erates as an administrative convenience, while the consolidat- ed actions keep their individual identities. See Pa.R.C.P. 213(a) trial (giving the court discretion to consolidate actions “which common question involve a or fact law or which arise from occurrence”). the same or transaction
Here, it is undisputed that the trial court consolidated Appellant’s separate actions against Mr. Tsimura and Mr. 213(a). pursuant Thus, Sivchuk to Rule the trial court consid- ered the matters simultaneously only for the sake adminis- trative convenience. actions, therefore, sepa- maintained rate identities. Consequently, when the trial court entered its granting summary judgment Tsimura, in favor of Mr. acknowledge I Majority applying 1. holding Kincy that the Petro, holding A.3d 490 which reaffirmed However, slate, Azinger. writing if I were on employ a clean I would rationale more Saylor's concurring opin- consistent with Chief Justice J., Kincy. Kincy, ion in (Saylor, concurring). 498-99 Notwithstanding merging of two actions into one when mandato- occurs, ry permissive joinder Kincy correctly was This dеcided. joinder Court never has held that the party of two actions allows a rely pleadings express contemporaneous on another’s adoption without of the same. of the status regardless appealable, final was
that order Pa.R.A.P. Sivchuk. See against Mr. Appellant’s “disposes 341(b)(1) as an order that “final (defining order” parties”). of all all claims and Azinger as an reasons, employing I cease
For consolidation/merger ques- disposition basis for analytical Appellant’s tions, quashing Court’s order Superior vacate Majority, remand case, and, consistent with appeal in this court that the directions Court with the matter of Appellant’s appeal. merits resolve
138 A.3d *11 Hanaway, Respondents Lynn J. and Connie HANAWAY v. Partners, GROUP, LP; Mansion The PARKESBURG Parke LLC; Mansion, Associates, LP; LP; Sadsbury Parke White, Inc., Petitioners. and T.R. Hanaway,
Lynn Hanaway Connie Cross-Petitioners J. Partners, LP; Parkesburg LP; Group, Mansion Parke LLC; LP; Mansion, Associates, Sadsbury Parke White, Inc., Cross-Respondents. T.R. Pennsylvania. Supreme Court of May