Kazanjian, A. v. The First Liberty Ins.

• Court: Superior Court of Pennsylvania
• Decided: August 23, 2022
• Docket: 507 EDA 2021
• Status: Unpublished

Opinion

J-S24035-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANI KAZANJIAN : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : THE FIRST LIBERTY INSURANCE : No. 507 EDA 2021 CORPORATION :

Appeal from the Order Dated January 28, 2021 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 200100687

BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 23, 2022

Ani Kazanjian (Kazanjian) appeals from the January 28, 2021 order of

the Court of Common Pleas of Philadelphia County (trial court) sustaining the

preliminary objection filed by The First Liberty Insurance Corporation (FLIC)

and transferring venue over this case to Delaware County.1 We affirm.

We glean the following facts from the certified record. In April 2014,

Kazanjian was struck by another motorist while driving in Delaware County

and sustained serious injuries. She obtained a settlement of $40,000 from

the tortfeasors’ insurance company, which was the combined policy limits of

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 “An appeal may be taken as of right from an order in a civil action or proceeding changing venue. . . .” Pa. R.A.P. 311(c). J-S24035-22

their coverage. The settlement was insufficient to compensate Kazanjian fully

for her damages so she filed a claim with her insurer, FLIC, for underinsured

motorist benefits. FLIC denied her claim and she filed the instant action

seeking to be compensated fully under the policy.

In her complaint, Kazanjian set for the following related to venue in

Philadelphia County: “Defendant, [FLIC], is a lawfully existing business entity

authorized to conduct business and issue policies of insurance in the

Commonwealth of Pennsylvania, regularly conducts business in Philadelphia

County, Pennsylvania, and has an office or usual place of business at the

above-captioned address.” Complaint in Civil Action, 1/8/20, at ¶ 2. The

captioned business address was in Boston, Massachusetts. The complaint

further averred that Kazanjian resides at an address in Delaware County.

FLIC filed a preliminary objection to venue arguing that Kazanjian had

failed to allege how FLIC’s business in Philadelphia County was sufficient to

establish venue there. It contended that FLIC “does not operate any business

in Philadelphia County that is necessary to its existence” and that under the

Rules of Civil Procedure, “[t]here [was] no basis for the [c]ourt to find that

Philadelphia County is a proper venue for this action.” Preliminary Objections,

10/13/20, at ¶¶ 12-13. It requested that the trial court sustain the objection

and transfer the case to Delaware County. The preliminary objection was

verified by FLIC’s counsel but did not include any affidavits or additional

evidence regarding venue.

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Kazanjian filed a response to the preliminary objection arguing that her

averment in Paragraph 2 of the complaint was sufficient to plead venue in

Philadelphia County. She contended that FLIC was required to first set forth

evidence to support its claim of lack of venue before the burden shifted to her

to establish that venue was proper. She argued that FLIC had failed to meet

the threshold evidentiary burden to support its preliminary objection and

requested it be overruled. In the alternative, she requested additional time

for the parties to conduct discovery on the issue of venue.

The trial court sustained FLIC’s preliminary objection and entered an

order transferring the case to Delaware County, reasoning that Kazanjian had

repeatedly failed to provide relevant factual averments to support her

contention that FLIC regularly conducted business in Philadelphia County. See

Trial Court Opinion, 2/2/22, at 7-8, 10-11. Kazanjian timely appealed and

she and the trial court have complied with Pa. R.A.P. 1925. On appeal, she

argues that the trial court abused its discretion in holding that venue was

improper in Philadelphia County because FLIC did not properly place venue at

issue in its preliminary objection.2 In the alternative, she argues that the trial

2 Our standard of review is well-settled:

A decision to transfer venue will not be reversed unless the trial court abused its discretion. A plaintiff’s choice of forum is given great weight, and the burden is on the party challenging that choice to show it is improper.

(Footnote Continued Next Page)

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court erred by granting the preliminary objection without allowing her to

conduct discovery on venue.

A suit against a corporation may be brought, inter alia, in any county in

which the corporation regularly conducts business. Pa. R.C.P. 2179(a)(2). A

challenge to venue as improper must be raised by preliminary objection and

“shall state specifically the grounds relied upon.” Pa. R.C.P. 1006(e) &

1028(a)(1), (b). In considering a preliminary objection based on improper

venue, “the burden is on the party challenging venue . . . to show the plaintiff’s

chosen venue is improper. However, once they properly raise the issue of

venue and provide some evidence . . . to dispel or rebut the plaintiff’s choice,

the burden shifts back to the party asserting proper venue.” Hausmann v.

Bernd, 271 A.3d 486, 493 (Pa. Super. 2022) (citation omitted, cleaned up);

see also Schmitt v. Seaspray-Sharkline, Inc., 531 A.2d 801, 803 (Pa.

Super. 1987) (“The moving party may not sit back and, by the bare allegations

as set forth in the preliminary objections, place the burden upon the plaintiff

to negate those allegations. . . . It is only when the moving party properly

However, if there exists any proper basis for the trial court’s decision to grant the petition to transfer venue, the decision must stand. . . . An abuse of discretion occurs when the trial judge overrides or misapplies the law, or exercises judgment in a manifestly unreasonable manner, or renders a decision based on partiality, prejudice, bias or ill-will.

