SUBMITTED: March 3, 2017
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge,
HONORABLE JULIA K. HEARTHWAY, Judge, HONORABLE DAN
PELLEGRINI, Senior Judge.
K. HEARTHWAY, JUDGE
Reed (Reed) appeals from an order entered March 23, 2016, in
the Court of Common Pleas of Philadelphia County (trial
court) which sustained in part the preliminary objections of
Paula Brown (Brown) and the Borough of Colwyn (Borough)
(together, Defendants) alleging improper venue, and
transferred the matter to the Court of Common Pleas of
Delaware County (Delaware CCP) pursuant to Pennsylvania Rules
of Civil Procedure Number (Pa. R.C.P. No.)
2103(b). We reverse and remand.
commenced an action in the trial court alleging, among other
claims, defamation against Defendants. The following facts
are based on the allegations as set forth in Reed's
Second Amended Complaint (Complaint). In February of 2009, the
Borough hired Reed as a police officer, and over time, he
rose to the rank of Deputy Chief of Police. In February of
2013, Reed resigned in an open meeting before Borough
Council; the Borough Council accepted his resignation and
wished him well. In 2014, Reed applied for a job with the
City of Philadelphia (City) and listed his previous
employment with the Borough, stating that he had voluntarily
resigned. In October of 2014, the City made an offer of
employment to Reed, conditioned upon a background check and
employment verification. The City hired Sterling Infosystems
(Sterling) to perform a background check and an employment
verification check. On November 8, 2014, the City rescinded
Reed's offer of employment, because he allegedly provided
false information regarding resignation from the Borough.
Reed alleges that when Sterling contacted Brown, who was the
Borough's manager, Brown falsely stated that Reed was
terminated from his employment due to misconduct and that he
was not eligible for rehire due to performance issues. Reed
contends that Brown's false statements were published to
the City, its hiring agents, representatives and employees,
and as a result of those statements, the City rescinded
Reed's offer of employment.
filed preliminary objections to Reed's Complaint,
arguing, among other things, improper venue pursuant to Pa.
R.C.P. No. 1028(a)(1), asserting that venue did not lie in
Philadelphia County. Reed filed a response. After oral
argument, the trial court sustained the preliminary
objections in part and ordered the case transferred to the
Delaware CCP for all further action pursuant to Pa. R.C.P.
No. 2103(b), which provides that "[e]xcept when the
Commonwealth is the plaintiff or when otherwise provided by
an Act of Assembly, an action against a political subdivision
may be brought only in the county in which the political
subdivision is located." In its opinion in support of its
order, the trial court reviewed Pa. R.C.P. No. 2103(b) as
well as section 333 of the JARA Continuation Act of 1980
(Section 333 of JARA),  which permits a suit against a local
agency to also be brought in the county where the cause of
action arose or where the transaction or occurrence took
place. The trial court stated that Reed's claim was based
upon Brown's conduct of allegedly falsely reporting the
reason why Reed left his job, and that all of that conduct
occurred in Delaware County. The trial court concluded that,
"[a]lthough relevant conduct in this case also occurred
in Philadelphia County, the cause of action arose in Delaware
County and the transactions upon which the cause of action
arose, (i.e. the conduct of Defendant Brown) also occurred in
Delaware County." (Trial court opinion at 3.)
Accordingly, the trial court concluded that venue was proper
in Delaware County and transferred the matter to the Delaware
now appeals to this Court, arguing that the trial court
committed an error of law and/or abused its discretion by
sustaining Defendants' preliminary objections to venue
and transferring this matter to the Delaware CCP. Reed argues
that the trial court failed to give proper weight to his
choice of forum,  and that venue was proper in the
Philadelphia trial court, because the cause of action
occurred in the City of Philadelphia.
on the other hand, argue that nothing establishes that Brown
published any statement in Philadelphia. Defendants point out
that Brown is alleged to have spoken to an investigator from
Sterling in a phone call, which is not alleged to have
occurred in Philadelphia. Defendants argue that while
Sterling's reconveyance of the information may constitute
publication on Sterling's part, it is not an act of
publication by Brown. Defendants further argue that the place
where damages become manifest is not sufficient to establish
an occurrence from which a cause of action arises.
scope of review of a trial court order sustaining preliminary
objections is limited to a determination of whether the trial
court committed an error of law or abused its discretion.
