Pisanchyn Law Firm, LLC v. Scanlon, M., Esq. ( 2018 )

J-S84042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PISANCHYN LAW FIRM, LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MATTHEW J. SCANLON, ESQ. AND : No. 1219 MDA 2017
SCANLON & WOJTON, LLC :
Appeal from the Order Entered July 10, 2017
In the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 16 CV 3573
BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED MAY 18, 2018
Pisanchyn Law Firm, LLC (Pisanchyn) appeals from the July 10, 2017,
order, entered in the Court of Common Pleas of Lackawanna County,
sustaining the preliminary objections as to venue filed by Matthew J. Scanlon,
Esq., and Scanlon & Wojton LLC (collectively, Scanlon), and transferring the
case to the Court of Common Pleas of Allegheny County. The sole issue raised
in this appeal is stated by Pisanchyn, as follows:
Whether the trial court committed an error of law or abused its
discretion by failing to follow Lucas Enterprises, Inc. v. Paul C.
Harmon, Co., 417 A.2d 720 (Pa. Super. 1980) and Scarlett v.
Mason, 89 A.3d 1290 (Pa. Super. 2014), when concluding that
venue was improper in Lackawanna County under Pa.R.C.P. 1006
when the contract was taken by [Pisanchyn] while [Pisanchyn]
was located in Lackawanna County and/or in the absence of an
agreement to the contrary, payment was/is due at [Pisanchyn’s]
princip[al] place of business, which is located in Lackawanna
County.
Pisanchyn’s Brief at 3. Based upon the following, we affirm.
J-S84042-17
By way of background, Pisanchyn is a Professional Limited Liability
Company with its registered office and principal place of business located in
Scranton, Lackawanna County. See Complaint, 9/6/2016, at ¶1. Matthew J.
Scanlon, Esq., is a partner of Scanlon & Wojton LLC, which has its registered
office and principal place of business located in Pittsburgh, Allegheny County.
See id. at ¶¶2-3.
The trial court has aptly summarized the factual background of this case,
as follows:
[Pisanchyn] was approached by Frank Repchick, Kirmberle
Repchick, and Sidney Warner, “the Repchicks,” to represent them
in a motor vehicle accidence occurring in Susquehanna County,
Pennsylvania. The Repchicks signed a Contingent Fee Agreement
for [Pisanchyn] to represent them regarding their personal injury
and property damage claims. [Pisanchyn filed a Complaint in the
Court of Common Pleas of Susquehanna County on behalf of the
Repchicks and, thereafter, a Praecipe for Trial. Pisanchyn] claims
that [Pisanchyn] provided substantial work on the Repchicks’
case, incurring fees and expenses in excess of $4,000. Following
the Complaint and a Praecipe for Trial on behalf of the Repchicks,
[Scanlon] requested to file a Praecipe for Substitution of Counsel
and assume handling the case in place of [Pisanchyn]. [On
October 16, 2014, Pisanchyn] sent correspondence to [Scanlon]
outlining the expenses [Pisanchyn] has paid on the case and its
fee agreement, offering to file a time stamped copy of the
substitution of counsel form, and “placing you [Scanlon] on notice
of [Pisanchyn’s] lien in regard to this matter in the amount of
$39,238.67.” In response, [Scanlon] sent the Praecipe for
Substitution of Counsel. [Pisanchyn] filed the Praecipe for
Substitution of Counsel, but claims it continued to offer [Scanlon]
assistance in the case. [Scanlon] settled the Repchicks’ case in
August 2015, but to this date ha[s] not supplied any payment to
[Pisanchyn]. …
Trial Court Opinion, 7/10/2017, at 2 (unnumbered).
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On June 15, 2016, Pisanchyn filed a Praecipe for a Writ of Summons.
Following a Rule to file a complaint, Pisanchyn filed a Complaint on September
6, 2016. Pisanchyn alleged, inter alia, that “[Scanlon] agreed to repay
[Pisanchyn] for costs and expenses as well as an attorney fee concerning the
Repchick[s’] case.” Complaint, 9/6/2016, at ¶21. Pisanchyn further alleged
“[Pisanchyn] accepted [Scanlon’s] offer to accept the case while in the
Scranton Lackawanna County office.” Id. at ¶28. Scanlon filed Preliminary
Objections to Pisanchyn’s Complaint on September 26, 2016, raising (1)
Improper Venue, (2) Failure of a Pleading to Conform to Law under Rule
1019(h), (3) Failure of a Pleading to Conform to Law under Rule 1019(i), and
(4) Failure of a Pleading to Conform to Law under Rule 1020(a).