Schultz v. MMI Prods., Inc., 30 A.3d 1224, 1228 (Pa. Super. 2011) (cleaned up; citations omitted).

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raises the jurisdictional issue that the burden of proving jurisdiction is upon

the party asserting it.”).

Courts employ a fact-specific quality-quantity analysis to determine

whether venue is proper. Hangey v. Husqvarna Prof. Prods., Inc., 247

A.3d 1136, 1141 (Pa. Super. 2021) (en banc), appeal granted, 147 EAL 2021

(Pa. 2022). “The term ‘quality of acts’ means those directly, furthering, or

essential to, corporate objects; they do not include incidental acts. To satisfy

the quantity prong of this analysis, acts must be sufficiently continuous so as

to be considered habitual.” Id. (citations omitted).

When a factual issue is raised by a preliminary objection, “the court shall

consider evidence by depositions or otherwise.” Pa. R.C.P. 1028(c)(2). The

comment to Rule 1028(c)(2) states that preliminary objections based on

improper venue “cannot be determined from facts of record.” Pa. R.C.P.

1028(c)(2), note. However, a trial court “has discretion to determine the lack

of need for further discovery on the issue of venue, and we review its decision

in that regard for abuse of discretion.” Wimble v. Parx Casino &

Greenwood Gaming & Entertainment, Inc., 40 A.3d 174, 179 (Pa. Super.

2012) (quoting Schultz v. MMI Prods., Inc., 30 A.3d 1224, 1228 (Pa. Super.

2011)).

In Hausmann, we concluded that the trial court did not abuse its

discretion in transferring venue under the burden-shifting framework and the

quality-quantity analysis. Hausmann, supra, at 496-97. There, the

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corporate defendants provided an affidavit in support of their preliminary

objection to venue in which they enumerated the amount of revenue they had

earned in Philadelphia County in the previous four years compared to their

total revenue in that time period. Id. at 489. The plaintiff responded by citing

the defendants’ answers to interrogatories and a public activity license search

to argue that the defendants’ business in Philadelphia County was regular and

continuous. Id. at 489-90. We concluded that the plaintiff had failed to

establish that venue in Philadelphia County was proper because the evidence

he produced to rebut the affidavit did not establish that the defendants

regularly conducted business there at the time the suit was filed. Id. at 497.

Moreover, we faulted the plaintiff for failing to conduct further discovery to

carry his evidentiary burden on venue despite being granted leave to do. Id.

In contrast, in Wimble, we held that the trial court did not abuse its

discretion in transferring venue without ordering discovery because the

plaintiffs only attempted to establish venue based on a faulty legal premise

which could be evaluated on the pleadings. Wimble, supra; see also

Schultz, supra (holding that venue was properly transferred when

defendants attached affidavit to preliminary objections detailing the extent of

its business in forum county and plaintiffs did not respond with factual

averments rebutting that evidence). No additional factual development was

necessary to decide the merits of the preliminary objection. However, when

the moving party fails to set forth evidence in support of the preliminary

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objection or the pleadings evidence a factual dispute regarding whether venue

is proper, the preliminary objection may be overruled or the court must allow

development of an evidentiary record before ruling on the objection. See

Hamre v. Resnick, 496 A.2d 510 (Pa. Super. 1984) (remanding for discovery

on venue when there was a factual dispute in the pleadings as to whether the

transaction or occurrence at issue took place in plaintiff’s chosen forum);

Alumbaugh v. Wallace Bus. Forms, Inc., 313 A.2d 281, 283-84 (Pa. Super.

1973) (trial court properly overruled preliminary objection to venue when

movants did not present any evidence in support of objection and non-moving

party nonetheless produced deposition suggesting jurisdiction was proper in

Pennsylvania).3

Here, FLIC’s preliminary objection set forth the following:

6. In paragraph 37 of her Complaint, the Plaintiff avers that “The Court of Common Pleas of Philadelphia County in Philadelphia, Pennsylvania is a Court of competent jurisdiction.” Plaintiff makes no other averments that Philadelphia County is the proper venue for this matter to be adjudicated in.

3 We have previously recognized that “for procedural purposes, objections to venue are treated as raising a question of jurisdiction,” and relied on cases analyzing preliminary objections to jurisdiction when examining a question of venue. See Deyarmin v. Consol. Rail Corp., 931 A.2d 1, 9 (Pa. Super. 2007) (citation omitted). Moreover, in Alumbaugh, even though the trial court overruled the preliminary objection to jurisdiction, we approved of its additional reasoning that the moving party could raise and prove their allegations at trial. Alumbaugh, supra, at 284. At the time, the comment to Pa. R.C.P. 1028(c) allowed the trial court to postpone disposition of doubtful or fact-specific preliminary objections until evidence was developed at trial. Id. at 282-83.

