United Educators Insurance v. Selective Insurance

Opinion

J-A02029-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

UNITED EDUCATORS INSURANCE : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : SELECTIVE INSURANCE COMPANY : No. 1676 EDA 2016 OF AMERICA :

Appeal from the Order May 2, 2016 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 00216

BEFORE: OTT, RANSOM, and FITZGERALD*

JUDGMENT ORDER BY RANSOM, J.: FILED APRIL 18, 2017

Appellant, United Educators Insurance (“United”), appeals from the

order entered May 2, 2016, which granted preliminary objections filed on

behalf of Selective Insurance Company of America (“Selective”) and

dismissed United’s complaint with prejudice. We reverse and remand for

further proceedings.

In March 2016, United commenced this declaratory judgment action.1

Selective responded with preliminary objections premised upon the ____________________________________________

* Former Justice specially assigned to the Superior Court. 1 The underlying dispute arose when an individual suffered personal injuries at a Boy Scout camp held at Keystone College. Following negotiations, the Boy Scouts settled their exposure, leaving Keystone as the sole defendant. Further settlement negotiations were unsuccessful and precipitated the current, coverage dispute between Selective, Keystone’s primary insurer, (Footnote Continued Next Page) J-A02029-17

pendency of duplicative litigation proceeding in federal court.2 See

Pa.R.C.P. 1028(a)(6). As noted, the trial court granted the preliminary

objections and dismissed the complaint. See Trial Ct. Order, 05/02/2016.

On May 27, 2016, United timely appealed. However, on June 2, 2016,

the federal court determined that it was without subject matter jurisdiction

and, therefore, dismissed the federal action. See Trial Ct. Op., 06/14/2016.

Accordingly, the trial court has requested that its May 2, 2016 order be

reversed and this matter remanded for further proceedings. Id.

In light of the unique procedural history of this case, we agree.

Notably, absent further proceedings in the Philadelphia Court of Common

Pleas, the parties’ dispute will go unresolved. Though our research has

revealed no precedent directly on point, it is self-evident that a court,

properly authorized to hear a dispute, need not defer to a prior pending

action that has been dismissed on jurisdictional grounds. See generally

Plum v. Tampax, Inc., 160 A.2d 549, 554 (Pa. 1960) (observing, in the

context of a forum non conveniens dispute, “the action will not be dismissed

in any event unless an alternative forum is available to the plaintiff”);

Goodman v. Pizzutillo, 682 A.2d 363, 367-68 (Pa. Super. 1996).

_______________________ (Footnote Continued)

and United, Keystone’s excess insurer. See United’s Complaint, 03/07/2016, at ¶¶ 1-69. 2 The federal matter was captioned at Selective Insurance Company of America v. United Educators Risk Retention Group, No. 2:15-cv-05974 (E.D.Pa. 2015).

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Accordingly, we reverse the order entered May 2, 2016, and remand for

Order reversed; case remanded for further proceedings; jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/18/2017

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