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[U] Sabatino v. May

Superior Court of Pennsylvania

February 24, 2014

PAUL SABATINO, Appellant
v.
DAVID MAY, Appellee PAUL SABATINO, Appellant
v.
DAVID MAY, Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Orders Entered July 1, 2013 and July 15, 2013 in the Court of Common Pleas of Philadelphia County, Civil Division, at No(s): 130201151

Appeal from the Order Entered May 15, 2013 in the Court of Common Pleas of Philadelphia County, Civil Division, at No(s): 130201151

BEFORE: BENDER, P.J.E., WECHT, J. and STRASSBURGER, [*] J.

MEMORANDUM

STRASSBURGER, J.

Paul Sabatino (Sabatino) has filed two appeals from two orders entered by the trial court dismissing his complaint in this personal injury action against David May (May). Upon review, we dismiss the appeal docketed at 2282 EDA 2013. We also quash the appeal at 2271 EDA 2013 in part, vacate the order of July 1, 2013, and remand for proceedings consistent with this memorandum.

On February 18, 2011, a motor vehicle accident occurred in Bradford County, Pennsylvania. May allegedly rear-ended a vehicle which was nearly stopped in preparation to turn left, thereby causing that vehicle to spin into oncoming traffic and collide with the vehicle being driven Sabatino.

Sabatino instituted this personal injury action against May in Philadelphia County, Pennsylvania by filing a complaint on February 13, 2013. May filed preliminary objections to the complaint, and on March 21, 2013, the trial court sustained the preliminary objections, and dismissed Sabatino's complaint without prejudice to file an amended complaint within 10 days.

On March 27, 2013, Sabatino filed an amended complaint. May again filed preliminary objections. On April 17, 2013, before the trial court could rule on the preliminary objections, Sabatino filed a second amended complaint. On April 18, 2013, May filed preliminary objections to the second amended complaint. Sabatino asserted that the complaint should be dismissed on the basis of improper venue, as well Sabatino's failure to verify the complaint and include a notice to defend.

On May 15, 2013, after considering the preliminary objections, the trial court dismissed the second amended complaint.[1] On May 23, 2013, Sabatino filed a motion for reconsideration. In that motion, Sabatino alleged that he e-filed an answer to the preliminary objections on May 13, 2013, prior to the time the order sustaining the preliminary objections was filed.[2]In that answer, and in the motion for reconsideration, Sabatino requested that the trial court grant a transfer of venue to Bradford County on the basis of forum non conveniens, rather than dismiss the complaint on the basis of improper venue.

On May 29, 2013, the trial court ordered that the May 15, 2013 order "is temporarily vacated" and directed May to file an answer to the motion for reconsideration. Order, 5/29/2013. May complied, and on July 1, 2013, the trial court denied Sabatino's motion for reconsideration. Sabatino then filed another motion for reconsideration, which was denied on July 15, 2013. On July 26, 2013, Sabatino filed a notice of appeal from the orders of July 1, 2013 and July 15, 2013.[3] On July 29, 2013, Sabatino filed a second notice of appeal to this Court from the order of May 15, 2013.[4] The trial court directed Sabatino to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925. Sabatino timely filed a statement.[5]

Before we reach the merits of these appeals, we must consider whether they are appropriately before this Court. Sabatino has filed appeals from three separate orders. Sabatino appeals from the order of July 15, 2013, where the trial court denied Sabatino's motion for reconsideration of the denial of the motion for reconsideration entered on July 1, 2013. It is well-settled that the denial of a motion for reconsideration is not an appealable order. Cheathem v. Temple University Hospital, 743 A.2d 518 (Pa.Super. 1999). Thus, we quash the portion of appeal from the order of July 15, 2013 docketed at 2271 EDA 2013.

