Flaxman v. Burnett

574 A.2d 1061, 393 Pa. Super. 520, 1990 Pa. Super. LEXIS 913
CourtSupreme Court of Pennsylvania
DecidedMay 2, 1990
Docket162
StatusPublished
Cited by25 cases

This text of 574 A.2d 1061 (Flaxman v. Burnett) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flaxman v. Burnett, 574 A.2d 1061, 393 Pa. Super. 520, 1990 Pa. Super. LEXIS 913 (Pa. 1990).

Opinions

BROSKY, Judge.

This is an appeal from an order which granted appellees’ preliminary objections and transferred venue in this action from Philadelphia County to Monroe County.

Appellants, Edward Flaxman and John Savarese, present the following issues for review: (1) whether Monroe County Transit Authority (MCTA) is a local agency; (2) whether the cause of action arose in Philadelphia County; and (3) whether the trial court erred in transferring the action to Monroe County in view of the convenience of the witnesses and parties and allegations of impartiality with respect to the judges, arbitrators and jurors. For the reasons set forth below we affirm the order of the trial court.

This defamation case arises out of appellants’ prior employment relationship with MCTA. Appellants were terminated from their positions at MCTA in November 1985. In response, appellants filed suit in the United States District [525]*525Court for the Middle District of Pennsylvania and in Monroe County.1

The Pocono Record, the local newspaper in Monroe County, published articles regarding appellants’ termination and the ensuing litigation, one of which is the subject of this action. The allegedly defamatory column was published on August 7, 1986, and concerned MCTA’s decision to initiate legal proceedings to recoup monies owed by Flaxman and Savarese to MCTA.2 As a result of this particular news report, appellants brought suit in Philadelphia court against appellees who are as follows: the publisher Ottaway Newspapers, Inc., Dan Burnett, the reporter who wrote the story, Marc Wolfe, the solicitor for MCTA, and William Agriss, Wayne Mazur and John Neff, all of whom serve on the board of MCTA. MCTA, itself, is not a party to the instant action.

With the exception of John Neff, who resides in Carbon County, and appellants, who are residents of Florida,3 all parties are located in Monroe County. As a result, appellees filed preliminary objections alleging that venue in Philadelphia County was improper, or in the alternative, that the action should be transferred to Monroe County pursuant to the doctrine of forum non conveniens.

In its opinion granting appellees’ request to transfer the action to Monroe County, the trial court concluded that venue was improper in Philadelphia County for the following reasons: (1) appellees were not amenable to suit in Philadelphia County; (2) neither the cause of action nor the transactions giving rise to the cause of action occurred in Philadelphia County; (3) with the exception of Ottaway and Burnett, appellees are employees of MCTA, a Commonwealth agency, and as such, they may only be sued where [526]*526suit could be brought against MCTA; and (4) Ottaway does not regularly conduct business in Philadelphia County. Because the trial court properly transferred this action to Monroe County, we affirm.

Before addressing the merits of the issues raised, we must ascertain whether we have jurisdiction to resolve this matter.4 Although an order granting a change of venue is interlocutory, this court has previously held that an “order transferring ... [venue] is appealable as of right pursuant to Pa.R.A.P. 311(c).” Vogel v. National Railroad Passenger Corporation, 370 Pa.Super. 315, 318 n. 3, 536 A.2d 422, 424 n. 3 (1988). Therefore, this action is properly before us.

Pa.R.C.P. 1006(c) is applicable to actions in which multiple defendants are involved, and provides:

An action to enforce a joint or joint and several liability against two or more defendants, except actions in which the Commonwealth is a party defendant, may be brought against all defendants in any county in which the venue may be laid against any one of the defendants under the general rules of Subdivisions (a) or (b).

Consequently, if MCTA is a Commonwealth party, then venue is only proper in those counties in which actions against a Commonwealth party may be brought. 42 Pa.C. S.A. § 8501 defines the term “Commonwealth party” as “[a] Commonwealth agency and any employee thereof but only with respect to an act within the scope of his office or employment.” The question we must determine, therefore, is whether MCTA is a Commonwealth agency or a local agency, as asserted by appellants.

[527]*527The trial court relied on Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 517 A.2d 1270 (1986) in support of its conclusion that MCTA is a Commonwealth agency. However, the trial court’s reliance on Feingold is misplaced. In Feingold, the Pennsylvania Supreme Court relied on the specific language in the Pennsylvania Urban Mass Transportation Law, 55 Pa.S.A. § 600.303 in concluding that SEPTA was a Commonwealth agency. The Urban Mass Transportation Law only applies to metropolitan areas, see 55 Pa.S.A. § 600.303, which are defined as “all of the territory within the boundaries of any county of the first class and all other counties located in whole or in part within twenty miles of such first class county.” 55 Pa.S.A. § 600.302. Monroe County is a county of the sixth class, see 16 Pa.S.A. § 210, and therefore, the Urban Mass Transportation law is inapplicable to MCTA.

We agree with appellants that MCTA is a local agency. In order to arrive at this conclusion, it is necessary to compare the definitions of the terms Local agency and Commonwealth agency. 42 Pa.C.S.A. § 8501 defines a “Local Agency” as “[a] government unit other than the Commonwealth government.” However, under 42 Pa.C.S.A. § 102, a “Commonwealth agency” is defined as “[a]ny executive or independent agency.” The term “Executive agency” includes “[tjhe Governor and the departments, boards, commissions, authorities and other officers and agencies of the Commonwealth government,” whereas the term “Independent agency” covers “[bjoards, commissions, authorities and other agencies and officers of the Commonwealth government which are not subject to the policy supervision and control of the Governor.... ” Id. Finally, “Commonwealth government” is defined as “[t]he government of the Commonwealth, including the General Assembly and its officers and agencies, the Governor, and the departments, boards, commissions, authorities and officers and agencies of the Commonwealth, but the term does not include any political subdivision, municipal or other local [528]*528authority, or any officer or agency of any such political subdivision or local authority. [Emphasis added.]” Id.

This court recently analyzed these definitions in Northampton County Community College v. Dow Chemical, 389 Pa.Super. 11, 566 A.2d 591 (1989), in which we held that a community college was not a Commonwealth party. In reaching this conclusion, we determined that “[t]he legislature’s classification of Commonwealth parties is unambiguous.” Id. 389 Pa.Super. at 22, 566 A.2d at 596. Therefore in view of the clear definitions provided by the legislature we are constrained to conclude that MCTA fits- squarely within the description of a local agency.

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Cite This Page — Counsel Stack

Bluebook (online)
574 A.2d 1061, 393 Pa. Super. 520, 1990 Pa. Super. LEXIS 913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flaxman-v-burnett-pa-1990.