Brown, S. v. Auborn Transportation ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STEPHANIE BROWN, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
AUBORN TRANSPORTATION : No. 3505 EDA 2017
CORPORATION :
Appeal from the Order September 22, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 17-02-00226
BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED MAY 08, 2019
Appellant, Stephanie Brown, appeals from the order entered on
September 22, 2017, sustaining preliminary objections to venue filed by
Auborn Transportation Corporation (Auborn) and dismissing Appellant’s
complaint without prejudice. We affirm.
The trial court summarized the facts and procedural history of this case
as follows:
[Appellant] filed an amended complaint [in Philadelphia County]
alleging that she was injured in a motor vehicle accident between
herself and [a driver working for Auborn, which occurred on Route
141 in Elmsworth, Delaware in April of 2015]. [Auborn] filed
preliminary objections to the amended complaint alleging that
venue was improper in Philadelphia County, as it does not
regularly conduct business in Philadelphia. [Appellant] filed a
response in opposition, arguing that [Auborn] conducts business
in Philadelphia because [Auborn] is a trucking company and
regularly utilizes Philadelphia County as a final destination and/or
utilizes roadways within Philadelphia on its way to its final
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destination. [The trial] court sustained [Auborn’s] objections and
dismissed [Appellant’s] complaint without prejudice to be refiled
in a proper jurisdiction.
[The trial] court granted [Appellant’s] timely motion for
reconsideration, vacated its order, and scheduled a [] hearing for
September 19, 2017. Following [the] hearing, [the trial] court
issued its September 21, 2017 order, again, sustaining [Auborn’s]
preliminary objections to venue. [Appellant] filed a motion for
reconsideration of the September 21, 2017 order, which was
denied. [Appellant] timely appealed and filed a court-ordered
Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
[The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on
October 9, 2018.]
Trial Court Opinion, 10/9/2018, at 1-2 (superfluous capitalization and record
citations omitted).
On appeal, Appellant presents the following issue for our review:
Did the lower court err and/or abuse its discretion when it
[sustained] [Auborn’s] preliminary objections as to improper
venue and dismissed [Appellant’s] complaint without prejudice?
Appellant’s Brief at 4 (superfluous capitalization omitted).
Appellant contends that the trial court erred by dismissing her complaint
without prejudice because the record did not adequately support that decision.
More specifically, she argues that her choice of forum was to be given great
weight and Auborn failed to meet its burden of asserting that venue was
vexatious or harassing to it. Id. at 17-18. Appellant maintains that she
served Auborn with specific discovery requests and scheduled depositions, but
that Auborn failed to comply. Id. at 15-16. As such, Appellant asserts that
“dismissing [her] complaint without giving [Appellant] the opportunity to
conduct discovery and without [Auborn] having offered any evidence that [it]
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does not conduct business in Philadelphia is extraordinarily prejudicial to
[Appellant] and improper[].” Id. at 19.
We are guided by the following standards:
The scope of review in determining whether a trial court erred in
sustaining preliminary objections and dismissing a complaint is
plenary.
In determining whether the trial court properly sustained
preliminary objections, the appellate court must examine the
averments in the complaint, together with the documents and
exhibits attached thereto, in order to evaluate the sufficiency of
the facts averred. When sustaining the trial court's ruling will
result in the denial of claim or a dismissal of suit, preliminary
objections will be sustained only where the case is free and clear
of doubt, and this Court will reverse the trial court's decision
regarding preliminary objections only where there has been an
error of law or an abuse of discretion.
Sulkava v. Glaston Finland Oy, 54 A.3d 884, 889 (Pa. Super. 2012)
(citation omitted).
