A.R. Muhammad v. A.C. Schwotzer

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abdur Raheem Muhammad, :
Appellant :
:
v. : No. 2116 C.D. 2015
: Submitted: October 21, 2016
Arthur Carl Schwotzer; Gregg A. :
Schwotzer and the Estate of :
Gregg A. Schwotzer (Deceased); :
W. Reid Howe; Ryan Schwotzer; :
Damian Winchel; Anna Mason; :
Jinada Rochelle; Christine E. Rice; :
JoAnn L. Edwards; Stephen A. :
Glassman; Arberdella White-Davis; :
James D. Holt; Homer C. Floyd; :
Tom Corbett; Edward G. Rendell; :
Crossgates Management :
Incorporated d/b/a Swissvale Towers :
Association; Pennsylvania Human :
Relations Commission; Pennsylvania :
Housing Finance Agency and the :
Commonwealth of Pennsylvania :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: February 6, 2017
Abdur Raheem Muhammad, as administrator of the estate of his
mother, Clarice Wilkerson-Sudduth (decedent), appeals pro se an order of the
Philadelphia County Court of Common Pleas (trial court) that sustained the
preliminary objections filed by the Pennsylvania Human Relations Commission,
Pennsylvania Housing Finance Agency, and other Commonwealth agents
(collectively, Agencies) to Muhammad’s civil action alleging that Agencies were
liable for the death of his mother. The trial court sustained Agencies’ preliminary
objections to venue and transferred the matter to the Allegheny County Court of
Common Pleas or the Dauphin County Court of Common Pleas, by choice of
Muhammad. For the reasons that follow, we affirm the order of the trial court.
On January 6, 2015, Muhammad, pro se, commenced this action in
the Philadelphia County Court of Common Pleas against various private and
governmental parties, including Agencies.1 Muhammad alleged, inter alia, that
Agencies were responsible for decedent’s death by allowing her to live in
“deplorable conditions” while she was a resident at Swissvale Tower Apartments,
a subsidized apartment complex in Allegheny County.
Agencies filed preliminary objections asserting that venue in
Philadelphia County was improper. Muhammad did not respond. By order dated
May 6, 2015, the trial court sustained Agencies’ preliminary objections to venue
and transferred the action to Allegheny County, where the alleged negligence
occurred. On May 15, 2015, Muhammad filed a motion for reconsideration. By
order dated June 12, 2015, the trial court granted reconsideration in part and
vacated the May 6, 2015, order. The trial court again sustained Agencies’ venue
objections but ordered that the case should be transferred either to the Allegheny
1
The named defendants are: Arthur C. Schwotzer; Gregg A. Schwotzer and the Estate of Gregg
A. Schwotzer; W. Reid Howe; Ryan Schwotzer; Damian Winchel; Anna Mason; Jinada
Rochelle; Christine E. Rice; JoAnn L. Edwards; Stephen A. Glassman; Arberdella White-Davis;
James D. Holt; Homer C. Floyd; Tom Corbett; Edward G. Rendell; Crossgates Management
Incorporated d/b/a Swissvale Towers Association; Pennsylvania Human Relations Commission;
Pennsylvania Housing Finance Agency; and Commonwealth of Pennsylvania. Service was only
perfected upon six defendants, who are now the appellees in this case: Pennsylvania Human
Relations Commission and its two employees Jinada Rochelle and JoAnn L. Edwards;
Pennsylvania Housing Finance Agency; Commonwealth of Pennsylvania; and Edward G.
Rendell.
2
County Court of Common Pleas or the Dauphin County Court of Common Pleas,
at Muhammad’s selection.
On July 2, 2015, Muhammad appealed to the Superior Court.
Agencies filed an application to transfer the matter to this Court, which the
Superior Court granted on September 14, 2015, pursuant to Section 762 of the
Judicial Code, 42 Pa. C.S. §762.2 On October 8, 2015, Muhammad filed an
application for reconsideration of the Superior Court’s transfer order.
