Abdelaziz, M. v. B. Braun Medical Inc. ( 2021 )


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  • J-A08010-21
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    MOURAD ABDELAZIZ,INDIVIDUALLY                :  IN THE SUPERIOR COURT
    AND ON BEHALF OF ALL OTHERS                  : OF
    SIMILARLY SITUATED                           :        PENNSYLVANIA
    :
    Appellant               :
    :
    :
    v.                             :
    :
    :  No. 1550 EDA 2020
    B. BRAUN MEDICAL INC                         :
    Appeal from the Order Entered July 9, 2020
    In the Court of Common Pleas of Philadelphia County
    Civil Division at No(s): No. 191201504
    BEFORE:      PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
    MEMORANDUM BY PANELLA, P.J.:                       FILED AUGUST 3, 2021
    In this toxic tort dispute involving a class action, Mourad Abdelaziz
    (Abdelaziz), individually and on behalf of all others similarly situated
    (collectively, “the Class”) appeals from the trial court’s July 9, 2020 order
    granting the preliminary objections of B. Braun Medical Inc. (“Braun”) and
    transferring the matter to Lehigh County based upon a finding of improper
    venue.1 Abdelaziz contends the trial court erred in determining that Braun did
    ____________________________________________
    * Former Justice specially assigned to the Superior Court.
    1 This matter is before us as an interlocutory appeal as of right. See 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, transferring the matter to another court of
    coordinate jurisdiction, or declining to proceed in the matter on the basis of
    forum non conveniens or analogous principles.”).
    J-A08010-21
    not regularly conduct business in Philadelphia County as pursuant to Pa.R.C.P.
    2179, and therefore, that county was not a proper venue for the matter. After
    careful review, we affirm.
    This appeal pertains only to the question of venue.2 Abdelaziz, a resident
    of Lehigh County, brought a class action lawsuit against Braun, the owner of
    a manufacturing facility located in Allentown, Pennsylvania (“Allentown
    facility”) for damages resulting from its purportedly “dangerous and reckless
    emission of Ethylene Oxide (‘EtO’).” First Amended Class Action Complaint,
    3/9/2020, at ¶ 1. Abdelaziz alleges EtO is a cancer-causing gas, and the
    Allentown facility uses large volumes of EtO gas to sterilize medical
    equipment, which is then released into the atmosphere. See id., at ¶¶ 2-3.
    Abdelaziz claims he and the Class live within the vicinity of the Allentown
    facility and “have been exposed to large volumes of toxic, cancer-causing EtO
    gas.” Id., at ¶ 4.
    Abdelaziz filed a complaint and amended complaint in December of 2019
    and March of 2020, respectively, in Philadelphia County. Abdelaziz alleged that
    due to Braun’s negligence, he and the Class were exposed to these dangerous
    toxic emissions which have placed them at a significant increased risk of
    contracting several types of cancer and seeks relief in the form of a medical
    monitoring program. See id., at ¶¶ 69-82.
    ____________________________________________
    2 It merits mentioning that this appeal does not concern the issue of     forum
    non conveniens.
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    J-A08010-21
    Braun filed preliminary objections to Abdelaziz’s amended complaint,
    alleging that venue in Philadelphia County is improper pursuant to
    Pennsylvania Rules of Civil Procedure 1006(e) and 2179 because Braun did
    not have contacts of sufficient quantity and quality to constitute the regular
    conduct of business in that county. See Defendant B. Braun Medical Inc.’s
    Preliminary Objections to Plaintiff’s First Amended Complaint, 3/17/2020, at
    ¶ 4. Braun stated that venue lay in Lehigh County and attached the affidavit
    of Ron Rogozinski, Braun’s vice president of sales for IT systems, to the
    pleading. In his affidavit, Rogozinski averred the following: (1) Braun is a
    Pennsylvania corporation with its main offices in Lehigh County; (2) Braun
    does not maintain offices or manufacturing facilities in Philadelphia County;
    (3) none of Braun’s sales representatives maintain home offices in
    Philadelphia County; (4) none of its employees are residents of Philadelphia
    County; (5) from January 1, 2017 to December 31, 2018, Braun’s total sales
    of its products to end users in Philadelphia County represented less than one
    percent (approximately 0.58%) of its overall sales; and (5) from January 1,
    2019 to December 31, 2019, Braun’s total sales of its products to end users
    in Philadelphia County represented less than one percent (approximately
    0.90%) of its overall sales. See id., at Exhibit 2 (Affidavit of Ron Rogozinski).