Pennsylvania Rule of Civil Procedure 2179 prescribes venue for personal
actions against corporations. See Pa.R.C.P. 1006(b) (“[a]ctions against the
following defendants, except as otherwise provided in subdivision (c), may be
brought in and only in the counties designated by the following rules: . . .
corporations and similar entities, Rule 2179”). As is relevant to the current
appeal, Rule 2179(a)(2) declares: “a personal action against a corporation or
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similar entity may be brought in and only in . . . a county where it regularly
conducts business.” Pa.R.C.P. 2179(a)(2).1
Our Supreme Court has held that the determination of whether a
corporation “regularly conducts business” in a particular county depends upon
the “quality” and “quantity” of the business conducted within the county.
Thus, for a corporation to “regularly conduct business” in a county:
the business engaged in must be sufficient in quantity and
quality. The term “quality of acts” means those directly
furthering, or essential to, corporate objects; they do not
include incidental acts. By “quantity of acts” is meant those
which are so continuous and sufficient to be termed general
or habitual. A single act is not enough.
Monaco v. Montgomery Cab Co., 208 A.2d 252, 256 (Pa. 1965) (corrections
and some quotations omitted), quoting Shambe v. Delaware & H.R. Co.,
135 A. 755, 757 (Pa. 1927).
In essence, the venue criteria found at Rule 2179(a)(2) “provide[] a
theory of transient jurisdiction by counties in which the corporation is present
by virtue of its business activities or contacts. In this circumstance, and
provided that the business contacts are more than incidental, a corporation
can be compelled to defend itself.” Purcell v. Bryn Mawr Hosp., 579 A.2d
1282, 1284 (Pa. 1990). The rationale and purpose of the rule is to “permit a
plaintiff to institute suit against the defendant in the county most convenient
for him and his witnesses” while, at the same time, assuring that “the
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1Rule 2179 lists other circumstances in which a plaintiff may properly bring a
personal action against a corporation in a certain county. See Pa.R.C.P. 2179.
However, none of the other provisions are applicable herein.
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corporation which has been sued ha[s] sufficient connection to the county.”
Burdett Oxygen Co. v. I.R. Wolfe & Sons, Inc., 249 A.2d 299, 302 (Pa.
1969) (quotations and citations omitted); Purcell, 579 A.2d at 1286.
In this case, the trial court determined:
On September 19, 2017, this court held a rule returnable hearing
to show cause why [Auborn’s] [p]reliminary [o]bjections should
not be granted as to the issue of venue. An order was issued
notifying both parties that affidavits, depositions, and/or
discovery, relevant to the question of venue would be accepted by
the [trial c]ourt.[2] [Appellant] did not provide admissible
evidence, deposition testimony, nor any affidavits to show cause
why venue was proper in Philadelphia. [Appellant] alleged that
[she] did not have any evidence because [Auborn] failed to
respond to [her] discovery requests specific to venue. [Appellant]
had ample time to conduct an investigation into [Auborn’s]
contacts with Philadelphia and file a motion to compel if necessary.
Trial Court Opinion, 10/9/2018, at 3.
Upon review, we agree that the trial court gave Appellant sufficient time
to conduct discovery in this matter and Appellant did not follow the proper
procedure to compel Auborn to comply with her discovery requests. Appellant
filed her complaint in February of 2017 and did not complete discovery by
June of 2017, when the trial court initially sustained Auborn’s original
preliminary objections. Thereafter, the trial court granted Appellant
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2 The trial court entered an order on July 6, 2017 granting Appellant
reconsideration of its prior order sustaining Auburn’s preliminary objections.
The trial court scheduled a rule returnable hearing for August 8, 2017. The
order specified that the trial court “will accept [a]ffidavits or deposition
evidence and upon application, for cause shown, testimony relevant to the
question of venue.” Trial Court Order, 7/6/2017, at *1. The rule returnable
hearing for August 8, 2017 was later rescheduled, upon Appellant’s request,
for September 19, 2017.
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reconsideration and gave Appellant additional time to complete discovery.
