Opinion
2096 EDA 2023 J-A17008-24
12-10-2024
MATTHEW WEINER Appellant v. INTELYCARE, INC., ARTIS SENIOR LIVING, LLC, ARTIS SENIOR LIVING OF LOWER MORELAND, LLC, D/B/A ARTIS SENIOR LIVING OF HUNTINGDON VALLEY, ARTIS SENIOR LIVING MANAGEMENT, LLC, ARTIS SLM OF HUNTINGDON VALLEY, LLC, D/B/A ARTIS SENIOR LIVING OF HUNTINGDON VALLEY, ARTIS HOLDINGS, LLC, MDS HOME AND LAWN CARE SPECIALISTS, INC. D/B/A MDS, INC., BETTY-ANN COKER AND JOHN DOE 1, 2, 3, 4, 5, 6, 7, 8, 9, AND 10
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered August 1, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 230201103
BEFORE: BOWES, J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM
BOWES, J.
Matthew Weiner appeals from the order that sustained preliminary objections raising improper venue and transferred the case to Montgomery County. Since the facts indisputably establish that venue was proper in Philadelphia County pursuant to Pa.R.Civ.P. 1006(a) and (c), and the court was not presented with a Rule 1006(d)(1) forum non conveniens petition, we reverse and remand for further proceedings in the Philadelphia County Court of Common Pleas.
Mr. Weiner, a resident of Philadelphia County, commenced this action against Artis Senior Living, LLC; Artis Senior Living of Lower Moreland, LLC, d/b/a Artis Senior Living Of Huntingdon Valley; Artis Senior Living Management, LLC; Artis SLM Of Huntingdon Valley, LLC, d/b/a Artis Senior Living of Huntingdon Valley; Artis Holdings, LLC; and Betty-Ann Coker (collectively "Artis Defendants"), along with MDS Home and Lawn Care Specialists, Inc. d/b/a MDS, Inc.; IntelyCare, Inc.; and John Does 1 through 10. In his complaint, Mr. Weiner alleged that the defendants each had some responsibility for the injuries he sustained when he slipped, fell, and was injured while temporarily assigned to work at a nursing facility in Montgomery County in February 2021.
This was the second time that Mr. Weiner initiated proceedings to recover for these injuries. He first sued MDS and the Artis Defendants sans Ms. Coker in Philadelphia County in 2022 but, since none of the companies regularly conducted business there, the trial court sustained preliminary objections raising improper venue and transferred the case to Montgomery County. Through discovery conducted following the transfer, Mr. Weiner became aware of additional parties, both of which had ties to Philadelphia County. Armed with this information, he discontinued the Montgomery County action and commenced the instant action in Philadelphia County.
In addition to premises liability claims against MDS and the business-entity Artis Defendants, Mr. Weiner pled negligence claims against Ms. Coker and IntelyCare, the entity that counsel for the Artis Defendants had previously identified as Ms. Coker's employer. Critically, Ms. Coker is a resident of Philadelphia County and was served with Mr. Weiner's complaint at her home.
After retaining new counsel, the business-entity Artis Defendant discovered that Ms. Coker was actually their employee. See N.T. Hearing, 7/31/23, at 9-10 ("So once I got the case, that is the first time that defendants learned that [Ms.] Coker is actually our employee."). Mr. