Collins, A. v. Maragelis, G. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
AMANDA COLLINS AND WAYNE : IN THE SUPERIOR COURT OF
COLLINS, : PENNSYLVANIA
:
Appellants :
:
v. : No. 3256 EDA 2017
:
GEORGE MARAGELIS AND :
PANAGIOTIS MARAGELIS :
Appeal from the Order Dated August 18, 2017,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. March Term, 2017, No. 1095
BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 23, 2018
Amanda Collins and Wayne Collins (collectively, “appellants”) appeal
the August 18, 2017 order in which the Court of Common Pleas of
Philadelphia County sustained the preliminary objections of George Maragelis
and Panagiotis Maragelis (collectively, “appellees”) and transferred the
action filed by appellants against appellees from the Court of Common Pleas
of Philadelphia County to the Court of Common Pleas of Delaware County.1
After careful review, we affirm.
1This is an interlocutory appeal as of right pursuant to 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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On March 10, 2017, appellants filed a complaint sounding in
negligence against appellees and alleged that either George or
Panagiotis Maragelis operated a motor vehicle owned by George Maragelis
that collided with a motor vehicle driven by Amanda Collins near the
Commodore Barry Bridge on Interstate 95 on March 13, 2015. Appellants
alleged that Amanda Collins, as a result of the accident, suffered disc
herniation and bulging at C5-6, disc protrusion at C4-5, disc bulging at C2-3
and C3-4, aggravation of pre-existing degenerative changes in the cervical
and thoracic spine, and various other internal and external injuries.
Wayne Collins brought a loss of consortium claim against appellees.
On April 21, 2017, appellants served appellees at 218 Walnut Street,
Newtown Square, Delaware County, Pennsylvania.
On June 9, 2017, appellees preliminarily objected to the complaint and
moved to dismiss and/or transfer venue as the cause of action arose in
Delaware County and each appellee resided in Delaware County. On
June 25, 2017, appellants filed an answer and new matter to the preliminary
objections. Appellants stated that appellees through their counsel,
Grace Lim Slocum, Esq. (“Attorney Slocum”), agreed to refrain from filing
preliminary objections in return for the agreement of appellants to strike
certain factual allegations from the complaint.
On July 11, 2017, the trial court issued a rule to show cause why the
preliminary objections should be granted on the issue of venue. The trial
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court stated that it would accept affidavits, deposition evidence, and upon
application for good cause shown, live testimony, relevant to the issue of
venue. On July 20, 2017, appellants moved for clarification/reconsideration
and asked the trial court to clarify or reconsider its position with respect to
appellant’s claim that appellees’ challenge to venue by preliminary objection
was barred by prior agreement of the parties.
On August 16, 2017, the trial court held a hearing on the preliminary
objections. Following the hearing, the trial court granted the preliminary
objections and transferred the case to the Court of Common Pleas of
Delaware County on August 17, 2017. In addition, on August 17, 2017, the
trial court denied the motion for clarification as moot. On September 18,
2017, appellants filed a notice of appeal.2
The trial court did not order appellants to file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court filed
an opinion on November 21, 2017.
Appellant raises the following issue for this court’s review: “Whether
the [trial] court erred in sustaining a preliminary objection alleging improper
venue on the facts of record and the bare allegations of the objecting party
2 The last day to appeal, September 16, 2017, fell on a Saturday.
Accordingly, appellants’ deadline to file a timely appeal was extended to the
following business day, September 18, 2017. See 1 Pa.C.S.A. § 1908.
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without securing evidence that venue was in fact improper, as required
under Pa.R.Civ.P. 1028(a)(1) and (c)(2)?” (Appellant’s brief at 4.)3
Although a plaintiff, as a rule, may
chose [sic] the forum in which to bring
suit that right is not absolute. Rule 1006
not only articulates where the plaintiff
may bring the action, but also provides
three distinct bases upon which a
defendant may challenge the plaintiff’s
chosen forum: improper venue by
preliminary objection, forum non
conveniens, and inability to hold a fair
and impartial trial.
Zappala v. Brandolini Prop. Mgmt., Inc., 589 Pa.
516, 909 A.2d 1272, 1281 (2006).
Pa.R.C.P. 1006(d)(1) vests the trial court
with considerable discretion in
determining whether or not to grant a
petition for change of venue, and the
standard of review is one of abuse of
discretion. Only in such a case will the
order be disturbed. The applicant bears
the burden of proving that a change of
venue is necessary, while a plaintiff
generally is given the choice of forum so
long as the requirements of personal and
subject matter jurisdiction are satisfied.
Purcell [v. Bryn Mawr Hosp., 579 A.2d 1282,
1284 (Pa. 1990)] (case citations omitted).
“Each case must be based upon its own individual
facts.” Zampana-Barry v. Donaghue, 921 A.2d
500, 504 (Pa.Super. 2007), appeal denied, 596 Pa.
