Onufer, E. v. Lehigh Valley Hospital ( 2017 )

J-A06039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EDWARD ONUFER IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
LEHIGH VALLEY HOSPITAL, INC., D.B.A.
LEHIGH VALLEY HEALTH NETWORK;
LEHIGH VALLEY HOSPITAL PLANNING
COUNCIL D.B.A. LEHIGH VALLEY HEALTH
NETWORK; LEHIGH VALLEY HEALTH
NETWORK REALTY HOLDING COMPANY
D.B.A. LEHIGH VALLEY HEALTH
NETWORK; LEHIGH VALLEY HEALTH
NETWORK, INC. D.B.A. LEHIGH VALLEY
HEALTH NETWORK; LEHIGH VALLEY
HEALTH SERVICES, INC. D.B.A. LEHIGH
VALLEY HEALTH NETWORK; LEHIGH
VALLEY HEALTH , INC. D.B.A. LEHIGH
VALLEY HEALTH NETWORK; CROTHALL
HEALTHCARE, INC. D.B.A.CROTHALL
HEALTHCARE; CROTHALL FACILITIES
MANAGEMENT, INC. D.B.A. CROTHALL
HEALTHCARE; CROTHALL LAUNDRY
SERVICES, INC. D.B.A. CROTHALL
HEALTHCARE; CROTHALL SERVICES
GROUP, INC. D.B.A.CROTHALL
HEALTHCARE; CROTHALL SERVICES,
INC. D.B.A. CROTHALLHEALTHCARE;
AND EUREST SERVICES, INC. D.B.A.
CROTHALL HEALTHCARE
No. 2408 EDA 2016
Appeal from the Order July 8, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 160102000
BEFORE: PANELLA, J., SHOGAN, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED MAY 04, 2017
J-A06039-17
Appellant, Edward Onufer, appeals from the order entered July 8,
2016, sustaining Appellee Lehigh County’s preliminary objection to improper
venue and transferring the matter to Lehigh County. We affirm.
Appellant commenced this action on January 18, 2016, filing a
complaint raising counts of negligence against defendants. See Complaint,
1/18/16, at ¶¶ 1-16. The complaint alleged that in January 2014, Appellant
was injured following a slip and fall inside Lehigh Valley Health Network-
Cedar Crest. Id. at 16.
The Lehigh Valley Hospital Appellees1 filed preliminary objections to
the complaint, arguing that venue was improper in Philadelphia. See
Preliminary Objections, 2/5/16, at ¶¶ 5-17. The trial court overruled these
objections after additional defendant, Crothall Healthcare, Inc., filed an
answer to the complaint admitting it regularly conducted business in
Philadelphia County. See Answer to Complaint, 2/19/16, at ¶ 14; Order,
3/3/16, at 1.
On May 5, 2016, Lehigh Valley Hospital Appellees filed a joinder
complaint naming Lehigh County as an additional defendant. Lehigh County
filed preliminary objections arguing that venue was improper in Philadelphia
____________________________________________
1
Lehigh Valley Hospital, Inc. d/b/a Lehigh Valley Health Network; Lehigh
Valley Hospital Planning Council d/b/a Lehigh Valley Network; Lehigh Valley
Network Realty Holding Company d/b/a Lehigh Valley Health Network;
Lehigh Valley Health Network, Inc. d/b/a Lehigh Valley Health Network; and
Lehigh Valley Health Services Inc. d/b/a Lehigh Valley Health Network.
-2-
J-A06039-17
County, that it had immunity from suit under the Political Subdivision Tort
Claims Act,2 lack of capacity to sue as Appellant did not provide the required
notice pursuant to 42 Pa.C.S. § 5522, and that the two-year statute of
limitations had expired. See Preliminary Objections, 6/1/16, at 1-8.
The Lehigh Valley Hospital Appellees filed preliminary objections to
Lehigh County’s preliminary objections, arguing that Lehigh County’s
objections concerned issues that are improperly addressed at the instant
stage of the proceedings. See Preliminary Objections, 6/9/16, at ¶¶ 1-13.
Appellant also filed a response, arguing that Lehigh County should be
dismissed as an additional defendant because it could not be held liable
under the Political Subdivision Tort Claims Act (“PSTCA”), and because the
joinder of Lehigh County was an attempt to evade the previous ruling that
venue was proper in Philadelphia County. See Answer to Preliminary
Objections, 6/29/16, at ¶¶ 1-10.
On July 1, 2016, the court issued an order sustaining Lehigh County’s
preliminary objections. See Trial Court Opinion (TCO), 9/2/16, at 3. The
court dismissed the joinder complaint on the basis of the PSTCA, transferred
venue to Lehigh County, and ordered the Lehigh County Court of Common
Pleas to decide the remaining preliminary objections. Id.
____________________________________________
2
42 Pa.C.S. §§ 8541-8564.
-3-
J-A06039-17
However, on July 8, 2016, the court vacated its July 1, 2016 order.
The court overruled the Lehigh Valley Hospital Appellees’ preliminary
objections to Lehigh County’s preliminary objections, transferred the matter
to Lehigh County, and ordered the remainder of Lehigh County’s preliminary
objections to be decided by the Lehigh County Court of Common Pleas.
