J.P., a Minor v. Sherman Street Soccer, LLC ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.P., A MINOR, BY HIS PARENTS AND : IN THE SUPERIOR COURT OF
NATURAL GUARDIANS, AARON : PENNSYLVANIA
PINKSTON, KIMBERLY PINKSTON, :
AND AARON PINKSTON, AND :
KIMBERLY PINKSTON, IN THEIR :
OWN RIGHT :
:
Appellants :
: No. 1735 EDA 2020
:
v. :
:
:
SHERMAN STREET SOCCER, LLC, ALL :
SPORTS ENTERPRISES INC, AND :
D’HUY ENGINEERING INC :
Appeal from the Order Entered September 2, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 200400802
BEFORE: PANELLA, P.J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 11, 2022
J.P., a minor, through his parents Aaron and Kimberly Pinkston, and
Aaron and Kimberly Pinkston, in their own right (collectively “the Pinkstons”),
appeal from the order finding venue was improper in Philadelphia County and
transferring venue to Lehigh County.1 We affirm.
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1In the order, the trial court also indicated that venue would be proper in
Chester County or Northampton County.
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On January 25, 2020, the Lou Ramos Center in Allentown, Lehigh
County hosted a futsal2 tournament. While playing in a game, J.P. tripped over
side court netting on the floor surface and fell to the ground, sliding knee first
into an unprotected concrete column base, resulting in numerous injuries. The
Pinkstons, who resided in West Chester, Pennsylvania, filed a complaint
sounding in negligence in Philadelphia County, naming Sherman Street
Soccer, LLC, All Sports Enterprises, Inc., and D’Huy Engineering, Inc., as the
defendants. The Pinkstons claimed that venue was proper in Philadelphia
County because All Sports and D’Huy regularly conducted business there.3
Relevantly, All Sports, which designed and constructed the futsal courts
at the Lou Ramos Center, has its principal place of business in Exton,
Pennsylvania (Chester County). Notably, since 2015, All Sports completed
seven projects in Philadelphia County, but the work was performed by
subcontractors and not All Sports’ employees. Further, D’Huy, an engineering
consulting firm, designed the fit out for the futsal courts. D’Huy has its
principal place of business in Bethlehem, Pennsylvania (Lehigh County). D’Huy
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2We note for purposes of context only that futsal is a term commonly used to
describe a five-on-five game like soccer, but played indoor, with a smaller ball,
and retaining boundaries instead of using walls. See
https://en.wikipedia.org/wiki/Futsal#Summary_of_rules, last accessed
1/25/2022.
3 The Pinkstons did not argue that Sherman Street Soccer, which owns and
operates the Lou Ramos Center and has its principal place of business in
Allentown, Pennsylvania, regularly conducted business in Philadelphia County.
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also has two regional offices, one located in Ambler, Pennsylvania
(Montgomery County) and the other in Wilmington, Delaware. Additionally,
between 2015 and 2020, D’Huy derived a small percentage of revenue from
consulting work in Philadelphia County but did not act as a project manager
on any project.
All Sports filed preliminary objections, raising various claims, including
improper venue in Philadelphia County. Sherman Street also filed preliminary
objections but did not raise a venue challenge. D’Huy did not file preliminary
objections, and instead filed an answer, wherein it denied all allegations that
it conducts business in Philadelphia County. Following discovery, the trial court
granted All Sports’ preliminary objections regarding its venue challenge and
transferred venue to Lehigh County. The trial court also stated that venue
would be proper in Chester or Northampton County, and that the Pinkstons
could decide where to pursue their action. The remainder of the parties’
preliminary objections were dismissed without prejudice. This appeal
followed.4
On appeal, the Pinkstons raise the following questions for our review:
1. Did the trial court err as a matter of law, and thereby abuse its
discretion, in holding that D’Huy Engineering, Inc. … does not
regularly conduct business in Philadelphia County, by focusing
unduly on percentage of revenue and by overlooking the
____________________________________________
4 This Court has jurisdiction to consider this appeal under Pa.R.A.P. 311(c)
(“An appeal may be taken as of right from an order in a civil action or
proceeding changing venue ….”).
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continuous, ongoing and regular engineering work performed
in Philadelphia County?
2. Did the trial court err as a matter of law, and thereby abuse its
discretion, in holding that All Sports Enterprises, Inc. … does
not regularly conduct business in Philadelphia County, by
focusing unduly on percentage of Philadelphia projects and by
overlooking the continuous, ongoing and regular construction-
work performed in Philadelphia County?
Brief for Appellants at 4.
