Singh, M. v. Dhan Hospitality ( 2022 )


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  • J-A09024-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    MANJIT SINGH, AS ADMINISTRATOR             :   IN THE SUPERIOR COURT OF
    OF THE ESTATE OF HARPREET                  :        PENNSYLVANIA
    SINGH, DECEASED                            :
    :
    Appellant               :
    :
    :
    v.                             :
    :   No. 1917 EDA 2021
    :
    DHAN HOSPITALITY, LLC AND RED              :
    ROOF INNS, LLC AND RRI WEST                :
    MANAGEMENT, LLC AND RED ROOF               :
    FRANCHISING, LLC AND TAMMY                 :
    BRUBAKER AND JUAN UBILES AND               :
    RADAMES FONTANEZ                           :
    Appeal from the Order Entered August 30, 2021
    In the Court of Common Pleas of Philadelphia County
    Civil Division at No(s): 210301694
    BEFORE:      NICHOLS, J., SULLIVAN, J., and PELLEGRINI, J.*
    MEMORANDUM BY SULLIVAN, J.:                               FILED JULY 18, 2022
    Manjit Singh, as Administrator of the Estate of Harpreet Singh,
    Deceased (“the decedent”), appeals from the order sustaining the preliminary
    objections regarding improper venue filed by Tammy Brubaker, and
    transferring venue of the action to Lancaster County. We affirm.
    Singh initiated this survival and wrongful death action in March 2021
    following the alleged assault and asphyxiation of the decedent in the parking
    lot of a Red Roof Inn in Lancaster County, where the decedent was staying as
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    J-A09024-22
    a guest. Singh’s complaint named as defendants the individuals who allegedly
    attacked the decedent (Brubaker, Juan Ubiles, and Radames Fontanez) and
    numerous entities associated with the ownership and management of Red
    Roof Inns, including Dhan Hospitality, LLC (“Dhan Hospitality”), Red Roof Inns,
    LLC (“RRI”), RRI West Management, LLC (“RRIWM”), and Red Roof
    Franchising, LLC (“RRF”) (collectively “Appellees”).1      Several Appellees,
    including Brubaker, filed preliminary objections challenging venue of the
    action in Philadelphia County, and requesting transfer of the action to
    Lancaster County. In response, Singh filed an amended complaint against
    Appellees. Appellees filed preliminary objections to the amended complaint,
    again asserting that venue of the action in Philadelphia County was improper
    and requesting transfer of the action to Lancaster County. Singh filed briefs
    in opposition to the various preliminary objections, maintaining that venue in
    Philadelphia County was proper. The trial court issued a rule to show cause
    why Appellees’ preliminary objections should be overruled and directed the
    parties to conduct discovery and file supplemental briefs related to venue.
    Pursuant to the trial court’s rule, the parties deposed Glenn Galbraith,
    Vice President of Franchising Operations for RRF, who testified that there are
    no Red Roof Inn franchises in Philadelphia County. See Deposition of Glenn
    Galbraith, 8/5/21, at 8. Galbraith stated that there is a franchise Red Roof
    ____________________________________________
    1Additional defendants were named in the amended complaint; however, they
    were dismissed from the action and are not parties to this appeal.
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    Inn located in Essington, Delaware County, near the Philadelphia International
    Airport, from which RRF collects a franchise fee of approximately four percent
    of the franchise’s monthly revenue.     See id. at 8-16.     Galbraith further
    indicated that RRF has a franchise agreement with Dhan Hospitality, which
    owns and operates the subject Red Roof Inn in Lancaster County, and that
    RRF collects a monthly franchise fee from Dhan Hospitality. See id. at 20-23.
    In addition to Galbraith’s deposition, affidavits were submitted by RRI,
    RRIWM, and RRF (collectively “the Red Roof Inn defendants”), Dhan
    Hospitality, Ubiles, and Fontanez.   After completing discovery, the parties
    submitted supplemental briefs on the question of venue.