The trial court set forth the subsequent procedural history in its opinion
as follows:
We held oral argument ton [Scanlon’s] Preliminary Objections on
November 29, 2016. Following oral argument, we held a hearing
on March 16, 2017 for a factual determination of whether
“[Pisanchyn] accepted [Scanlon’s] offer to accept the case while
in the Scranton Lackawanna County Office” as alleged in the
Complaint or whether “no one associated with or employed by
Scanlon & Wojton has ever travelled to Lackawanna County for
any reason whatsoever, business or personal” as alleged in
[Scanlon’s] Preliminary Objections of September 26, 2016.
During the hearing, there was no dispute that [Scanlon was] not
physically present in Lackawanna County at the time the alleged
contract was formed, that [Scanlon] do[es] not frequent
Lackawanna County, and that [Scanlon] do[es] not conduct
business in Lackawanna County. Rather, [Pisanchyn] argues that,
because [Pisanchyn] was located in Lackawanna County and
[Pisanchyn’s] understanding was that [Scanlon] must send a
check to [Pisanchyn] at [Pisanchyn’s] Scranton office, venue
would be proper in Lackawanna County.
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Trial Court Opinion, 7/10/2017, at 1-2 (unnumbered).
On July 10, 2017, the trial court sustained Scanlon’s preliminary
objections to venue and transferred this case to Allegheny County. This
appeal followed.1
At the outset, we state our standard and scope of review:
It is well established that a trial court’s decision to transfer venue
will not be disturbed absent an abuse of discretion. A Plaintiff’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.
However, a plaintiff’s choice of venue is not absolute or
unassailable. Indeed, if there exists any proper basis for the trial
court’s decision to grant a petition to transfer venue, the decision
must stand.
The party seeking a change of venue bears the burden of proving
such a change necessary.
Wyszynski v. Greenwood Gaming & Entertainment, Inc., 160 A.3d 198,
200 (Pa. Super. 2017) (citations omitted).
The instant case involves an action against an individual and a
corporation. In this regard, Pennsylvania Rules of Civil Procedure address
venue, as follows. Pa.R.C.P. 1006, governing venue for an action against an
individual, provides, in relevant part:
(a) Except as otherwise provided by subdivisions (a.1), (b) and
(c) of this rule, an action against an individual may be brought in
and only in a county in which
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1Pisanchyn timely complied with the order of the trial court to file a statement
of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).
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(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, or ….
Pa.R.C.P. No. 1006
With respect to venue for actions against corporations, Rule 2179
provides:
(a) Except as otherwise provided by an Act of Assembly, by Rule
1006(a.1) or by subdivision (b) of this rule, a personal action against a
corporation or similar entity may be brought in and only in
(1) the county where its registered office or principal place of
business is located;
(2) a county where it regularly conducts business;
(3) the county where the cause of action arose;
(4) a county where a transaction or occurrence took place out of
which the cause of action arose, or
(5) a county where the property or a part of the property which
is the subject matter of the action is located provided that
equitable relief is sought with respect to the property.
Pa.R.C.P. No. 2179(a).
As the trial court opined, there is no dispute that Scanlon’s principal
place of business and the county where it regularly conducts business is
Allegheny County, and that Scanlon does not conduct business in Lackawanna
County. Pisanchyn, however, contends that venue is proper in Lackawanna
County for two reasons. First, Pisanchyn claims the transactions and
occurrences in the formation of the contract occurred with Pisanchyn in
Lackawanna County. See Lucas Enterprises, Inc., supra, 417 A.2d at 721
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(“The making of a contract, which takes place where the offer is accepted,
undoubtedly constitutes a ‘transaction or occurrence’ sufficient to establish
venue.”) Second, Pisanchyn asserts that in the absence of an agreement to
the contrary, payment is/was due at Pisanchyn’s principal place of business,
which is located in Lackawanna County. See Scarlett, supra, 89 A.3d at
1292, citing Lucas Enterprises, Inc., 417 A.2d at 721 (“[T]he rule is
universal in the absence of agreement to the contrary, that 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.”).