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7. Plaintiff fails to allege how the Defendant, [FLIC’s] acts are continuous and sufficient so as to be general or habitual, and, she fails to establish that any actions by the Co-Defendant[4] that are “necessary to its [their] existence,” occur in Philadelphia County.

***

12. As explained above, Plaintiff’s cause of action arose in Delaware County, Plaintiff resides in Delaware County, and Defendant does not operate any business in Philadelphia County that is necessary to its existence.

Preliminary Objections, 10/13/20, at ¶¶ 6-7, 12. The objections were verified

by FLIC’s counsel. They do not set forth any additional factual averments or

attach any exhibits regarding FLIC’s business in Philadelphia County.

Contrary to FLIC’s argument on appeal, the statement that it “does not

operate any business in Philadelphia County that is necessary to its existence”

is a legal conclusion drawn from our case law on the quality-quantity test, not

a factual averment. Id. at ¶ 12; see, e.g., Zampana-Barry v. Donaghue,

921 A.2d 500, 503 (Pa. Super. 2007) (“Quality of acts will be found if an entity

performs acts in a county that directly further or are essential to the entity's

business objective. . . . Acts that aid a main purpose are collateral and

incidental while those necessary to an entity’s existence are direct.”). FLIC

did not set forth any specific factual averments to challenge venue in

Philadelphia County, such as information regarding any revenue derived from

4 This appears to be a typo, as there is no dispute that FLIC is the sole defendant in this action.

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Philadelphia businesses, contacts or employees located there or attempts to

advertise or solicit business in that forum. It merely pled a bare legal

allegation, unsupported by relevant facts, that venue in Philadelphia County

is improper. See Schmitt, supra.

Thus, this case is distinguishable from the cases FLIC relies upon in

arguing that it presented sufficient facts to support its preliminary objection.

See Schultz, supra (movant submitted affidavit detailing extent of its

business in the forum county); Silva v. Philadelphia Yearly Mtg., 2729 EDA

2019 (Pa. Super. July 28, 2020) (unpublished memorandum) (movants

submitted certifications averring that it had no day-to-day operations,

property, offices, business transactions or other connections to forum

county).5 In these cases, the trial court could evaluate the evidence presented

by the moving parties under the quality-quantity test and determine whether

the facts established that they performed acts “necessary to [their] existence”

in the forum county. Zampana-Barry, supra. Here, FLIC provided the trial

court with the bare legal conclusion that it did not meet the standard without

providing any factual basis in support. The burden-shifting framework

required FLIC to first adduce sufficient facts to raise a question as to venue

and its unsupported legal conclusions did not overcome this initial hurdle.

5 Recognizing that it is a non-precedential memorandum decision, FLIC cites to Silva for its persuasive value. See Pa. R.A.P. 126(b).

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Hausmann, supra, at 493; Schmitt, supra. As a result, the trial court

misapplied the law when it concluded that Kazanjian was required to produce

factual averments to support venue in Philadelphia County when FLIC had not

yet put venue in dispute. See Trial Court Opinion, 2/2/22, at 7-8, 10-11.

Nevertheless, we may affirm the trial court’s order on any valid basis

appearing of record. Schultz, supra, at 1228 (“[I]f there exists any proper

basis for the trial court’s decision to grant the petition to transfer venue, the

decision must stand.”); In re T.P., 78 A.3d 1166, 1170 (Pa. Super. 2013)

(“[I]t is a well-settled doctrine in this Commonwealth that a trial court can be

affirmed on any valid basis appearing of record.”). FLIC argues on appeal that

the forum-selection clause of the underinsured motorist policy at issue

requires that this case be litigated in Delaware County, where Kazanjian is

domiciled. The clause states:

LAWSUITS AGAINST US

You must comply with the terms of the policy before you may sue us. Suit must be brought in a court of competent jurisdiction in the county and state of your legal domicile at the time of the accident.

Complaint in Civil Action, 1/8/20, Exhibit A, Underinsured Motorists Coverage

– Pennsylvania (Non-Stacked) (emphasis in original) (R.R. 052a).

We have previously examined this precise language under the same

circumstances as the instant case. See O’Hara v. First Liberty Ins. Corp.,

984 A.2d 938, 939 (Pa. Super. 2009). There, we concluded that the trial court

did not abuse its discretion in sustaining the preliminary objection to venue

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when it enforced this clause, as it is a clear and unambiguous term of the

parties’ contract. Id. at 942. It is undisputed that Kazanjian’s legal domicile

is in Delaware County, where the accident occurred. Complaint in Civil Action,

1/8/20, at ¶¶ 1, 3-5. Accordingly, O’Hara is binding and the forum selection

clause requires Kazanjian to litigate her claim in that forum. We affirm the

trial court’s order transferring venue to Delaware County on that basis.6

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/23/2022

6 Kazanjian argues only that FLIC waived the application of the forum selection clause by failing to raise the argument in its preliminary objection. Kazanjian’s Reply Brief at 7-8. However, we may affirm on any basis apparent from the record, even those not considered by the trial court or raised by the parties. In re T.P., 78 A.3d 1166, 1170 (Pa. Super. 2013).

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