*1
BRANDOLINI PROPERTY Paoli ping Partnership; Shopping Center Limited Paoli Lim- Center Partnership II; Shopping ited Paoli Center Limited Partner- ship II; Constructors, Ltd.; Phase Builders United & Kortan Maintenance, Inc.; Group General The James Lewis Bran- t/a Companies; Corporation; Progress Bank; dolini James Lewis Pep Boys Manny, Pep Boys; Moe & Jack Brubacher t/a — Excavating, Inc.; Design, Inc.; Contractors, Inc.; Green Carroll Pickering Valley Landscape, Inc.; Electric; Heyser Bala Landscaping, Inc. Zappala
Michelle v. Group Companies;
The James Lewis Brandolini James Lewis t/a Corporation; Progress Bank; Pep-Boys Manny, and The Moe — Pep Boys Appeal Property Manage- Jack of Brandolini & t/a ment, Inc.; Shopping Partnership; Paoli Center Limited Paoli Shopping Partnership II; Center Limited United Builders & Constructors, Ltd.; Group The James Lewis Brandolini t/a Companies; Corporation. James Lewis
Supreme Pennsylvania. Court
Argued Oct. 2005.
Decided Nov. *6 Santee, Meehan, Esq., David S. Michael A. Esq., Carl D. Buchholz, III, Esq., for Brandolini Property Management, Inc., al. et Viola,
Joseph Raymond Esq., Philadelphia, for Michelle Zappala. CAPPY, C.J., CASTILLE, NIGRO,
BEFORE: and NEWMAN, SAYLOR, BAER, EAKIN and JJ.
OPINION Justice BAER.
This case involves slip-and-fall arising two lawsuits from the incident, trial, same consolidated for brought against and discussion, numerous defendants. For ease of it will be to helpful identify the parties designate collective terms. defendants, The first herein, set of Appellants will be referred “the as Chester County They Defendants.” are: Brandoli- Inc.; ni Property Management, Paoli Shopping Center Limit- ed Paoli Partnership; Shopping Center Limited Partnership II; II; Paoli Shopping Center Limited Phase Partnership Constructors, Ltd.; United Building James Group Lewis t/a Brandolini Companies; James Lewis Corporation. second set of defendants bewill referred to as the “Philadel- phia County They Inc.; Defendants.” are: Green Design, Heyser Inc.; Landscaping, Bank; Progress and The Pep Boys.1 Appellee (Plaintiff), herein is Zappala Michelle who initially brought both actions in Philadelphia County. Shortly There Pennsylvania were several other defendants from other coun- ties, subsequent but as their initial inclusion and dismissal are not case, they material to this need not be identified. case to the consolidated trial, transferred the trial court before County Defendants’ to the Chester County pursuant Chester Superior to the appealed Plaintiff to transfer venue.” “motion reversed, Philadelphia the case to Court, returning Defendants’ County the Chester granted for trial. We County and, agree with because we appeal, for allowance petition transferring court erred that the trial Superior Court affirm, County, we County Chester Philadelphia from Defendants to seek the Chester permit but remand conveniens or non through assertion the same result Philadelphia trial in impartial a fair and to secure inability County. accident, PECO day of Plaintiffs October
On relocating utility poles Energy was Center.2 Defendants, Shopping the Paoli developing were who Distler, a company Riggs had contracted with PECO sites, to control passing for construction *7 flag-persons furnishes flag- one such Plaintiff was traffic PECO worked. while morning, parked Plaintiff at the site that Arriving person. Bank Progress to a adjacent site and her car near work Boys. As she belonging Pep lot parking branch in a employees to confer with construction site across the walked holes on the Paoli PECO, and fell on two tripped of Plaintiff covered with construction site that were Center Shopping back, to her ankle and injuries sustained leaves. She recon- including operations, in four ankle separate resulted surgery. structive
Plaintiff, County, complaint filed a resides in Delaware who 2000, 7, that she alleging on County August in Philadelphia fell, and seeking she and seriously injured tripped when medical $50,000 suffering, expenses, in and damages pain earning power capaci- and impairment and earnings, loss County defendants two of the Chester Plaintiff named as ty. County Defendants.3 Philadelphia and of the Defendants two Energy party to the instant action. 2. PECO is not a County named were the James Specifically, Defendants the Chester Corpora- Companies, and the James Lewis Group, Brandolini Lewis t/a tion, Progress County were Bank and Philadelphia Defendants and the Plaintiff averred that each defendant conducted substantial and business in continuing Philadelphia. Property Brandolini Inc., Defendants, Management, one of the Chester County 1, objections filed on September asserting minor various violations of the rules but governing pleading, did not challenge venue. defendants,
