Feingold v. Malone

62 Pa. D. & C.4th 121, 2001 Pa. Dist. & Cnty. Dec. LEXIS 317
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedMay 25, 2001
Docketno. 1348
StatusPublished

This text of 62 Pa. D. & C.4th 121 (Feingold v. Malone) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Feingold v. Malone, 62 Pa. D. & C.4th 121, 2001 Pa. Dist. & Cnty. Dec. LEXIS 317 (Pa. Super. Ct. 2001).

Opinion

QUIÑONES ALEJANDRO, J.,

INTRODUCTION

Dora Feingold and Allen L. Feingold, plaintiffs, argue on appeal that the preliminary objection challenging venue and requesting a transfer of the case to Montgomery County, filed by Janet Malone, defendant, was erroneously sustained. This motion judge disagrees.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

Upon review of the complaint, preliminary objection, and the response to the preliminary objection, the following facts were considered by this motion judge when sustaining defendant’s preliminary objection:

“Plaintiffs, attorneys by profession, are husband and wife, who reside in Philadelphia County, Pennsylvania.
[123]*123“Defendant is a resident of Haverford, Montgomery County, Pennsylvania, and is employed as a nurse in Montgomery County, Pennsylvania.
“On November 24, 1998, Dora Feingold (plaintiff-wife), was operating her personally owned Mercedes automobile on St. Asaph’s Road and/or Presidential Boulevard, in Bala Cynwyd, Montgomery County, Pennsylvania, when her vehicle was rear ended by a Honda vehicle owned and operated by defendant. Plaintiff-wife suffered personal injuries, and the motor vehicle sustained damages.”

On November 14, 2000, plaintiffs filed a civil action against defendant in Philadelphia County, seeking recovery for personal injuries and property damage. Defendant was served with a copy of the complaint on December 6, 2000, in Montgomery County, Pennsylvania.

On December 23,2000, defendant filed a preliminary objection to plaintiffs’ complaint challenging that venue was improper in Philadelphia County, pursuant to the provisions of Pa.R.C.P. 1006(a), since defendant resides in Montgomery County, the cause of action arose in Montgomery County, and defendant does not regularly conduct business in Philadelphia County. On January 16, 2001, plaintiffs filed a response to defendant’s preliminary objection. Subsequently, these pleadings were assigned to the undersigned motion judge. By order dated January 30,2001, this motion judge sustained defendant’s preliminary objection and transferred the case to Montgomery County, Pennsylvania.

Dissatisfied with this order, on February 6,2001, plaintiffs filed this instant appeal.

[124]*124ISSUE

In response to an order issued in accordance with Pa.R.A.P. 1925(b), plaintiffs, on March 7, 2001, filed of record a statement of matters complained of on appeal and argued that this motion judge erred in sustaining defendant’s preliminary objection to venue where:

“(1) Plaintiffs alleged that defendant maintained an office and transacted business in Philadelphia County and was thus amenable to service there;
“(2) Defendant did not take depositions on disputed issues of material fact and thus admitted the truth of all allegations contained in the complaint, thereby conceding that venue of this matter was proper in Philadelphia;
“(3) The trial court improperly considered the convenience, rather than the propriety, of plaintiffs’ chosen forum; and
“(4) The trial court erred in considering the convenience of Philadelphia as a forum where defendant failed to place any evidence on the record indicating that Philadelphia County was an inconvenient forum.”

