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Reed v. Brown

Commonwealth Court of Pennsylvania

July 13, 2017

Wendell Reed, Appellant
v.
Paula Brown and Borough of Colwyn

          SUBMITTED: March 3, 2017

          BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JULIA K. HEARTHWAY, Judge, HONORABLE DAN PELLEGRINI, Senior Judge.

          OPINION

          JULIA K. HEARTHWAY, JUDGE

         Wendell 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).[1] We reverse and remand.

         Reed 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).[2] 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 On November 8, 2014, the City rescinded Reed's offer of employment, because he allegedly provided false information regarding resignation from the Borough.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published to the City, its hiring agents, representatives and employees, and as a result of those statements, the City rescinded Reed's offer of employment.

         Defendants 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."[3] 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), [4] 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 CCP.

         Reed 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, [5] and that venue was proper in the Philadelphia trial court, because the cause of action occurred in the City of Philadelphia.[6]

         Defendants, 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.

         Our 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. Id.

         In 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.[7]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.

         Our 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).[8]"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.

         Here, Reed's claim is based on the alleged defamatory conduct of Brown.[9] "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.

         In 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 ...

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