J-A07012-17

J-A07013-17

2018 PA Super 125

JENNIFER M. STRAW AND THOMAS P.

STRAW, INDIVIDUALLY AND AS COADMINISTRATORS OF THE ESTATE OF

ELIJAH C. STRAW, DECEASED; AND

ROWAN J. STRAW, A MINOR, BY AND

THROUGH HIS PARENTS AND NATURAL

GUARDIANS, JENNIFER M. STRAW AND

THOMAS P. STRAW

 v.

KIRK A. FAIR AND GOLON MASONRY

RESTORATION, INC.

 v.

PITTSBURGH LUBES, INC. T/D/B/A JIFFY

LUBE, TOWER AUTO SALES & SERVICE,

NATIONAL AUTOMOTIVE PARTS

ASSOCIATION-NAPA AUTO PARTS

T/D/B/A/ NAPA

 v.

THOMAS P. STRAW

APPEAL OF: GOLON MASONRY

RESTORATION, INC.

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 742 WDA 2016

Appeal from the Judgment Entered April 28, 2016

in the Court of Common Pleas of Allegheny County

Civil Division at No(s): G.D. NO. 2013-003294

JENNIFER M. STRAW AND THOMAS P.

STRAW, INDIVIDUALLY AND AS COADMINISTRATORS OF THE ESTATE OF

ELIJAH C. STRAW, DECEASED; AND

ROWAN J. STRAW, A MINOR, BY AND

THROUGH HIS PARENTS AND NATURAL

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IN THE SUPERIOR COURT OF

PENNSYLVANIA
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GUARDIANS, JENNIFER M. STRAW AND

THOMAS P. STRAW

 v.

KIRK A. FAIR AND GOLON MASONRY

RESTORATION, INC.

 v.

PITTSBURGH LUBES, INC. T/D/B/A JIFFY 

LUBE, TOWER AUTO SALES & SERVICE, 

NATIONAL AUTOMOTIVE PARTS 

ASSOCIATION-NAPA AUTO PARTS 

T/D/B/A/ NAPA

 v.

THOMAS P. STRAW

APPEAL OF: GOLON MASONRY

RESTORATION, INC.

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¦ No. 743 WDA 2016

Appeal from the Judgment Entered April 28, 2016

in the Court of Common Pleas of Allegheny County

Civil Division at No(s): G.D. NO. 2013-003294

BEFORE: OLSON, STABILE, AND STRASSBURGER,* JJ.

CONCURRING AND DISSENTING OPINION BY STRASSBURGER, J.:

 FILED MAY 11, 2018

Were I writing on a clean slate, I would quash this appeal as 

interlocutory. A majority1 of this panel holds that this appeal is properly 

 

* Retired Senior Judge assigned to the Superior Court.

1

In addressing the merits of the issues raised on appeal in his dissenting 

opinion, Judge Stabile in footnote 1 agrees with Judge Olson that this Court 

(Footnote Continued Next Page)
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before this Court because there were not any pending claims remaining to 

be disposed of by the trial court after Plaintiffs withdrew their punitive 

damages claim without prejudice. Majority Memorandum at 25-26 n.11. To 

support this, the Majority cites Levitt v. Patrick, 976 A.2d 581 (Pa. Super. 

2009), and Bourne v. Temple Univ. Hosp., 932 A.2d 114 (Pa. Super. 

2007). Both cases are materially distinguishable.

In Levitt, Levitt filed a mortgage foreclosure action against Patrick; 

Patrick pled a counterclaim for tortious interference. The claims and 

counterclaim were bifurcated. Levitt’s claim was tried first, resulting in a 

verdict in favor of Patrick. Levitt appealed, and this Court issued a rule to 

show cause why the appeal should not be quashed as interlocutory because 

Patrick’s counterclaim was still pending. The parties agreed to discontinue 

the counterclaim, but the record did not show that the discontinuance was 

with prejudice. The Court held that “a claim need not be discontinued with 

prejudice for this Court to have jurisdiction to entertain an appeal.” Levitt, 

976 A.2d at 584. It offered the following explanation, quoted by the 

Majority.