We review an order granting preliminary objections asserting improper
venue for an abuse of discretion. See Hangey v. Husqvarna Prof’l
Products, Inc., 247 A.3d 1136, 1140 (Pa. Super. 2021) (en banc). “A
[p]laintiff’s choice of forum is to be given great weight, and the burden is on
the party challenging the choice to show it was improper.” Id. (citation
omitted). “[I]f there exists any proper basis for the trial court’s decision to
grant the petition to transfer venue, the decision must stand.” Id. (citation
omitted).
We will address the Pinkstons’ claims together. Specifically, the
Pinkstons argue that the trial court abused its discretion in transferring venue
to Lehigh County, because D’Huy and All Sports regularly conduct business in
Philadelphia County, and thus, venue was proper there. See Brief for
Appellants at 20, 31.
Regarding D’Huy, the Pinkstons contend that the trial court improperly
focused exclusively on the percentage of revenue D’Huy generated from
Philadelphia-based projects in finding that D’Huy did not have the quantity of
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contacts with Philadelphia County to establish venue. See id. at 25-29. The
Pinkstons maintain that D’Huy’s engineering services were being utilized on a
regular basis in Philadelphia County. See id. at 27, 29. The Pinkstons further
assert that D’Huy had quality contacts with Philadelphia County, noting that
D’Huy was certified and licensed by the City of Philadelphia as a Minority
Business Enterprise; D’Huy indicated, through its social media sites, corporate
newsletters, corporate website, and news articles, that it conducted
substantial business in Philadelphia; and D’Huy provided its core business of
consulting services in Philadelphia. See id. at 22-25; see also id. at 23
(arguing that D’Huy’s admissions of work in Philadelphia do not constitute
incidental advertising). The Pinkstons also claim that D’Huy’s failure to file
preliminary objections in the instant case established that it had no intention
of disputing venue in Philadelphia County. See id. at 31. Finally, the Pinkstons
argue that in Buccafuri v. Clark Artistic Iron, Inc. et al., Phila C.C.P.
Docket No. 190903599, a different judge in Philadelphia County entered an
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order finding that D’Huy regularly conducts business in Philadelphia County.5
See id. at 29-30.6
Likewise, the Pinkstons argue that the trial court improperly relied on
the percentage of total projects as the principal basis for concluding that All
Sports did not regularly conduct business in Philadelphia County. See id. at
31-32, 37. The Pinkstons highlight that All Sports derived hundreds of
thousands of dollars of revenue from Philadelphia County through seven
projects within the context of its business in Philadelphia between 2015 and
2019, directed and oversaw work in Philadelphia County, and would accept
work that became available in Philadelphia. See id. at 32-37. The Pinkstons
assert that such evidence confirms that All Sports performs regular business
in Philadelphia in sufficient quality and quantity to render venue proper. See
id. at 33, 38.
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5 The Pinkstons have included the order in question in their brief. While D’Huy
is listed as a defendant in that action, the order itself states the following:
AND NOW, this 19th day of October 2020, upon consideration of
the preliminary objections of defendant Skepton Construction,
Inc. to plaintiffs amended complaint, and any response, it is
hereby ORDERED that the preliminary objections are OVERRULED.
Skepton Construction, Inc. shall file an answer to plaintiffs
amended complaint within 20 days of the docketing of this order.
Order, 10/19/20.
6The Pennsylvania Association for Justice (“PAJ”) has filed an amicus brief in
support of the Pinkstons. The PAJ largely echoes the Pinkstons’ brief and
argues that venue is proper in Philadelphia County because D’Huy regularly
conducts business there.
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A civil action may be brought against all defendants in any county in
which venue may be laid against any one of the defendants “under the general
rules.” Pa.R.C.P. 1006(c)(1). Rule 2179, which governs venue in cases against
corporate entities, states in relevant part, that “a personal action against a
corporation or similar entity may be brought in and only in . . . a county where
it regularly conducts business[.]” Pa.R.C.P. 2179(a)(2). “[I]n the venue
context, regularly does not mean principally, and a defendant may perform
acts regularly even though these acts make up a small part of its total
activities.” Hangey, 247 A.3d at 1141 (citation and quotation marks omitted).
“In determining whether venue is proper under this rule, courts employ a
quality-quantity analysis.” Id. (citation and quotation marks omitted); see
also Zampana-Barry v. Donaghue, 921 A.2d 500, 503 (Pa Super. 2007)
(“A business entity must perform acts in a county of sufficient quality and
quantity before venue in that county will be established.”). “The term ‘quality
of acts’ means those directly, furthering, or essential to, corporate objects;
they do not include incidental acts.” Hangey, 247 A.3d at 1141 (citation
omitted). “To satisfy the quantity prong of this analysis, acts must be
sufficiently continuous so as to be considered habitual.” Id. (citation and
quotation marks omitted). Moreover, in addressing the quantity prong, this
Court explained the significance of the percentage of a company’s business
conducted in the county as follows:
The percentage of a company’s overall business that it conducts
in a given county, standing alone, is not meaningful and is not
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determinative of the “quantity” prong. Each case turns on its own
facts, and we must evaluate evidence of the extent of a
defendant’s business against the nature of the business at issue.