Appellant, however, did not avail herself of the opportunity. She even
requested a continuance of the rule returnable hearing and still did not procure
discovery. Appellant should have asked the trial court to enter an order
directing Auborn to produce any requested discovery items and/or a request
for additional sanctions pursuant to Pa.R.C.P. 4019. Instead, Appellant
appeared for the rule returnable hearing without any evidence to support her
claim that Philadelphia was a proper venue. Appellant does not challenge the
trial court’s determination that procedural avenues were available to her and
that she did not avail herself of them. As such, aside from her bald allegation
in her complaint, there is no evidence to suggest that Philadelphia is a proper
venue.
Next, Appellant argues that the trial court erred by allowing Auborn to
submit a revenue report, as a business record exception to hearsay, in support
of its preliminary objections to venue. Id. at 20-23. She claims that Auborn
“failed to disclose when this revenue report was created, the method used to
create it, the sources of information used to create it, and other relevant
information.” Id. at 23.
It is well established that:
In reviewing evidentiary decisions, [our Supreme] Court has
repeatedly emphasized that the admissibility of evidence is within
the sound discretion of the trial court, which appellate courts will
not disturb absent an abuse of discretion or error of law. An abuse
of discretion may not be found merely because an appellate court
might have reached a different conclusion, but instead requires
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demonstration that the lower court's decision was a result of
manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support from the evidence or the record so as
to be clearly erroneous.
* * *
Our rules of evidence mandate that a witness may testify to a
matter only if the witness has personal knowledge of the matter.
Pa.R.E. 602. Moreover, Pennsylvania's rule against hearsay
provides that a statement, which includes a written assertion, is
excludable if the person who made the statement does not make
it while testifying at the current trial and if the evidence is offered
to prove the truth of the matter asserted in the statement. Pa.R.E.
801, 802.
* * *
Nevertheless, evidence may be admissible, despite its hearsay
attributes, if it falls within an exception established by [our
Supreme] Court's rules or by statute. Pa.R.E. 802. […] [The
Supreme] Court has observed that exceptions to the rule against
hearsay have developed to allow the admission of specified types
of evidence based upon (1) the necessity for such evidence, and
(2) the circumstantial probability of its trustworthiness.
In regard to the business records exception, the circumstantial
trustworthiness arises from the regularity with which business
records are kept and the reliance that businesses place on the
accuracy of those records.
Bayview Loan Servicing LLC v. Wicker, 2019 WL 1388516, at *6–7 (Pa.
2019) (internal case citations and quotations omitted). When proffered, the
“opponent” of the business record must “show that the source of information
or other circumstances indicate a lack of trustworthiness.” Pa.R.E. 803(6)(E).
On this issue, the trial court determined:
[…Appellant] failed to meet the burden of proof [to show lack of
trustworthiness in the revenue report introduced by Auborn]. The
revenue report had markings which indicated the report was
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printed from [its] [c]ompany website by Sherrie Goorahoo, the
corporate designee. It is the regular practice of [Auborn] to
generate such reports. Thus, the report is the type of record
encompassed by the Rule. Based on evidence presented, [Auborn]
met its burden of showing that [its] contacts with Philadelphia did
not meet the quality and quantity of contacts necessary to render
venue properly.
Trial Court Opinion, 10/9/2018, at 4-5.
Upon review, we discern no abuse of discretion in admitting the revenue
report into evidence. Notably, Appellant does not challenge the trial court’s
determination that the revenue report was a regularly kept record Auborn
relied upon for its accuracy. Moreover, aside from merely stating that the
report failed to disclose when and how it was created, Appellant failed to show
that the source of the information or other circumstances indicate a lack of
trustworthiness pursuant to Pa.R.E. 803(6)(E). As such, we discern no abuse
of discretion in allowing Auborn to use its revenue report to refute venue in
Philadelphia. Accordingly, for all of the foregoing reasons, we discern no
abuse of discretion or error of law in sustaining Auborn’s preliminary
objections to venue and dismissing Appellant’s complaint without prejudice.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/19
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