Reconsideration was denied on October 30, 2015. Muhammad petitioned the
Supreme Court for permission to appeal the denial of reconsideration. The
Supreme Court denied allocatur. Muhammad v. Schwotzer, (Pa., No. 8 EAL 2016,
filed February 29, 2016). As a result, Muhammad’s appeal of the trial court order
dated July 12, 2015, which transferred the case from Philadelphia County to
Dauphin or Allegheny County, is ready for disposition.3
2
Section 762 states, in relevant part:
(a) General rule. – Except as provided in subsection (b), the Commonwealth
Court shall have exclusive jurisdiction of appeals from final orders of the
courts of common pleas in the following cases:
(1) Commonwealth civil cases. – All civil actions or proceedings:
(i) Original jurisdiction of which is vested in
another tribunal by virtue of any of the
exceptions to section 761(a)(1) (relating to
original jurisdiction), except actions or
proceedings in the nature of applications for a
writ of habeas corpus or post-conviction relief
not ancillary to proceedings within the appellate
jurisdiction of the court.
42 Pa. C.S. §762(a)(1)(i). See also Rule 751 of the Pennsylvania Rules of Appellate Procedure,
Pa. R.A.P. 751 (relating to transfer of erroneously filed cases).
3
Pursuant to Rule 311(c) of the Pennsylvania Rules of Appellate Procedure, an order in a civil
action transferring venue is interlocutory, but appealable as of right. Rule 311(c) provides:
(Footnote continued on the next page . . .)
3
On appeal,4 Muhammad argues that the trial court erred in transferring
his complaint against Agencies because Philadelphia County is the proper venue.5
Agencies respond that the trial court correctly transferred the matter in accordance
with the applicable venue rules. We agree.
“The proper venue rule when Commonwealth parties are involved is
Section 8523 of the Judicial Code, 42 Pa. C.S. §8523.” Shaffer v. Department of
Transportation, 842 A.2d 989, 992 (Pa. Cmwlth. 2004). The Judicial Code defines
(continued . . .)
(c) Changes of Venue, etc. – 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.
Pa. R.A.P. 311(c).
4
“[O]ur standard of review of an order of the trial court overruling or granting preliminary
objections is to determine whether the trial court committed an error of law.” Feingold v.
Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011). A trial court’s decision to transfer venue “will be
upheld unless the trial court abused its discretion.” Shaffer v. Department of Transportation, 842
A.2d 989, 992 n.4 (Pa. Cmwlth. 2004).
5
Muhammad argues that his initial venue choice, Philadelphia County, deserves “weighty
consideration” based on the doctrine of forum non conveniens. He cites Rule 1006(d)(1) of the
Pennsylvania Rules of Civil Procedure, which provides:
For the convenience of parties and witnesses the court upon petition of any party
may transfer an action to the appropriate court of any other county where the
action could originally have been brought.
Pa. R.C.P. No. 1006(d)(1) (emphasis added). The law governing the application of this rule is
well settled, and requires a showing that the plaintiff’s choice of forum is oppressive or vexatious
to the defendant. Walls v. Phoenix Insurance Co., 979 A.2d 847, 851 (Pa. Super. 2009).
Muhammad argues that Agencies have failed to show that defending the matter in Philadelphia
County is oppressive or vexatious, and thus transfer of venue was improper. This argument is
flawed. The doctrine of forum non conveniens cannot be used to litigate a matter in a county
where venue does not properly lie. Instead, it applies where venue lies in more than one county.
Here, because venue was never proper in Philadelphia County, forum non conveniens is
inapplicable and Agencies need not prove that defending the action in Philadelphia County is
oppressive or vexatious.
4
“Commonwealth party” as “[a] Commonwealth agency and any employee thereof,
but only with respect to an act within the scope of his office or employment.” 42
Pa. C.S. §8501. It is beyond dispute that Agencies are Commonwealth parties.
When there are multiple defendants with different venue rules, the venue rules for
the Commonwealth party controls. Shaffer, 842 A.2d at 992-93 (citing Ribnicky v.
