Schultz v. Mmi Products Inc.

30 A.3d 1224

2011 PA Super 225

Joseph A. SCHULTZ and Dorothy A. Schultz, His Wife, Appellants

v.MMI PRODUCTS, INC., t/d/b/a Meadow–Burke Products, A.L. Patterson, Inc., Gambone Development Co., Gambone Construction Co., and Modern Precast Concrete, Inc., Appellees.Joseph A. Schultz and Dorothy A. Schultz, His Wife, Appellants

v.MMI Products, Inc., t/d/b/a Meadow–Burke Products, A.L. Patterson, Inc., Gambone Development Co., Gambone Construction Co., and Modern Precast Concrete, Inc., Appellees.Joseph A. Schultz and Dorothy A. Schultz, His Wife, Appellants

v.MMI Products, Inc., t/d/b/a Meadow–Burke Products, A.L. Patterson, Inc., Gambone Development Co., Gambone Construction Co., and Modern Precast Concrete, Inc., Appellees.

Superior Court of Pennsylvania.

Argued Aug. 24, 2011.Filed Oct. 21, 2011.

Edward M. Brennan, Pottsville, for appellants.John H. McCarthy, Philadelphia, for A.L. Patterson, appellee.Theodore M. Schaer, Philadelphia, for Gambone, appellee.Stephen J. Parisi, Philadelphia, for MMI, appellee.William H. Resch, Jr., Philadelphia, for Modern Precast, appellee.BEFORE: BOWES, ALLEN, and PLATT ^*, JJ.OPINION BY PLATT, J.:

Appellants, Joseph A. Schultz, and Dorothy A. Schultz, his wife, appeal from the orders of the Court of Common Pleas of Philadelphia County sustaining the preliminary objections of Appellees, Modern Precast Concrete, Inc., and A.L. Patterson, Inc., to venue and transferring these consolidated cases ¹ to Lehigh County. We affirm.

Appellants allege that on January 16, 2008,² Appellant, Joseph A. Schultz, sustained injuries while working as a pipe foreman for a contracting company, at a construction site in Lehigh County ³ when an anchor device in a twenty ton concrete box culvert broke, causing a come-along to whip back and strike him in the head, face, chest and arms.⁴ Appellants are residents of Schuylkill County.

On December 18, 2009, Appellants commenced an action in the Court of Common Pleas of Philadelphia County by filing a writ of summons against MMI Products, Inc., T/D/B/A Meadow–Burke Products, A.L. Patterson, Inc. (A.L. Patterson), Gambone Development Company, Gambone Construction Company, and Modern Precast Concrete, Inc. (Modern Precast). On July 28, 2010, Appellants filed a complaint against all Appellees, asserting several theories of liability.⁵

All Appellees filed preliminary objections, on various grounds, and Appellants filed an amended complaint. All of the Appellees again filed preliminary objections. In particular, Modern Precast and A.L. Patterson objected to venue on the ground that they did not regularly conduct business in Philadelphia County. Modern Precast attached an affidavit from its chief financial officer, averring in pertinent part that it had three business locations: Bethlehem, PA, in Lehigh County; Easton, PA, in Northampton County; and Ottsville, PA, in Bucks County, all outside of Philadelphia, and that it neither owned nor leased property in Philadelphia County. Furthermore, the affidavit stated that in both 2008 and in 2009 only .8% of Modern Precast's sales came from Philadelphia; in 2010, 1.3% of its sales were from Philadelphia.⁶

On November 1, 2010, the trial court granted the preliminary objections of Appellees, Modern Precast and A.L. Patterson, and transferred the case to Lehigh County.⁷ This timely appeal followed.⁸ Appellants also filed a court ordered statement of errors pursuant to Pa.R.A.P. 1925(b).

Appellants raise two questions on appeal:

Did the trial court abuse its discretion by transferring this case to Lehigh County when Philadelphia County had jurisdiction of three out of the five corporate Defendants?

Did the trial court abuse its discretion by failing to make a record and by placing the burden of proof on [Appellants]?

(Appellants' Brief, at 4).

Preliminarily, we note that Appellants have framed their first issue as a question of jurisdiction. However, the rest of the brief exclusively addresses venue. In pertinent part, Rule 2116 of the Pennsylvania Rules of Appellate Procedure provides that: “No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.” Pa.R.A.P. 2116(a).

Before examining the procedure for resolving preliminary objections to venue, it is important to review the distinction between jurisdiction and venue. As our Supreme Court has explained:

Subject matter jurisdiction relates to the competency of a court to hear and decide the type of controversy presented.McGinley v. Scott, 401 Pa. 310, 164 A.2d 424 (1960). Jurisdiction is a matter of substantive law. Id. at 428; 42 Pa.C.S. § 931(a) (defining the unlimited original jurisdiction of the courts of common pleas).

