Opinion
No. 1369 C.D. 2013
04-02-2014
Jeffrey Lynn Nagle Executor of the Estate of Douglas Edward Bell, Deceased v. Trueblue, Inc., Labor Ready, Inc., Labor Ready Northeast, Inc. and Rye Township Appeal of: Rye Township
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Rye Township (Township) appeals the order of the Court of Common Pleas of Dauphin County (trial court) overruling the preliminary objections of the Township and Trueblue, Inc., Labor Ready, Inc., and Labor Ready Northeast, Inc. (collectively, Employment Agency Defendants) and determining that the trial court was the proper venue as against the Township and the Employment Agency Defendants pursuant to Pa. R.C.P. Nos. 1006 and 2103. We vacate and remand.
Pa. R.C.P. No. 1006 states, in pertinent part:
(a) Except as otherwise provided ... , an action against an individual may be brought in and only in a county in which
(1) the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law....
(b) Actions against the following defendants, except as otherwise provided in subdivision (c), may be brought in and only in the counties designated by the follow rules: political subdivisions, Rule 2103....
(c) Except as otherwise provided ... , an action to enforce a joint or joint and several liability against two or more defendants, except actions in which the Commonwealth is a party defendant, may be brought against all defendants in any county in which the venue may be laid against any one of the defendants under the general rules of subdivisions (a) or (b)....
In October 2010, the Employment Agency Defendants had an arrangement with the Township to furnish and supply it with temporary workers. On October 18, 2010, Douglas Edward Bell (Decedent) reported to the Employment Agency Defendants' office in Harrisburg, Dauphin County, and was directed to report to the Township's Municipal Building in Perry County pursuant to this arrangement. When Decedent arrived, a Township Supervisor drove Decedent to a location in the Township where a Township trash truck was in the process of collecting trash. Brandon Sloop (Sloop) and Michael Miller (Miller), Township Employees, were operating the truck. Sloop instructed Decedent to get onto the truck's left rear step, to hold on, and not to get off until the truck stopped. Decedent assumed a position on the outside left rear of the truck. While Decedent had worked through Employment Agency Defendants on 13 prior occasions, he had never worked as a trash collector on the rear of a truck, a fact known to the Employment Agency Defendants.
While the truck was making a right-hand turn up a grade at the intersection of Route 850 and Spruce Street in the Township, Decedent fell from the truck's left rear step and struck his head on the roadway. Decedent was transported by helicopter to the Penn State Hershey Medical Center (Medical Center) and admitted due to a subdural hematoma, left side, and a skull fracture. Following a number of procedures, on November 15, 2010, Decedent was discharged from the Medical Center and transported to a rehabilitation hospital. Decedent was readmitted to the Medical Center on a number of occasions and ultimately died on August 25, 2011, due to complications of the subdural hematoma. Jeffrey Lynn Nagle (Executor) was appointed executor of Decedent's estate.
On December 1, 2011, Executor initiated the instant action by writ of summons in the trial court in Dauphin County against the Township and the Employment Agency Defendants. On July 6, 2012, Executor filed a complaint against the Employment Agency Defendants sounding in negligence and against the Township based on the negligent operation of its truck by its employee. (See Reproduced Record (R.R.) at 86a-103a). The complaint also alleged that venue was proper in Dauphin County because the cause of action against the Employment Agency Defendants arose in Dauphin County and because transactions or occurrences took place in Dauphin County, out of which the cause of action against the Township arose, including:
The trial court granted Executor's request for pre-complaint discovery over the Township's objection which included the exchange of lengthy written discovery, the submission of numerous documents, and the depositions of Township Supervisor Robert Lightner, Sloop and Miller.
The complaint also contained wrongful death and survival claims against the Employment Agency Defendants.
• Decedent contracted with, was tested and interviewed by the Employment Agency Defendants there;
• the Employment Agency Defendants regularly and routinely conduct business there;
• on the date of the accident, the Employment Agency Defendants assigned Decedent to work for the Township from there;
• the Employment Agency Defendants routinely furnish temporary workers to the Township from there;
• prior to the accident, the Township called the Employment Agency Defendants to make arrangements for a temporary worker to be sent from there;
• on the day of the accident, the Township called the Employment Agency Defendants there to find out why Decedent was late for work;(Id. at 90a-91a).
