Mazzuca v. Abreu

310 A.3d 775

Jennifer MAZZUCA, Appellant

v.Solange Aneuri ABREU, Alpha Dental Excellence, Inc., Infinity Dental Management, LLC, Arpan N. Patel, Individually and d/b/a Alpha Dental Excellence, ABC Companies, John Doe a/k/a Jane Doe

No. 1264 EDA 2023

Superior Court of Pennsylvania.

Submitted December 18, 2023

Filed February 12, 2024

Appeal from the Order Entered May 15, 2023, In the Court of Common Pleas of Philadelphia County, Civil Division, at No(s): 220901774, Linda A. Carpenter, J.

Lawrence Solomon, Philadelphia, for appellant.

Thomas A. McCormack, Philadelphia, for appelleees.

BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant Jennifer Mazzuca files this appeal from the order of the Court of Common Pleas of Philadelphia County sustaining the preliminary objections filed by Appellees Solange Aneuri Abreu, Alpha Dental Excellence, Inc., Infiniti Dental Management, LLC, Arpan N. Patel, individually and d/b/a Alpha Dental Excellence, Inc. and transferring the case to Bucks County. We vacate the trial court’s order and remand for proceedings consistent with this decision.

On September 20, 2022, Appellant initiated a dental malpractice action through the filing of a writ of summons against Appellees in Philadelphia County. On November 2, 2022, Appellant filed a pro se complaint in Philadelphia County, alleging that Appellee Solange Aneuri Abreu ("Dr. Abreu") negligently performed a tooth implant procedure and perforated Appellant’s lingual nerve. Complaint, 11/2/22, at ¶ 12.

The parties do not dispute that Dr. Abreu performed the procedure in question at the Alpha Dental Excellence facility in Langhorne which is located in Bucks County. Appellee Arpan N. Patel ("Dr. Patel") operates Alpha Dental Excellence, Inc., which is owned by Infinity Dental Management, LLC.¹ The complaint ac- knowledged that all Appellees either reside in or have business addresses in Bucks County or Delaware County.

Appellant’s complaint listed Dr. Abreu’s residential address as a home in Havertown, Delaware County, Pennsylvania, but also alleged that Dr. Abreu "practices dentistry at 5675 N. Front Street, Philadelphia, PA 19120." Complaint, 11/2/22, at ¶ 2. However, the record also contains an affidavit from a process server indicating that it could not locate Dr. Abreu at the North Front Street address. Affidavit, 10/19/22, at 1. The affidavit indicated that the location at 5675 North Front Street was a shopping center with a dental practice, but Dr. Abreu was unknown to the staff. Affidavit, 10/19/22, at 1.

On December 9, 2022, Appellees Dr. Patel, Alpha Dental Excellence, Inc., and Infinity Dental Management, LLC ("Patel Appellees") filed preliminary objections, raising multiple issues including, inter alia, a claim of improper venue. Since Appellant’s treatment was rendered in Appellees’ office in Bucks County, the Patel Appellees argued that Appellant was required to file this suit in Bucks County. The Patel Appellees initially relied on former Pa.R.C.P. 1006(a.l), which stated "[e]xcept as otherwise provided by subsection (c), a medical professional liability action may be brought against a health care provider for a medical professional liability claim only in a county in which the cause of action arose." Pa.R.C.P. 1006(a.1).²

On December 27, 2022, Appellant filed a pro se amended complaint, which again alleged that Dr. Abreu practiced dentistry at 5675 N. Front Street, Philadelphia. The amended complaint did not contain any response to the Patel Appellees’ claim of improper venue or change any averments regarding venue, but instead amended other parts of the complaint.

On January 6, 2023, the Patel Appellees filed preliminary objections to Appellant’s amended complaint, including their challenge to improper venue and request for the trial court to transfer the case to Bucks County.

On January 9, 2023, Appellant filed a praecipe to reinstate the complaint. The certified record contains an accompanying docket entry indicating that the amended complaint was reinstated.

On January 19, 2023, Appellant filed a response to the Patel Appellees’ preliminary objections, first asserting that she was not required to bring this suit in the county where the cause of action arose pursuant to Pa.R.C.P. 1006(a.l), as this venue exception only applied to a "medical professional liability action" against a "health care provider," which did not include claims of dental malpractice.

Instead, Appellant asserted that venue was proper in Philadelphia County as Appellant alleged that she had recently served Dr. Abreu at 8355 Loretta Avenue, Philadelphia,³ which Appellant claimed was Dr. Abreu’s "Philadelphia address." Appellant attached a printout of a Google search list which contains multiple addresses for Dr. Solange Abreu including one at 5675 N. Front Street, Unit #50, Philadelphia. In her accompanying memorandum, Appellant admitted that in order for the trial court to make a judicial determination as to Appellant’s business address, it may be necessary to take depositions as "insufficient facts exist at this time." Appellant Memorandum, 1/19/23, at 11.