    Abdelaziz filed a brief in opposition to Braun’s preliminary objections,
    arguing that Braun “engages in business in Philadelphia County with sufficient
    quantity, quality and regularity by selling its products to hospitals and other
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    healthcare providers in Philadelphia County over the last several years.”
    Plaintiff’s Brief in Opposition to Defendant’s Preliminary Objections to
    Plaintiff’s First Amended Complaint, 4/13/2020, at 6. Moreover, Abdelaziz
    asserted that even though Braun’s sales percentage total in Philadelphia
    County may appear small, Braun “regularly and persistently” sells its products
    in the county. Id., at 7.
    On May 29, 2020, the court entered an order requiring the parties to
    submit further briefing on the issue of venue. Specifically, the court requested
    additional briefing on Braun’s quality and quantity of acts, stating it was
    “interested in the amount of sales in Philadelphia (dollar amount) as compared
    to the total sales nationally, also in specific dollar amount.” Order, 5/29/2020,
    at 1 n.1. Both parties complied with the court’s request. Notably, Braun
    redacted the exact dollar amount in its supplemental memorandum based on
    confidential and proprietary rights. See Defendant B. Braun Medical Inc.’s
    Supplemental Memorandum of Law on Venue in According with the Court’s
    May 29, 2020 Order, 6/18/2020, at 2-3.
    On July 9, 2020, the court sustained, in part, Braun’s preliminary
    objections on venue and transferred the matter to Lehigh County. 3 Abdelaziz
    ____________________________________________
    3 See Pa.R.C.P. 1006(e) (providing that “[i]f 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.”). The court stated the remainder of the preliminary objections
    would be handled by the Lehigh County Court of Common Pleas.
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    J-A08010-21
    filed a motion for reconsideration, which was denied on August 24, 2020.
    Abdelaziz also filed this timely, interlocutory appeal.4
    Although Abdelaziz raises several issues on appeal, they can be
    addressed together. The crux of Abdelaziz’s argument is that the trial court
    erred in finding that the corporation did not regularly conduct business in
    Philadelphia County. Abdelaziz contends that Braun does not dispute the
    qualitative portion of the analysis, that its Philadelphia County activity is
    essential to its fundamental business objectives. See Appellant’s Brief, at 35.
    As for the quantitative analysis, he alleges the court erred by “focusing
    exclusively on the numerical result obtained from dividing the supposed total
    amount of sales in Philadelphia County by the total amount of sales
    nationwide[.]” Id., at 36. Relying on several cases,5 Abdelaziz states the
    courts have never held that the quantity prong “of the regularly conducting
    business test should be determined solely by the percentage of revenue
    ____________________________________________
    4 The court did not order Abdelaziz to file a concise statement of errors
    complained of on appeal under Pa.R.A.P. 1925(b), but did issue an opinion on
    September 3, 2020, adopting its reasoning from its July 9, 2020 order.
    5 See Monaco v. Montgomery Cab Co., 
    208 A.2d 252
     (Pa. 1965) (holding
    a Montgomery County taxicab company that collected five to ten percent of
    its fares from patrons in Philadelphia County regularly conducted business in
    that county), Canter v. American Honda Motor Corp., 
    231 A.2d 140
     (Pa.
    1967) (holding that a corporation that derived one to two percent of sales,
    which ranged from approximately $3.7 million to $4.1 million dollars, from a
    certain county qualified as regularly conducting business in that county); and
    Zampana-Barry v. Donaghue, 
    921 A.2d 500
     (Pa. Super. 2007) (holding
    that a Delaware County law firm regularly conducted business in Philadelphia
    County where it performed three to five percent of its legal services).
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    J-A08010-21
    derived from a particular county.” 
    Id.
     Rather, he claims that “only when a
    company’s business activities in a given county are properly classified as
    ‘isolated and limited,’ consisting of ‘from only two or three sales’ per year, has
    this Court held the quantity prong of the regularly conducting business test
    for venue to have been unsatisfied.” Id., at 39-40.
    In support of this argument, Abdelaziz asserts that Braun failed to carry
    its burden in proving that his venue choice was improper when it stated that
    its total sales of its products to end users in Philadelphia County was less than
    one percent. See id., at 23-24. Abdelaziz argues Braun did not address the
    amount of services, not just products, that it sold in the county and it failed
    to define “end user” and clarify if it was referencing all potential purchasers or
    just one type of purchaser. Id., at 24. Moreover, he states he was not afforded
    the opportunity to examine and refute the only evidence material to the
    question of venue – a complete, unredacted version of Braun’s June 2020
    supplemental memorandum that specifies the dollar amount of sales in
    Philadelphia as compared to the total sales nationally.6 See id., at 26-28.
