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HTR Rests., Inc. v. Erie Ins. Exch., 2023 Pa. LEXIS 1663 (S. Ct. December 8, 2023) (Wecht, J.).

Prior to and during the COVID-19 pandemic, Erie Insurance Exchange (“Erie”) insured various businesses across the Commonwealth through policies that protected against business interruption losses. During the pandemic, federal and state authorities ordered the closure of certain businesses, including restaurants and other retail establishments. When these insured businesses filed claims for their losses caused by COVID-19-related interruptions, Erie uniformly denied them. Several of the insured businesses, including Joseph Tambellini, Inc. and HTR Restaurants, Inc., individually and on behalf of a class of similarly situated plaintiffs (hereafter, “Plaintiffs”), sued Erie in courts of common pleas across the Commonwealth.

Because of the factual and legal overlap among these claims, and upon Plaintiffs’ motion, the Allegheny County trial court ordered all state-wide litigation to be coordinated in Allegheny County for all pre-trial and trial purposes under Rule of Civil Procedure 213.1. Erie appealed to the Superior Court. The Superior Court affirmed in part and reversed in part. According to the Superior Court, the trial court exceeded the authority of Rule 213.1 by ordering the coordination of similar actions against Erie that had not yet been filed. The Superior Court further held that Plaintiffs were parties who were empowered by Rule 213.1 to file the motion for coordination. Upon the parties’ cross-appeals, we granted review of both holdings.

Construing the plain language of Rule 213.1, we agree with the Superior Court that the trial court lacked authority to coordinate actions that had not yet been filed. We further hold that Erie waived any argument that Plaintiffs could not seek coordination when it failed to raise this issue in the trial court. We therefore affirm the Superior Court’s order.

There is nothing in Rule 213.1 that precludes multiple or serial coordination motions. Following the entry of a coordination order and the filing of more actions involving common questions of law or fact, the Rule affords “any party” the opportunity to move to have these later-filed tag-along actions coordinated by the Allegheny County trial court as the first-filed court.

We leave it to the Civil Procedural Rules Committee to consider the implications of the arguments raised in this case and to determine whether to recommend that we consider any revisions to Rule 213.1.

We agree with the Superior Court that Rule 213.1 does not permit the coordination of actions that have not been filed at the time of the coordination motion. We further hold that Erie waived its argument that Plaintiffs were not entitled to seek coordination in the first place. The order of the Superior Court is affirmed.