J-A17031-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ERIC B. GREENBERG, IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellee

 v.

HARVEY PENNINGTON, LTD.,

 Appellant

 v.

 

JOHN F.X. MONAGHAN,

 Appellee No. 3801 EDA 2016

 

Appeal from the Order Entered November 15, 2016

in the Court of Common Pleas of Chester County

Civil Division at No.: 2015-08865

BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 19, 2017

Appellant, Harvey Pennington, LTD., appeals from the order of 

November 15, 2016, which granted the motion of Appellee, John F.X. 

Monaghan, for coordination. For the reasons discussed below, we affirm.1

We take the underlying facts and procedural history in this matter 

from the trial court’s February 2, 2017 opinion and our independent review 

of the certified record. On November 6, 2015, Appellee Eric B. Greenberg, 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Appellee, Eric B. Greenberg, has not filed a brief in this appeal.
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an attorney, filed the instant action in the Court of Common Pleas of Chester 

County against Appellant, a law firm. (See Chester County Complaint, 

11/06/15, at 1). In the complaint, Appellee Greenberg sought an accounting 

and damages for breach of contract and unjust enrichment. (See id. at 3-

4). He alleged that in January 2007, he entered into a written agreement 

for compensation with Appellant, which included a percentage of all fees paid 

to Appellant by certain insurance companies or self-insured organizations. 

(See id. at 1-3). Appellee Greenberg claimed that Appellant has paid the 

hourly portion of his salary but refused to keep current in its percentage 

payments and has not paid them since January 2012. (See id. at 3). 

On December 2, 2015, Appellant filed a joinder complaint against 

Appellee Monaghan and, on December 4, 2015, Appellant filed an answer 

and new matter to Appellee Greenberg’s complaint. In both, Appellant 

alleged that Appellee Monaghan controlled the revenue of Appellant’s 

medical malpractice group (to which Appellee Greenberg belonged) and 

made all decisions about how the revenues should be allocated and 

distributed. (See Joinder Complaint, 12/02/15, at 2-6; see Answer with 

New Matter, 12/04/15, at 3, 5, 10-12). Specifically, Appellant contends 

that, in 2014, the Court of Common Pleas of Berks County found Appellee 

Monaghan in contempt and that he diverted funds that should have been 

used to pay obligations of his practice group (including payments to Appellee 
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Greenberg) to pay the costs of defending the contempt action. (See Joinder 

Complaint, at 2-6, see Answer with New Matter, at 10-12). 

In September 2015, Appellee Monaghan and his team left Appellant 

and moved to another law firm. (See Answer with New Matter, at 8, 15; 

Philadelphia County Complaint, 8/05/16, at 5). On August 5, 2016, 

Appellant filed an action against Appellee Monaghan in the Court of Common 

Pleas of Philadelphia County. This action related to Appellee Monaghan’s 

handling of the contempt citation. (See Philadelphia County Complaint, at 

2-6).

On September 9, 2016, Appellee Monaghan filed the motion for 

coordination seeking to coordinate the Philadelphia and Chester County 

actions in Chester County. On November 15, 2016, the trial court granted 

the motion. The instant, timely appeal followed. On December 14, 2016, 

the trial court ordered Appellant to file a concise statement of errors 

complained of on appeal. See Pa.R.A.P. 1925(b). On January 3, 2017, 

Appellant filed a timely Rule 1925(b) statement. See id. On February 2, 

2017, the trial court filed an opinion. See Pa.R.A.P. 1925(a).

On appeal, Appellant raises the following questions for our review.

1. Did the [t]rial [c]ourt err and abuse its discretion in 

granting the [m]otion to [c]oordinate the Chester County 

[a]ction with the Philadelphia County [a]ction since no common 

question of law or fact predominates both actions and is 

significant to their resolution?

2. Did the [t]rial [c]ourt err and abuse its discretion in 

granting the [m]otion to [c]oordinate the Chester County 
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[a]ction with the Philadelphia County [a]ction since coordination 

of both actions is not a fair and efficient method of adjudicating 

either controversy, a collection action by [Appellee Greenberg] 

against [Appellant] and a[n] indemnification and contribution 

action by [Appellant] against [Appellee Monaghan] pending in 

Chester County, and the Philadelphia County Action, which 

[Appellant] brought against its former employee, [Appellee 

Monaghan], for fraud in the inducement, breach of fiduciary and 

equitable duties owed to the firm, and unjust enrichment?

3. Did the [t]rial [c]ourt err and abuse its discretion in 

granting the [m]otion to [c]oordinate the Chester County 

[a]ction with the Philadelphia County [a]ction since the law and 

the facts which support the claims and defenses in the Chester 

County Action, a collection action by [Appellee Greenberg] 

against [Appellant] and an indemnification and contribution 

action by [Appellant] against [Appellee Monaghan], are not 

predominately and significantly the same as those which support 

the claims and defenses in the Philadelphia County Action filed 

by [Appellant] against [Appellee Monaghan] for fraud in the 

inducement, breach of fiduciary and equitable duties owed to the 

firm, and unjust enrichment?

