PA Counseling Services, Inc. v. Yambor, D. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PENNSYLVANIA COUNSELING SERVICES IN THE SUPERIOR COURT OF
INC., PENNSYLVANIA
Appellant
v.
DEBORAH YAMBOR,
Appellee No. 1287 MDA 2015
Appeal from the Order Entered June 29, 2015
In the Court of Common Pleas of Lebanon County
Civil Division at No: 2014-01166
BEFORE: PANELLA, STABILE, and FITZGERALD, JJ.*
MEMORANDUM BY STABILE, J.: FILED OCTOBER 17, 2016
Appellant, Pennsylvania Counseling Services, Inc. (“PCS”), appeals
from the June 29, 2015 order of the Court of Common Pleas of Lebanon
County (“trial court”), which sustained the preliminary objections of
Appellee, Deborah Yambor (“Yambor”), and transferred the matter to York
County, Pennsylvania. Upon review, we affirm.
The trial court provided the following factual history:
[PCS] . . . provides counseling services in Adams, Berks,
Cumberland, Dauphin, Franklin, Lancaster, Lebanon, and
York Counties. [PCS] employed . . . Yambor . . . as a
Counselor/Therapist from October 6, 2008 until she
voluntarily resigned as of November 1, 2013. [Yambor]
signed employment contracts with [PCS] on September
16, 2008; September 26, 2011; and March 3, 2012. All 3
contracts contained the following non-compete clause:
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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That s/he shall not engage for one year from
the time of termination of his PCS affiliation for
any cause (exception in clause 5), in the
practice of counseling/social work or
psychology by him/herself or with any other
individual or group (exception: an established
IRS approved tax exempt nonprofit corporation
to include school district) within a radius of 45
miles of the PCS sites previously worked at
regularly. If the office is closed down and
ceases operations, the employees released
from all points of this noncompetition clause
(i.e., see point 3 of this contract.)
[Yambor] regularly worked at [PCS’s] York City office at
128 N. George St., York, Pennsylvania. [Yambor] is
currently employed by GSC Counseling Associates, LLC
(herein “GSC”). [PCS] believes GSC is not a non-profit
agency and provides counseling services. GSC’s office is
at 2575 Eastern Blvd, York, Pennsylvania. This is four (4)
miles from [PCS’s] York Office where [Yambor] formerly
worked.
The contracts between [PCS] and [Yambor] also contained
buy-out provisions which allow former employees to pay to
be released from the non-compete clause. The buy-out
provision states:
Should the employee choose to work within the
for-profit and or private practice competitive
arena within said 45 mile radius within one
year of termination; employee has the option
to negate and void this noncompetition clause
with a contract buy-out. Said buy-out shall
serve as compensation to Employer for
ongoing competitive costs which may include
but be not limited to lost revenue for
transferred clients to Employee’s new working
environment, Employee’s knowledge of referral
sources, business and insurance practices
gained in employment training, and potentially
continued managed care provider credentialing
status achieved during PCS employment. It is
agreed that this contract buyout option shall
amount to 30% of the most recent 12 months
of gross pay at time of negotiation or
$4,000.00 whichever is greater. Payment shall
be due upon termination unless otherwise
extended by mutual written agreement.
Trial Court Opinion 06/29/15 at 2 – 4 (citation omitted).
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On August 13, 2014, PCS filed an amended complaint against Yambor
alleging a breach of contract, namely that Yambor breached the non-
compete clause of her employment contract. On September 2, 2014,
Yambor filed preliminary objections challenging venue. In response, PCS
filed preliminary objections to Yambor’s preliminary objections on September
18, 2014. By order and opinion of November 12, 2014, the trial court
sustained PCS’ preliminary objections and struck Yambor’s preliminary
objections and granted Yambor twenty days to file amended preliminary
objections.
On November 24, 2014, Yambor filed amended preliminary objections
challenging venue to which PCS filed preliminary objections on December
10, 2014. The trial court entered an opinion and order on March 2, 2015,
overruling PCS’s preliminary objections to Yambor’s preliminary objections.