    In a joint supplemental brief in support of their preliminary objections,
    Appellees argued that venue in Philadelphia was improper as to each appellee.
    Appellees argued that venue in Philadelphia was improper as to Brubaker, an
    employee at the subject Red Roof Inn, because the cause of action arose in
    Lancaster County, she lives and works in Lancaster County, she was served in
    Lancaster County, and she could not be served in Philadelphia County.
    Appellees argued that venue in Philadelphia was improper as to Ubiles, a
    former employee at the subject Red Roof Inn, because he lives and works
    part-time in Lancaster County, and was served in Lancaster County. Appellees
    argued that venue in Philadelphia was improper as to Dhan Hospitality
    because its main purpose is to own and operate the subject Red Roof Inn in
    Lancaster County, it does not own or manage any other hotel property, and it
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    does not own or manage any hotel property or conduct any business in
    Philadelphia County. Appellees argued that that venue in Philadelphia County
    was improper as to Fontanez because he lives in Virginia and was a visitor to
    Lancaster County on the date of the alleged incident.        Finally, Appellees
    argued that venue in Philadelphia County was improper as to the Red Roof Inn
    defendants because they do not maintain offices, have agents or employees,
    conduct any business, own or lease real property, or pay taxes in Philadelphia
    County.
    In a supplemental brief in opposition to Appellees’ preliminary
    objections, Singh insisted that venue in Philadelphia County was proper, but
    indicated that if venue in Philadelphia County was improper, the action should
    be transferred to Delaware County because RRF has a franchise in that county.
    On August 30, 2021, the trial court granted Brubaker’s preliminary
    objections regarding venue2 and transferred the action to Lancaster County.3
    The trial court denied the preliminary objections filed by the other Appellees
    as moot, given its ruling on Brubaker’s preliminary objections. Singh filed a
    motion for reconsideration which the trial court denied. Singh filed a timely
    notice of appeal, and both he and the trial court complied with Pa.R.A.P. 1925.
    ____________________________________________
    2The trial court did not rule on Brubaker’s preliminary objection in the nature
    of a motion to strike Singh’s claim for punitive damages.
    3While we are mindful that preliminary objections to a complaint are generally
    either “sustained” or “overruled;” in the instant matter, the trial court either
    “granted” or “denied” the preliminary objections filed by Appellees.
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    J-A09024-22
    Singh raises the following issues for our review:
    1. Did the trial court commit an error of law in transferring the
    action to the Lancaster County . . . where one or more of the
    Red Roof Inn defendants “regularly conducts business” in
    Delaware County and thus venue is proper there under
    Pa.R.Civ.P. 2179(a)(2)?
    2. Did the trial court commit an error of law in transferring the
    action to Lancaster County because venue is proper in
    Delaware County as to one or more of the Red Roof Inn
    defendants and thus as to all [Appellees] under Pa.R.Civ.P.
    1006(c)(1)?
    3. Did the trial court commit an error of law in transferring the
    action to Lancaster County on the basis that Delaware County
    was [Singh’s] second choice of forum because the presumption
    in favor of a plaintiff’s choice of forum is inapplicable when
    determining whether venue is proper under Pa.R.Civ.P.
    2179(a)(2)?
    4. Did the trial court commit an error of law in transferring the
    action to Lancaster County based on arguments made by the
    Red Roof Inn defendants, whose preliminary objections the
    court denied (as “moot”)?
    Singh’s Brief at 4-5 (unnecessary capitalization omitted).4
    ____________________________________________
    4 In his Rule 1925(b) concise statement, Singh raised only one issue for
    appellate review.     See Pa.R.A.P. 1925(b) Statement, 10/11/21, at 2.
