J-A03016-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOOMART TOKTOBAEV AND ULUKBEK 

DZHUMALIEV

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellees

v.

ALPHA CONTRACTING III, LLC, 

KG CONSTRUCTION, ALLEGHENY 

POWER, WEST PENN POWER COMPANY, 

ALLEGHENY ENERGY, FIRST ENERGY 

CORPORATION, TRANZSPORTER, TIE 

DOWN ENGINEERING, INC., FAITH 

ALLIANCE CHURCH AND THE WESTERN 

PENNSYLVANIA DISTRICT OF THE 

CHRISTIAN AND MISSIONARY ALLIANCE

APPEAL OF: FIRST ENERGY 

CORPORATION, ALLEGHENY ENERGY, 

INC., AND WEST PENN POWER COMPANY No. 882 EDA 2015

Appeal from the Order Entered March 9, 2015

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 537 September Term, 2013

HELEN ESBENSHADE, ESQUIRE, 

ADMINISTRATRIX AND PERSONAL 

REPRESENTATIVE OF THE ESTATE OF 

ADYLBEK MURATALIEV, DEC.

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ALPHA CONTRACTING III, LLC, KG 

CONSTRUCTION, ALLEGHENY POWER, 

ALLEGHENY ENERGY, WEST PENN 

POWER COMPANY, FIRST ENERGY 

CORPORATION, TRANZSPORTER, TIE 

DOWN ENGINEERING, INC., FAITH 
J-A03016-16

- 2 -

ALLIANCE CHURCH, AND THE WESTERN 

PENNSYLVANIA DISTRICT OF THE 

CHRISTIAN MISSIONARY ALLIANCE

APPEAL OF: FIRST ENERGY CORP., 

ALLEGHENY ENERGY, INC., AND WEST 

PENN POWER COMPANY

No. 894 EDA 2015

Appeal from the Order Entered March 9, 2015

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): September Term, 2013, No. 1552

BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

MEMORANDUM BY MUNDY, J.: FILED MAY 18, 2016

Appellants, First Energy Corporation, Allegheny Energy, Inc., and West 

Penn Power Company, appeal from the March 9, 2015 order coordinating 

these two cases in Philadelphia County pursuant to Pennsylvania Rule of Civil 

Procedure 213.1. After careful review, we affirm.

A prior panel of this Court adopted the following facts of this case.

This case arises out of an incident which occurred on 

September 19, 2011, wherein [Helen Esbenshade, 

Esquire’s] Decedent, Mr. Adylbek Murataliev, was 

properly and lawfully engaging in construction and/or 

roofing services at the Faith Alliance Church in 

Saltsburg, Pennsylvania, and was required to use a 

TranzSporter roofing hoist, model number LH4000, 

to complete his assigned duties and tasks. On the 

time and date aforesaid, Mr. Murataliev and two 

other co-workers, Joomart Toktobaev and Ulukbek 

Dzhumaliev [(collectively Appellees)], were using the 

roofing hoist, when suddenly and without warning, 

the hoist moved and made contact with a 12 kV 

overhead electrical power line, which was installed 

and maintained in very close proximity to the Faith 

Alliance Church building. As a result of the 

TranzSporter roofing hoist making contact with the 
J-A03016-16

- 3 -

live 12 kV overhead electrical power line, Mr. 

Murataliev was electrocuted and died. [Ms. 

Esbenshade, as administratrix and personal 

representative of the estate of Mr. Murataliev, 

brought a lawsuit in Philadelphia County on 

September 13, 2013 under the caption Esbenshade 

v. Alpha Contracting III, LLC, et al., September Term 

2013, No. 1552 (Esbenshade Case).]

Additionally, Messrs. Toktobaev and Dzhumaliev 

were also severely injured in the incident and both 

individuals have filed their own lawsuit under the 

caption, Toktobaev v. Alpha Contracting III, LLC, et 

al., September Term 2013, No. 537 (Philadelphia 

County) [(Toktobaev Case)]. [The Toktobaev Case 

was filed on September 5, 2013.] Importantly, the 

lawsuit filed by Messrs. Toktobaev and Dzhumaliev 

involves the exact same Defendants, as well as the 

same allegations of negligence. 