An evidentiary hearing was held on the amended preliminary
objections on May 12, 2015. On June 11, 2015, the parties filed a
stipulation of counsel, which detailed the situs of the contractual history of
the parties and attached supporting exhibits. On June 29, 2015, the trial
court entered an opinion and order, sustaining Yambor’s amended
preliminary objections and transferring the matter to York County. On July
27, 2015, PCS appealed to this Court. PCS filed a Pa.R.A.P. 1925(b)
statement of matters complained of on appeal on August 20, 2015. The
trial court issued a Pa.R.A.P. 1925(a) opinion on August 21, 2015.
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On appeal,1 PCS raises three issues for review.
I. Did the [t]rial [c]ourt abuse its discretion and/or
commit legal error in sustaining preliminary objections on
grounds of improper venue, where the contract in the
underlying breach of contract claim was silent as to where
payment was due, making Appellant’s place of business in
Lebanon County the legal situs of payment and thereby
creating proper venue in Lebanon County under Scarlett
v. Mason, 89 A.3d 1290 (Pa. Super. 2014) and Lucas
Enterprises, Inc. v. Paul C. Herman Co., Inc., 273 Pa.
Super. 422, 418 A.2d 720 (Pa. Super. 1980)?
II. Did the [t]rial [c]ourt abuse its discretion and/or
commit legal error in sustaining preliminary objections on
grounds of venue without proof that venue was improper
and/or by effectively applying a forum non conveniens
analysis of venue on preliminary objections, contrary to
Wilson v. Levine, 963 A.2d 479 (Pa. Super. 2008)?
III. Did the [t]rial [c]ourt abuse its discretion and/or
commit legal error by effectively imposing Rule 1006(e)
costs on [Appellant] even though [Appellant] established
that venue was proper, contrary to Mateu v. Stout, 819
A.2d 563 (Pa. Super. 2003)?
Appellant’s Brief at 4.
PCS first asserts that the trial court abused its discretion and/or
committed legal error when it sustained Yambor’s amended preliminary
objection as to venue. We disagree. “The trial court is ‘vested with
discretion in determining whether to grant a preliminary objection to transfer
venue, and we shall not overturn a decision to grant or deny absent an
abuse of discretion.’” Scarlett 89 A.3d at 1292 (quoting Searles v.
Estrada, 856 A.2d 85, 88 (Pa. Super. 2004), appeal denied, 871 A.2d 192____________________________________________
1
This Court has jurisdiction under Pa.R.A.P. 311(c). See Forrester v.
Hanson, 901 A.2d 548, 552 (Pa. Super. 2006) (order transferring venue is
interlocutory order appealable as of right).
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(Pa. 2005)). “An abuse of discretion occurs when ‘there was an error of law
or the judgment was manifestly unreasonable or the result of partiality,
prejudice, bias or ill will.’” Id.“The presumption in favor of a plaintiff’s choice of forum has no
application to the question of whether venue is proper in the plaintiff’s
chosen forum; venue either is or is not proper.” Scarlett, 89 A.3d at 1293
(citing Kring v. Univ. of Pittsburgh, 829 A.2d 673, 676 (Pa. Super. 2003),
appeal denied, 844 A.2d 553 (Pa. 2004)). “Ordinarily, a plaintiff’s choice
of forum carries great weight, but it is not absolute or unassailable.”
Scarlett, 89 A.3d at 1293. To determine whether venue is proper, the court
is to take a snapshot of the case at the time it is initiated: “if it is ‘proper’ at
that time, it remains ‘proper’ throughout the litigation.” See Zappala v.
Brandolini Prop. Mgmt., Inc., 909 A.2d 1272, 1281 (Pa. 2006).
In the matter sub judice, PCS asserts only that because the contract2
was silent as to where payment was due, PCS’s place of business in Lebanon
County would be the legal situs of payment and constitute a transaction or
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2
All references to the contract sub judice shall be to the third and final
contract attached as Exhibit “D” to the amended complaint. The contract
contained language at the top stating “[t]his contract replaces all previous
contracts.” The trial court found that PCS can base the breach of contract
claim only on this final contract as “a basic tenet of contract law is that when
the language of a contract is clear and unambiguous its meaning must be
determined by an examination of the content of the contract itself.”
Chamberlin v. Chamberlin, 693 A.2d 970, 972 (Pa. Super. 1997) (citation
omitted).