After of additional learning Plaintiff filed a second in complaint claiming October the same harm as in the first complaint naming additional Chester Coun- ty Defendants, Defendants and Philadelphia County among others.4 The that all complaint alleged defendants conducted substantial and continuing Philadelphia business at all material times. The further that all complaint alleged defen- control, dants were involved in the ownership, possession, maintenance, inspection, site, repair accident Plaintiff, that duty invitee, each breached its a business inter alia by allowing, causing, failing to correct a danger- ous and on the property. defective condition The Chester alia, filed an County asserting, Defendants answer inter they did not conduct business in Philadelphia. actions,5
After the trial court consolidated the two the case proceeded through until all of the discovery defendants except Chester Defendants filed for summary motions judgment, asserting discovery established that did they not ownership have an interest or in the responsibility land occurred, where the accident and therefore breached no duty to Plaintiff. Plaintiff did not oppose these motions. This resulted dismissal of all of the except defendants Defendants. *8 Pep Boys, property both of which leased near the accident site in County. Chester Specifically, County the second suit named all of the Chester Defen- dants, Defendants, Philadelphia County another defendant from County, County, Chester a defendant from Lancaster and two defen- Montgomery County. from dants consolidation, October, 5. Prior to 2000 case was remanded arbitration, finding which in resulted a in favor of all defendants. award, appealed bringing Plaintiff the arbitrators’ the case back into August the trial court. The trial then court consolidated the and October 2000 cases. defendants, Following dismissal of all other the Chester motion “motion to County pre-trial Defendants filed entitled transfer be transferred to requesting venue” Ches- 1006(e),6 ter that Plain- County pursuant arguing Pa.R.C.P. tiff in brought Philadelphia County. this case improperly Defendants that be- Specifically, County argued Chester County, cause Plaintiff resided in Delaware the accident oc- curred in and all are County, remaining Chester defendants situated in in County, Philadelphia County improper. County The Chester Defendants asserted that during litigation, provide the course of the Plaintiff failed to any facts to her support Philadelphia contention injuries; Defendants were liable for her potentially interrogatories, when faced with admitted that she had no information to her claims support against Philadelphia Defendants; and therefore never should have named provides, part: 6. Rule 1006 in relevant Change Venue. of Venue. (a) (b) (c) Except by provided as otherwise of subdivisions this rule, against may brought an an action individual be in and in a county in which (1) may the individual be served or which the cause of action arose place or where a transaction or occurrence took of which the out any county cause of action arose or in other authorized law.... (c)(1) against one of the defendants under the defendants in (b). [A]n two or more defendants action to any county enforce [*] [*] joint general the venue [*] ... may rules of subdivisions joint be may and several brought against be laid against any liability (a) all transferred. petition fair and brought. order (2) Where, Court, (d)(1) record, changing For the convenience of which shall other impartial any party may upon petition county court venue shall be certified forthwith to the trial cannot be held in the designate where the action could transfer an action to the order that the action be transferred. The [*] hearing [*] parties [*] county [*] thereon, and witnesses the court county which the case is to be the court finds that a originally appropriate for reasons stated have been Supreme court upon Pa.R.C.P. 1006. not so raised shall be waived.... (e) Improper venue shall be raised [*] [*] [*] [*] by preliminary objection and if *9 County Defendants. The Chester County Philadelphia the had County in Philadelphia that venue Defendants contended defendants only the they because were proper never been and, claim, in contrast arguable Plaintiff had an whom against Defendants, in located they were County Philadelphia to the Philadelphia conduct business County and did not Chester County. motion, by it barred that was arguing the opposed
Plaintiff
1006(e),
“Im-
provides:
which
of Rule
explicit language
the
if
objection and
by preliminary
venue shall be raised
proper
County
Because
Chester
raised shall be waived.”7
not so
by
improper
prelimi-
venue as
challenge
Defendants did not
challenge
they
that
waived
objection,
argued
Plaintiff
nary
1006(e).
of Rule
plain language
to the
pursuant
the trial court
arguments,
the parties’
consideration of
Upon
County.
opinion,
In its
the action to Chester
transferred
objection asserting improp-
preliminary
that a
trial court ruled
opportunity,
at the first reasonable
er
must be raised
Defen-
which,
case,
County
the Philadelphia
in this
was after
The trial court
from the case.
had been dismissed
dants
case of
in the
Court
ruling
Superior
for this
support
found
Transit, Inc.,
(Pa.Super.2003).