    However, in his statement of questions presented, he raised four issues for
    our review. Generally, any issues not raised in the concise statement are
    waived. See Commonwealth v. Lord, 
    719 A.2d 306
    , 309 (Pa. 1998)
    (holding that if an appellant is directed to file a concise statement of matters
    to be raised on appeal pursuant to Pa.R.A.P. 1925(b), any issues not raised in
    that statement are waived). Nevertheless, it appears that Singh has divided
    the single issue he raised in his Rule 1925(b) concise statement into his first
    three questions presented. Thus, we will not find waiver of those issues. We
    discuss waiver of Singh’s fourth issue, infra.
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    We review an order sustaining preliminary objections based on improper
    venue for an abuse of discretion or legal error. See Lugo v. Farmers Pride,
    Inc., 
    967 A.2d 963
    , 966 (Pa. Super. 2009). A trial court’s decision to transfer
    a case for improper venue will not be disturbed if the decision is reasonable in
    light of the facts. See McMillan v. First Nat. Bank of Berwick, 
    978 A.2d 370
    , 371 (Pa. Super. 2009). Thus, if any proper basis exists for the court’s
    decision to transfer venue, that decision must stand. See Schultz v. MMI
    Products, Inc., 
    30 A.3d 1224
    , 1228 (Pa. Super. 2011).
    A plaintiff’s choice of forum is to be given great weight, and the burden
    is on the party challenging that choice to show it was improper. See Jackson
    v. Laidlaw Transit, Inc. & Laidlaw Transit PA, Inc., 
    822 A.2d 56
    , 57 (Pa.
    Super. 2003).    However, a plaintiff’s choice of venue is not absolute or
    unassailable. 
    Id.
     Moreover, the doctrine that a plaintiff’s choice of forum
    should be given deference does not apply where the only question is whether
    venue in a particular county is proper or not proper. See Kring v. Univ. of
    Pittsburgh, 
    829 A.2d 673
    , 676 (Pa. Super. 2003).            In other words, a
    plaintiff’s choice of forum has no application to the question of whether venue
    is proper in the plaintiff’s chosen forum, as venue either is or is not proper.
    See Scarlett v. Mason, 
    89 A.3d 1290
    , 1293 (Pa. Super. 2014).
    Pennsylvania Rule of Civil Procedure 1006 identifies the counties in
    which a plaintiff may bring an action against an individual defendant, or more
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    J-A09024-22
    than one defendant when a plaintiff asserts joint or joint and several liability.
    Rule 1006 provides, in relevant part, as follows:
    (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
    (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
    (2) 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.
    ****
    (c)(1) Except as otherwise provided by subdivision (c)(2), an
    action to enforce a joint or joint and several liability against two
    or more defendants . . . may be brought against all defendants in
    any county in which the venue may be laid against any one of the
    defendants under the general rules of subdivisions (a) or (b).
    ****
    (e) Improper venue shall be raised by preliminary objection and if
    not so raised shall be waived. 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. …
    Pa.R.Civ.P. 1006(a), (c)(1), (e).
    Pennsylvania Rule of Civil Procedure 2179 identifies the counties in
    which a plaintiff may bring a personal action against a corporate defendant.
    Rule 2179 provides, in relevant part, as follows:
    (a)   Except as otherwise provided by an Act of Assembly, by Rule
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    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.Civ.P. 2179(a).
    Reading Rule 1006(c)(1) together with Rule 2179(a), a plaintiff may
    bring an action against multiple corporate defendants in any county in which
    venue is proper for one corporate defendant. See Zappala v. Brandolini
    Prop. Mgmt., Inc., 
    909 A.2d 1272
    , 1281 (Pa. 2006). Stated differently, in a
    case to enforce liability against multiple corporate defendants, a plaintiff can
    bring the action in any county where one corporate defendant regularly
    conducts business. 
    Id.
    To determine whether a corporation regularly conducts business in a
    county for the purposes of venue, the court must apply a “quality and
    quantity” test of business contacts. See Purcell v. Bryn Mawr Hosp., 
    579 A.2d 1282
    , 1285 (Pa. 1990). Our Supreme Court has explained:
    Quality of acts means those directly furthering, or essential
    to, corporate objects; they do not include incidental acts.
