Kovalev, S. v. Callahan Ward

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

SERGEI KOVALEV : IN THE SUPERIOR COURT OF : PENNSYLVANIA

Appellant :

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v. :

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CALLAHAN WARD 12TH STREET, LLC, : No. 2529 EDA 2025 MARCUS W. TOCONITA, ANTONIO R. : CUTRUFELLO, CITY OF PHILADELPHIA, : COMMONWEALTH OF PENNSYLVANIA : DEPARTMENT OF TRANSPORTATION :

Appeal from the Order Entered September 26, 2025 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 210400495

BEFORE: PANELLA, P.J.E., NICHOLS, J., and KING, J. MEMORANDUM BY KING, J.: FILED AUGUST 25, 2026 Appellant, Sergei Kovalev, appeals pro se from the order entered in the Philadelphia County Court of Common Pleas, which granted the motion of Appellees, Callahan Ward 12th Street, LLC, Marcus W. Toconita, and Antonio R. Cutrufello (“Appellees”), to enforce the settlement agreement between them. We transfer this case to the Commonwealth Court.

Briefly, the facts and procedural history of this case are as follows.

Appellant initiated the instant action against the City of Philadelphia (the “City”), the Pennsylvania Department of Transportation (“PennDOT”), and Appellees concerning a trip and fall on a sidewalk that occurred on August 5, 2020. Prior to trial, the court granted summary judgment in favor of PennDOT and dismissed all claims against it. The court also dismissed, prior to trial,

Appellant’s claims against the City concerning civil rights violations pursuant to 42 U.S.C. § 1983. Accordingly, at the time of trial, the only remaining claims were Appellant’s negligence claims against Appellees and the City.

On November 1, 2024, a jury trial commenced. At the close of Appellant’s case, on November 7, 2024, the trial court granted the City’s motion for directed verdict based on the City’s immunity pursuant to the Tort Claims Act. Subsequently, Appellant and Appellees entered into a global settlement agreement. (N.T. Trial, 11/7/24, at 22-23). On November 18, 2024, Appellant filed a post-trial motion seeking to vacate the directed verdict in favor of the City, which the trial court denied. On December 17, 2024, Appellant filed a premature notice of appeal in connection with the trial court’s order denying Appellant’s post-trial motion, which remains pending before the Commonwealth Court of Pennsylvania. 1 See Docket No. 1715 CD 2024.

Meanwhile, on January 23, 2025, Appellees filed a motion to enforce the settlement agreement, explaining that the parties were in dispute over Appellant’s proposed inclusion of the following terms: “This Agreement also does not eliminate the settling defendants’ obligation to pay exonerated fees and costs under Pa.R.C.P. 240(g); and said exonerated fees and costs cannot be deducted from this settlement.”; and “No part of this Agreement can be construed as to eliminate the ability of Releasor to seek delay damages”.

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1 Following the Commonwealth Court’s directive, Appellant filed a praecipe for judgment to be entered in the trial court.

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(Trial Court Opinion, dated 11/25/25, at 2). On September 26, 2025, the trial court entered an order granting Appellees’ Motion to Enforce Settlement, directing Appellant to execute the release attached to the Order, which excluded the disputed terms, within ten days, and requiring Appellees to (1) tender payment of Appellant’s exonerated fees and costs to the Office of Judicial Records; and (2) pay the remaining net proceeds to Appellant within seven days of receiving the executed release. Appellant filed the instant notice of appeal in this Court from the order granting Appellees’ motion to enforce settlement.

On October 28, 2025, this Court issued a rule to show cause why the appeal should not be transferred to the Commonwealth Court, noting that Appellant’s claims against the City and PennDOT fell within the exclusive jurisdiction of the Commonwealth Court under 42 Pa.C.S.A. § 762(a)(7). Appellant responded, stating that the government parties were dismissed from the case. Notably, however, Appellant did not mention in the response to the rule to show cause that his appeal in the Commonwealth Court concerning the City remained pending. This Court discharged the rule to show cause and advised that the issue may be revisited by the merits panel.

Appellant raises the following issues on appeal:

1. Whether the trial [c]ourt erred or abused its discretion by ordering [Appellant] to sign [Appellees’] version of the settlement agreement eleven months after settlement was already reached on November 7, 2024 and all conditions were stenographically recorded in open court?

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2. Whether the trial [c]ourt erred or abused its discretion by granting on September 26, 2025 [Appellees’] motion to enforce settlement by deducting exonerated fees from the certain amount of the settlement that [Appellees] agreed to pay [Appellant] in the settlement agreement made on November 7, 2024?

3. Whether the trial court erred or abused its discretion by limiting [Appellant’s] ability to seek compensation for [Appellees’] failure to deliver timely settlement funds, after the settlement was already reached and recorded on November 7, 2024?

(Appellant’s Brief at 7).

Prior to addressing the merits of the issues raised, we must consider whether jurisdiction of this appeal is properly before this Court. See Karpe v. Borough of Stroudsburg, 461 A.2d 859, 860 (Pa.Super. 1983) (stating that we may raise issue of whether appeal should be transferred to Commonwealth Court sua sponte) (citing 42 Pa.C.S.A. § 705, stating: “The Superior Court and the Commonwealth Court shall have power pursuant to general rules, on their own motion or upon petition of any party, to transfer any appeal to the other court for consideration and decision with any matter pending in such other court involving the same or related questions of fact, law or discretion”). See also Pa.R.A.P. 752(a).

In making our determination with respect to retention we must balance the interests of the parties and matters of judicial economy against other factors such as: (1) whether the case has already been transferred, [Karpe v. Borough of Stroudsburg, 461 A.2d 859, 860 (Pa.Super. 1983)]; (2)

whether our retention will disrupt the legislatively ordained division of labor between the intermediate appellate courts;

and (3) whether there is a possibility of establishing two conflicting lines of authority on a particular subject.

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Newman v. Thorn, [518 A.2d 1231 (Pa.Super. 1986)].

Moreover, each transfer should be decided on a case-by– case basis.

Trumbull Corp. v. Boss Const., Inc., 747 A.2d 395, 399 (Pa.Super. 2000).

Instantly, we recognize that the issues raised in this appeal do not directly invoke the jurisdiction of the Commonwealth Court, and we have the discretion to retain jurisdiction. Nevertheless, Appellant’s claims concerning whether the trial court properly granted a directed verdict in favor of the City remain pending on appeal in the Commonwealth Court. Given that a portion of this case remains pending in the Commonwealth Court, which shares some of the same underlying facts and procedural posture with the instant appeal, we conclude that judicial interests would be served by both appeals arising out of the same trial being considered by the same appellate court.2 Thus, in support of judicial interest and in order to avoid potential conflicting lines of authority, the best resolution is to transfer Appellant’s current appeal to the Commonwealth Court. See Trumbull Corp., supra.

Appeal transferred to Commonwealth Court. Jurisdiction relinquished.

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2 Moreover, there is no material divergence between the application of Pa.R.C.P. 240(g), which is at issue in the instant appeal, proceeding in the Commonwealth Court as compared to this Court. Indeed, if this Court were to address the issue on the merits, we would rely on a Commonwealth Court case to do so, as the Commonwealth Court has already addressed this precise issue. See e.g. Guarrasi v. Cnty. Of Bucks, No. 176 M.D. 2018 (Pa.Cmwlth. filed Sept. 14, 2018) (unpublished memorandum). See also Pa.R.A.P. 126(b) (stating this Court may rely on unreported memorandum opinions of the Commonwealth Court filed after January 15, 2008 for persuasive value).

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Date: 8/25/2026