Appellant timely appealed. The trial court did not issue an order to file
a statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), but issued an opinion pursuant to Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following questions for our review:
1. Whether [Appellant] was entitled to his choice of venue after
the [c]ourt had issued a ruling making venue in Philadelphia
proper?
2. Whether the trial court abused its discretion by withdrawing a
ruling making venue proper in Philadelphia and transferring
venue to another county for that court to decide the previously-
decided issue?
Appellant’s Brief at 4.
In his first issue, Appellant asserts that he is entitled to his choice of
venue in Philadelphia. See Appellant’s Brief at 8 (citing in support Zappala
v. Brandolini Prop. Mgmt., Inc., 909 A.2d 1272, 1281 (Pa. 2006) (“[A
plaintiff’s] choice of forum is entitled to weighty consideration and should not
be disturbed lightly.”). Thus, according to Appellant, the court erred when,
upon consideration of the joinder complaint naming Lehigh County as an
additional defendant, it transferred this matter to the Lehigh County Court of
Common Pleas. Id. Appellant raises several arguments in support of this
-4-
J-A06039-17
contention. Id. at 8-10. However, we need not address these arguments in
detail, as the court’s decision is supported by clear precedent.
Our standard and scope of review are well-settled:
It is well established that a trial court’s decision to transfer
venue will not be disturbed absent an abuse of discretion. 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. 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.
Fritz v. Glen Mills Schools, 840 A.2d 1021, 1023 (Pa. Super. 2003)
(emphasis in the original). The party seeking a change of venue bears the
burden of proving such a change necessary. Zampana-Barry v.
Donaghue, 921 A.2d 500, 502 (Pa. Super. 2007).
Both Appellant, the Lehigh Valley Appellees, and the lower court agree
that, prior to the joinder of Lehigh County, a political subdivision,
Philadelphia County was the proper venue for this action. See Pa.R.C.P. 76
(“A political subdivision is defined as ‘any county, city, borough, incorporated
town, township, school district, vocational school district, county institution
district or municipal or other local authority[.]’”) However, the Pennsylvania
Rules of Civil Procedure provide that an action against a political subdivision
may be brought only in the county in which the political subdivision is
located. See Pa.R.C.P. 2103(b).
In cases involving multiple defendants where one of those defendants
is a political subdivision, venue is proper only in the county in which the
-5-
J-A06039-17
political subdivision is located. See Ward v. Lower Southampton Twp.,
614 A.2d 235, 238 (Pa. 1992). Further, when a joinder complaint names a
political subdivision as an additional defendant, venue is proper only in the
county in which that subdivision is located, even if it was previously proper
in another county. See Ribinicky v. Yerex, 701 A.2d 1348, 1351 (Pa.
1997).
Here, the joinder of Lehigh County necessitated the transfer of venue
to the Lehigh County Court of Common Pleas, and accordingly, the court did
not abuse its discretion in transferring the case.3 See Ribinicky, 701 A.2d
at 1351; Fritz, 840 A.2d at 1023.
Next, Appellant argues that the court properly struck the Lehigh Valley
Appellees’ joinder complaint because it was barred by the governmental
immunity provision PSTCA. See Appellant’s Brief at 10. Appellant avers
that because the immunity defense was clear on the face of the joinder
complaint, the complaint was properly dismissed. Id. at 12.
As discussed, supra, the trial court’s July 1, 2016 order dismissed
Lehigh County from the action and transferred venue to the Court of
Common Pleas of Lehigh County. However, properly exercising its
____________________________________________
3
Appellant’s argument that the dismissal of the joinder complaint on July 1,
2016, “eliminated the County as a party, and thus eliminated the County’s
preliminary objection to venue in Philadelphia,” is meritless. See Appellant’s
Brief at 8. Appellant does not support this contention with any citation to
authority or acknowledge that a court may modify or rescind any order
within thirty days of its entry. See 42 Pa.C.S. § 5505.
-6-
J-A06039-17
discretion, the trial court vacated this order on July 8, 2016. See 42 Pa.C.S.
§ 5505; see also Verholek v. Verholek, 741 A.2d 792, 798 (Pa. Super.
1999) (noting that the lower court’s authority to modify or rescind an order
is almost entirely discretionary and may be exercised sua sponte). Here,
Appellant has cited no authority to demonstrate that the trial court’s exercise
of its power under 42 Pa.C.S. § 5505 was an abuse of discretion. See
Appellant’s Brief at 10-11. Further, Appellant has cited no authority to
support his contention that the Lehigh County Court of Common Pleas
should not determine the merits of the governmental immunity objections.
Id. Accordingly, Appellant has waived this argument for purposes of appeal.
See Pa.R.A.P. 2119(a)-(c); see also Commonwealth v. Knox, 50 A.3d
732, 748 (Pa. Super. 2012) (“[T]he argument portion of an appellate brief
must be developed with a pertinent discussion of the point which includes
citations to the relevant authority.”)
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2017
-7-
J-A06039-17
-8-