Kazanjian, A. v. The First Liberty Ins.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANI KAZANJIAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
THE FIRST LIBERTY INSURANCE : No. 507 EDA 2021
CORPORATION :
Appeal from the Order Dated January 28, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 200100687
BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 23, 2022
Ani Kazanjian (Kazanjian) appeals from the January 28, 2021 order of
the Court of Common Pleas of Philadelphia County (trial court) sustaining the
preliminary objection filed by The First Liberty Insurance Corporation (FLIC)
and transferring venue over this case to Delaware County.1 We affirm.
We glean the following facts from the certified record. In April 2014,
Kazanjian was struck by another motorist while driving in Delaware County
and sustained serious injuries. She obtained a settlement of $40,000 from
the tortfeasors’ insurance company, which was the combined policy limits of
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* Retired Senior Judge assigned to the Superior Court.
1 “An appeal may be taken as of right from an order in a civil action or
proceeding changing venue. . . .” Pa. R.A.P. 311(c).
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their coverage. The settlement was insufficient to compensate Kazanjian fully
for her damages so she filed a claim with her insurer, FLIC, for underinsured
motorist benefits. FLIC denied her claim and she filed the instant action
seeking to be compensated fully under the policy.
In her complaint, Kazanjian set for the following related to venue in
Philadelphia County: “Defendant, [FLIC], is a lawfully existing business entity
authorized to conduct business and issue policies of insurance in the
Commonwealth of Pennsylvania, regularly conducts business in Philadelphia
County, Pennsylvania, and has an office or usual place of business at the
above-captioned address.” Complaint in Civil Action, 1/8/20, at ¶ 2. The
captioned business address was in Boston, Massachusetts. The complaint
further averred that Kazanjian resides at an address in Delaware County.
FLIC filed a preliminary objection to venue arguing that Kazanjian had
failed to allege how FLIC’s business in Philadelphia County was sufficient to
establish venue there. It contended that FLIC “does not operate any business
in Philadelphia County that is necessary to its existence” and that under the
Rules of Civil Procedure, “[t]here [was] no basis for the [c]ourt to find that
Philadelphia County is a proper venue for this action.” Preliminary Objections,
10/13/20, at ¶¶ 12-13. It requested that the trial court sustain the objection
and transfer the case to Delaware County. The preliminary objection was
verified by FLIC’s counsel but did not include any affidavits or additional
evidence regarding venue.
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Kazanjian filed a response to the preliminary objection arguing that her
averment in Paragraph 2 of the complaint was sufficient to plead venue in
Philadelphia County. She contended that FLIC was required to first set forth
evidence to support its claim of lack of venue before the burden shifted to her
to establish that venue was proper. She argued that FLIC had failed to meet
the threshold evidentiary burden to support its preliminary objection and
requested it be overruled. In the alternative, she requested additional time
for the parties to conduct discovery on the issue of venue.
The trial court sustained FLIC’s preliminary objection and entered an
order transferring the case to Delaware County, reasoning that Kazanjian had
repeatedly failed to provide relevant factual averments to support her
contention that FLIC regularly conducted business in Philadelphia County. See
Trial Court Opinion, 2/2/22, at 7-8, 10-11. Kazanjian timely appealed and
she and the trial court have complied with Pa. R.A.P. 1925. On appeal, she
argues that the trial court abused its discretion in holding that venue was
improper in Philadelphia County because FLIC did not properly place venue at
issue in its preliminary objection.2 In the alternative, she argues that the trial
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2 Our standard of review is well-settled:
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.
(Footnote Continued Next Page)
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court erred by granting the preliminary objection without allowing her to
conduct discovery on venue.
A suit against a corporation may be brought, inter alia, in any county in
which the corporation regularly conducts business. Pa. R.C.P. 2179(a)(2). A
challenge to venue as improper must be raised by preliminary objection and
“shall state specifically the grounds relied upon.” Pa. R.C.P. 1006(e) &
1028(a)(1), (b). In considering a preliminary objection based on improper
venue, “the burden is on the party challenging venue . . . to show the plaintiff’s
chosen venue is improper. However, once they properly raise the issue of
venue and provide some evidence . . . to dispel or rebut the plaintiff’s choice,
the burden shifts back to the party asserting proper venue.” Hausmann v.
Bernd, 271 A.3d 486, 493 (Pa. Super. 2022) (citation omitted, cleaned up);
see also Schmitt v. Seaspray-Sharkline, Inc., 531 A.2d 801, 803 (Pa.
Super. 1987) (“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
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However, if there exists any proper basis for the trial court’s
decision to grant the petition to transfer venue, the decision must
stand. . . . 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.
Schultz v. MMI Prods., Inc., 30 A.3d 1224, 1228 (Pa. Super. 2011) (cleaned
up; citations omitted).
