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Zappala v. James Lewis Group

September 11, 2009

MICHELLE ZAPPALA, APPELLANT
v.
THE JAMES LEWIS GROUP T/A BRANDOLINI COMPANIES, JAMES LEWIS CORPORATION, PROGRESS BANK, THE PEP BOYS-MANNY, MOE & JACK T/A PEP BOYS, APPELLEES
MICHELLE ZAPPALA, APPELLANT
v.
BRANDOLINI PROPERTY MANAGEMENT, INC., PAOLI SHOPPING CENTER LIMITED PARTNERSHIP, PAOLI SHOPPING CENTER LIMITED PARTNERSHIP PHASE II, UNITED BUILDERS & CONSTRUCTORS, LTD., KORTAN GENERAL MAINTENANCE, INC., THE JAMES LEWIS GROUP T/A BRANDOLINI COMPANIES, JAMES LEWIS CORPORATION, PROGRESS BANK, THE PEP BOYS-MANNY, MOE & JACK T/A BRUBACHER EXCAVATING, INC., GREEN DESIGN, INC., CARROLL CONTRACTORS, INC., PICKERING VALLEY LANDSCAPE, INC., BALA ELECTRIC, HEYSER LANDSCAPING, INC., PAOLI SHOPPING CENTER LIMITED PARTNERSHIP II, APPELLEES



Appeal from the Order entered October 2, 2007, Court of Common Pleas, Philadelphia County, Civil Division at No. August Term, 2000 - No. 00151 and October Term, 2000 - No. 03857.

The opinion of the court was delivered by: Donohue, J.

BEFORE: PANELLA, DONOHUE and COLVILLE*fn1, JJ.

OPINION

¶ 1 Appellant Michelle Zappala ("Zappala") appeals from the trial court's order entered October 2, 2007 granting Appellees'*fn2 motion pursuant to Pa.R.C.P. 1006(d)(1) to transfer this civil case from Philadelphia County to Chester County based upon forum non conveniens. As we discuss in detail, the case before us was remanded to the trial court by our Supreme Court and the forum non conveniens motion at issue is the Chester County Defendants' second attempt to have this case transferred from Philadelphia to Chester County. On remand, Zappala, the Chester County Defendants, and the trial court each interpreted differently the teaching of our Supreme Court's opinion in Zappala v. Brandolini Property Management, Inc., 589 Pa. 516, 909 A.2d 1272 (2006) ("Zappala I"). While we are in general agreement with the analysis employed by the learned trial judge, The Honorable Arnold L. New, we reverse because of a lack of an evidentiary record to support the trial court's findings.

¶ 2 The facts and protracted procedural history of this case have been aptly summarized by our Supreme Court:

On October 26, 1998, the day of [Zappala's] accident, PECO Energy was relocating utility poles for the Chester County Defendants, who were developing the Paoli Shopping Center. PECO had contracted with Riggs Distler, a company that furnishes flag-persons for construction sites, to control passing traffic while PECO worked. [Zappala] was one such flag-person. Arriving at the site that morning, [Zappala] parked her car near the work site and adjacent to a Progress Bank branch in a parking lot belonging to The Pep Boys. As she walked across the construction site to confer with employees of PECO, [Zappala] tripped and fell on two holes on the Paoli Shopping Center construction site that were covered with leaves. She sustained injuries to her ankle and back, which resulted in four separate ankle operations, including reconstructive surgery.

[Zappala], who resides in Delaware County, filed a complaint in Philadelphia County on August 7, 2000 . . . nam[ing] as defendants two of the Chester County Defendants and two of the Philadelphia County Defendants. [Zappala] averred that each defendant conducted substantial and continuing business in Philadelphia. Brandolini Property Management, Inc., one of the Chester County Defendants, filed preliminary objections on September 1, 2000, asserting various minor violations of the rules governing pleading, but did not challenge venue.

After learning of additional defendants, [Zappala] filed a second complaint in October of 2000, claiming the same harm as in the first complaint and naming additional Chester County Defendants and Philadelphia County Defendants, among others. The complaint alleged that all defendants conducted substantial and continuing business in Philadelphia at all material times. The complaint further alleged that all defendants were involved in the ownership, possession, control, inspection, maintenance, or repair of the accident site, and that each breached its duty to [Zappala], a business invitee, inter alia by allowing, causing, or failing to correct a dangerous and defective condition on the property. The Chester County Defendants filed an answer asserting, inter alia, that they did not conduct any business in Philadelphia.

After the trial court consolidated the two actions, the case proceeded through discovery until all of the defendants except the Chester County Defendants filed motions for summary judgment, asserting that discovery established that they did not have an ownership interest or responsibility in the land where the accident occurred, and therefore breached no duty to [Zappala]. [Zappala] did not oppose these motions. This resulted in dismissal of all of the defendants except the Chester County Defendants.