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occurrence that would establish venue in Lebanon County. See Appellant’s
Brief at 11 – 15. Pursuant to Pa.R.C.P. No. 1006,
an action against an individual may be brought in and only
in a county in which (1) the individual may be served or in
which the cause of action arose or where a 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. No. 1006(a).
It has been repeatedly held that “[t]he making of a contract, which
takes place where the offer is accepted, undoubtedly constitutes a
‘transaction or occurrence’ sufficient to establish venue.” See Lucas
Enterprises, 417 A.2d at 721 (citation omitted). In Lucas Enterprises,
this Court held that “in the absence of agreement to the contrary, [ ]
payment is due at the plaintiff’s residence or place of business, and venue is
proper there in a breach of contract action alleging failure to make
payment.” Id. at 721 (citation omitted).
PCS is attempting to put the cart before the horse when it identified
Yambor’s failure to make payment as the purported breach of contract,
rather than Yambor obtaining new employment. Following an evidentiary
hearing, the trial court found that Yambor accepted the offer in York County,
primarily worked in York County, received her paycheck in York County, and
the purported breach of contract occurred in York County. See Searles v.
Estrada, 856 A.2d 85, 88 (Pa. Super. 2004) (“The trial court’s
determination depends on the facts and circumstances of each case and will
not be disturbed if the trial court’s decision is reasonable in light of those
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facts.”). It is abundantly clear that venue would have been proper in York
County. The only question that remains is whether Yambor’s decision not to
elect the buy-out option constitutes a transaction or occurrence that would
establish venue in Lebanon County.
The trial court’s finding that venue was improper in Lebanon County
was manifestly reasonable when it determined that the purported breach of
contract occurred in York County. A breach of a non-compete clause occurs
when a former employee obtains new employment that violates a term of
the non-compete agreement. The buy-out provision provides for liquidated
damages conditioned on a breach of the non-compete clause.
If the buy-out provision was selected by Yambor, there could be no
breach; therefore, a breach of the non-compete clause must occur before
the buy-out provision can be addressed. A breach of the non-compete
would constitute a transaction to establish venue under Rule 1006; the
failure to make payment of damages would not. Therefore, PCS’s only claim
is for breach of the non-compete clause. If this Court were to accept PCS’s
argument, it follows that venue would be proper at the employer’s principal
place of business for any employment contract containing a non-compete
clause with a liquidated damages provision.3 “If there exists any proper
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3
While venue may be proper at the employer’s principal place of business
for other considerations, this argument, if accepted, would virtually ensure
that any employee who works at a satellite office would be subject to venue
(Footnote Continued Next Page)
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basis for the trial court’s decision to transfer venue, the decision must
stand.” Zappala, 909 A.2d at 1284 (citation omitted). PCS’s first issue
fails.
We next turn to PCS’s second claim, which asserts that the trial court
abused its discretion and/or committed legal error in sustaining preliminary
objections on grounds of venue without proof that venue was improper
and/or by effectively applying a forum non conveniens analysis.4 This issue
is intertwined with the first, in that PCS asserts that the trial court
performed the incorrect analysis when it sustained the preliminary
objections. As discussed above, the court correctly performed an improper
venue analysis; therefore, PCS’s second issue fails.
The third issue raised by PCS is that the trial court abused its
discretion and/or committed legal error by imposing costs pursuant to Rule
1006(e). As this Court has found the trial court did not err in transferring
venue pursuant to Rule 1006(e), the rule is clear that costs are to be paid by
the plaintiff, i.e., PCS.
If a preliminary objection to venue is sustained and there
is a county of proper venue within the State the action
shall not be dismissed but shall be transferred to the
appropriate court of that county. The costs and fees for
_______________________
(Footnote Continued)
at the principal place of business, even if the employee has never had any
contacts with such forum.
4
A foum non conveniens analysis applies only if venue is already proper in
the first instance. See Pa.R.C.P. No. 1008(d).
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transfer and removal of the record shall be paid by
the plaintiff.
Pa.R.C.P. No. 1006(e) (emphasis added). Therefore, the trial court did not
err in directing PCS to pay the costs and fees for transfer and removal of the
record. PCS’s third issue fails.
In conclusion, we find that the trial court did not abuse its discretion
when it sustained Yambor’s preliminary objections. Accordingly, we affirm
the June 29, 2015 order transferring the matter to York County.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2016
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