    Abdelaziz also claims the record was “clearly inadequate for the [t]rial
    [c]ourt to transfer venue given the number of factual disputes, the lack of any
    venue discovery, and the [t]rial [c]ourt’s continuing failure to ensure
    ____________________________________________
    6 Braun submitted an unredacted copy of the supplemental memorandum to
    the trial court on June 18, 2020 as an enclosure to a letter correspondence.
    See Defendant B. Braun Medical Inc.’s Response to Plaintiff Mourad
    Abdelaziz’s Motion for Reconsideration, 8/18/2020, at Exhibit 3.
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    J-A08010-21
    disclosure of the dollar amounts upon which Braun contended that it does not
    regularly conduct business in Philadelphia County.” Id. at 29-30. He states
    “[s]imple venue discovery” would have allowed the court to make a proper
    ruling on the issue, and he requested such action in both his response and
    supplementary response to Braun’s preliminary objections. Id., at 31.
    Abdelaziz concludes the court deprived him of the opportunity to create a
    factual record on venue by not permitting the parties to conduct discovery
    when it issued its July 9, 2020 order. See id., at 33.
    Our review is limited to whether the trial court abused its discretion in
    granting preliminary objections asserting improper venue. See Hangey v.
    Husqvarna Prof’l Prods., 
    247 A.3d 1136
    , 1140 (Pa. Super. 2021) (en banc).
    An abuse of discretion is, in relevant part, “not merely an error of judgment,
    but occurs only where the law is overridden or misapplied[.]” Lomas v.
    Kravitz, 
    170 A.3d 380
    , 389 (Pa. 2017).
    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. [I]f there exists any proper basis for the trial court’s
    decision to grant the petition to transfer venue, the decision must
    stand.
    Hangey, 247 A.3d at 1140 (citations and quotation marks omitted). The
    “question of improper venue is answered by taking a snapshot of the case at
    the time it is initiated: if it is proper at that time, it remains proper throughout
    the litigation.” Zappala v. Brandolini Property Management, Inc., 
    909 A.2d 1272
    , 1281 (Pa. 2006) (quotation marks omitted).
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    Venue, as to personal actions against corporate or other business entity
    defendants, is governed by Pennsylvania Rule of Civil Procedure 2179(a),
    which provides, in pertinent part, that such actions “may be brought in and
    only in … a county where it regularly conducts business[.]” Pa.R.C.P.
    2179(a)(2). See also Pa.R.C.P. 1006(b) (stating actions against corporations
    or similar entities may be brought only in counties designated by Rule 2179).
    In determining whether a corporation or partnership
    regularly conducts business in a county, we employ a quality-
    quantity analysis. A business entity must perform acts in a county
    of sufficient quality and quantity before venue in that county will
    be established. Quality of acts will be found if an entity performs
    acts in a county that directly further or are essential to the entity’s
    business objective; incidental acts in the county are not sufficient
    to meet the quality aspect of the test. Acts that aid a main purpose
    are collateral and incidental while those necessary to an entity’s
    existence are direct. Quantity of acts means those that are
    sufficiently continuous so as to be considered habitual. Each case
    must be based upon its own individual facts.
    …
    It must be remembered that it is the word ‘regularly’ which
    we are construing and not ‘principally.’ A corporation [or
    partnership] may perform acts ‘regularly’ even though these acts
    make up a small part of its total activities.
    Zampana-Barry v. Donaghue, 
    921 A.2d 500
    , 503-504, 506 (Pa. Super.
    2007) (citations and quotation marks omitted). “In combined form, … the 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.”
    Purcell v. Bryn Mawr Hosp., 
    579 A.2d 1282
    , 1285 (Pa. 1990) (citation and
    internal quotation marks omitted).
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    J-A08010-21
    Here, the trial court found the quantity of Braun’s contacts with
    Philadelphia County was insufficient to establish venue based on the following:
    When focusing on sales, the Pennsylvania Supreme Court
    and Superior Court have consistently looked at percentages to
    determine this analysis. In a review of the cases, the most liberal
    standard that emerges is that in-county sales should be greater
    than 1% of a defendant’s total sales for the defendant to be
    regularly conducting business in that county. Canter v.
    American Honda Motor Corp., 
    231 A.2d 140
     (Pa. 1967). The
    Superior Court in Zampana also focused solely on the percentage
    of in-county revenues, rather than the specific dollar amount of
    revenue.
