Kephart Trucking Co. v. Jackson Fiorentino LLC

13 Pa. D. & C.5th 92
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedApril 9, 2010
Docketnos. 1400 CV 2007 and 10315 CV 2008
StatusPublished

This text of 13 Pa. D. & C.5th 92 (Kephart Trucking Co. v. Jackson Fiorentino LLC) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Monroe County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kephart Trucking Co. v. Jackson Fiorentino LLC, 13 Pa. D. & C.5th 92 (Pa. Super. Ct. 2010).

Opinion

ZULICK, J,

Plaintiff Kephart Trucking Co. filed a complaint on December 7, 2009 seeking damages from the defendants arising from an execution on a judgment later determined to be void. These two actions were consolidated by order of November 2,2009. Defendants Jackson Fiorentino LLC, Janet Jackson, Esquire and Walter Marcin filed preliminary objections to the plaintiff’s complaint on December 23, 2009. The matter was listed for argument on February 1,2010. The parties filed briefs and argued their positions on that date.

DISCUSSION

Defendants Jackson Fiorentino, Janet Jackson, Esquire and Walter Marcin have raised numerous preliminary objections.

1. Lack of Subject Matter Jurisdiction

The Defendants first claim that this court lacks subject matter jurisdiction. “The test for determining whether a court has jurisdiction of the subject matter is the competency of the court to determine controversies of the general class to which the case presented for its consideration belongs, and the controlling question is whether the court had power to enter upon the inquiry, not [95]*95whether it might ultimately decide that it was unable to grant the relief sought in the particular case.” Strank v. Mercy Hospital of Johnstown, 376 Pa. 305, 309, 102 A.2d 170, 172 (1954). The complaint seeks damages for negligence, intentional misrepresentation and abuse of process against these defendants. The Pennsylvania Courts of Common Pleas have broad jurisdiction over tort actions. The Judiciary Act provides in 42 Pa.C.S. §931 as follows:

“(a) General rule. — Except where exclusive original jurisdiction of an action or proceeding is by statute or by general rule adopted pursuant to section 503 (relating to reassignment of matters) vested in another court of this Commonwealth, the courts of common pleas shall have unlimited original jurisdiction of all actions and proceedings, including all actions and proceedings heretofore cognizable by law or usage in the courts of common pleas.” 42 Pa.C.S. §931.

The phrase “jurisdiction of the cause of action” means “the competency of the particular court to determine controversies of the general class to which the case then presented for its consideration belongs.” GoodrichAmram 2d §1017(b):7, at 52. (footnotes omitted) There is no question that this court has subject matter jurisdiction over these kinds of torts.

Defendants contend that subject matter jurisdiction is lacking because this dispute arises from an underlying workers’ compensation action which is now final. A review of the rather complicated factual history alleged in this case is necessary. Kephart is a trucking company headquartered in Clearfield County, Pennsylvania. Com[96]*96plaint, ¶1. The complaint alleges that Kephart was a party to an agreement with America’s PEO, under which America’s PEO supplied commercial truck drivers to Kephart. America’s PEO was responsible to provide workers’ compensation benefits for the drivers. America’s PEO then merged with the Cura Group. Walter Marcin drove Kephart’s truck and was injured on January 6, 2001. He retained Janet Jackson, Esquire and her firm, Jackson Fiorentino, to represent him in filing a workers’ compensation claim. After the claim was filed, the parties filed a written stipulation requesting that:

“the workers’ compensation judge grant claimant’s claim petition as against America’s PEO/The Cura Group in accordance with the terms of this stipulation. The parties further request that the workers’ compensation judge deny and dismiss claimant’s claim petition as against Kephart Trucking and TIG/Managed Comp.” Stipulation attached as exhibit A to the complaint.

This stipulation was adopted by order of June 18,2003 by Workers’ Compensation Judge Thomas M. Kutz.

Later in the litigation, Kephart alleges that Attorney Jackson and Marcin improperly included Kephart in a compromise and release agreement between Marcin and the Cura Group. The compromise and release agreement incorrectly identified Kephart as Marcin’s employer, as well as the Cura Group. After the Cura Group defaulted on payments to Marcin, Attorney Jackson filed a series of penalty petitions against Kephart, and later obtained a judgment on those penalty petitions in this court. She then used that judgment to begin execution proceedings against Kephart’s assets. The complaint contends that at [97]*97the time Attorney Jackson filed the penalty petitions against Kephart, she knew or should have known that Kephart had previously been dismissed from the case. Complaint, ¶57.

The complaint further alleges that Attorney Jackson represented to Attorney Koerber, Kephart’s counsel that the judgment was valid and in reliance on that representation, Kephart paid $75,000 to Marcin as an installment payment on the judgment to avoid a levy on Kephart’s assets. Complaint, ¶¶ 62, 63, 110.

When Kephart’s counsel learned of the June 18,2003 order dismissing Kephart from the workers’ compensation litigation, he petitioned to open the judgment in this court. After a hearing, that request was denied, as the workers’ compensation decision was final and had not been challenged by Kephart. Opinion and order of July 3,2007, no. 8129 Civil 2006, and no. 10416 Civil 2006, Zulick, J.

Kephart then sought to open the workers’ compensation decision. On April 14, 2008, the workers’ compensation appeal board vacated the three penalty awards against Kephart, stating:

“WCJ Kurtz had dismissed the claim petition against Kephart pursuant to a written stipulation entered into with claimant’s counsel and which the parties submitted to the WCJ who adopted it in his June 19,2003 decision and order. As a result, there was no award against Kephart upon which to base a penalty, since Kephart was not responsible for this claim. To hold otherwise would be to say that Kephart and its counsel could not rely on a stipulation from claimant’s counsel that dismissed [98]*98Kephart from the case.” Decision of the Workers’ Compensation Appeal Board, dated April 14,2008, vacating the penalty petitions against Kephart Trucking Inc., page 8. See exhibit Ato Kephart’s preliminary objections.

When this decision was rendered, the Kephart petitions to open the judgments which had been filed in this court were on appeal in the Pennsylvania Superior Court. The case was remanded to this court, which then opened the judgments. During those remanded proceedings, defendants argued that the nunc pro tunc order of the Workers’ Compensation Appeal Board only related to the penalty awards, and not the underlying workers’ compensation judgment in Marcin’s favor.

Defendants now repeat this argument here, contending that Judge Kutz’s decision has never been opened and that this court therefore has no subject matter jurisdiction. However, this is a specious argument. Kephart went back to the WCAB in a second appeal nunc pro tunc after this argument was made in the petition to open proceedings in this court. Kephart sought to appeal nunc pro tunc Judge Kutz’s order following the compromise and release that named Kephart as an employer. The WCAB ruled that:

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Bluebook (online)
13 Pa. D. & C.5th 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kephart-trucking-co-v-jackson-fiorentino-llc-pactcomplmonroe-2010.