Following dismissal of all other defendants, the Chester County Defendants filed a pre-trial motion entitled 'motion to transfer venue' requesting that venue be transferred to Chester County pursuant to Pa.R.C.P. 1006(e), arguing that [Zappala] improperly brought this case in Philadelphia County. Specifically, the Chester County Defendants argued that because [Zappala] resided in Delaware County, the accident occurred in Chester County, and all remaining defendants are situated in Chester County, venue in Philadelphia County was improper. The Chester County Defendants asserted that during the course of the litigation, [Zappala] failed to provide any facts to support her contention that the Philadelphia County Defendants were potentially liable for her injuries; when faced with interrogatories, admitted that she had no information to support her claims against the Philadelphia County Defendants; and therefore never should have named the Philadelphia County Defendants. The Chester County Defendants contended that venue in Philadelphia County had never been proper because they were the only defendants against whom [Zappala] had an arguable claim, and, in contrast to the Philadelphia County Defendants, they were located in Chester County and did not conduct business in Philadelphia County.

[Zappala] opposed the motion, arguing that it was barred by the explicit language of Rule 1006(e), which provides: 'Improper venue shall be raised by preliminary objection and if not so raised shall be waived.' Because the Chester County Defendants did not challenge venue as improper by preliminary objection, [Zappala] argued that they waived the challenge pursuant to the plain language of Rule 1006(e).

Upon consideration of the parties' arguments, the trial court transferred the action to Chester County. In its opinion, the trial court ruled that a preliminary objection asserting improper venue must be raised at the first reasonable opportunity, which, in this case, was after the Philadelphia County Defendants had been dismissed from the case. . . .

The Superior Court [reversed], finding that Rule 1006(e) provides the exclusive method for raising improper venue, and pursuant to the mandatory language of the rule, improper venue must be raised by preliminary objection or be waived. [.] Thus, the Superior Court vacated the trial court order, returning the case to Philadelphia County. Zappala v. Brandolini Prop. Mgmt., Inc., 849 A.2d 1211 (Pa. Super. 2004).

Zappala I, 589 Pa. at 522-526, 909 A.2d at 1275-1277 (2006) (footnotes omitted).

¶ 3 Our Supreme Court granted the Chester County Defendants' petition for allowance of appeal and affirmed this Court's decision, agreeing that a challenge to the propriety of venue must be instituted by preliminary objection or it is waived. Id. at 532, 909 A.2d at 1281 (citing Pa.R.C.P. 1006(e) ("Improper venue shall be raised by preliminary objection and if not so raised shall be waived.")). In so ruling, however, the Supreme Court acknowledged that Pa.R.C.P. 1006 provides three distinct bases for challenging a plaintiff's chosen forum: improper venue by preliminary objection, forum non conveniens (Pa.R.C.P. 1006(d)(1)*fn3 ), and inability to hold a fair and impartial trial (Pa.R.C.P. 1006(d)(2)*fn4 ). Id. Although the Chester County Defendants waived the first alternative by not filing preliminary objections challenging venue, the Supreme Court noted that the second and third alternatives may be considered by a trial court at any time during the proceedings. Id. at 535, 909 A.2d at 1283-84. As a result, the Supreme Court concluded that the Chester County Defendants were not without a remedy here:

When venue is technically proper and cannot be challenged by preliminary objection, such as the case here where [Zappala] included defendants from the chosen forum, the rules provide a mechanism in subsection (d) [of Rule 1006] if defendants desire a change of venue to another county under forum non conveniens to effectuate substantial justice or because of the trial court's inability to hold a fair and impartial trial.

Id. at 537, 909 A.2d at 1284. For this reason, the Supreme Court remanded the case to the trial court to permit the Chester County Defendants "to seek the same result through assertion of forum non conveniens or the inability to secure a fair trial in Philadelphia County." Id. at 523, 909 A.2d 1275-76.

¶ 4 On July 10, 2007, approximately seven months after remand,*fn5 the Chester County Defendants filed a Motion to Transfer Venue Pursuant to Pa.R.C.P. 1006(d)(1) (the "Motion") based upon forum non conveniens. On September 6, 2007, the trial court held an evidentiary hearing (at which the only evidence offered by the Chester County Defendants was an affidavit attesting to the inconvenience of Philadelphia County as a forum for witnesses) and received oral argument on the Motion. By order entered October 2, 2007, Judge New granted the Motion and transferred the case to the Court of Common Pleas of Chester County. Id., at 3-4. In his subsequent written opinion, Judge New found that this is "one of the rare cases where a plaintiff's choice of forum should be disturbed to effectuate substantial justice":

[Zappala] established venue in her chosen forum by bringing suit against defendants whose connection to the case was tenuous at best. This overbroad naming of defendants, whether intentional or not, precluded any preliminary objections to venue. Then, after no evidence was adduced as to those defendants with connection to the chosen forum, they were dismissed from the case without opposition leaving the case to proceed solely against defendants with no connection thereto at extra expense and trouble, for an accident that occurred in ...


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