    Here, [Braun]’s sales in Philadelphia account for less than
    1% of its sales for the past three years, below the threshold set
    by Canter. Accordingly, following a review of the record, there is
    no other sufficient contact to tie [Braun] to Philadelphia County in
    the quantity-quality analysis. [Braun] has no office or other facility
    in Philadelphia, has no employees who reside in Philadelphia, and
    does not pay the salary of any employee in Philadelphia. Braun’s
    corporate headquarters is located in Lehigh County, as is the
    medical device manufacturing facility that is the alleged source of
    the claimed emissions of ethylene oxide. Accordingly, the quantity
    of Braun’s contacts with Philadelphia County is insufficient to
    establish venue.
    Order, 7/9/2020, at n.1.7
    Most recently, an en banc panel of this Court in Hangey addressed the
    question of whether a percentage of a defendant’s business is sufficient to
    ____________________________________________
    7 It appears the trial court did not reach the issue of whether Braun’s contacts
    were “quality” contacts with Philadelphia because the quantity prong was not
    met.
    -9-
    J-A08010-21
    satisfy the quantity prong.8 The Hangey Court held that the “percentage of a
    company’s overall business that it conducts in a given county, standing alone,
    is not meaningful and is not determinative of the quantity prong.” Hangey,
    247 A.3d at 1142 (internal quotation marks omitted). The Court further
    opined:
    Each case turns on its own facts, and we must evaluate evidence
    of the extent of a defendant’s business against the nature of the
    business at issue. A small or local business may do all of its work
    in just a few counties or even a single one, while a large business
    may span the entire nation. Indeed, the percentage of sales a
    multi-billion-dollar company makes in a particular county will
    almost always be a tiny percentage of its total sales. Courts thus
    should not consider percentages in isolation. Rather, courts must
    consider all of the evidence in context to determine whether the
    defendant’s business activities in the county were regular,
    continuous, and habitual.
    Id. However, the Hangey Court noted that its conclusion was not an attempt
    to “approve or disprove” any of its prior decisions, but rather, its analysis was
    “based on the prior precedents of the Pennsylvania Supreme Court and
    consistent with those of our Court.” Hangey, 247 A.3d at 1143.
    While Hangey was filed after the trial court issued its July 2020 order,
    it is evident based on the court’s analysis that it did not solely focus on the
    percentage of business Braun conducted in Philadelphia County as Abdelaziz
    ____________________________________________
    8 After this panel heard oral argument in this case, Abdelaziz filed a post-
    submission communication indicating Hangey “otherwise affect[s] the
    authorities relied upon in the parties’ briefings.” Appellant’s Post-Submission
    Communication Pursuant to Pennsylvania Rule of Appellate Procedure
    2501(b).
    - 10 -
    J-A08010-21
    asserts in his appellate brief. See Appellant’s Brief, at 36. Rather, the court
    found that there was a plethora of additional evidence to support its
    determination that there was insufficient evidence regarding Philadelphia
    County to satisfy the quantity prong of the venue analysis. For example, the
    court pointed to the fact that Braun has no office or other facility in
    Philadelphia, it has no employees who reside in the county, and it does not
    pay the salary of any employee in the county. Indeed, if one were to take a
    snapshot of the case at the time it was initiated, other than a minute
    percentage of sales, there was no evidence demonstrating Braun’s contacts
    with Philadelphia County were continuous, habitual, or regular. See Zappala,
    909 A.2d at 1281; Zampana, 
    921 A.2d at 503-504, 506
    . Accordingly, we
    discern no abuse of discretion on the court’s part in determining that Braun’s
    contacts with Philadelphia County were of insufficient quantity to sustain
    venue.