In the case at the trial court found Jackson controlling, and determined that the Chester County Defendants’ last opportunity to objections submit preliminary after was Plain- time, tiffs second At complaint. however, the Chester County Defendants could not have challenged venue as im- 1006(e) proper under Rule because venue in proper Philadelphia County due to the inclusion of the Philadelphia Thus, Defendants. the trial court found that Chester County 1006(e) Defendants properly made their Rule request at the first reasonable opportunity to im- challenge venue, proper which was after the dismissal of the Philadel- phia County Defendants.
An interlocutory as of appeal right followed. See Pa.R.A.P. 311(c).8 Court, Before the Superior argued Plaintiff that the trial court erred in finding venue improper and transferring the case when the Chester County Defendants did not raise an objection to venue in a timely filed preliminary objection as 1006(e). required by Rule The Superior Court agreed, finding 311(c) provides Rule appeal may that "An right be taken as of from venue, an order in a proceeding civil action or changing transferring the matter to jurisdiction, another court of declining coordinate or proceed in the matter on the basis of non conveniens analo- gous 311(c). principles.” Pa.R.A.P. 1006(e) raising the exclusive method provides that Rule pursuant mandatory language improper rule, by preliminary must be raised improper not the trial Jackson did objection support be waived. Court, because there opinion, Superior court’s reasoned by filing “protec raised improper the Rosenbaums 1006(e), in accordance with tive” prejudice, preserving court continued trial without if to raise Laidlaw right again the defendant’s Thus, the the trial Court vacated Superior was dismissed. order, Philadelphia County. Zap the case to returning court (Pa.Su Inc., 849 Mgmt., v. A.2d Prop. Brandolini pala per.2004). to determine granted appeal
We allowance whether improp- Defendants their challenge waived raising preliminary objections the issue er venue not 1006(e), such ob- notwithstanding accordance with *11 the in the case jection presence have failed because of would the time for County long the Defendants after Philadelphia of objections passed. had filing preliminary that to the County argue according Defendants 1006(e), to challenge improper intent of Rule a obvious objections if if there is preliminary not raised is waived for venue when challenging improper preliminary a basis situation, no filed. In there objections must be this where objection stage, at challenge preliminary basis to the they did they argue provision apply the cannot because waiver a Plaintiffs challenge not have to venue due to colorable Philadelphia According- of Defendants. County inclusion the an County filing the Chester Defendants assert that such ly, been futile and frivolous and therefore objection would have 1023.1, to requires attorneys Pa.R.C.P. which prohibited by that their are certify “legal the contentions pleadings] [in or existing by argument law a nonfrivolous by warranted law,” modification, of extension, existing or the reversal Conduct, a Rule 3.1 of the Rules of Professional which bars from or a unless there lawyer bringing defending proceeding a basis for so. doing is non-frivolous
529 Defen- County the Chester advancing argument, their In that that found Court case Superior on a second rely dants notice, which venue and personal jurisdiction, “questions to court the having power ‘method a by to the relate of the superintendence matter first obtained adjudicate action,’ oppor- must at first reasonable be raised cause of Schwarz, v. 252 Pa.Su- are Schwarz they waived.” tunity (1977) v. Twp. 95, 1299, (quoting A.2d 1301 Collier 380 per. (1976)). 840 A.2d Twp., Pa.Cmwlth. Robinson to exercise their opportunity had no they reasonable Because being improper choice of venue as challenge Plaintiffs right litigation, Ches- objection phase they were to raise argue required that County ter Defendants opportunity the first venue issue at reasonable improper Defendants dismissed. Philadelphia County once the were Jackson, Defen- relying County the Chester Additionally, on objections can be inter- improper that argue dants becomes litigation at time when venue posed during defendants, to the of other after due dismissal even filing summary judgment close of or the discovery motions. the Superior
The Chester Defendants contend that absurd, execution, result is and unrea- impossible Court’s 128(a) ascertaining See Pa.R.C.P. that in (providing sonable. rule, in the of a Supreme promulgation Court’s intent Supreme does not may presume courts Court “[t]he absurd, impossible a result of execution intend unreasonable”). the Chester Defendants Specifically, plaintiff right that a could frustrate defendant’s argue hand-pick challenge improper venue and favorable *12 plain- that in the suing entity regularly an conducts business little or to do nothing tiffs chosen but has -with objections files preliminary case. If the non-forum defendant venue, court, allega- all of the challenging accepting the trial true, be complaint deny in the as compelled tions will of the forum preliminary objections because inclusion If, hand, on defendant the other non-forum defendant. instead, right his an he have waived files answer will forever objections to file preliminary challenging improper pur- 1006(e). This, suant to Rule argues Chester Defendants, is an absurd result.