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raises the jurisdictional issue that the burden of proving jurisdiction is upon
the party asserting it.”).
Courts employ a fact-specific quality-quantity analysis to determine
whether venue is proper. Hangey v. Husqvarna Prof. Prods., Inc., 247
A.3d 1136, 1141 (Pa. Super. 2021) (en banc), appeal granted, 147 EAL 2021
(Pa. 2022). “The term ‘quality of acts’ means those directly, furthering, or
essential to, corporate objects; they do not include incidental acts. To satisfy
the quantity prong of this analysis, acts must be sufficiently continuous so as
to be considered habitual.” Id. (citations omitted).
When a factual issue is raised by a preliminary objection, “the court shall
consider evidence by depositions or otherwise.” Pa. R.C.P. 1028(c)(2). The
comment to Rule 1028(c)(2) states that preliminary objections based on
improper venue “cannot be determined from facts of record.” Pa. R.C.P.
1028(c)(2), note. However, 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.” Wimble v. Parx Casino &
Greenwood Gaming & Entertainment, Inc., 40 A.3d 174, 179 (Pa. Super.
2012) (quoting Schultz v. MMI Prods., Inc., 30 A.3d 1224, 1228 (Pa. Super.
2011)).
In Hausmann, we concluded that the trial court did not abuse its
discretion in transferring venue under the burden-shifting framework and the
quality-quantity analysis. Hausmann, supra, at 496-97. There, the
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corporate defendants provided an affidavit in support of their preliminary
objection to venue in which they enumerated the amount of revenue they had
earned in Philadelphia County in the previous four years compared to their
total revenue in that time period. Id. at 489. The plaintiff responded by citing
the defendants’ answers to interrogatories and a public activity license search
to argue that the defendants’ business in Philadelphia County was regular and
continuous. Id. at 489-90. We concluded that the plaintiff had failed to
establish that venue in Philadelphia County was proper because the evidence
he produced to rebut the affidavit did not establish that the defendants
regularly conducted business there at the time the suit was filed. Id. at 497.
Moreover, we faulted the plaintiff for failing to conduct further discovery to
carry his evidentiary burden on venue despite being granted leave to do. Id.
In contrast, in Wimble, we held that the trial court did not abuse its
discretion in transferring venue without ordering discovery because the
plaintiffs only attempted to establish venue based on a faulty legal premise
which could be evaluated on the pleadings. Wimble, supra; see also
Schultz, supra (holding that venue was properly transferred when
defendants attached affidavit to preliminary objections detailing the extent of
its business in forum county and plaintiffs did not respond with factual
averments rebutting that evidence). No additional factual development was
necessary to decide the merits of the preliminary objection. However, when
the moving party fails to set forth evidence in support of the preliminary
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objection or the pleadings evidence a factual dispute regarding whether venue
is proper, the preliminary objection may be overruled or the court must allow
development of an evidentiary record before ruling on the objection. See
Hamre v. Resnick, 496 A.2d 510 (Pa. Super. 1984) (remanding for discovery
on venue when there was a factual dispute in the pleadings as to whether the
transaction or occurrence at issue took place in plaintiff’s chosen forum);
Alumbaugh v. Wallace Bus. Forms, Inc., 313 A.2d 281, 283-84 (Pa. Super.
1973) (trial court properly overruled preliminary objection to venue when
movants did not present any evidence in support of objection and non-moving
party nonetheless produced deposition suggesting jurisdiction was proper in
Pennsylvania).3
Here, FLIC’s preliminary objection set forth the following:
6. In paragraph 37 of her Complaint, the Plaintiff avers that “The
Court of Common Pleas of Philadelphia County in Philadelphia,
Pennsylvania is a Court of competent jurisdiction.” Plaintiff makes
no other averments that Philadelphia County is the proper venue
for this matter to be adjudicated in.
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3 We have previously recognized that “for procedural purposes, objections to
venue are treated as raising a question of jurisdiction,” and relied on cases
analyzing preliminary objections to jurisdiction when examining a question of
venue. See Deyarmin v. Consol. Rail Corp., 931 A.2d 1, 9 (Pa. Super.
2007) (citation omitted). Moreover, in Alumbaugh, even though the trial
court overruled the preliminary objection to jurisdiction, we approved of its
additional reasoning that the moving party could raise and prove their
allegations at trial. Alumbaugh, supra, at 284. At the time, the comment
to Pa. R.C.P. 1028(c) allowed the trial court to postpone disposition of doubtful
or fact-specific preliminary objections until evidence was developed at trial.
Id. at 282-83.
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7. Plaintiff fails to allege how the Defendant, [FLIC’s] acts are
continuous and sufficient so as to be general or habitual, and, she
fails to establish that any actions by the Co-Defendant[4] that are
“necessary to its [their] existence,” occur in Philadelphia County.