In its brief, Pisanchyn claims that venue is proper in Lackawanna County
because that is where the offer was accepted, and in support cites the
testimony of its employee, Douglas Yazinski, Esquire, presented at the factual
hearing on March 16 2017. See Pisanchyn’s Brief at 14-15. Mr. Yazinski
testified that while he was located in Pisanchyn’s primary place of business in
Scranton, Lackawanna County, he received a telephone call from Scanlon and
there was an “oral agreement,” whereby Scanlon “offer[ed]” to “honor the fee
agreement … as part of that [Pisanchyn] would give any advice … as far as
the local rules, things like that …”. N.T., 3/16/2017 at 30, 35. See also id.
at 21-22. Mr. Yazinski admitted he did not have any written proof other than
the October 16, 2014, letter, which, we note, put Scanlon on notice of
Pisanchyn’s lien and did not mention an agreement. Id. at 32-33.
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Scanlon, for his part, vigorously disputed Yazinski’s testimony, testified
“[i]t was never a referral type of thing,” and maintained “we had no agreement
with [Pisanchyn].” N.T. 3/16/2017, at 13, 15. See also id. at 46.
Having considered the allegations set forth in the complaint and the
testimony presented at the evidentiary hearing, the trial court found merit in
Scanlon’s position that venue was not proper in Lackawanna County, stating:
The action in this case is against an individual Defendant, Matthew
Scanlon, Esq., and a corporation, Scanlon & Wojton, LLC. Mr.
Scanlon was not served in Lackawanna County. Br. in Supp. 5.
Following our factual hearing, we are left with no question in this
case that Defendant Scanlon could not have been served in
Lackawanna County, as he was not present in Lackawanna County
at any time prior to the hearing.
The principal place of business and offices of [Scanlon] are located
in Pittsburgh, Allegheny County, PA. Comp. ¶¶2-3. [Pisanchyn]
provided nothing to support a finding that [Scanlon] ha[s] any
business dealings, offices, property, or other contact with
Lackawanna County, Pennsylvania, and the testimony from
Matthew Scanlon, Esq. and Timothy Wojton, Esq. demonstrate[s]
that [Scanlon has] no contacts with Lackawanna County. If
[Scanlon is] in possession of a sum of money belonging to
[Pisanchyn] as suggested by [Pisanchyn], that sum of money
would be situated in Allegheny County, where [Scanlon’s] office
and bank are located. [Scanlon] argue[s] that the fee on the
Repchicks’ case was “ultimately handled, deposited and managed”
in Allegheny County. P.O.s ¶12.
The question, therefore, becomes whether Lackawanna County is
a place where a transaction or occurrence took place. According
to [Pisanchyn], [Scanlon] “contacted the Plaintiff, Pisanchyn Law
Firm, LLC, in the Scranton office . . . [and] made an offer to accept
the case.” Comp. ¶27. [Pisanchyn] alleges that “Plaintiff accepted
Defendants[’] offer to accept the case while in the Scranton[,]
Lackawanna County office.” Comp. ¶28. While [Pisanchyn] may
have been present in Lackawanna County, it is clear that at no
point [was Scanlon] present in Lackawanna County. [Pisanchyn]
“specifically denied that said decision [to breach an agreement],
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action or breach could have only occurred where Defendant
Matthew J. Scanlon, Esq. was physically situated and where said
fee was ultimately handled, deposited and managed.” Ans. to
P.O.s ¶12.
[Pisanchyn’s] office is located in Scranton, Lackawanna County,
Pennsylvania.1 The allegations within the complaint suggest that
__________________________________________________
1 Plaintiff maintains an office in Allegheny County and
advertises within Allegheny County. However, this office
was not in existence at the time this claim arose, according
to the testimony.
__________________________________
the alleged agreement could have taken place while the parties
were located in two different counties, as the complaint merely
specifies that correspondence was received, which could have
been via facsimile, telephone conversation, and/or e-mail
correspondence. [Scanlon] corresponded at least on one occasion
via by (sic) first class mail. Comp. ¶13. The complaint, however,
fails to specify whether the alleged agreement was written, oral,
or a combination of both, and fails to explain when precisely the
agreement took place. Without [Pisanchyn] specifying which
correspondences occurred at what time and where, it would be
difficult to declare that venue is proper in Lackawanna County,
when [Scanlon] w[as] never physically present in Lackawanna
County and we cannot determine the type of correspondence, date
of correspondence, and location of each of the parties when a
correspondence occurred. We acknowledge 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.” Lucas Enterprises, Inc. v. Paul C. Harman
Co., 417 A.2d 720, 721 (Pa. Super. 1980) (citing Craig v. W.J.