709, 940 A.2d 366 (2007) (citing Purcell). “A trial
court has discretion to determine the lack of need for
3 Although appellants also challenged the venue change on the basis of an
alleged agreement between counsel, appellants have not pursued this
argument on appeal.
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further discovery on the issue of venue, and we
review its decision in that regard for abuse of
discretion.” Deyarmin [v. Consol Rail Corp., 931
A.2d 1, 7 (Pa.Super. 2007), appeal denied, 948
A.2d 805 (Pa. 2008)].
Similarly, our standard of review for a challenge to
an order transferring venue is well settled.
A trial court’s ruling on venue will not be
disturbed if the decision is reasonable in
light of the facts. A decision to transfer
venue will not be reversed unless the
trial court abused its discretion. A
plaintiff’s choice of forum is given great
weight, and the burden is on the party
challenging that choice to show it is
improper.
However, if there exists any proper
basis for the trial court’s decision to
grant the petition to transfer venue, the
decision must stand.
Krosnowski v. Ward, 836 A.2d 143, 146
(Pa.Super. 2003) (citations and internal quotation
marks omitted) (emphasis added). “An abuse of
discretion occurs when the trial judge overrides or
misapplies the law, or exercises judgment in a
manifestly unreasonable manner, or renders a
decision based on partiality, prejudice, bias or
ill-will.” Sehl v. Neff, 26 A.3d 1130, 1132
(Pa.Super. 2011) (citation omitted).
Schultz v. MMI Prod., Inc., 30 A.3d 1224, 1227-1228 (Pa.Super. 2011).
The Rules of Civil Procedure address venue in pertinent part as
follows:
Rule 1006. Venue. Change of Venue.
(a) Except as otherwise provided by subdivisions
(a.1), (b) and (c) of this rule, an action against
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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.Civ.P. 1006(a)(1).
Pennsylvania Rule of Civil Procedure 402(a) sets forth where an
individual may receive service. In relevant part, Rule 402 provides:
(a) Original process may be served
(1) by handing a copy to the
defendant; or
(2) by handing a copy
(i) at the residence of the
defendant to an adult
member of the family with
whom he resides; but if
no adult member of the
family is found, then to an
adult person in charge of
such residence; or
(ii) at the residence of the
defendant to the clerk or
manager of the hotel, inn,
apartment house,
boarding house, or other
place of lodging at which
he resides; or
(iii) at any office or usual
place of business of the
defendant to his agent or
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to the person for the time
being in charge thereof.
Pa.R.Civ.P. 402(a)(1).
Appellants argue that the trial court lacked the authority to relieve
appellees of their burden to prove venue was improper, dispense with
discovery altogether, and order a transfer of venue based on the pleadings
in disregard of Pa.R.Civ.P. 1028(c)(2)4 and its note stating that preliminary
objections alleging improper venue cannot be determined from facts of
record.
Appellants argue that the trial court failed to hold appellees to their
burden of proving that objections to venue were valid. See Gale v. Mercy
Catholic Med. Ctr. Eastwick, Inc., 698 A.2d 647, 651 (Pa.Super. 1997).
Appellants also assert that the trial court did not resolve the dispute through
the reception of evidence but on its own view of the facts, as appellees did
4 Rule 1028(c)(2) of the Pennsylvania Rules of Civil Procedure provides as
follows:
(2) The court shall determine promptly all
preliminary objections. If an issue of fact is
raised, the court shall consider evidence by
depositions or otherwise.
Note: Preliminary objections raising an issue
under subdivision (a)(1), (5), (6), (7) or (8)
cannot be determined from facts of record. In
such a case, the preliminary objections must
be endorsed with a notice to plead or no
response will be required under Rule 1029(d).
Pa.R.Civ.P. No. 1028.
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not prepare affidavits that set forth facts that established that venue in
Philadelphia County was improper.
Appellants concede that the trial court did not err when it determined
that the accident occurred in Delaware County based on the location of the
Commodore Barry Bridge. However, appellants assert that the trial court
erred when it ruled venue was improper based on the affidavits of service
that indicated service was made on appellees in Delaware County.5
According to appellants, these affidavits only proved that venue was proper
in Delaware County not that venue in Philadelphia County was improper.
Here, the trial court appears to have taken judicial notice that the
alleged accident occurred in Delaware County. Appellants do not argue this
point. Furthermore, the affidavits of service indicate that appellees were
served in Delaware County. In the record, there is no evidence of service in
another county or that service was not effectuated in Delaware County. The
key question for this court is whether the trial court’s decision to transfer
venue was reasonable in light of the facts presented. See Schultz. In
Krosnowski, 836 A.2d at 146, this court stated that if there is any basis to
affirm a trial court’s decision to transfer venue, the decision must stand.
Given that the accident occurred in Delaware County and appellees were
5 At the trial court hearing, appellees referenced the affidavits of service that
indicated that appellees were served in Delaware County. (Notes of
testimony, 8/16/17 at 6.)
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served in Delaware County, the trial court’s transfer of venue appears
reasonable in light of the facts.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/18
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