Keystone Sanitary Landfill, Inc. v. Monroe County
Municipal Waste Management Authority, 148 A.3d 915 (Pa.
Cmwlth. 2016). As to an error of law, our standard of review
is de novo and our scope of review is plenary.
Pennsylvania, objections to venue are treated as raising a
question of jurisdiction. Deyarmin v. Consolidated Rail
Corporation, 931 A.2d 1 (Pa. Super. 2007) (citing
County Construction Company v. Livengood Construction
Corporation, 142 A.2d 9 (Pa. 1958)). Venue either is or
is not proper. Deyarmin. Section 333 of JARA governs
venue when a political subdivision is a defendant in an
action, whether that political subdivision is a sole
defendant or one of many.Township of Whitpain v.
Goldenberg, 569 A.2d 1002 (Pa. Cmwlth. 1990); see
also Bradley v. O'Donoghue, 823 A.2d 1038 (Pa.
Cmwlth. 2003). Pursuant to Section 333 of JARA, actions
against a political subdivision may be brought only in: (i)
the county in which the political subdivision is located;
(ii) the county in which the cause of action arose; or (iii)
the county where a transaction or occurrence took place out
of which the cause of action arose. Ward v. Lower
Southampton Township, 614 A.2d 235 (Pa. 1992);
see Section 333 of JARA, 42 P.S. § 20043.
Supreme Court interpreted the phrase "a transaction or
occurrence" "to require that a transaction …
and not merely some part of the transaction, take place in
the county where venue is laid." Craig v. W.J.
Thiele & Sons, Inc., 149 A.2d 35, 37 (Pa. Cmwlth.
1959); see Note to Pa. R.C.P. No. 1006(a)(1)
(referring to Thiele for the definition of
transaction or occurrence)."The Supreme Court explained
that any other result 'would lead only to confusion and
… 'forum shopping' if the law were to permit
suit to be commenced against a [defendant] in any county
where any facet of a complex transaction occurred.'"
Harris v. Brill, 844 A.2d 567, 571 (Pa. Super. 2004)
(quoting Thiele, 149 A.2d at 37). "[P]arties
cannot avoid the 'transaction' requirement by
characterizing 'a part of a transaction' as an
'occurrence.'" Id. (citing
Thiele). "[I]n analyzing whether a 'transaction
or occurrence' took place in a given county [it is
appropriate] to examine the nature of the claim asserted and
the elements constituting the cause of action."
Deyarmin, 931 A.2d at 13.
Reed's claim is based on the alleged defamatory conduct
of Brown. "An essential element of a defamation
action is publication." Flaxman v. Burnett, 574
A.2d 1061, 1066 (Pa. Super. 1990); see 42 Pa. C.S.
§ 8343(a). "[R]egardless of where the defamatory
statement is written or printed, no cause of action for libel
[defamation] arises until there is a publication of the
defamatory matter, which is its communication intentionally
or by negligent act to one other than the person
defamed." Gaetano v. Sharon Herald Company, 231
A.2d 753, 755 (Pa. 1967) (quotation marks and citation
omitted). Moreover, the recipient must understand the
defamatory meaning and that it applies to the plaintiff.
See 42 Pa. C.S. § 8343(a); Gaetano.
Gaetano, our Supreme Court illustrated the
importance of the recipient's understanding of the
statement as being defamatory to the element of publication.
The Supreme Court explained,
if one writes or prints a defamatory letter in Mercer County
and mails it to an addressee in Allegheny County, there
obviously is no publication of the libel until the letter is
read in Allegheny County and (which is most ...