4. Did the [t]rial [c]ourt err and abuse its discretion in 

granting the [m]otion to [c]oordinate since coordination of both 

actions will not promote settlement of either action?

5. Did the [t]rial [c]ourt err and abuse its discretion in 

granting the [m]otion to [c]oordinate the Chester County 

[a]ction and the Philadelphia County [a]ction in Chester County 

rather than in Philadelphia County because neither action has 

any connection to Chester County?

(Appellant’s Brief, at 4).

Before we may consider the issues raised by Appellant, we must 

determine whether the order before us is appealable. Although none of the 

parties questioned the appealability of the order, it implicates our 

jurisdiction, and therefore, “this Court has the power to inquire at any time, 
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sua sponte, whether an order is appealable.” Estate of Considine v. 

Wachovia Bank, 966 A.2d 1148, 1151 (Pa. Super. 2009) (citation omitted).

This Court has found that an order granting a motion to coordinate 

actions pursuant to Pa.R.C.P. 213.1 is an interlocutory order appealable as 

of right pursuant to Pa.R.A.P. 311(c). See Pennsylvania Manufacturers’ 

Ass’n. Ins. Co. v. Pennsylvania State University, 63 A.3d 792, 793 n.1 

(Pa. Super. 2013). Pennsylvania Rule of Appellate Procedure 311(c) 

provides,

[a]n appeal may be taken as of right from an order in a civil 

action or proceeding changing venue, transferring the matter to 

another court of coordinate jurisdiction, or declining to proceed 

in the matter on the basis of forum non conveniens or analogous 

principles.

Pa.R.A.P. 311(c). Generally, when a trial court grants a motion to 

coordinate actions, it also, concomitantly orders the transfer of the case 

from the foreign county to the county in which the actions will be 

coordinated. See Pennsylvania Manufacturers’ Ass’n. Ins. Co., supra 

at 793 (granting coordination of actions in Philadelphia County and 

transferring Centre County case to Philadelphia County). Therefore, because 

the trial court did so here, (see Order, 11/15/16, at unnumbered page 1), 

the order is appealable under Rule 311(c) since it “tranferr[ed] the matter of

another court of coordinate jurisdiction.” Pa.R.A.P. 311(c). Accordingly, we 

will address the merits of Appellant’s contentions.
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In the instant matter, all of Appellant’s issues address elements of the 

trial court’s decision to grant the motion for coordination, therefore, we will 

address them together.2 Our standard of review is settled. “We review an 

order coordinating actions for abuse of discretion by the trial court.” 

Pennsylvania Manufacturers' Ass'n Ins. Co., supra at 794. Further, we 

have stated:

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 and quotation marks omitted).

Pennsylvania Rule of Civil Procedure 213.1 governs the coordination of 

actions filed in different counties. It provides, in pertinent part:

(a) In actions pending in different counties which involve a 

common question of law or fact or which arise from the same 

____________________________________________

2 Despite raising five questions in its statement of the questions involved, 

Appellant divides its argument into only three sections, contrary to our rules 

of appellate procedure. (See Appellant’s Brief, at 17-23); see also 

Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as 

there are questions to be argued[.]”). Nonetheless, we will address its 

issues because this discrepancy does not hamper our review. See Donahue 

v. Fed. Express Corp., 753 A.2d 238, 241 n.3 (Pa. Super. 2000).
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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.

Pa.R.C.P. 213.1(a), (c).

In the instant matter, with respect to the first factor,3 Appellant admits 

that there is a “relationship” between the instant matter and the Philadelphia 

____________________________________________

3

“[W]hether the common question of fact or law is predominating and 

significant to the litigation.” Pa.R.C.P. 213.1(c)(1).
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County Case. (Appellant’s Brief, at 19). However, Appellant maintains that 

the instant matter is essentially an “accounting action,” while the 

Philadelphia County Case “arises from [Appellee] Monaghan’s misconduct in 

conducting his relationship with [Appellant].” (Id. at 20). Appellee 

Monaghan disagrees stating, “[t]here are common questions concerning the 

cash flow at [Appellant], who had the authority to direct revenue, and what 

factors other than the written contracts played a role in [Appellee] 

Greenberg’s compensation by [Appellant].” (Appellee Monaghan’s Brief, at 

13). In resolving this factor in favor of Appellee Monaghan, the trial court 

stated:

As described above, a major issue in both actions is 

[Appellee Monaghan’s] use of [Appellant’s] revenue stream to 

pay for the defense of his contempt citation in the [Berks 

County] action. [Appellee Monaghan’s] “diversion” of funds for 

that purpose is the basis of [Appellant’s] defense in the instant 

action, its [j]oinder [c]omplaint in the instant action and is also 

the basis of the Philadelphia [a]ction. . . . 