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    J-A09024-22
    Quantity means those acts which are so continuous and sufficient
    to be general or habitual. . . . [T]he acts of the corporation must
    be distinguished: those in aid of a main purpose are collateral and
    incidental, while those necessary to its existence are direct.
    
    Id.
     (internal quotation marks omitted).
    As Singh’s issues are related, we will address them together.         Singh
    argues that, although the trial court applied the “quality and quantity” test of
    business contacts to determine that the Red Roof Inn defendants did not
    regularly conduct business in Philadelphia County, it failed to conduct that
    same analysis with respect to Delaware County.           Singh contends that,
    pursuant to Rule 2179(a)(2), venue was proper in Delaware County because
    RRF has a franchise in Essington, Delaware County, which satisfies the “quality
    and quantity test” of business contacts. Singh points out that the trial court
    acknowledged that RRF “obtains franchise fees and royalties from its
    franchises—including the location in Essington, Delaware County,” and that
    “even a small amount of business activity in a county is sufficient to create
    venue.” Singh’s Brief at 25-26 (citing Trial Court Opinion, 12/13/21, at 8).
    Singh additionally argues that, because RRF “regularly conducts business” in
    Delaware County pursuant to Rule 2179(a)(2), venue in that county is
    appropriate as to all Appellees pursuant to Rule 1006(c)(1) (providing that
    “an action to enforce a joint or joint and several liability against two or more
    defendants . . . may be brought against all defendants in any county in which
    the venue may be laid against any one of the defendants”).
    Singh maintains that the trial court erred by transferring the action to
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    J-A09024-22
    Lancaster County based solely on the fact that Delaware County was his
    second choice of forum. According to Singh, the trial court was required to
    give great weight to his choice of forum, and the fact that Delaware County
    was his second choice of forum, rather than his first choice, is irrelevant.
    Singh claims that the trial court improperly determined that it was not
    obligated to consider Singh’s second choice of forum and provided no legal
    authority that would permit the court to disregard his second choice of forum.5
    The trial court considered Singh’s issues and determined that they
    lacked merit. The court reasoned as follows:
    While the court may find venue proper in Delaware County,
    [Singh] filed the lawsuit in Philadelphia County—this was [Singh’s]
    chosen forum— and only after [Appellees] objected to venue did
    [Singh] supply “a second choice” venue request of Delaware
    County. [Appellees] met the burden in proving that the venue
    where this action was filed was improper and showing that venue
    they requested for transfer, Lancaster County, was proper.
    Lancaster County is where the incident occurred, where individual
    ____________________________________________
    5 Singh additionally argues that the only preliminary objections that the trial
    court granted were those filed by Brubaker, who argued that venue was
    improper under Rule 1006 and made no argument that venue in Philadelphia
    County was improper under Rule 2179. Singh claims that Rule 2179 was only
    raised in the preliminary objections filed by the Red Roof Inn defendants,
    which the trial court denied as moot. Singh argues that, to the extent that
    the trial court relied on arguments made by the Red Roof Inn defendants in
    granting Brubaker’s preliminary objections, its ruling contradicted its denial of
    the Red Roof Inn defendants’ preliminary objections. Initially, we observe
    that Singh did not raise this issue in his court-ordered Rule 1925(a) concise
    statement. Thus, it is waived. See Lord, 719 A.2d at 309. Moreover, Singh
    raised Rule 2179 in opposition to Brubaker’s preliminary objections. See
    Singh’s Response in Opposition to Brubaker’s Preliminary Objections, 5/25/21,
    at ¶¶ 7-9, 11, 12, 13-19. Thus, as Singh squarely injected Rule 2179 into the
    trial court’s consideration of Brubaker’s preliminary objections, his claim is
    meritless.
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    J-A09024-22
    [Appellees] can be served, where the witnesses including
    emergency personnel and police officers are located.
