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[U] Barnabei v. Schell

Superior Court of Pennsylvania

February 20, 2014



Appeal from the Order entered May 20, 2013, in the Court of Common Pleas of Philadelphia County, Civil Division, at No(s): 2315 March Term 2013




Robert Barnabei ("Appellant") appeals from the order granting the preliminary objection to venue filed by appellees Joseph Schell and Frederick Schell ("the Schells"), and transferring the case to Delaware County. Upon review, we affirm.

The trial court summarized the factual and procedural background as follows:

[Appellant] commenced this personal injury action against [the Schells] by way of Complaint on March 18, 2013. The underlying facts of this litigation are as follows. On May 6, 2011, [Appellant] was involved in an accident in Delaware County when he was a passenger in a car driven by Defendant Joseph Schell (hereinafter "Defendant").
Prior to the accident, Defendant was tailgating at a Phillies game at Citizens Bank Park in Philadelphia, Pennsylvania, where Defendant allegedly became intoxicated. After leaving the game, Defendant was involved in the single-car accident in Delaware County. [Appellant] was a passenger in the car Defendant was driving at the time of the accident. The police report lists the cause of the accident as driving too fast for the conditions and losing control of the vehicle. Upon further investigation, it was found Defendant had been drinking and was subsequently arrested for driving under the influence. [Appellant's] complaint for negligence seeks compensatory and punitive damages in connection with the accident.
On February 12, 2013, [the Schells] filed Preliminary Objections, challenging, inter alia, venue in Philadelphia County. [The Schells] argued venue is improper in Philadelphia County since Defendant was not amenable to service in Philadelphia and [Appellant's] cause of action did not arise in Philadelphia County. [Appellant] responded on May 15, 2013. By Court Order dated May 20, 2013, this Court sustained [the Schell's] objection to venue and directed a transfer of the matter to Delaware County, Pennsylvania. [Appellant] filed the instant appeal on June 18, 2013 and a Pennsylvania Rule of Appellate Procedure 1925(b) Statement of Errors Complained on July 10, 2013.

Trial Court Opinion, 8/21/13, at 1-2 (footnotes omitted).

Appellant presents us with one issue:

Did the trial court abuse its discretion in transferring this matter from Philadelphia County to neighboring Delaware County[, ] determining that trial in Philadelphia County was improper where defendant became intoxicated in Philadelphia and drove his car from Philadelphia into Delaware County and caused the accident?

Appellant's Brief at 4.

We review an order sustaining preliminary objections based on improper venue for an abuse of discretion or legal error. Lugo v. Farmers Pride, Inc., 967 A.2d 963, 966 (Pa. Super. 2009), appeal denied, 602 Pa. 668, 980 A.2d 609 (2009). A trial court's decision to transfer a case for improper venue will not be disturbed if the decision is reasonable in light of the facts. McMillan v. First National Bank of Berwick, 978 A.2d 370, 371 (Pa. Super. 2009). We have commented:

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) (en banc) (citations omitted).

Here, Appellant argues that the trial court erred in transferring venue because:

[T]he 'occurrence' took place in Philadelphia County out of which caused the subject accident. Namely, Appellee Defendant consumed alcoholic beverages in Philadelphia and became intoxicated in Philadelphia. He then got into his car and started to drive in Philadelphia shortly before he caused the subject accident.

Appellant's Brief at 7.

In support of his argument, Appellant cites Pa.R.Civ.Pro. 1006 and Peters v. Sidorov, 855 A.2d 894 (Pa. Super. 2004), asserting that "the cause of action arises where the negligent act occurred." Appellant's Brief at 8-9. Appellant maintains that the negligent action in the present case occurred in Philadelphia, "where defendant consumed alcohol beverages and became intoxicated and then proceeded to drive his automobile." Id. at 10. We disagree.