Venue relates to the right of a party to have the controversy brought and heard in a particular judicial district. McGinley, 164 A.2d at 427–28. Venue is predominately a procedural matter, generally prescribed by rules of this Court. Id. at 429; 42 Pa.C.S. § 931(c). Venue assumes the existence of jurisdiction. 42 Pa.C.S. § 931(b) (referencing rules for change of venue in cases within the jurisdiction of courts of common pleas); Pa.R.Crim.P. 584 (relating to the procedure for a change of venue amongst courts of common pleas for the trial of criminal actions).

Subject matter jurisdiction and venue are distinct. However, since jurisdiction references the power of a court to entertain and adjudicate a matter while venue pertains to the locality most convenient to the proper disposition of a matter, venue can only be proper where jurisdiction already exists. 92A C.J.S., Venue § 2. The terms are often used interchangeably because they must exist simultaneously in order for a court to properly exercise its power to resolve a particular controversy.

Commonwealth v. Bethea, 574 Pa. 100, 113–14, 828 A.2d 1066, 1074–75 (2003), cert. denied, Bethea v. Pennsylvania, 540 U.S. 1118, 124 S.Ct. 1065, 157 L.Ed.2d 911 (2004).

Deyarmin v. Consol. Rail Corp., 931 A.2d 1, 8–9 (Pa.Super.2007), appeal denied, 597 Pa. 706, 948 A.2d 805 (2008).

Here, although Appellants' venue issue could be deemed waived for failure to raise it in the statement of questions involved, in consideration of this Court's acknowledgment of our Supreme Court's recognition of the frequent interchangeable use of these distinct terms, we will give Appellants, and their counsel, the benefit of the doubt, ignore their procedural misidentification, and address the question of venue as raised elsewhere in their brief.

“Initially, we reiterate our old rule that corporations have a constitutional right to seek a change of venue.” Purcell v. Bryn Mawr Hosp., 525 Pa. 237, 579 A.2d 1282, 1284 (1990) (citing Felts v. Delaware, Lackawanna & W. R.R., 195 Pa. 21, 45 A. 493 (1900)).

Although a plaintiff, as a rule, may chose the forum in which to bring suit, that right is not absolute. Rule 1006 not only articulates where the plaintiff may bring the action, but also provides three distinct bases upon which a defendant may challenge the plaintiff's chosen forum: improper venue by preliminary objection, forum non conveniens, and inability to hold a fair and impartial trial.

Zappala v. Brandolini Prop. Mgmt., Inc., 589 Pa. 516, 909 A.2d 1272, 1281 (2006).

Pa.R.C.P. 1006(d)(1) vests the trial court with considerable discretion in determining whether or not to grant a petition for change of venue, and the standard of review is one of abuse of discretion. Only in such a case will the order be disturbed. The applicant bears the burden of proving that a change of venue is necessary, while a plaintiff generally is given the choice of forum so long as the requirements of personal and subject matter jurisdiction are satisfied.

Purcell, supra. (case citations omitted).

“Each case must be based upon its own individual facts.” Zampana–Barry v. Donaghue, 921 A.2d 500, 504 (Pa.Super.2007), appeal denied, 596 Pa. 709, 940 A.2d 366 (2007) (citing Purcell ). “A trial court has discretion to determine the lack of need for further discovery on the issue of venue, and we review its decision in that regard for abuse of discretion.” Deyarmin, supra at 7.

Similarly, our standard of review for a challenge to an order transferring venue is well settled.

A trial court's ruling on venue will not be disturbed if the decision is reasonable in light of the facts. A decision to transfer venue will not be reversed unless the trial court abused its discretion. A plaintiff's choice of forum is given great weight, and the burden is on the party challenging that choice to show it is improper.

However, if there exists any proper basis for the trial court's decision to grant the petition to transfer venue, the decision must stand.

Krosnowski v. Ward, 836 A.2d 143, 146 (Pa.Super.2003) (citations and internal quotation marks omitted) (emphasis added). “An abuse of discretion occurs when the trial judge overrides or misapplies the law, or exercises judgment in a manifestly unreasonable manner, or renders a decision based on partiality, prejudice, bias or ill-will.” Sehl v. Neff, 26 A.3d 1130, 1132 (Pa.Super.2011) (citation omitted).

The Rules of Civil Procedure address venue in pertinent part as follows.

Rule 1006. Venue. Change of Venue

(a) Except as otherwise provided by subdivisions (a.1), (b) and (c) of this rule, an action against an individual may be brought in and only in a county in which

(1) the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law, or

* * *

(b) Actions against the following defendants, except as otherwise provided in subdivision (c), may be brought in and only in the counties designated by the following rules: political subdivisions, Rule 2103; partnerships, Rule 2130; unincorporated associations, Rule 2156; corporations and similar entities, Rule 2179.

(c)(1) Except as otherwise provided by paragraph (2), an action...