(Trial Court Opinion, 2/02/17, at 3). 

Having thoroughly reviewed the record, we see no abuse of discretion 

on the part of the trial court. As discussed above, at the heart of both cases 

is the issue of Appellee Monaghan’s ability to control the revenue streams of 

Appellant and his alleged decision to divert funds from paying Appellant’s 

expenses, including the payments of the percentage fees to Appellee 

Greenberg, to defending the Berks County action. This is sufficient to justify 

the grant of the motion for coordination. See Abrams v. Uchitel, 806 A.2d 
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1, 7 (Pa. Super. 2002) (finding no abuse of discretion in granting 

coordination despite lack of identity of all parties in all cases where same 

parties were involved in same transactions in both cases); see also 

Wohlsen/Crow v. Pettinato Assoc. Con. & Eng., Inc., 666 A.2d 701, 

704 (Pa. Super. 1995) (affirming coordination of five secondary cases with 

primary case, despite differing theories of recovery, where all cases involved 

contract to build prison).

With respect to the second factor,4 Appellant argues that the trial court 

should have coordinated the action in Philadelphia rather than Chester 

County, as Philadelphia County is more convenient for Appellant and its 

witnesses. (See Appellant’s Brief, at 22-23). However, Appellant does not 

argue that Chester County is an inconvenient forum, but rather that the 

action has no connection to Chester County. (See id.). Despite this, we 

note that Appellant did not file preliminary objections challenging venue in 

Chester County, instead filing an answer and new matter and a joinder 

complaint. 

We have stated that, “[t]he choice of venue, like the decision to 

coordinate, is left to the sound discretion of the trial court, and we will not 

reverse absent an abuse of that discretion.” Wohlsen/Crow, supra at 

704. Here, we discern no abuse of discretion. Appellant did not object to 

____________________________________________

4

“[T]he convenience of the parties, witnesses and counsel.” Pa.R.C.P. 

213.1(c)(2).
J-A17031-17

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venue in Chester County in the first instance, and has failed to point to any 

specific factor that would make it inconvenient for the parties, witnesses and 

counsel. (See Appellant’s Brief, at 22-23); see also Pennsylvania 

Manufacturers' Ass'n Ins. Co., supra at 795 (rejecting forum non 

conveniens argument made in context of motion for coordination; finding 

that trial court need only consider Rule 213.1(c) factors); Lincoln Gen. Ins. 

Co. v. Donahue, 616 A.2d 1076, 1080 (Pa. Cmwlth. 1992) (“It is not an 

abuse of discretion to order a transfer which will enhance the convenience of 

a majority of the individuals involved).5 

In its brief, Appellant does not address the third through fifth factors.6

In its decision, the trial court found that “[l]itigating this issue in one action 

will save judicial resources and promote efficiency.” (Trial Ct. Op., at 3). 

There is no basis to upset this holding. See Washington, supra at 1279 

(affirming coordination where it would “ensure judicial efficiency as well—

____________________________________________

5 While decisions of the Commonwealth Court are not binding upon us, they 

may serve as persuasive authority. See Commonwealth v. Ortega, 995 

A.2d 879, 885 (Pa. Super. 2010), appeal denied, 20 A.3d 1211 (Pa. 2011).

6

“[W]hether 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[.]” Pa.R.C.P. 213.1(c)(3), (4), 

and (5).
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establishing one court to address discovery issues, motions and other 

pretrial decisions involving the same facts and circumstances.”).

With respect to the sixth and final factor,7the trial court found that 

coordination “could also potentially promote a settlement.” (Trial Ct. Op., at 

3). Appellee Monaghan agrees. (See Appellee Monaghan’s Brief, at 17). 

On appeal, Appellant’s argument with respect to this issue is as follows. 

For reasons well known to counsel for the parties, and to 

the parties themselves, which do not bear further discussion 

here, there is no meaningful likelihood of settlement. Hence, 

compelling the parties to litigate both actions in tandem will not 

promote settlement.

Therefore, this factor does not mitigate in favor of 

coordination, and the [o]rder granting [Appellee] Monaghan’s 

[m]otion [f]or [c]oordination in the Chester County [a]ction 

should be overruled.

(Appellant’s Brief, at 22). 

This Court is not counsel or a party to this action. The trial court 

found that coordination could promote settlement. The burden is on 

Appellant to explain why this was an abuse of discretion; Appellant has not 

done so. See Lincoln Gen. Ins. Co., supra at 1081 (declining to speculate 

in order to find abuse of discretion on sixth factor where court was unable to 

understand the basis of appellant’s argument on issue). Therefore, we find 

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7

“[T]he likelihood of settlement of the actions without further litigation 

should coordination be denied.” Pa.R.C.P. 213.1(c)(6).
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that the trial court did not abuse its discretion in finding that this factor 

favored coordination.

For the reasons discussed above, we hold that the trial court did not 

abuse its discretion in granting Appellee’s motion for coordination. 

Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/19/2017