Pa.R.Civ.Pro. 1006 reads:
(a) Except as otherwise provided by … 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 …

We find the trial court's detailed analysis relative to Pa.R.Civ.Pro. 1006 persuasive. The trial court explained:

In the case sub judice, Defendant was served in Delaware County, and [Appellant] does not dispute the cause of action arose in Delaware County. Rather, [Appellant] argues [in his response to the Schells' preliminary objections and his Pa.R.A.P. 1925(b) statement of errors complained of on appeal], that Philadelphia County is the county in which "an occurrence took place out of which the cause of action arose" since "part of [Defendant's] negligent acts were committed in Philadelphia." According to [Appellant], the "occurrence" is Defendant's "act of driving under the influence of alcohol which was initiated by [D]efendant's drinking of intoxicating beverages in Philadelphia County."
The dispositive issue in this matter, therefore, centers upon the determination of whether Defendant's alleged act of becoming intoxicated and driving while intoxicated in Philadelphia County constitutes an "occurrence" out of which the Delaware county cause of action arose.
[A]n "occurrence" does not mean "part of a transaction." The Pennsylvania Supreme Court [in Craig v. W.J. Theile & Sons, Inc., 149 A.2d 35 (Pa. 1959)], explained:
Nor do we understand the word "occurrence" to mean "part of a transaction." On familiar principles of ejusdem generis the word "occurrence" would not have a broader meaning than "transaction" so as to conform it to "part of a transaction."
Following Craig, the Pennsylvania Superior Court stated:
Under both [R]ules [1006(a) and 2179(a)(4)], Pennsylvania courts have interpreted "a transaction or occurrence" to "require that a transaction…and not merely some part of a transaction, take place in the county where venue is laid [because] [i]t would lead only to confusion and a practice which we have heretofore referred to a 'forum shopping' if the law were to permit suit to be commenced against a [defendant] in any county where any fact of a complex transaction occurred." [Kring v. University of Pittsburgh, 829 A.2d 673, 678 (Pa. Super. 2003).]
Although decided in the context of a breach of contract action, Pennsylvania courts have applied the holding in Craig to other causes of action. Moreover, as noted by the Kring Court, the language at issue in Craig is identical to the language of Rule 1006(a), governing venue of individuals in Pennsylvania.
In Pennsylvania, a negligence action has the following elements: (1) the existence of a duty or obligation recognized by law, requiring the actor to conform to a certain standard of conduct; (2) a failure on the part of the defendant to conform to that duty, or a breach thereof; (3) a causal connection between the breach and the resulting injury; and (4) actual loss.
Although [Appellant] alleges part of Defendant's negligence occurred in Philadelphia, [Appellant's] negligence claim is based upon Defendant's tortious conduct in Delaware County, which resulted in the accident. Defendant lost control of the vehicle he was driving in Delaware County due to excessive speed. [Appellant] was a passenger in the car at such time, and from this accident, sustained personal injuries. Defendant's breach of the standard of care in operating the motor vehicle, which is alleged to be causally connected to [Appellant's] injuries, occurred in Delaware County. Thus, the alleged facts that satisfy all the elements for a negligence cause of action occurred in Delaware County.
Moreover, [Appellant's] allegation "part of [Defendant's] acts were committed in Philadelphia" is insufficient to establish venue over Defendant in Philadelphia County as it amounts to a "part of an occurrence." As stated by our Supreme Court, a "part of a transaction" does not constitute a transaction, and "the word 'occurrence' would not have a broader meaning than 'transaction.'" It would be illogical, therefore, to determine a "part of an occurrence" would constitute an "occurrence" in satisfaction of Pa.R.C.P. 1006. At best, [Appellant] has merely alleged a part of an occurrence took place in Philadelphia County, which is insufficient to establish an occurrence out of which the Delaware County cause of action arose transpired in Philadelphia County.

Trial Court Opinion, 8/21/13 at 3-6 (footnotes omitted, some citations supplied).

Conversely, Appellant's reliance on Peters v. Sidorov, supra, is not persuasive. In that medical malpractice case, we determined that venue was proper where "the alleged negligent acts at issue" occurred, ie., the county where the doctor prescribed Prednisone. Id., 855 A.2d at 900. We stated, "This case turns on a determination of the county in which the cause of action arose." Id. at 896. Here, as noted by the trial court, "Appellant does not dispute that the cause of action arose in Delaware County." Trial Court Opinion, 8/21/13, at 3. In transferring venue, the trial court ably reasoned, inter alia, that "the alleged facts that satisfy all the elements for a negligence cause of action occurred in Delaware County. Id. at 5-6.

Finding no abuse of discretion by the trial court, we affirm the order granting the Schells' preliminary objection to venue and transferring the case to Delaware County.

Order affirmed.

Judgment Entered.

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