On January 27, 2023, Appellee Dr. Abreu filed preliminary objections to Appellant’s amended complaint, arguing that Philadelphia County was an improper venue for this action as Dr. Abreu disputed Appellant’s claim that she practiced dentistry in Philadelphia. Dr. Abreu submitted a signed and sworn affidavit indicating that she had "at no point in time performed dental/medical treatment or otherwise operated a dental/medical [sic] at 5675 N. Front Street, Unit 50, Philadelphia, PA, 19120, 8355 Loretta [sic] Avenue, Philadelphia 19152, or any other location in the city of Philadelphia." Abreu Prelim. Obj, 1/27/23 (Exhibit C, affidavit dated 1/26/23).

Dr. Abreu also averred in her preliminary objections that "neither Ms. Abreu nor any [Appellee] has any connection to Philadelphia, nor may they be properly served at any location within Philadelphia." Abreu Prelim. Obj., 1/27/23, at ¶ 21. Dr. Abreu did not raise any claim of improper service in her preliminary objections.

On January 30, 2023, Appellant filed a pro se response to Dr. Abreu’s preliminary objections claiming he had recently served Dr. Abreu at a dental office located at 8355 Loretto Avenue, Philadelphia, where Appellant alleged that Dr. Abreu regularly conducts business. Appellant submitted an affidavit of service which stated that on January 14, 2022, a process server effectuated service on a receptionist named "Emilliana" at 11:16 a.m. at a dental business located at "8355 Loretto Street" in Philadelphia. The process server indicated that Emilliana accepted service on behalf of Dr. Abreu, who Emilliana claimed was busy with patients. Affidavit, 1/30/23, at 1.

On February 14, 2023, Appellant filed another pro se response to Dr. Abreu’s preliminary objections, claiming Dr. Abreu "blatantly misrepresented her employment" and had "perjured herself in her Affidavit" as Dr. Abreu is "employed at Lorreta [sic] Multi-Specialty Dental Center" in Philadelphia on Saturdays." Appellant attached her affidavit of service to this response as well.

On February 23, 2023, the trial court issued a rule upon Appellant to show cause as to why Appellees were not entitled to the relief they requested in their preliminary objections. The trial court scheduled a hearing for April 27, 2023 and indicated that the "petition shall be decided under Pa.R.C.P. 206.7." Order, 2/23/23. The trial court emphasized that "all briefs, supplemental briefs, and/or supplemental discovery shall be filed on or before April 21, 2023." Order, 2/23/23.

On April 20, 2023, Lawrence Solomon, Esq. filed a written entry of appearance on behalf of Appellant. At the April 27, 2023 hearing, the trial court initially disputed Atty. Solomon’s ability to enter a limited appearance on Appellant’s behalf but allowed him to proceed as Appellant’s counsel.

At the hearing, the trial court found there were no contested issues of fact regarding venue and determined that the only properly pled averment of fact was Dr. Abreu’s affidavit indicating that she did not practice dentistry in Philadelphia. On April 27, 2023, the trial court filed two separate orders indicating that after considering Appellees’ preliminary objections to Appellant’s amended complaint that the case [was] transferred to Bucks County and [Appellant’s] complaint on its face does not assert venue in Philadelphia County. The averments of fact are im- properly presented such that this Court may find any genuine issue of disputed fact. The preliminary objections remain uncontradicted that Dr. Abreu does not practice dentistry at listed address in Complaint and does not reside in Philadelphia County.

Order, 4/27/23, at 1.

On May 4, 2023, Appellant filed a motion for reconsideration of the trial court’s April 27, 2023 orders. On May 8, 2023, the trial court entered an order indicating that "the court’s order dated April 27, 2023 transferring the above matter to Bucks County, is denied." On May 15, 2023, the trial court entered an order vacating its May 8, 2023 order and reinstating its original order filed on April 27, 2023. The trial court indicated that Appellant’s motion for reconsideration was "improperly filed by an attorney whose entry of appearance was improper under [Pa.R.C.P.] 1021." Order, 5/15/23, at 1.

[1] Appellant filed a timely notice of appeal and raised the following issues for our review on appeal:

I. Should the lower court have allowed Lawrence Solomon to represent [Appellant] and did it err in refusing to consider [Appellant’s] Motion for Reconsideration?

II. Should [Appellant’s] preliminary objections as to venue have been dismissed even though Abreu worked in Philadelphia, which conferred venue in Philadelphia under Rule 302(a)(1), Pa.R.C.P.[?]⁴

III. Should [Appellant’s] preliminary objections as to venue been dismissed [sic] even though Abreu was served with a copy of [App...