LAW AND DISCUSSION

Clearly, a trial/motion judge has the discretion to sustain or overrule preliminary objections that argue improper venue. Mathues v. Tim-Bar Corp., 438 Pa. Super. 231, 234, 652 A.2d 349, 351 (1994). A court’s ruling will depend on the facts of the particular case and will not be disturbed if the decision is a reasonable one in light of the facts. Masel v. Glassman, 456 Pa. Super. 41, 45, 689 A.2d 314, 316 (1997). “A plaintiff’s choice of forum is given great weight and a defendant has the bur[125]*125den in asserting a challenge to the plaintiff’s choice of venue.” Shears v. Rigley, 424 Pa. Super. 559, 564, 623 A.2d 821, 824 (1993). Further, a decision to transfer will not be reversed unless there is a showing of an abuse of discretion. Johnson v. Henkels & McCoy Inc., 707 A.2d 237, 239 (Pa. Super. 1997). To show an abuse of discretion, an appellant must show that in reaching a conclusion, a law was overridden or misapplied, or that the judgment exercised was manifestly unreasonable, or the result of bias, prejudice, or ill will. Id.

The proper way to challenge venue in a civil action is through a preliminary objection. Boyce v. St. Paul Property & Liability Insurance Co., 421 Pa. Super. 582, 588, 618 A.2d 962, 965 (1992); see also, Pa.R.C.P. 1006(e) and 1028(a)(1). Questions of venue must be raised at the first reasonable opportunity or they are waived. Kubik v. Route 252 Inc., 762 A.2d 1119 (Pa. Super. 2000). Further, Pa.R.C.P. 1006(e) provides that where there is a challenge of improper venue made by preliminary objections, if the preliminary objection is sustained and there is a county of proper venue in the state, the court shall transfer the case to the appropriate court of that county with costs and fees to be paid by the plaintiff.

Venue in an action brought against individual(s) is governed by Pa.R.C.P. 1006(a), which provides, in part: “an 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 the transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law.” Pa.R.C.P. 1006(a). (emphasis added)

Generally, an original process may be served onto an individual by handing a copy to the defendant, or by [126]*126handing a copy at the residence of the defendant (to an adult member of the defendant) or at any office or usual place of business of the defendant (to an agent or person in charge of the office). Pa.R.C.P. 402.

Here, plaintiffs do not contest that the accident occurred in Montgomery County, nor that defendant resides and was served in Montgomery County. What they dispute in their appeal is that venue is inappropriate in Philadelphia County, because defendant allegedly conducts business in Philadelphia County. They also argue that this motion judge abused her discretion when improperly considering the convenience and not the propriety of plaintiff’s choice of forum. It would appear that plaintiffs, acting pro se, have confused the rules of civil procedure.

The rule that venue lies against a defendant because of the defendant’s regular conduction of business in a county applies to corporations and/or other similar entities, but such rule does not apply to individuals. Gilfor ex rel. Gilfor v. Altman M.D.,

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Related

Scribner v. MacK Trucks
628 A.2d 435 (Superior Court of Pennsylvania, 1993)
Salay v. Braun
235 A.2d 368 (Supreme Court of Pennsylvania, 1967)
Mathues v. Tim-Bar Corp.
652 A.2d 349 (Superior Court of Pennsylvania, 1994)
Shears v. Rigley
623 A.2d 821 (Superior Court of Pennsylvania, 1993)
Johnson v. Henkels & McCoy, Inc.
707 A.2d 237 (Superior Court of Pennsylvania, 1997)
Kubik v. Route 252, Inc.
762 A.2d 1119 (Superior Court of Pennsylvania, 2000)
Hamre v. Resnick
486 A.2d 510 (Supreme Court of Pennsylvania, 1984)
Boyce v. St. Paul Property & Liability Insurance
618 A.2d 962 (Superior Court of Pennsylvania, 1992)
Masel v. Glassman
689 A.2d 314 (Superior Court of Pennsylvania, 1997)
Gilfor v. Altman
770 A.2d 341 (Superior Court of Pennsylvania, 2001)
United States Cold Storage Corp. v. Philadelphia
246 A.2d 386 (Supreme Court of Pennsylvania, 1968)
In re D.L.S.
420 A.2d 625 (Superior Court of Pennsylvania, 1980)

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Bluebook (online)
62 Pa. D. & C.4th 121, 2001 Pa. Dist. & Cnty. Dec. LEXIS 317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feingold-v-malone-pactcomplphilad-2001.