Esbenshade v. Alpha Contracting III, LLC, et al., 116 A.3d 675 (Pa. 

Super. 2014) (unpublished memorandum at 2) (citation omitted).

This case has a complex procedural history. As an overview, the 

parties have been contesting the proper venue for these cases in myriad 

filings in three cases, upon which three judges have issued rulings. In 

addition to the Toktobaev Case and the Esbenshade Case, there was a third 

matter involving the parties, a declaratory judgment action filed on 

December 20, 2013, by Atlantic Casualty Insurance Company (Atlantic 

Casualty Case). In that case, Atlantic Casualty sought a declaratory 

judgment that its insurance policy excluded from coverage the claims 

against its insured, KG Construction, in the Esbenshade Case and the 

Toktobaev Case.
J-A03016-16

- 4 -

In the Toktobaev Case, Appellants filed preliminary objections to the 

complaint, arguing, in part, that Philadelphia County was not the proper 

venue and, alternatively, that the trial court should transfer the case to 

Indiana County based on forum non conveniens. On January 17, 2014, The 

Honorable Frederica Massiah-Jackson struck the preliminary objections, and 

Philadelphia County remained the venue. Trial Court Order, 1/17/14, at 1, 

citing, Pa.R.C.P. 1006(d)(1) (providing that any party can petition the trial 

court to transfer the action for the convenience of the parties and 

witnesses); Pa.R.C.P. at 2179 (listing proper venue for a personal action 

against a corporation); Second Amended Complaint, 11/22/13, at ¶ 35 

(alleging “[a]ll defendants are jointly and severally liable for the injuries that 

Plaintiffs Joomart Toktobaev and Ulukbek Dzhumaliev suffered[]”). 

Appellants also filed substantially similar preliminary objections to 

Esbenshade’s complaint, which were assigned to a different Philadelphia 

County trial judge, the Honorable Mark I. Bernstein, for disposition. Unlike 

the preliminary objections in the Toktobaev Case, these were scheduled for 

evidentiary hearing and argument on January 24, 2014. Trial Court Order, 

11/22/13, at 1.1 The trial court also authorized the parties to conduct 

discovery relevant to the question of venue. Id. On January 27, 2014, ten 

____________________________________________

1 We note that most of the trial court orders do not contain pagination. For 

ease of review, we have assigned each page a corresponding page number 

when necessary.
J-A03016-16

- 5 -

days after Judge Massiah-Jackson struck the preliminary objections to the 

Toktobaev complaint, Judge Bernstein entered an order sustaining 

Appellants’ preliminary objections and transferring venue of the Esbenshade 

Case to Indiana County based on forum non conveniens. Trial Court Order, 

1/27/14, at 1. On January 31, 2014, Esbenshade appealed to this Court.

While that appeal was pending, on February 17, 2014, Esbenshade 

filed, in the Atlantic Casualty Case, a motion to consolidate all three cases in 

Philadelphia County under Pennsylvania Rule of Civil Procedure 213(a). In 

an order dated March 21, 2014, The Honorable Pamela Pryor Dembe denied 

the motion to consolidate. 

In addition, Appellants filed a motion to transfer the Toktobaev Case to 

Indiana County. On July 2, 2014, Judge Bernstein denied that motion, 

reasoning that he could not overrule Judge Massiah-Jackson’s previous 

ruling on forum non conveniens in the January 17, 2014 order. Appellants 

then filed a motion for Judge Bernstein to amend his order to certify it as an 

interlocutory order for appeal pursuant to Pennsylvania Rule of Appellate 

Procedure 311(b)(2). On August 25, 2014, Judge Bernstein denied that 

motion, and Appellants petitioned for review with this Court. On November 

7, 2014, this Court denied the petition for review.