There is significant procedural confusion with respect to the portions of the appeals from the orders of May 15, 2013 and July 1, 2013. The May 15, 2013 order dismissed Sabatino's complaint and would theoretically be a final, appealable order. However, that order was "temporarily vacated" by the order of May 29, 2013. We recognize that this order did not "expressly grant" reconsideration; however, because the May 15 order was temporarily vacated, we will consider it akin to reconsideration being granted. See Cheathem, 743 A.2d at 520 ("As stated in the Rules of Appellate Procedure, the 30-day period may only be tolled if that court enters an order "expressly granting" reconsideration within 30 days of the final order.").

Subsequently, on July 1, 2013 an the trial court entered an order that reads: "AND NOW, this 28 day of June, 2013, upon consideration of Plaintiff's Motion for Reconsideration and the response thereto, it is hereby ORDERED and DECREED that said motion is DENIED." Order, 7/1/2013. This order did not expressly reinstate the order of May 15, 2013 dismissing the complaint. However, this order had the equivalent effect of reinstating the May 15, 2013 order under these circumstances. Accordingly, we conclude we have jurisdiction to entertain the appeal from the July 1, 2013 order which was filed within the 30 day time period, on July 26, 2013.[6]

We now consider the merits of the appeal as they are related to the dismissal of the complaint for venue and technical defects.

Our standard of review mandates that [o]n an appeal from an [o]rder sustaining preliminary objections [which would result in the dismissal of suit], we accept as true all well-pleaded material facts set forth in [a plaintiff's] complaint and all reasonable inferences which may be drawn from those facts…. Where, as here, upholding sustained preliminary objections would result in the dismissal of an action, we may do so only in cases that are clear and free from doubt…. We review for merit and correctness-that is to say, for an abuse of discretion or an error of law. This case was dismissed at the preliminary objections stage on issues of law; our scope of review is thus plenary.

Ellenbogen v. PNC Bank, N.A., 731 A.3d 175, 181 (Pa.Super. 1999) (internal citations and quotations omitted).

May's preliminary objections raised three separate issues with Sabatino's complaint. First, May raised an objection to improper venue pursuant to Pa.R.C.P. 1006(a)(1) ("[A]n action against an individual may be brought in and only in a county in which … 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…"). The trial court determined that venue was proper in Bradford County only because that is where the car accident occurred and where May was served. Trial Court Opinion, 10/2/2013, at 8. The trial court further recognized that Pa.R.C.P. 1006(e) applies in this case, which provides that "[i]f a preliminary objection to venue is sustained and there is a county of proper venue within the State the action shall not be dismissed but shall be transferred to the appropriate court of that county." Pa.R.C.P. 1006(e). However, the trial court concluded that because there were other defects in the complaint, dismissal was proper in this case. Trial Court Opinion, 10/2/2013, at 8.

The trial court's conclusion was an error of law. The trial court did not have the authority to consider the other preliminary objections because venue was improper in Philadelphia County. As we have previously pointed out, "if venue is improper, then the trial court lacks superintendence to hear the case. A challenge to improper venue, therefore, must be addressed before the case proceeds." Wilson v. Levine, 963 A.2d 479, 484 (Pa.Super. 2008). Thus, the proper procedure here was for the trial court to consider only the preliminary objection to venue. As it concluded, venue in this case is proper only in Bradford County.

Therefore, we vacate the order of the trial court dismissing Sabatino's complaint, and remand to the trial court to enter an order transferring this case to Bradford County, Pennsylvania. Sabatino shall bear any costs associated with that transfer. See Pa.R.C.P. 1006(e) ("The costs and fees for transfer and removal of the record shall be paid by the plaintiff."). The other preliminary objections raised to Sabatino's second amended complaint shall be considered by the Bradford County courts.

Appeal at 2282 EDA 2013 dismissed. Appeal of July 15, 2013 order, docketed at 2171 EDA 2013, quashed. Appeal of July 1, 2013 order, docketed at 2171 EDA 2013, vacated. Case remanded for proceedings consistent with this memorandum. Jurisdiction relinquished

Judgment Entered.


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