• the Township relies on the Employment Agency Defendants to supply temporary workers;
• the Employment Agency Defendants provided work clothes to the workers sent to the Township including steel toed boots, reflective vests, and gloves; and
• but for the conduct and negligence of the Employment Agency Defendants, Decedent would not have been injured by falling from the Township truck.
In July 2012, the Township and the Employment Agency Defendants filed preliminary objections to the complaint alleging, inter alia, that venue in Dauphin County is improper and that the case should be transferred to Perry County. Executor filed an answer to the preliminary objections, again asserting that venue is proper based on the foregoing transactions or occurrences that took place there. The trial court overruled the preliminary objections because the complaint "pled facts as against the Employment Agency Defendants establishing that Dauphin County is the county in which a cause of action arose or where a transaction or occurrence took place out of which a cause of action arose, and as such, venue is proper as against all defendants in Dauphin County. Pa. R.C.P. [Nos.] 1006(a)(1), (b), (c)(1) and 2103...." (Trial Court 8/5/13 Order). The Township then filed the instant appeal.,
The trial court's order also stated, pursuant to Section 702(b) of the Judicial Code, 42 Pa. C.S. §702(b), that "a substantial issue regarding the issue of venue or jurisdiction is presented and that an immediate appeal from this Order may materially advance the ultimate termination of this matter." (Trial Court 8/5/13 Order).
By order dated August 16, 2013, this Court treated the Township's Petition for Permission to Appeal as a notice of appeal because the trial court's order was immediately appealable under Pa. R.A.P. 311(b)(2), which states that "[a]n appeal may be taken as of right from an order in a civil action or proceeding sustaining the venue of the matter ... if ... the court states in the order that a substantial issue of venue ... is presented."
This Court's scope of review of a trial court's order overruling preliminary objections is limited to determining whether the trial court committed an error of law or abused its discretion. Delaware County v. City of Philadelphia, 620 A.2d 666, 667 n.5 (Pa. Cmwlth. 1993).
The Township argues that the only viable cause of action that Executor may raise against it in this case could arise from the purported negligent operation of the Township-owned truck pursuant to the vehicle exception to governmental immunity under Section 8542(b)(1) of the Judicial Code, 42 Pa. C.S. §8542(b)(1). (See R.R. at 97a-99a). Because the purportedly negligent operation of the truck only occurred in Perry County, the Township claims that venue is only proper in that county under Pa. R.C.P. No. 2103(b) and Section 333 of the JARA Continuation Act, and that the trial court erred in overruling its preliminary objection to venue. We agree.
Section 8541 of the Judicial Code, 42 Pa. C.S. §8541, provides, in relevant part, that "[e]xcept as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person ... caused by any act of the local agency or an employee thereof or any other person." Section 8542(b)(1) provides for a limited exception to this broad governmental immunity stating, in pertinent part:
(b) Acts which may impose liability.—The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
(1) Vehicle liability.—The operation of any motor vehicle in the possession or control of the local agency.... As used in this paragraph, "motor vehicle" means any vehicle that is self-propelled and any attachment thereto....
As noted above, in overruling the Township's preliminary objections, the trial court relied on the facts pled as to where the cause of action against the Employment Agency Defendants arose or where a transaction or occurrence took place out of which the cause of action against those defendants arose. However, the trial court was required to determine the proper venue based on where the Township was located, where the cause of action against the Township arose, or where a transaction or occurrence took place out of which the cause of action against the Township arose, whether or not there were other defendants in the case. Pa. R.C.P. No. 2103(b); 42 P.S. §20043; Ribnicky v. Yerex, 549 Pa. 555, 558-59, 701 A.2d 1348, 1350 (1997); Ward v. Lower Southampton Township, 531 Pa. 532, 538-39, 614 A.2d 235, 238 (1992); Bradley v. O'Donoghue, 823 A.2d 1038, 1041 (Pa. Cmwlth. 2003); Township of Whitpain v. Goldenberg, 569 A.2d 1002, 1004 (Pa. Cmwlth.), appeal denied, 525 Pa. 660, 582 A.2d 326 (1990).