A small or local business may do all of its work in just a few
counties or even a single one, while a large business may span
the entire nation. Indeed, the percentage of sales a multi-billion-
dollar company makes in a particular county will almost always be
a tiny percentage of its total sales. Courts thus should not consider
percentages in isolation. Rather, courts must consider all of the
evidence in context to determine whether the defendant’s
business activities in the county were regular, continuous, and
habitual.
Id. at 1142.
Here, the trial court summarized the evidence of contacts by D’Huy and
All Sports with Philadelphia County and its legal conclusions as follows:
The undisputed facts are, since 2015, All Sports has entered
into seven (7) business contracts to conduct work in Philadelphia
County. [] All Sports, in that same time, took on approximately
one hundred fifty (150) total projects…. [T]he Philadelphia
projects amounted to a mere 1.67% of All Sports total [revenue]
throughout the years 2015 to 2020. Those contracts provided the
following revenues to All Sports: 2015 — Grandview Condo
Association $13,350; 2015 — The Shirt Corner $15,500; 2017 —
Versailles Apartments $36,752; 2018 — The Phield House
$285,868; 2018 — Schlessinger Table Tennis $7,942; 2019 — Pan
Am Charter $68,139; 2019 — Elite Sports Factory $74,400.
Furthermore, all of the physical work done for the All Sports
projects in Philadelphia was done by subcontractors, not
employees of All Sports. And the approximate amount of days
those subcontractors were on site were approximately 30 to 35
days total…. Seven contracts over the course of five years [are]
not the type of “continuous and sufficient” contacts that rise to
the level of regularly conducting business. Furthermore, the
underlying incident happened in January of 2020 and the instant
lawsuit was filed on April 17, 2020…. While acknowledging the
COVID-19 pandemic may have had an impact on All Sports’
business, it would be inappropriate to speculate as to what might
have occurred if not for the pandemic.
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This Court can only look at the facts as presented, which
indicate All Sports has only had seven projects in Philadelphia,
over a five[-]year period, which took only 30-35 days total to
complete. Furthermore, only two of those projects occurred in
2019, the year leading up to the underlying matter. [The
Pinkstons were] unable to demonstrate All Sports conducts
regular and substantial business in Philadelphia County at the time
of the underlying accident. Therefore, venue, as to All Sports, is
inappropriate in Philadelphia County.
D’Huy has a principal place of business in Bethlehem,
Pennsylvania, which is in Lehigh County[,] Pennsylvania. D’Huy
also has two regional offices, one located in Ambler, Pennsylvania
(Montgomery County) and the other in Wilmington, Delaware….
[The Pinkstons] reference[] other statements made by D’Huy on
their website, social media feeds, and corporate newsletters in
which they reference doing work in Philadelphia County. However,
mere advertisements or statements cannot constitute the quality
and quantity of contact needed to support proper venue. [Purcell
v. Bryn Mawr Hosp., 579 A.2d 1282, 1287 (Pa. 1990).]
A trial court must distinguish between collateral acts, which
merely aid the main purpose of the corporation, and direct acts,
which are necessary to the existence of the corporation. Id. at
1285. The direct actions taken by D’Huy include business
contracts for consulting work [in] Philadelphia. M. Arif Fazil, the
President of D’Huy, gave testimony in which he provided the total
revenue derived from projects in Philadelphia County from 2015
until 2020 as well as an explanation of the nature of D’Huy’s
business.
D’Huy is a “consulting engineering firm” which “oversee[s]
projects on behalf of the client as the owner’s rep. They’re
basically agency style projects, management, not at risk, agency
styled as a professional representative for the owner.” Fazil
Deposition at 10. Due to the nature of their business largely
revolving around consulting, D’Huy is able to do most of their work
from their offices in Bethlehem, P[ennsylvania], absent the
occasional site visit to Philadelphia. Furthermore, D’Huy is actually
providing consulting for other engineering companies who have
the contract to work for the ultimate client. For example, although
it is listed [that] D’Huy does business with the Philadelphia Water
Department, D’Huy is actually contracted to do business with an
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entity named Arcadis. D’Huy does not serve as a “project
manager” for any projects in Philadelphia.