Yerex, 701 A.2d 1348, 1351 n.4 (Pa. 1997)). Accordingly, Section 8523 of the
Judicial Code governs venue in this matter. It provides:
(a) Venue.--Actions for claims against a Commonwealth party
may be brought in and only in a county in which the principal
or local office of the Commonwealth party is located or in
which the cause of action arose or where a transaction or
occurrence took place out of which the cause of action arose. If
venue is obtained in the Twelfth Judicial District (Dauphin
County) solely because the principal office of the
Commonwealth party is located within it, any judge of the
Court of Common Pleas of Dauphin County shall have the
power to transfer the action to any appropriate county where
venue would otherwise lie.
42 Pa. C.S. §8523(a). Similarly, the regulation governing venue of tort claims
against the Commonwealth provides:
(a) Venue in actions for claims against a Commonwealth party
as defined in 42 Pa. C.S. §8501 (relating to definitions) shall be
in the county in which one of the following exists:
(1) The cause of action arose.
(2) A transaction or occurrence took place out of
which the cause of action arose.
(3) The principal office of the Commonwealth
party is located.
(4) The local office of the Commonwealth party
is located.
5
(b) The principal offices of Commonwealth parties are the
same as those offices designated in §111.1(b) and (c) (relating
to service of process).
(c) For purposes of subsection (a)(4), the local office of the
Commonwealth party is the local office located in that county
where the cause of action arose or where a transaction or
occurrence took place out of which the cause of action arose.
37 Pa. Code §111.4.
Applying the above principles, we agree with the trial court that venue
lies either in Allegheny County or Dauphin County. Venue is proper in Allegheny
County because Muhammad’s cause of action arises out of the alleged unsafe
living conditions of decedent’s apartment, which was located in Allegheny County.
Venue is also proper in Dauphin County because that is where the principal offices
of Agencies, the Pennsylvania Human Relations Commission and Pennsylvania
Housing Finance Agency, are located.6 Even if either or both Agencies have a
field office in Philadelphia, venue would not lie under the local office rule in 37
Pa. Code §111.4(a)(4). As explained in Section 111.4(c), the “local office” of a
Commonwealth party is its office in the county where the cause of action arose or
where a transaction or occurrence took place out of which the cause of action
arose. 37 Pa. Code §111.4(c). The allegations underlying Muhammad’s complaint
bear no relation to Philadelphia County.
6
The Pennsylvania Human Relations Commission’s principal office is located at 333 Market
Street, 8th Floor, Harrisburg, Pennsylvania 17101. The Pennsylvania Housing Finance Agency’s
principal office is located at 211 North Front Street, Harrisburg, Pennsylvania 17105.
6
For these reasons, the trial court did not err in transferring
Muhammad’s complaint to the Court of Common Pleas of Allegheny County or
Dauphin County.7 The trial court’s order is affirmed.
______________________________________
MARY HANNAH LEAVITT, President Judge
7
Muhammad’s brief contains various arguments regarding his need for accommodations based
on a physical disability. These issues are not the subject of this appeal; accordingly, this Court
will not address them.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abdur Raheem Muhammad, :
Appellant :
:
v. : No. 2116 C.D. 2015
:
Arthur Carl Schwotzer; Gregg A. :
Schwotzer and the Estate of :
Gregg A. Schwotzer (Deceased); :
W. Reid Howe; Ryan Schwotzer; :
Damian Winchel; Anna Mason; :
Jinada Rochelle; Christine E. Rice; :
JoAnn L. Edwards; Stephen A. :
Glassman; Arberdella White-Davis; :
James D. Holt; Homer C. Floyd; :
Tom Corbett; Edward G. Rendell; :
Crossgates Management :
Incorporated d/b/a Swissvale Towers :
Association; Pennsylvania Human :
Relations Commission; Pennsylvania :
Housing Finance Agency and the :
Commonwealth of Pennsylvania :
ORDER
AND NOW, this 6th day of February, 2017, the order of the
Philadelphia County Court of Common Pleas dated June 12, 2015 in the above-
captioned matter is AFFIRMED.
______________________________________
MARY HANNAH LEAVITT, President Judge