    To the extent Abdelaziz argues the court abused its discretion in not
    allowing further discovery on the issue of venue, we acknowledge that in
    reviewing a challenge to venue, a court relies on facts raised “by depositions
    or otherwise.” Pa.R.C.P. 1028(c). “A trial court has discretion to determine the
    lack of need for further discovery on the issue of venue, and we review its
    decision in that regard for abuse of discretion.” Deyarmin v. CONRAIL, 
    931 A.2d 1
    , 7 (Pa. Super. 2007) (citation omitted). Moreover,
    [t]he moving party has the burden of supporting its objections to
    the court’s jurisdiction. Once the plaintiff has produced some
    - 11 -
    J-A08010-21
    evidence to support jurisdiction, the defendant must come
    forward with some evidence of his own to dispel or rebut the
    plaintiff’s evidence. The moving party may not sit back and, by
    the bare allegations as set forth in the preliminary objections,
    place the burden upon the plaintiff to negate those allegations. It
    is only when the moving party properly raises the jurisdictional
    issue that the burden of proving jurisdiction is upon the party
    asserting it. If an issue of fact is raised, the court shall take
    evidence by deposition or otherwise. The court may not reach a
    determination based upon its view of the controverted facts, but
    must resolve the dispute by receiving evidence thereon through
    interrogatories, depositions, or an evidentiary hearing. Where an
    essential factual issue arises from the pleadings as to the scope of
    a defendant’s activities within the Commonwealth, the plaintiff has
    the right to depose defendant as to his activities within the
    Commonwealth, and the court must permit the taking of the
    deposition before ruling on the preliminary objections.
    
    Id., at 9
     (emphasis added) (citation omitted).
    While Abdelaziz did not initially bear the burden of defending his venue
    choice, once Braun raised the jurisdictional issue and alleged the facts set
    forth in the Rogozinski affidavit to demonstrate the chosen venue was not
    proper, the burden shifted to Abdelaziz to produce evidence that rebutted this
    information. Abdelaziz failed to do so. Moreover, other than mere mentions of
    requesting discovery in his in his response and supplementary response to
    Braun’s preliminary objections,9 Abdelaziz did not attempt to obtain discovery
    by one or more of the methods set forth in Pa.R.C.P. 4001(d) (i.e., depositions
    ____________________________________________
    9 For example, in his brief in opposition to Braun’s preliminary objections,
    Abdelaziz stated: “If the Court finds that additional information is needed to
    address venue, Plaintiff requests leave to conduct discovery with regard to
    Defendant’s business activity in and contacts with Philadelphia County.”
    Plaintiff’s Brief in Opposition to Defendant’s Preliminary Objections to
    Plaintiff’s First Amended Complaint, 4/13/2020, at 7.
    - 12 -
    J-A08010-21
    upon oral examination, written interrogatories, production of documents,
    requests for admissions). He has only complained that he did not receive an
    unredacted version of Braun’s June 2020 supplemental memorandum.
    Lastly, we note this Court has previously determined that a trial court
    does not abuse its discretion by failing to order discovery on the issue of
    whether a defendant satisfies the quality-quantity prongs of the venue test.
    See Fritz v. Glen Mills Sch., 
    840 A.2d 1021
     (Pa. Super. 2003). There, the
    Court agreed with the trial court that the quality of a Delaware County juvenile
    institution’s activities in and related to Philadelphia County were not sufficient
    to make the later county the proper venue for the case even though
    approximately 35% of its students were from Philadelphia and it utilized the
    Philadelphia Court System. See 
    id., at 1023-1024
    .
    The Fritz Court pointed out the following:
    The trial court assumed that the [plaintiff’s] allegations were true
    but nonetheless found venue improper in Philadelphia. While the
    trial court’s factual findings were made without the benefit of
    sworn depositions or an evidentiary hearing, [this Court’s] review
    of the parties’ pleadings indicates that there were no disputed
    facts raised by appellant for purposes of establishing venue in
    Philadelphia, the determination of which would have been
    dispositive to the question of venue. It was well within the trial
    court’s discretion to determine the lack of need for further
    discovery on the question of venue.
    
    Id., at 1024
     (citation omitted)
    Here, while the trial court’s determination was not based on depositions
    or extensive discovery, the record demonstrates that further discovery would
    not have altered the outcome. It is evident the trial court assumed Abdelaziz’s
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    J-A08010-21
    allegations were true but nevertheless found that venue was improper in
    Philadelphia County. Moreover, Abdelaziz generally alludes to the existence of
    various issues of material fact but he does not specifically dispute any of the
    factual bases of the trial court’s determination, i.e., the residences of the
    employees and the location of the facility. See Appellant’s Brief, at 29-30.
    Abdelaziz’s argument, without more than bald assertions, does not persuade
    us to conclude otherwise.
    Accordingly, we conclude the trial court did not abuse its discretion in
    analyzing the venue issue and determining that Braun lacked sufficient contact
    with Philadelphia County to establish venue there. Therefore, Abdelaziz is not
    entitled to any relief.
    Order affirmed. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/3/2021
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Document Info

Docket Number: 1550 EDA 2020

Judges: Panella

Filed Date: 8/3/2021

Precedential Status: Non-Precedential

Modified Date: 11/21/2024