Plaintiffs argument counter is based on the plain language 1006(e). of Rule Disputing Defendants’ argument proper which is at the time the action is commenced, can become in the event that certain case, defendants are dismissed from the Plaintiff argues that propriety venue is determined at the time the action is commenced and is not affected subsequent dismissal of 1006(c)(1), defendants. Pursuant to Rule Plaintiff argues that she entitled to bring the action in any county any defendant regularly conducted business. See 1006(c)(1) (“[A]n joint Pa.R.C.P. action to enforce joint and liability against several or more two defendants ... may brought be all against defendants in county which the be laid one against any of the defendants under the (a) (b).”). general rule of subdivisions Accordingly, because there is no dispute that venue in Philadelphia County was proper at the time both actions filed were due the inclusion Defendants, of the Philadelphia County Plaintiff argues there was no transmutation into improper upon the dismissal of those defendants. appeal
This us to requires construe a Rule of Civil Proce- dure. The Rules provide themselves several principles of construction. First and foremost is the principle object of all interpretation is to effectuate this Court’s inten- 127(a). addition, tion. In Pa.R.C.P. every rule is to be give construed to effect provisions. all of its Pa.R.C.P. 127(b). Further, and phrases shall be “[w]ords construed according to rules of grammar and to their according common 103(a). approved usage.” Pa.R.C.P. When ascertaining intention, this Court’s it is presumed that in promulgating absurd, rules we do not intend result that is impossible of execution, 128(a). or unreasonable. Pa.R.C.P.
noteWe also that the issue presented is a question law, our scope is plenary. review See v. A- Phillips
531 (1995). 1167, Co., 124, A.2d 1170 Our 542 Pa. 665 Best Prod. Hickson, 127, Pa. In re 573 is de novo. See standard of review us, (2003). 1238, principles guide these 1242 With 821 A.2d in order to 1006 should be followed reiterate that Rule we judicial of the operation and efficient ensure the smooth Goldstein, 175, v. 479 Pa. 387 A.2d Pomerantz process. See (1978). 1280, analysis by examining our begin We 1006, a governs plaintiff may where of Rule which language for the three distinct methods provides an action and bring choice of forum. challenge plaintiffs defendant to sought where Plaintiff proceeding, Relevant to this defendants, the action liability against multiple to enforce “in against any county could been all defendants brought have laid one of the against in the venue be which 1006(c)(1). policy behind the defendants.” Pa.R.C.P. any county be in in which allowing brought rule the action to of the is to against any venue is one defendants avoid proper the Plaintiff could multiplicity of suits. To determine where action, look to brought have we Pa.R.C.P.
provides:
(a) an Act of provided by Assembly, by as otherwise Except (b) 1006(a.l) rule [regarding Rule or subdivision of this a action company], personal an action an insurance against or be in entity may brought a similar against corporation in (1) principal place its office or county registered where located; of business is
(2) business; regularly a it conducts county where (3) arose; the cause of action county where (4) place a a transaction or occurrence took county where arose, the cause of action out of which (5) or a county property part property a where matter of the action is located subject provided which is the respect property. to the equitable sought relief is with 1006(c) Thus, in conjunction reading Pa.R.C.P. 2179. may bring any county her action plaintiff with office registered one defendant maintains corporate where business, principal place or its conducts busi- regularly ness; arises; subject where cause action or where the located, matter property notwithstanding that a co-defen- county. dant resides another *14 brought Because of the numerous defendants into this case, options Plaintiff had several as to to file her where Philadelphia. action. She chose Plaintiffs choice of forum is weighty entitled to consideration and should not be disturbed Co., 149, lightly. Walker v. River 416 Pa. 205 A.2d See Ohio 43, (1964); 45 see also Purcell v. Mawr 525 Pa. Bryn Hosp., (1990) (“[A] 1282, 579 A.2d 1284 plaintiff generally the choice of forum given long requirements so as the of satisfied.”). personal subject jurisdiction and matter are rule, a Although plaintiff, may as a chose the forum suit, bring which to is not absolute. Rule right action, not articulates only plaintiff may bring where but also three distinct bases a provides upon which defendant may challenge the chosen forum: plaintiffs improper by venue conveniens, preliminary objection, non and to inability hold a fair and trial. examine impartial We will these three options individually.