    Accordingly, it is respectfully requested that the Superior
    Court find that this court did not abuse its discretion in transferring
    the case from Philadelphia County to Lancaster County, the situs
    of the incident, and not [Singh’s] second choice venue Delaware
    County. [Appellees] cannot be found to “regularly conduct
    business” as required for corporate entities under Pa.R.[Civ].P.
    2179 in Philadelphia County and the court need not give
    preference to [Singh’s] second choice.
    Trial Court Opinion, 12/13/21, at 9 (unnecessary capitalization omitted).
    We discern no abuse of discretion or error of law by the trial court in
    granting Brubaker’s preliminary objections and transferring the action to
    Lancaster County. Importantly, Singh concedes that venue of the action in
    Philadelphia County is improper. See Singh’s Brief at 19. Thus, Singh does
    not challenge the trial court’s order insofar as it granted Brubaker’s
    preliminary objections as to venue in Philadelphia County.         Instead, Singh
    challenges only the trial court’s decision to transfer the action to Lancaster
    County.
    Notably, Singh makes no argument that Lancaster County is an
    improper venue for the action, and the evidence of record demonstrates that
    Lancaster County is an appropriate forum under Rule 2179(a)(1), (2), (3),
    and (4), and Rule 1006(c)(1). The record reflects that Lancaster County is
    where: (1) Dhan Hospitality’s main place of business is located (i.e., the
    subject Red Roof Inn); (2) Dhan Hospitality regularly conducts business; (3)
    the cause of action arose; (4) a transaction or occurrence took place out of
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    J-A09024-22
    which the cause of action arose (i.e., the decedent was staying at the subject
    Red Roof Inn as a guest and he was allegedly attacked on the premises); and
    (5) RRF regularly conducts business in Lancaster County by virtue of its
    franchise agreement with the subject Red Roof Inn. See Affidavit of Dhan
    Hospitality, 7/12/21, at unnumbered 1; see also Amended Complaint,
    5/10/21, at ¶¶ 8, 17-18, 21-22; Deposition of Glenn Galbraith, 8/5/21, at 20-
    23. Moreover, applying a “quality and quantity” test of business contacts, the
    actions of Dhan Hospitality and RRF in Lancaster County are “directly
    furthering, or essential to, corporate object . . . so continuous and sufficient
    to be general or habitual . . . [and are] . . . necessary to [their] existence.”
    See Purcell, 579 A.2d at 1285.
    Singh’s only objection to Lancaster County is that it was not his first or
    second choice for venue for the action.       However, as explained above, a
    plaintiff's choice of venue is not absolute or unassailable. See Jackson, 
    822 A.2d at 57
    . Further, a plaintiff’s choice of forum is irrelevant where the only
    question is whether venue in a particular county is proper or not proper. See
    Kring, 
    829 A.2d at 676
    . In the instant matter, the only question before the
    trial court was whether venue in Philadelphia County was proper or not proper.
    Thus, Singh’s choice of forum, including his second choice of forum, was
    simply not a factor to be considered by the trial court. See Scarlett, 89 A.3d
    at 1293.
    Moreover, pursuant to Rule 1006(e), “[i]f a preliminary objection to
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    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.” Pa.R.Civ.P. 1006(e). Notably, when the venue chosen
    by a plaintiff is found to be improper, Rule 1006(e) does not require the trial
    court to consider the plaintiff’s second choice; rather, the court may transfer
    the action to any county in which venue is proper. See Krosnowski, 836
    A.2d at 146 (holding that if there exists any proper basis for the trial court’s
    decision to transfer venue of the action, the decision must stand). Here, as
    venue in Philadelphia County was improper and Lancaster County is an
    appropriate forum for the action, the trial court’s transfer order must stand.
    Accordingly, we affirm the order granting Brubaker’s preliminary objections
    and transferring the action to Lancaster County.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 7/18/2022
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