Regarding the cause of action asserted against the Township, it is clear that Perry County is the proper venue. Perry County is where the Township is located and where the accident occurred causing Decedent's injuries due to the Township employee's purportedly negligent operation of its truck. See, e.g., Ribnicky, 549 Pa. at 561, 701 A.2d at 1351 ("Because Allentown is located in Lehigh County and the cause of action arose in Allentown, Section 333 [of the JARA Continuation Act] mandates transfer to Lehigh County."); Bradley, 823 A.2d at 1041 ("Bristol Township and Bristol Borough ... are political subdivisions of Bucks County and this is where the complaint alleged that the accident occurred. The complaint does not allege that this accident had any ties to Philadelphia County. As such, we believe that the trial court correctly concluded that venue was not properly in Philadelphia County and properly transferred the action to Bucks County."); Cummings v. Elinsky, 803 A.2d 850, 852 (Pa. Cmwlth. 2002) ("Plaintiffs filed a complaint against Original Defendants, who brought in the Township, a local agency, as an additional defendant through a writ and subsequent complaint. As the writ and joinder complaint constitute the commencement of an 'action' under Ribnicky, venue is proper in Bucks County. This is where the Township is located and where the motor vehicle accident, which gave rise to the cause of action, occurred.") (footnote omitted).
Executor's complaint specifically avers that the claim against the Township is premised on the Township employee's negligent operation of its truck. (See R.R. at 97a-99a, 201a-202a).
While it is true that events took place in Dauphin County with respect to Decedent's employment by the Township, they do not form the basis of Executor's cause of action against the Township based on the other Township employee's negligent operation of its truck thereby making Dauphin County the appropriate venue for the claim against the Township. See, e.g., Craig v. W.J. Thiele & Sons, Inc., 395 Pa. 129, 134, 149 A.2d 35, 37 (1959) ("The framers of [Pa. R.C.P. No. 2179 (relating to venue in corporate actions)] must have intended to require that a transaction (in this case the making of a contract) and not merely some part of the transaction, take place in the county where venue is laid. It would lead only to confusion and a practice which we have heretofore referred to as 'forum shopping' if the law were to permit suit to be commenced against a corporation in any county where any facet of a complex transaction occurred. Nor do we understand the word 'occurrence' to mean 'part of transaction.' On familiar principles of ejusdem generis the word 'occurrence' would not have a broader meaning than 'transaction' so as to conform it to 'part of a transaction.'...."); Sunderland v. R.A. Barlow Homebuilders, 791 A.2d 384, 392 (Pa. Super. 2002), aff'd, 576 Pa. 22, 838 A.2d 662 (2003) ("In the instant case, we have held that the Appellants' cause of action for wrongful death arose in Montgomery County, rather than Philadelphia County. We find that the 'occurrences' giving rise to this cause of action are the events preceding and leading up to the fatal accident. All of these events occurred outside of Philadelphia County. [W]e believe it would be inconsistent with the narrow interpretation given to the term 'occurrence' by courts in Pennsylvania to hold that venue is proper in Philadelphia County solely on the basis that [the decedent]'s death there was an occurrence giving rise to a wrongful death cause of action that we have determined arose in Montgomery County."). --------
Accordingly, the trial court's order is vacated, and the case is remanded to the trial court for transfer to the Court of Common Pleas of the 41st Judicial District (Perry County Branch).
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 2nd day of April, 2014, the order of the Court of Common Pleas of Dauphin County, dated August 5, 2013, at No. 2011-CV-11419-CV, is vacated, and the case is remanded to the Court of Common Pleas of Dauphin County for transfer to the Court of Common Pleas of the 41st Judicial District (Perry County Branch).
Jurisdiction is relinquished.
/s/_________
DAN PELLEGRINI, President Judge
In turn, Pa. R.C.P. No. 2103(b) provides, in pertinent part, "[e]xcept ... when otherwise provided by an Act of Assembly, an action against a political subdivision may be brought only in the county in which the political subdivision is located." See also Section 333 of the Judiciary Act Repealer Act Continuation Act of 1980 (JARA Continuation Act), Act of October 5, 1980, P.L. 693, 42 P.S. §20043 ("Actions under Subchapter C of Chapter 85 (relating to actions against local parties) of title 42 of the Pennsylvania Consolidated Statutes[, 42 Pa. C.S. §§8541-8564,] for claims against a local agency may be brought in and only in a county in which the local agency 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...."