First, 1006(e), pursuant to Rule the defendant may challenge improper by preliminary objection. venue as Pa. 1006(e) (“Improper R.C.P. venue shall be raised by prelimi waived.”). objection if nary not so raised shall be This is method to A challenge exclusive venue as “improper.” 1006(e) Rule challenge improper by to preliminary venue key components: has two one substantive and one 1006(e) procedural. Substantively, basis for a Rule chal lenge is defendant’s belief that venue is in the “improper” plaintiffs meaning chosen forum. The improper, word (e), is, noted, as used in previously by subsection as shaped (providing personal Rules 2179 where a action a against 1006(a) (b) corporation may brought), be (providing where and, an action bemay brought) relevant to this proceeding, 1006(c) (“[A]n action ... against two or more ... defendants may brought against be all defendants in any county which the defen- against any be laid one of ”). dants .... These rules exclusively address where Thus, be at the time the initiated. properly may laid suit is of question by taking snapshot venue is answered it of the case at the time is initiated: if it is at that “proper” time, it “proper” throughout litigation. remains 1006(e)
As the issue Rule governed by substantive relates to venue at the beginning litigation, procedurally 1006(e) the defendant requires challenge improper objection. In contrast to the other below, as be grounds challenge will discussed challenge “improper” by prelimi venue as must be raised nary objection. objections limits preliminary to several grounds, specifically “improper includes venue” and all requires preliminary objections to be raised at once and twenty days preceding pleading. within service See *15 1026(a). Pa.R.C.P. The Note to Rule provides 1028 that “[o]f venue, grounds three available to challenge only improper may be raised by preliminary provided by as 1006(e). Rule Forum non conveniens and to inability hold a fair and impartial by petition trial are raised as provided by 1006(d)(1) (2).” Rule 1006(e)’s
Rule procedural component, limiting chal lenges to improper preliminary objections, is espe cially reasonable and necessary given the considerations that guide a trial court in determining proper. whether venue is if Logically, venue is not in a forum proper plaintiffs chosen at outset, the defendant must this to the bring issue court’s attention before the case in an proceeds inappropriate forum. This is true for all like defenses that must be raised by objection, preliminary including ju improper personal risdiction, 1028(a).9 and improper service. These Pa.R.C.P. by preliminary objection pleading, 9. Such defenses must be raised Co., Taylor which "should be all inclusive.” v. 409 Wine Pa. Yentzer 338, 396, (1962). 1028(b) provides prelimi- 186 A.2d 398 that all Further, objections naiy shall be raised at one time. Rule 1032 provides party by preliminary that a all waives defenses not raised answer, objection, reply. purpose The of these rules is to reduce the 534 case, very beginning at the
issues must be resolved
energy
the time and
become
expends
the court
before
bring
If the
fail to
litigation.
parties
in the
deeply involved
attention,
the court to
allowing
these
to the court’s
issues
and otherwise direct
hearings,
over
rulings, preside
make
that, for
resolution,
be
argued
it cannot later
dispute’s
in an
forum.
place
trial
taking
example,
1028;
that a
all
(stating
party
1032
waives
Pa.R.C.P.
Pa.R.C.P.
by
are not
either
objections
presented
defenses
except any
nonwaiva-
objection,
reply,
answer
preliminary
Inc. v.
objection);
Apparel
Co.
Tops
ble defense or
Manuf.