The key inquiry in any determination of finality is whether 

there is an outstanding claim. Pa.R.A.P. 341. ... If any claim 

remains outstanding and has not been disposed of by the trial 

(Footnote Continued) _______________________

has jurisdiction to decide the substantive issues before us. Because two 

judges agree that this Court has jurisdiction over the appeal, our jurisdiction 

is established. Although I disagree with their conclusion as to jurisdiction, I 

agree with Judge Olson’s disposition of the merits of the appeal.
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court, then it does not matter whether the claim is classified as a 

counterclaim or a bifurcated claim, for the result is the same: 

this Court lacks jurisdiction to entertain the appeal unless the 

appeal is [immediately appealable as of right] or we grant 

permission to appeal. Pa.R.A.P. 341.

Similarly, if a claim was discontinued prior to trial, we do 

not inquire whether the discontinuance was with or without 

prejudice. The Pennsylvania Rules of Civil Procedure permit a 

party to “commence a second action upon the same cause of 

action” after a discontinuance. Pa.R.C.P. 231. This second 

action is considered a new action and not a continuation 

of the initial action. Because a party may initiate a new 

action upon a discontinued claim, it follows that a discontinued 

claim is not before the trial court for resolution.

Instantly, the parties jointly agreed to discontinue Patrick’s 

sole bifurcated counterclaim against Levitt. The parties further 

agreed that all issues that were not the subject of the trial of this 

matter have been disposed of. The discontinuance constitutes a 

final judgment as a matter of law. Because our finality inquiry 

has always focused on the existence of an outstanding claim, we 

need not examine whether Patrick’s bifurcated counterclaim was 

discontinued with or without prejudice. There are no 

outstanding claims remaining and thus we have jurisdiction to 

consider this matter.

Majority Opinion at 25-26 n.11 (quoting Levitt, 976 A.2d at 588 (some 

internal citations, quotations, and corrections omitted)) (emphasis added). 

In Bourne, the Bournes filed a medical malpractice complaint against 

the hospital, Dr. Berman, and three others. After the Bournes failed to file a 

required certificate of merit and were denied an extension, the hospital and 

Dr. Berman obtained a judgment of non pros. The Bournes filed a petition 

to open the judgment, the trial court denied it, and the Bournes appealed. 

After the appeal was filed, the trial court allowed the Bournes to “withdraw” 
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their claims against the other three defendants without prejudice. This 

Court indicated that this withdrawal rendered final the order denying the 

petition to open the non pros judgment in favor of the hospital and Dr. 

Berman. Bourne, 932 A.2d 115-16. 

The distinctions between these cases and the instant case are many 

and clear. First, Plaintiffs’ decision to forego their punitive damages claim 

without prejudice did not occur prior to trial; it happened in the middle of 

trial. Second, Plaintiffs did not discontinue causes of action prior to the 

disposition of those claims; rather, they declined to have the same jury that 

determined all other issues in the case render a decision as to one element 

of damages. 

Third, and perhaps most importantly, Plaintiffs’ withdrawal of their 

punitive damages claim expressly contemplates reviving it at a later date in 

the pending case, not in a new action. In both Levitt and Bourne, any later 

pursuit of the discontinued or withdrawn claims would take place in a new, 

separately filed action; they would not be revived at a later time in the 

same action. Indeed, the fact that the discontinued claim could only be 

pursued later in a separate action that would not be a continuation of the 

pending action was the reason this Court in Levitt concluded that the claim 

was not still pending before the trial court in the action at issue in the 

appeal. Levitt, 976 A.2d at 588. 
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“The fair and efficient administration of justice cannot tolerate 

‘piecemeal determinations and the consequent protraction of litigation.’” 

Driver v. Temple, 543 A.2d 134, 140 (Pa. Super. 1988) (Kelly, J., 

dissenting) (citations omitted). In the interest of judicial economy, “[i]t is 

more important to prevent the chaos inherent in bifurcated, trifurcated, and 

multifurcated appeals than it is to correct each mistake of a trial court the 

moment it occurs.” Calabrese v. Collier Twp. Mun. Auth., 248 A.2d 236, 

238 (Pa. 1968) (O’Brien, J., dissenting). See also Hession Condemnation 

Case, 242 A.2d 432, 437 (Pa. 1968) (O’Brien, J., dissenting) (“The 

bifurcated appeal foisted upon the courts can only be termed a judicial 

Hydra. Would that a Hercules could appear ... to slay this monster.”). 

Therefore, I would hold that there remains an outstanding issue in the 

present case and quash this appeal as interlocutory. 

However, both of my colleagues disagree with my assessment. 

Therefore, this Court has jurisdiction over the merits of this appeal, and I 

join in full Judge Olson’s opinion, with the exception of note 11.