Over the course of the past six years, D’Huy consulted on
roughly twenty projects in Philadelphia. The projects in
Philadelphia, in which D’Huy served as a consultant for another
engineering company who had a contract with a Philadelphia
based client, have provided minimal revenue for D’Huy. In 2015,
out of $7,280,654.38 of D’Huy’s revenue, $56,403 came from
Philadelphia based projects, amounting to .774% of total revenue.
In 2016, out of $8,582,159.52 of D’Huy’s revenue, $44,202.36
came from Philadelphia based projects, amounting to .5150% of
total revenue. In 2017, out of $10,650,090.15 of D’Huy’s revenue,
$37,828.54 came from Philadelphia based projects, amounting to
.3552% of total revenue. In 2018, out of $10,465,841.35 of
D’Huy’s revenue, $158,838.18 came from Philadelphia based
projects, amounting to 1.5177% of total revenue. In 2019,
$12,247,607.35 of D’Huy’s revenue, $179,865.35 came from
Philadelphia based projects, amounting to 1.4686% of total
revenue. Finally, in 2020, out of $637,275.01 of D’Huy’s revenue,
$4,529.23 came from Philadelphia based projects, amounting to
.9673% of D’Huy’s total revenue. When considering the type of
work D’Huy conducts and the small percentage of revenue derived
from work in Philadelphia, th[e trial c]ourt did not abuse its
discretion in determining D’Huy does not regularly conduct
business in Philadelphia….
Th[e trial c]ourt notes there is no bright-line percentage
cutoff for the quantity test. Each case must be determined on its
own unique facts and circumstances, not on an arbitrary numerical
limit. The facts show a clear absence of regularity in which either
All Sports or D’Huy conducted business in Philadelphia…. Thus,
venue was properly transferred to Lehigh County.
Trial Court Opinion, 2/24/21, at 5-8 (emphasis, footnotes, and some citations
and quotation marks omitted).
Here, the trial court did not rely exclusively on evidence of the
percentage of All Sports’ or D’Huy’s business that occurred in Philadelphia
County when addressing the quantity prong of the regularly-conducts-
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business analysis. Indeed, the trial court highlighted that All Sports’ projects
in Philadelphia were done by subcontractors, not its employees over a 5-year
period; All Sports had no projects in Philadelphia in 2020, the year that J.P.
suffered his injuries; and D’Huy is a consulting engineering firm that oversees
projects on behalf of its clients but does not serve as a project manager on
any projects in Philadelphia. Furthermore, All Sports and D’Huy do not
maintain an office in Philadelphia, have any employees in Philadelphia, and do
not pay taxes in Philadelphia. Thus, in addition to the percentage of business
conducted in Philadelphia County, the trial court cited other evidence to
support its determination that acts by All Sports and D’Huy were not
continuous and habitual in Philadelphia County.
There also exists a proper basis for the trial court’s finding that All Sports
and D’Huy did not have quality contacts with Philadelphia County, as any visits
by D’Huy or All Sports to Philadelphia, as well as D’Huy’s statements on its
website and corporate newsletters, were incidental acts, and not direct acts.
Neither company was involved in direct action in Philadelphia. D’Huy’s visits
were brief and essentially perfunctory. Moreover, the Pinkstons do not
establish that D’Huy’s licensure as a Minority Business Enterprise in
Philadelphia, alone, or in conjunction with the above facts, evidence quality
contact with Philadelphia County. Therefore, reviewing the specific facts of
the instant case, we conclude that the trial court did not abuse its discretion
in sustaining All Sports preliminary objections raising improper venue on the
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basis that none of the named defendants regularly conducted business in
Philadelphia County.
Additionally, the fact that D’Huy did not file preliminary objections in
this matter does not waive the venue issue on behalf of the remaining
defendants or preclude All Sports from raising the issue. See Schultz v. MMI
Prod., Inc., 30 A.3d 1224, 1229 (Pa. Super. 2011) (holding that one
defendant’s failure to object to improper venue does not have the effect of
establishing proper venue for the remaining defendants, as it would permit
one defendant to unilaterally deprive another party of an opportunity to object
to an improper forum).
Finally, the Pinkstons have not demonstrated that the Buccafuri case
has any applicability to the instant case. Notably, the cited Buccafuri order
does not provide any basis for the trial court’s decision and does not
affirmatively state that D’Huy regularly conducts business in Philadelphia.
Indeed, D’Huy is only one of multiple defendants listed in the docket sheets;
we have no way to discern what defendant’s or defendants’ contacts were
ruled upon. It is entirely possible, on this record, that another defendant in
that matter had significantly greater contacts with Philadelphia than D’Huy.
Based upon the foregoing, we affirm the trial court’s order finding venue
was improper in Philadelphia County.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2022
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