(1968)
Rothman,
(holding
This be invoked option, which choice of challenging plaintiffs to file a petition defendant conveniens, requesting non forum on the basis of forum (“For 1006(d)(1) the conven transfer of the action. Pa.R.C.P. upon petition the court parties ience of the and witnesses appropriate an action to the court any may transfer party been originally the action could have county other where on a guiding ruling a court’s brought.”). The considerations 1006(d)(1) different from those entirely are petition 1006(e) objection. a Rule Substantive regarding that a court provides the doctrine of non conveniens ly, jurisdic jurisdiction, its even when imposition upon resist statute. general the letter of a See tion is authorized Exterminator, Inc., Pa. v. Lethal Cheeseman *16 (1997). a transfer addressing petition to A.2d When court, 1006(d), the giving a trial to Rule pursuant may prior filing an dilatory steps the defendant take to number of that Yentzer, plain at to the the merits. 186 A.2d 398. Pursuant answer on therefore, 1006(e), that language where the defendant believes of Rule because, instance, venue, for the plaintiff the has chosen an forum, defen- regularly business in the the defendants do not conduct to may challenge improper venue. When the defendant fails raise dant 1006(e) "improper by preliminary it is waived. venue" Rule 1006(e). Pa.R.C.P. forum, is required plaintiffs deference to chosen faced with a of an question properly the of whether transfer of venue filed action to a in another Id. at county appropriate. court is Cheeseman, 161. In that a to transfer petition we held 1006(d)(1) granted to the pursuant Rule “should not be unless demonstrating, defendant meets its of with detailed burden record, information on the that the chosen forum is plaintiffs or to the Id. at 162. The oppressive vexatious defendant.” that the choice of may plaintiffs defendant show forum is by: vexatious on that
establishing plaintiffs with facts the record the defendant, choice designed of forum to harass even at to the plaintiff some inconvenience himself. Alternative- meet ly, by establishing defendant his burden on in the record that the chosen is oppressive trial forum to him; instance, trial in county provide another would easier of proof, access to other sources or to witnesses ability premises conduct view involved But, dispute. we stress the defendant must more show than that the chosen forum is inconvenient to merely him. 1006(e), Id. Unlike the analysis implicated by Rule a Rule 1006(d)(1) motion little to do the plaintiffs has with whether outset, technically proper choice forum is at because is, if it court is still even the trial vested with discretion to transfer the action another if county the defendant meets his burden of that the forum proving oppressive is vexa- tious.
Procedurally, there are no time limitations placed 1006(d)(1). on a motion to pursuant transfer venue above, Note, As if supra. See discussed the case is 1006(e) not to a Rule pursuant preliminary objec transferred successfully challenging tion it propriety Nevertheless, presumptively thereafter. “proper” transfer via non conveniens is still An analysis available. to this pursuant implicitly doctrine vests considerable discre tion to balance trial court arguments parties, involvement, consider the court prior level of and consider *17 536 harass the designed the forum was defendant.
whether Cheeseman, A.2d at 162. 701 1006(d)(2),
Third, may peti under the defendant Rule and trial cannot be impartial to find that a fair tion court 1006(d)(2) held in chosen forum. Pa.R.C.P. plaintiffs finds a fair (“Where, hearing, and the court upon petition county held for reasons impartial and trial cannot be in the record, be may the court order action stated of 1006(d)(2) transferred.”). a is Substantively, petition Rule inability impartial to hold a fair and trial based on the 1006(d)(2) re forum. Procedurally, chosen plaintiffs thereon, but, like Rule hearing quires petition a 1006(d)(1), not constraints on impose any does time when may defendant raise this issue. relevant to Rule
The different considerations (d)(2) 1006(e), (d)(1), challenges demonstrate that to what must be designated “improper of court have venue” rules outset, alleging made non challenges at while is to hold peculiar conveniens or that a court unable asserting during proceed a fair be at time trial considered differ, however, trial the considerations ing. Although (d)(2) 1006(e), (d)(1), under not be court’s decision will Cheeseman, 549 absent an abuse of discretion. See disturbed 200, regard, ruling Pa. A.2d 156. In this the trial court’s 701 peculiar must be facts. See Monaco light reasonable 135, (1965); Co., 252 v. Cab Pa. 208 A.2d see Montgomery 417 237, 1282, 579 Bryn Hosp., also Purcell v. Mawr 525 Pa. A.2d facts”). (1990) (“[E]ach 1286 rests on If there case its own basis for the trial court’s decision to transfer any proper exists Estate, In 431 must stand. re Mackarus’ the decision (1968). 585, 661, An abuse of is Pa. 246 A.2d 666-67 discretion judgment, not an error of but occurs where merely judgment or the exercised is misapplied, law overridden unreasonable, partiality, prejudice, or the result of manifestly will, or the In re bias or ill as shown evidence record.
537
Phila.,
142
Pa.