Thiele & Sons, Inc., 149 A.2d 35, 36-37 (1959)). However, the
place where the offer was accepted in this case would appear to
be Allegheny County, where [Scanlon was] located when they
allegedly accepted the offer.
[Pisanchyn] argues that venue is proper in Lackawanna County,
as [Pisanchyn] takes the position that any fee to be collected by
[Pisanchyn] would have been collected in Lackawanna County, as
that is where [Pisanchyn’s] office was located. Pennsylvania has
adopted the rule that “in the absence of agreement to the
contrary, that payment is due at the plaintiff’s residence or place
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of business, and venue is proper there in a breach of contract
action alleging failure to make payment.” Lucas Enterprises,
Inc. v. Paul C. Harman Co., 417 A.2d 720, 721-722 (Pa. Super.
1980). This rule concerning the place for payment comes into play
in a breach of contract case not only when the place where the
parties formed the contract is unknown, but also in any case
where the specific location of payment was not included in the
agreement. Scarlet v. Mason, 89 A.3d 1290, 1293-94 (2014).
[Scanlon] distinguished Lucas Enterprises, Inc. v. Paul C.
Harman Co., and its progeny of cases by arguing that there is a
different factual scenario in those cases, considering there was a
prima facie breach of contract in those cases. We agree. Here, not
only is there no prima facie breach, but there is a dispute between
the parties regarding the formation/existence of a contract.
Therefore, we find that venue would be improper in Lackawanna
County based on the allegations contained within the Complaint
We find that venue properly lies in Allegheny County, and this case
shall be transferred to the Court of Common Pleas of Allegheny
County. In light of our decision to transfer this case to Allegheny
County, we do not decide the remaining Preliminary Objections.
Trial Court Opinion, 7/10/2017, at 4-6 (unnumbered).
Based on our review, we conclude that here, because there is no clear
evidence of a written or oral agreement, or a specific claim of quantum meruit,
the trial court properly determined venue was proper in Allegheny County.
Pisanchyn’s Complaint avers that in response to Scanlon’s
correspondence “in which he indicated he would like to file a Praecipe for
Substitution of Counsel and assume the further handling of the Repchicks’
case,” Pisanchyn sent Scanlon a facsimile, notifying him of Pisanchyn’s lien in
the Repchick matter, for expenses and attorney fees. Complaint, ¶11. See
also id. at 12. Pisanchyn’s facsimile and other correspondence and
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documents attached to the Complaint do not reflect any written agreement
between the parties.
Furthermore, while Pisanchyn alleges in Paragraph 29 of its Complaint
that Scanlon made an “offer” to accept the case from Pisanchyn, the
uncontradicted testimony from the hearing held on March 16, 2017 was that
the Repchicks solicited Scanlon to represent them. N.T. 3/16/2017, at 6-7.
This case was not a referral from Pisanchyn to Scanlon. Therefore, assuming
arguendo that there was an agreement, the trial court properly reasoned, “the
place where the offer was accepted in this case would appear to be Allegheny
County, where Defendants were located when they allegedly accepted the
offer.” Trial Court Opinion, 7/10/2017, at 5 (unnumbered).
Nor do we find the trial court erred in finding the cases of Lucas
Enterprises and Scarlett, supra, distinguishable. Those cases dealt with
actions alleging breach of contract based upon a failure to pay in accordance
with a contract, and held: “[I]n the absence of an 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.”
See Scarlett, supra, 89 A.3d at 1292, citing Lucas Enterprises, Inc.,
supra, 417 A.2d at 721. On this record, we agree with the trial court’s
analysis that Lucas Enterprises and Scarlett address a different factual
scenario where there was a prima facie breach of contract in those cases.
Here, as discussed, there is no clear evidence of the existence/formation of a
contract.
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Based upon the foregoing, we find there is no basis upon which to
disturb the trial court’s determination that venue is improper in Lackawanna
County and the case should be transferred to Allegheny County. See
Pa.R.C.P. 1006(a) and 2179(a)(1)-(4).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/18
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