By: Robert F. Horn, Esquire
December 24, 2014

Defendants in consolidated cases, worthy of a Summary Judgment, received an early Christmas present from a Superior Court En Banc panel that limited Plaintiff’s appeal opportunity.

In Malanchuk v. Tsimura, 1379 EDA 2012, the En Banc Court ruled that the Plaintiff could not take an appeal from a Summary Judgment against a single Defendant when the case was consolidated with another action where the other Defendant did not receive a Summary Judgment. This ruling requires the Plaintiff to try its case against the remaining Defendant before appealing the Summary Judgment.

At ConnorsLaw, we had the honor and privilege of defending Mr. Tsimura in this action.

Malanchuk involved a fall from a scaffold by Plaintiff, Ihor Malanchuk, who was an independent contractor. Work was being done at the home of Ilya Sivchuk, who is a general contractor. Mr. Sivchuk hired both the insured, Alex Tsimura, and Mr. Malanchuk, as independent contractors.

As a result of the fall, Plaintiff filed separate Complaints against each contractor, and then he consolidated the two actions.

Both Defendants filed Summary Judgment Motions before trial. Our Summary Judgment Motion was granted on behalf of Mr. Tsimura, while the Summary Judgment Motion on behalf of Defendant Sivchuk in this consolidated matter was not granted on the Negligence Count.

Plaintiff argued that the Summary Judgment had the effect of terminating the lawsuit against Tsimura, thereby rendering it a final Order for the purposes of appeal. Plaintiff relied heavily upon the consolidated case of Kincy v. Petro.

In Kincy, there were two separate plaintiffs who sued from a motor vehicle accident. One plaintiff sued the correct driver of the other vehicle, but the Kincy Plaintiff only sued the owner of the vehicle, incorrectly alleging he was the driver.

In that consolidated matter, a plaintiff sued the correct driver. The statute of limitations expired. The two cases were consolidated for all purposes. The defendant who was sued as the correct driver settled with the plaintiff, and as such, that action was discontinued.

Prior to trial, the trial court ordered a nonsuit in favor of the Petro defendant for not being the negligent driver of the vehicle. Kincy alleged that his Complaint was merged by the consolidation, putting the defendants on notice of the correct theories against them. The Pennsylvania Supreme Court, however, ruled that they were separate actions. The Superior Court En Banc reasoned that the Kincy holding was not analogous to our case.

In short, the Kincy case was about the merging of pleadings after the statute of limitations expired. If the pleadings had been allowed to merge, it would have circumvented the statute of limitations.

In the case at hand, the issue was not about merging of pleadings or the statute of limitations.
In reviewing the Summary Judgment against Malanchuk, the issue involved a consolidated case where a single Plaintiff filed an identical action against two Defendants. If the Plaintiff had filed a single Complaint, there would be no question that the case would have gone to trial against the remaining Defendant after a Summary Judgment against Malanchuk. The Superior Court En Banc saw no reason to view this case any differently, because of his filing of a separate action against each Defendant, then consolidating the two cases.

Lessons Learned:

Kincy v. Petro: Plaintiffs may not borrow from the pleadings of the consolidated action after the statute of limitations.

Malanchuk v. Tsimura Plaintiffs may not appeal from a summary judgment against a single defendant when the case has been consolidated with another defendant.

In summary, Defendants are protected in consolidated cases from Plaintiffs claiming either notice of pleadings in the other case, or trying to gain early access to appellate procedure before having to try their case against the remaining Defendants.

This is a victory for Defendants in consolidated cases involving a Summary Judgment disposition.
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You can see Bob arguing this case before the Superior Court En Banc, or the Domtar case involving an important subrogation issue, before the state Supreme Court by utilizing the following link: or by contacting the Bob Horn at (610) 524-2100 x 126, [email protected] for a DVD of the argument.