A.2d
Homeopathic Hosp.
Women’s
(1958).10
then the trial
summarize, if
is improper,
To
*18
A
to
challenge
to hear the case.
superintendence
court lacks
case
venue, therefore,
before the
must be addressed
improper
noted,
As
this
431
246
Pa.
A.2d
proceeds. Caplan,
the
proper
If
is
at
objections.
venue
preliminary
is done via
and at sometime thereafter
objection stage,
preliminary
the
questions
conveniens or
abili
raises
non
defendant
forum
trial, it is
the trial
fair and
within
impartial
to obtain a
ty
it to a different
to
the case or transfer
court’s
retain
discretion
Thus,
timely preliminary
to file a
while the failure
venue.
1006(e)
to Rule
pursuant
venue
objection challenging improper
for challenges
is not
the case
challenge,
this
waives the
1006(d)(1)
(2),
be
to
or
brought
pursuant
and, thus,
the
subject
are not
to waiver at
raised by petition
See,
v. E.I. du Pont
objection
e.g., Wood
preliminary
stage.
Co.,
(holding
The Chester that if are argue they Defendants not permitted challenge to venue at first improper the reasonable then opportunity, they are without recourse to demonstrate County appropriate Chester is a more forum. This is not true. The County Chester Defendants could have and still 1006(d). to may pursuant junc- At this challenge ture, thus, so, have not they done we do not know whether challenge such a been or would have will be successful.11 indicated, request 11. As because no time on there is restriction (d), pursuant perceive transfer venue to subsection we no bar to the County raising Chester Defendants this issue before trial court on (d) Any petition remand. resolution of a subsection within the lies trial discretion, which, noted, necessarily balancing court's would as involve maintaining plaintiff’s the inconvenience or fairness of in the case forum, particularly light County chosen of the fact that Chester
539 not availed yet Defendants have County Because that Plaintiffs demonstrate opportunity of the themselves however, vexatious, this oppressive of forum was choice us. is not before issue Defendants’ reli- that the Chester note
Finally, we does not 56, and Jackson, misplaced is 822 A.2d ance on of the language mandatory that the proposition support Jackson, In reasonable time.” with “a replaced rule can be timely preliminary improper raised the Rosenbaums 1006(e), the trial in accordance with objections ability to the Rosenbaums’ prejudice court ruled on without from dismissed if the other defendant was objection renew the contrast, Here, County. the Chester the case. by preliminary raised
Defendants never therefore, 1006(e), their chal- Pursuant to Rule objection.12 is waived.13 lenge thereto, against the fact that do not have connection Defendants already occurred.
significant litigation in the chosen forum has
protective
file a
County Defendants did not
the Chester
12. Because
raising
like the defendants in
improper venue
preliminary
Jackson,
is not before
specific course of action
propriety of such a
However,
raising
regarding
importance
given
of
our discussion
us.
case,
beginning
and the fact that
preliminary objections at
all
filed,
always proper, we
proper
the time the case is
at
objections
speculate
practice
filing protective
that the
disposition
well
seeking
general
of their
continuance
and then
goals
finality
certainty.
run counter to the Rules’
Collier,
25
reject
Defendants’ reliance on
13. We also
the Chester
Schwarz,
95,
Pa.Super.
360 A.2d
Pa.Cmwlth.
Collier,
if the
claims that a
In
the court held that
defendant
A.2d 1299.
matter, and the
deficiency deprives
jurisdiction
over the
the court
by which the court first obtained
alleged
in the method
defect is
action,
objection must be
superintendence of the cause of
then the
*20
opportunity or within a reasonable time or
at
first reasonable
raised
subject
the issue in Collier was one
it is waived. Id. at 840. Because
venue,
improper
inapposite.
it
jurisdiction, not
is
matter
Schwarz,
opined
“[qjues-
Superior
Collier and
that
In
Court cited
notice,
jurisdiction,
which relate to the
personal
venue and
tions of
adjudicate
having
power
the matter
by
a court
to
'method
action,’ must be raised at
superintendence
the cause of
first obtained
opportunity
they
waived.”