***
12. As explained above, Plaintiff’s cause of action arose in
Delaware County, Plaintiff resides in Delaware County, and
Defendant does not operate any business in Philadelphia County
that is necessary to its existence.
Preliminary Objections, 10/13/20, at ¶¶ 6-7, 12. The objections were verified
by FLIC’s counsel. They do not set forth any additional factual averments or
attach any exhibits regarding FLIC’s business in Philadelphia County.
Contrary to FLIC’s argument on appeal, the statement that it “does not
operate any business in Philadelphia County that is necessary to its existence”
is a legal conclusion drawn from our case law on the quality-quantity test, not
a factual averment. Id. at ¶ 12; see, e.g., Zampana-Barry v. Donaghue,
921 A.2d 500, 503 (Pa. Super. 2007) (“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. . . . Acts that aid a main purpose are collateral and
incidental while those necessary to an entity’s existence are direct.”). FLIC
did not set forth any specific factual averments to challenge venue in
Philadelphia County, such as information regarding any revenue derived from
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4 This appears to be a typo, as there is no dispute that FLIC is the sole
defendant in this action.
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Philadelphia businesses, contacts or employees located there or attempts to
advertise or solicit business in that forum. It merely pled a bare legal
allegation, unsupported by relevant facts, that venue in Philadelphia County
is improper. See Schmitt, supra.
Thus, this case is distinguishable from the cases FLIC relies upon in
arguing that it presented sufficient facts to support its preliminary objection.
See Schultz, supra (movant submitted affidavit detailing extent of its
business in the forum county); Silva v. Philadelphia Yearly Mtg., 2729 EDA
2019 (Pa. Super. July 28, 2020) (unpublished memorandum) (movants
submitted certifications averring that it had no day-to-day operations,
property, offices, business transactions or other connections to forum
county).5 In these cases, the trial court could evaluate the evidence presented
by the moving parties under the quality-quantity test and determine whether
the facts established that they performed acts “necessary to [their] existence”
in the forum county. Zampana-Barry, supra. Here, FLIC provided the trial
court with the bare legal conclusion that it did not meet the standard without
providing any factual basis in support. The burden-shifting framework
required FLIC to first adduce sufficient facts to raise a question as to venue
and its unsupported legal conclusions did not overcome this initial hurdle.
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5 Recognizing that it is a non-precedential memorandum decision, FLIC cites
to Silva for its persuasive value. See Pa. R.A.P. 126(b).
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Hausmann, supra, at 493; Schmitt, supra. As a result, the trial court
misapplied the law when it concluded that Kazanjian was required to produce
factual averments to support venue in Philadelphia County when FLIC had not
yet put venue in dispute. See Trial Court Opinion, 2/2/22, at 7-8, 10-11.
Nevertheless, we may affirm the trial court’s order on any valid basis
appearing of record. Schultz, supra, at 1228 (“[I]f there exists any proper
basis for the trial court’s decision to grant the petition to transfer venue, the
decision must stand.”); In re T.P., 78 A.3d 1166, 1170 (Pa. Super. 2013)
(“[I]t is a well-settled doctrine in this Commonwealth that a trial court can be
affirmed on any valid basis appearing of record.”). FLIC argues on appeal that
the forum-selection clause of the underinsured motorist policy at issue
requires that this case be litigated in Delaware County, where Kazanjian is
domiciled. The clause states:
LAWSUITS AGAINST US
You must comply with the terms of the policy before you may sue
us. Suit must be brought in a court of competent jurisdiction in
the county and state of your legal domicile at the time of the
accident.
Complaint in Civil Action, 1/8/20, Exhibit A, Underinsured Motorists Coverage
– Pennsylvania (Non-Stacked) (emphasis in original) (R.R. 052a).
We have previously examined this precise language under the same
circumstances as the instant case. See O’Hara v. First Liberty Ins. Corp.,
984 A.2d 938, 939 (Pa. Super. 2009). There, we concluded that the trial court
did not abuse its discretion in sustaining the preliminary objection to venue
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when it enforced this clause, as it is a clear and unambiguous term of the
parties’ contract. Id. at 942. It is undisputed that Kazanjian’s legal domicile
is in Delaware County, where the accident occurred. Complaint in Civil Action,
1/8/20, at ¶¶ 1, 3-5. Accordingly, O’Hara is binding and the forum selection
clause requires Kazanjian to litigate her claim in that forum. We affirm the
trial court’s order transferring venue to Delaware County on that basis.6
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2022
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6 Kazanjian argues only that FLIC waived the application of the forum selection
clause by failing to raise the argument in its preliminary objection. Kazanjian’s
Reply Brief at 7-8. However, we may affirm on any basis apparent from the
record, even those not considered by the trial court or raised by the parties.
In re T.P., 78 A.3d 1166, 1170 (Pa. Super. 2013).
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