Thereafter, on December 2, 2014, this Court affirmed the trial court’s 

order sustaining the preliminary objections and transferring the Esbenshade 

Case to Indiana County. Esbenshade, supra at 12; (Bowes, J., 
J-A03016-16

- 6 -

unpublished concurring memorandum at 2); (Strassburger, J., unpublished 

concurring memorandum at 1).2 Specifically, the majority of that panel 

concluded that “based upon the location of the accident, its distance from 

Philadelphia, and the number of witnesses located 300 miles away from 

[Esbenshade’s] chosen forum, the trial court did not abuse its discretion in 

transferring [the Esbenshade Case] to Indiana County.” Id. at 2 (Bowes, J., 

concurring). Further, the concurring memorandum authored by Judge 

Strassburger noted “that this case, along with those of Toktobaev and 

Dzhumaliev, cries out for coordination.” Id. at 1 (Strassburger, J., 

concurring).

On January 23, 2015, Esbenshade filed, in the Esbenshade Case, a 

motion to coordinate all three cases in Philadelphia County. Esbenshade’s 

Motion to Coordinate, 1/23/15, at ¶ 18, 22-25. It was assigned to Judge 

Bernstein. Appellants filed a brief in opposition to coordination. Atlantic 

Casualty filed an answer to the motion to coordinate. Toktobaev and 

____________________________________________

2 The Honorable Paula Ott’s lead memorandum concluded that Esbenshade 

had waived the issues relating to forum non conveniens. Esbenshade, 

supra at 8. The Honorable Mary Jane Bowes’ concurring memorandum 

found that Esbenshade did not waive the issues relating to forum non 

conveniens and affirmed the trial court on the merits. Esbenshade, supra

at 2 (Bowes, J., concurring). The Honorable Gene Strassburger joined Judge 

Bowes’ concurring memorandum. Id. at 1 (Strassburger, J., concurring). 

Therefore, the prior panel affirmed the trial court’s decision to transfer venue 

based on forum non conveniens on the merits.
J-A03016-16

- 7 -

Dzhumaliev filed a response in support of the motion to coordinate, 

requesting that the trial court coordinate the cases in Philadelphia County.

On February 13, 2015, in the Atlantic Casualty Case, Judge Dembe 

entered declaratory judgment in favor of Atlantic Casualty, finding it had no 

duty to defend or indemnify its insured in this case and the Toktobaev Case. 

That order was not appealed.

On March 9, 2015, Judge Bernstein entered an order coordinating the 

Esbenshade Case and the Toktobaev Case in Philadelphia County.3 

Appellants filed a timely notice of appeal with this Court.4

On appeal, Appellants present the following issues for our review.

1. Whether the [t]rial [c]ourt erroneously 

coordinated the two injury cases in Philadelphia 

County (rather than Indiana County) under the 

mistaken belief that Rule 213.1 of the 

Pennsylvania Rules of Civil Procedure required the 

cases to be coordinated in Philadelphia County, 

the venue in which the first case was filed?

2. Whether the Superior Court’s ruling that it would 

be oppressive to try the Estate’s action in 

Philadelphia County precluded the [t]rial [c]ourt 

from invoking the coordination rule on remand as 

a vehicle to transfer venue from Indiana County 

back to Philadelphia County?

____________________________________________

3 We note the order was dated February 25, 2015 and docketed on March 9, 

2015.

4 The trial court did not order Appellants to file a Pennsylvania Rule of 

Appellate Procedure 1925(b) concise statement of errors complained of on 

appeal. The trial court filed its opinion on May 27, 2015.
J-A03016-16

- 8 -

3. The [t]rial [c]ourt ruled that it would be 

oppressive—and not merely inconvenient—to try 

the [Esbenshade] action in Philadelphia County. 

In selecting the venue in which to coordinate the 

[Esbenshade] action with the [Toktobaev] action 

arising out of the same accident, did the [t]rial 

[c]ourt err by selecting the oppressive venue 

(Philadelphia County) rather than the nonoppressive venue (Indiana County)?

Appellants’ Brief at 3.

Our standard of review for an order of coordination is whether the trial 

court abused its discretion. Pa. Mfrs.’ Ass’n Ins. Co. v. Pa. State Univ., 

63 A.3d 792, 794 (Pa. Super. 2013). We have explained that the following 

principles guide our review.

