Zampana-Barry v. Donaghue

921 A.2d 500

Joan ZAMPANA-BARRY, Appellee v. Hugh A. DONAGHUE, Esquire, and Donaghue & Bradley, Appellants.

No. 246 EDA 2006.

Superior Court of Pennsylvania.

Filed March 8, 2007.

Argued August 29, 2006.

Reargument Denied May 18, 2007.

John J. Hare, Philadelphia, for appellants.

BEFORE: KLEIN, BOWES and KELLY, JJ.

OPINION BY BOWES, J.:

¶ 1 Hugh A. Donaghue, Esquire, and Donaghue & Bradley, a law firm ("Appellants"), appeal the September 14, 2005 order¹ refusing to transfer this action from Philadelphia County to Delaware County. Appellants maintain that venue in Philadelphia County was improper under Pa. R.C.P. 2179. We affirm.

¶ 2 On April 27, 2005, Appellee, Joan Zampana-Barry, instituted this action against Appellants in the Philadelphia County Court of Common Pleas alleging that Appellants had negligently represented her in a legal action against K-Mart. Specifically, Appellee alleged that Appellants filed a personal injury action on her behalf against K-Mart, K-Mart subsequently filed for bankruptcy, Appellants failed to protect her right to proceed against K-Mart in the bankruptcy action, and as a result, summary judgment was granted to K-Mart in the personal injury action.

¶ 3 Appellants filed preliminary objections arguing that venue in Philadelphia County was improper pursuant to Pa. R.C.P. 1006(b) and 2179(a)(2), which pertain to venue over a corporation or other similar entity. Following an evidentiary hearing, the trial court overruled the objections and determined that Philadelphia County could assert venue over Appellants because they regularly conduct business in that county. This appeal followed, wherein Appellants claim that the trial court abused its discretion in sustaining venue in Philadelphia County because the record establishes that Appellants have never regularly conducted business there.

¶ 4 Initially, we need to clarify two points. First, it is unclear from the record whether the law firm is a corporation or a partnership. Pa.R.C.P. 1006(b) provides, "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." Subdivision c of that rule relates to "an action to enforce a joint or joint and several liability against two or more defendants."

¶ 5 Thus, Pa.R.C.P. 2130 contains the provisions relating to venue over partnerships while Pa.R.C.P. 2179 governs corporations and other similar entities. Appellee's complaint, which was not answered due to the filing of preliminary objections, indicates that the law firm is a partnership, which would subject it to the venue provisions of Pa.R.C.P. 2130.² However, Appellants have consistently maintained that venue was improper under Pa.R.C.P. 2179(a),³ which, as noted, governs venue against a corporation or similar entity. During the hearing on this matter, the attorney for Appellants referred to the principals of the law firm as both partners and shareholders. N.T. Hearing, 9/12/05, at 4, 14, 19. Thus, we are not able to ascertain whether the law firm is a partnership or a corporation.

¶ 6 Appellee premised venue in Philadelphia on the ground that the law firm regularly conducted business in that county. As noted, Pa.R.C.P. 2130 allows for venue against a partnership in "a county where it regularly conducts business," and identical language appears in Pa.R.C.P. 2179. Therefore, we review the same legal question regardless of which rule is applied. The fact that the precise nature of the entity is not established does not impact on the applicable principles in this appeal.

¶ 7 We also must clarify an additional matter before proceeding further. Appellants did not move to transfer this action based on forum non conveniens. A change of venue based on forum non conveniens may be sought under Pa.R.C.P. 1006(d)(1), which states, "For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought." As noted, the issue on appeal is whether the trial court properly determined that venue over the law firm can be maintained under Pa.R.C.P. 1006(b); Pa.R.C.P. 1006(d) is thus not implicated in this appeal.