We meritless Chester Defen dants’ contention that challenging improper by prelimi nary objection would have been frivolous because venue was proper at that time. This our simply supports reasoning 1006(e) not the appropriate vehicle to challenge 1006(e) venue in this case. Because Rule applies challenges to venue, to improper and venue was to Rule proper pursuant 1006(c) at preliminary objection stage, then the only way County for Chester Defendants to challenge venue was 1006(d)(1) (2).14 case, In the instant Defendants relied 1006(e) on Rule objection but did not raise their until after the objections preliminary stage. Superior Court properly objection held improper only that an venue can be raised by objection pursuant to the of Rule plain language 1006(e). Consequently, Superior the order of the Court affirmed. The case is to the trial court proceed- remanded consistent ings Opinion. with this CAPPY, Chief Justice and Justice NEWMAN and Justice join the opinion. SAYLOR
Former Justice did not participate NIGRO the decision of this case. EAKIN files a dissenting opinion
Justice which Justice joins. CASTILLE
particular, support does not lend to the Chester Defendants’ 1006(e) plain language contention that of Rule should be aban- doned. Respectfully, Opinion. suggests the dissent mischaracterizes this It protective preliminary that we force a defendant an invalid raise so, venue. We not do not do but in note suggest twelve a tactic such be ineffective. The dissent proceeds Opinion approves shopping, to declare that this of forum plaintiff inappropriate precludes allows to choose an anyone doing anything simply from about it. These averments are disapprove shopping explain We inaccurate. of forum in detail aggrieved by strategy through that a defendant such a has recourse 1006(d)(1) through either non conveniens in accord with Rule impartial averment that absent a transfer there cannot be a fair and 1006(d)(2). Indeed, pro- trial. See Pa.R.C.P. we remand this case to opportunity. vide these defendants with such an
541 EAKIN, dissenting. Justice majority objection only
The
holds an
to venue can
be raised
objections,
by preliminary
pursuant
plain language
1006(e);
objection
later
is deemed
any
Pa.R.C.P.
waived.
538-39,
Majority Op., at
As the majority clearly states that an objection preliminary objec- must be raised in objections, turn, tions. in Preliminary must be raised within days filing after the of the complaint. See Pa.R.C.P. 1028(a)(1). venue, The dilemma is that assessed under the circumstances at the time preliminary objections, for was proper; circumstances, assessed under changed proper. was not in change circumstances occurred after the time for preliminary objections is, past. was That of our language Rules not give party would the opportu- nity to raise a legitimate objection to this situation. Put another way, our Rules seem a party to allow to manipu- late by naming and preserving in a parties case until the time preliminary objections is past. interpret
We our Rules generally according plain their Id., 127(b). language. However, we do not interpret our Rules in a manner that absurd, would lead to a “result that is unreasonable!)]” impossible Id., 128(a). of execution or “The rules shall liberally be just, construed to secure the speedy and inexpensive determination every action or proceeding they Id., are applicable.” 126. The majority’s result a party forces to raise an objection invalid to venue—the defense here had no objection basis for an to venue within 20 days of the Complaint it disallows the when it —then legitimate. becomes This is a Catch-22 that would make Joseph Heller proud.
Despite the deference plaintiffs afforded the choice of fo- rum multiple named, when defendants in different venues are plaintiff this “admitted that she had no information to support against [defendants; her claims the Philadelphia County therefore never should have Majority named atOp., [them].” claims, However, those she by making at 1277. 909 A.2d objection to Philadelphia precluded
created venue objections. Once filing preliminary the time venue within resolved, the parties broad choice of unwarrantedly her *22 only not no ties to the ease—venue was she chose had venue Thus, place. there in the first it had not been gone, clearly not, intentional or allowed whether plaintiffs wrongdoing, venue, majori- and under choose an inappropriate her to about it. decision, doing anything from anyone ty’s precluded result, defeats our in this which purpose I find no logic rules, prompt to make a but party forces the other objection legitimate its precludes frivolous exist, no county not to and forces with venue is shown when This, in try my it. the case to the resources expend ties to result that cannot be within truly is a absurd judgment, Rules. of our contemplation of a forum- approval decision to be an majority’s
I find the may use unscrupulous parties that future technique shopping of venue. I would hold the requirements to subvert claim original to have no is determined plaintiff where plaintiffs on choice the defendants against defendants,1 based, remaining dismissal such upon the dismissal to raise days be allowed 20 from would parties 1006(e). venue under issues of order and Superior I reverse the Court Accordingly, would to Chester transferring the trial court’s order reinstate County. joins dissenting opinion. this CASTILLE
Justice defendants, apply with named but would not to settlements This venue-producing should not have been in where the defendants to cases with. the case to start