Where the record provides a sufficient basis to justify 

the order of coordination, no abuse of discretion 

exists. Whether we would have reached the same 

conclusion is immaterial. In exercising its discretion, 

the trial court should receive guidance not only from 

the enumerated [Pennsylvania Rule of Civil 

Procedure 213.1(c)] criteria ... but also from the 

explanatory comment to Rule 213.1(c), which 

explains that the ultimate determination that the 

court must make is whether coordination is “a fair 

and efficient method of adjudicating the 

controversy.” 

Washington v. FedEx Ground Package Sys., 995 A.2d 1271, 1277 (Pa. 

Super. 2010) (citations omitted).

Further, Rule 213.1 provides, in part, as follows.

Rule 213.1 Coordination of Actions in Different 

Counties

(a) In actions pending in different counties which 

involve a common question of law or fact or which 
J-A03016-16

- 9 -

arise from the same transaction or occurrence, any 

party, with notice to all other parties, may file a 

motion requesting the court in which a complaint 

was first filed to order coordination of the actions. 

Any party may file an answer to the motion and the

court may hold a hearing.

...

(c) In determining whether to order coordination 

and which location is appropriate for the coordinated 

proceedings, the court shall consider, among other 

matters:

(1) whether the common question of fact or 

law is predominating and significant to the 

litigation;

(2) the convenience of the parties, witnesses 

and counsel;

(3) 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;

(4) the efficient utilization of judicial facilities 

and personnel and the just and efficient 

conduct of the actions;

(5) the disadvantages of duplicative and 

inconsistent rulings, orders or judgments;

(6) the likelihood of settlement of the actions 

without further litigation should coordination 

be denied.

(d) If the court orders that actions shall be 

coordinated, it may

(1) stay any or all of the proceedings in any 

action subject to the order, or
J-A03016-16

- 10 -

(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(a), (c)-(d).

In their first issue, Appellants contend that the trial court erred in 

ordering the cases to be coordinated in Philadelphia County. Appellants’ 

Brief at 25. Appellants argue, “Judge Bernstein did not consider whether 

Indiana County would be a more appropriate venue .... Judge Bernstein did 

not ... determine that Philadelphia County was a more appropriate venue 

than Indiana County in which to resolve the coordinated cases.” Id. at 25-

26. Appellees respond that “Appellants failed to properly raise this issue at 

the trial court.” Appellees’ Brief at 5.

The text of Rule 213.1(c) reveals that a coordination analysis has two 

parts. Pa.R.C.P. 213.1(c). First, the trial court must determine whether to 

coordinate the cases. Id. Second, if coordination is appropriate, the trial 

court must then decide which county should conduct the proceedings. Id.

In this case, Appellants contend that the trial court erred in ordering 

coordination without conducting the second step of the Rule 213.1 analysis, 

i.e., which county should hear the cases. Appellants’ Brief at 25-26. 

However, Appellants did not present the trial court with Indiana County as 

an option. Instead, in their brief in opposition to the motion to coordinate, 
J-A03016-16

- 11 -

they expressly requested that the trial court not consider coordinating the 

cases in Indiana County as follows.

[Appellants] do not necessarily dispute that the 

Toktobaev [Case] and the [Esbenshade Case] 

involve common issues of law and fact such that 

coordination in Indiana County—where it would not 

be oppressive to resolve the cases—could be 

appropriate. These entities reserve the right to seek 

coordination of those two cases in Indiana County in 

the future. However, that more limited issue is 

not implicated in the Motion to Coordinate. 

Appellants’ Brief in Opposition to Esbenshade’s Motion to Coordinate, 

2/12/15, at 5 n.1 (emphasis added). Appellants then focused their 

argument on the reasons that the cases should not be coordinated. Id. at 

6-12.

Now, on appeal, Appellants, for the first time, advocate Indiana 

County as the location for the coordinated cases and contend that the trial 

court should have considered whether to coordinate the cases in Philadelphia 

County or Indiana County. Appellants’ Brief at 25-26. Because Appellants 

did not present this issue to the trial court, it is not preserved for our review. 

