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Wyszynski v. Greenwood Gaming & Entertainment, Inc.

Superior Court of Pennsylvania

April 17, 2017

RITA WYSZYNSKI Appellant
v.
GREENWOOD GAMING &ENTERTAINMENT, INC. D/B/A PARX CASINO & RACING

         Appeal from the Order February 12, 2016 in the Court of Common Pleas of Philadelphia County Civil Division at No(s): 160101055

          BEFORE: DUBOW, J., RANSOM, J., and PLATT, J. [*]

          OPINION

          RANSOM, J.

         Appellant, Rita Wyszynski, appeals from the order of February 12, 2016, sustaining the preliminary objections of Appellee, Greenwood Gaming & Entertainment, Inc., d/b/a Parx Casino and Racing, and transferring this matter to the Bucks County Court of Common Pleas. We affirm.

         On January 11, 2016, Appellant filed a complaint, alleging she was injured in a slip and fall on a wet floor in a restroom at Parx Casino. See Complaint, 2/11/16, at ¶¶ 8-11. Appellee filed preliminary objections to the complaint, arguing that venue was improper in Philadelphia County, as it does not regularly conduct business in Philadelphia, and Appellant's allegations of recklessness were not supported by the factual averments of the complaint. See Preliminary Objections, 1/19/16, at ¶¶ 6-48. Appellant filed a response in opposition, arguing that Appellee regularly conducts business in Philadelphia through extensive advertising campaigns. See Answer to Preliminary Objections, 2/1/16, at ¶ 31. The court sustained Appellee's objections and transferred the case to the Bucks County Court of Common Pleas.

         Appellant filed a motion for reconsideration, timely appealed, and filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal.[1] The trial court issued a responsive opinion.

         On appeal, Appellant raises the following issues for our review:

1. [] Did the lower court abuse its discretion in transferring this case to Bucks County, where [Appellee] failed to sustain its burden of proof that it did not regularly conduct business in Philadelphia, and venue was proper in Philadelphia under Pa.R.C.P. 2179(a)?
2. Did the lower court abuse its discretion in transferring this case to Bucks County, where the defendant's pervasive advertising in Philadelphia is neither limited nor "mere solicitation, " the defendant is successful in attracting Philadelphia residents to its casino, and the casino is located on Street Road, virtually on the border with Philadelphia?

Appellant's Brief at 4.

         As Appellant's issues are interrelated, we will address them together for ease of analysis. Appellant claims that Appellee failed to sustain its burden of proving that it does not regularly conduct business in Philadelphia, because it advertises heavily in Philadelphia. See Appellant's Brief at 8. Appellant contends that the quantity of the advertising is far more than limited solicitation of business, and accordingly, the trial court abused its discretion in transferring venue. Id. at 8-9.

         Our standard and scope of review are well-settled:

It is well established that a trial court's decision to transfer venue will not be disturbed absent an abuse of discretion. A Plaintiff's choice of forum is to be given great weight, and the burden is on the party challenging the choice to show it was improper. However, a plaintiff's choice of venue is not absolute or unassailable. Indeed, if there exists any proper basis for the trial court's decision to grant a petition to transfer venue, the decision must stand.

Fritz v. Glen Mills Schools, 840 A.2d 1021, 1023 (Pa. Super. 2003) (emphasis in the original). The party seeking a change of venue bears the burden of proving such a change necessary. Zampana-Barry v. Donaghue, ...


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