¶ 8 Nevertheless, a good deal of Appellants' argument is devoted to a discussion of facts impacting the doctrine of forum non conveniens and not the question of venue presented on appeal. For example, Appellants argue that "all the events giving rise to this litigation occurred in Delaware County. Plaintiff resides in Delaware County, the defendants reside and work in that County, the parties executed their retainer agreement in that County, they held their meetings in that County, and all legal services were provided in that County." Appellants' brief at 8-9. These matters are irrelevant to whether Appellants regularly conducted business in Philadelphia. Rather, they are pertinent only to whether Delaware County is a more convenient forum and whether venue should be transferred under Pa.R.C.P. 1006(d). See Cheeseman v. Lethal Exterminator, Inc., 549 Pa. 200, 701 A.2d 156, 162 (1997). We therefore do not consider them in our analysis. Fritz v. Glen Mills Schools, 840 A.2d 1021 (Pa.Super.2003) (where issue was whether venue was proper under Pa.R.C.P. 2179 and not one of forum non conveniens, Superior Court will not discuss why either county at issue would be a more convenient forum for litigation).

¶ 9 We now address whether the trial court correctly refused to transfer venue under Pa.R.C.P. 1006(b). The trial court is accorded "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." Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 242, 579 A.2d 1282, 1284 (1990). The plaintiff's choice of forum is given great weight. Singley v. Flier, 851 A.2d 200, 201 (Pa.Super.2004). Thus, the party seeking a change of venue "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 at 243, 579 A.2d at 1284.

¶ 10 In determining whether a corporation or partnership regularly conducts business in a county, we employ a quality-quantity analysis. Id. (applying Shambe v. Delaware and Hudson Railroad Co., 288 Pa. 240, 135 A. 755 (1927), Monaco v. Montgomery Cab Co., 417 Pa. 135, 208 A.2d 252 (1965), and Law v. Atlantic Coast Line Railroad Co., 367 Pa. 170, 79 A.2d 252 (1951), to determine whether a corporation regularly conducted business in a county). A business entity must perform acts in a county of sufficient quality and quantity before venue in that county will be established. Purcell, supra. Quality of acts will be found if an entity performs acts in a county that directly further or are essential to the entity's business objective; incidental acts in the county are not sufficient to meet the quality aspect of the test. Id. Acts that aid a main purpose are collateral and incidental while those necessary to an entity's existence are direct. Id. (incidental acts include advertising, solicitation of business from a county education programs for personnel in county, hiring of personnel from the county, and purchase of supplies from county); see also Krosnowski v. Ward, 836 A.2d 143, 147 (Pa.Super.2003) (en banc) (business referrals to and from an independently operated business entity in another county do not establish venue in that county as referrals were in aid of main business purpose and not actual conduct of business in that county). Quantity of acts means those that are sufficiently continuous so as to be considered habitual. Purcell, supra. Each case must be based upon its own individual facts. Id.

¶ 11 We now review the evidence relied upon by the trial court:

On September 14, 2005, a hearing on the issue of venue was conducted. Donaghue testified that the partnership was in the business of providing legal representation. Transcript, pp. 20-21. He stated, "Representing clients is essential to my business because I'm a lawyer. That's what I do." Transcript, pp. 25-26. Donaghue testified that less than three percent (3%) of the cases handled by him had contact with Philadelphia. Transcript, p. 15. Those cases represent three percent (3%) of the partnership's gross revenue since 1999. The percentage of net revenue was not provided. Transcript, pp. 9, 18. The raw numbers underlying the percentages testified to and the calculations related thereto were not provided. No accounting evidence was offered to substantiate these claims.

Donaghue admitted that he has appeared and will continue to appear before the United States District Court for the Eastern District of Pennsylvania (sitting in Philadelphia) as solicitor for: Chadds Ford Township, Concord Township and Haverford Township in Delaware County. Transcript, pp. 13, 15-16. The number of years Donaghue served as a legal representative for the township was not provided. As well, Donaghue appeared and will continue to appear in the Philadelphia County Court of Common Pleas and the Superior Court of Pennsylvania as a litigator. Transcript, pp. 16, 23-25. Further Donaghue provided an additional affidavit listing 16 cases in which he represented various parties in the federal court sitting in Philadelphia.

Donaghue's partner, James P. Bradley, Esquire ("Bradley"), submitted an affidavit indicating that income generated in 2003 and 2004 by "Philadelphia cases" amounted to "no more than 3% of the firm's overall gross revenue." The criteria for labeling matters "Philadelphia cases" were not provided (i.e. were these cased; initiated in Philadelphia and removed to ...