See Pa.R.A.P. 302(a) (declaring “[i]ssues not raised in the lower court are 

waived and cannot be raised for the first time on appeal[]”). Appellants 

made the strategic decision to focus on the first part of the coordination 

analysis, whether coordination was appropriate, believing that the choice of 

which county to coordinate in was not before the trial court in the motion to 

coordinate. Appellants’ Brief in Opposition to Esbenshade’s Motion to 
J-A03016-16

- 12 -

Coordinate, 2/12/15, at 5 n.1. Appellants misapprehended Rule 213.1(c), 

but they cannot revise and reconstruct their strategy in this Court. See 

Pa.R.A.P. 302(a). Therefore, we conclude that Appellants have waived this 

issue by not raising it in the trial court. See id.

We address Appellants’ two remaining issues together. Therein, 

Appellants contend that the trial court previously found that Philadelphia 

County was an “oppressive” venue for the Esbenshade Case, and the 

Superior Court affirmed that decision. Appellants’ Brief at 30. Appellants 

assert that the trial court was not permitted to coordinate the Esbenshade 

Case in Philadelphia County because that disturbs this Court’s decision to 

affirm venue in Indiana County based on its forum non conveniens analysis. 

Id. Appellants also argue that it circumvents numerous trial court rulings on 

venue. Id. at 34.

This Court has noted that the issue of forum non conveniens5is 

different from the Rule 213.1 coordination analysis. “We reiterate that 

convenience is only one factor, and not the overriding factor, in such 

determinations.” Pa. Mfrs.’, supra at 795. “Ultimately, as we explained in 

Washington, the trial court’s primary task is not to balance the relative 

____________________________________________

5 We note that Pennsylvania Rule of Civil Procedure 1006(d)(1) is the basis 

of forum non conveniens. It provides that “[f]or the convenience of the 

parties and witnesses the court upon petition of any party may transfer an 

action to the appropriate court of any other county where the action could 

originally have been brought.” Pa.R.C.P. 1006(d)(1).
J-A03016-16

- 13 -

convenience of the parties, but to decide if the proposed coordination would 

provide ‘a fair and efficient method of adjudicating the controversy.’” Id. at 

796, quoting Washington, supra at 1277.

 Here, Judge Bernstein decided the coordination motion. He 

explained that the cases should be coordinated because they are “clearly 

related” because they “derive from the same operative facts.” Trial Court 

Opinion, 5/27/15, at 3. He then chose to coordinate them in Philadelphia 

County, where the first-filed case remained. Id. He did so even though he 

had determined that Philadelphia County was not a convenient forum for 

Appellants. Our prior panel decision and the other trial court orders were 

not controlling on the question of whether the coordination was “a fair and 

efficient method” to resolve the cases. Pa. Mfrs’, supra. Rule 213.1 

permitted the trial court to coordinate the cases in Philadelphia County, even 

though it was not convenient for some of the parties because convenience is 

not dispositive. See id. 

Further, the record supports the decision to coordinate. There is no 

question that the cases involved common issues of fact and law. See 

Pa.R.C.P. 213.1(c)(1). Appellants presented no evidence or argument that 

coordination would result in prejudice. Id. at 213.1(c)(3). Coordination 

would be a more efficient use of judicial resources because two courts of 

common pleas deciding the cases would result in a large duplication of 

efforts, and possibly result in inconsistent rulings, orders, or judgment. Id.
J-A03016-16

- 14 -

at 213.1(c)(4)-(5). These factors weighed heavily in favor of coordination 

and the trial court was permitted to conclude they outweighed the 

convenience of the parties, witnesses, and counsel. Id. at 213.1(c). 

Moreover, even in the event the issue was not waived, the trial court did not 

abuse its discretion in selecting Philadelphia County as the location for the 

coordinated proceedings. Therefore, we will not disturb the trial court’s 

decision. See Washington, supra.

For the foregoing reasons, we find Appellants’ issues waived or without 

merit. Accordingly, we affirm the trial court’s March 9, 2015 order 

coordinating these cases in Philadelphia County.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/18/2016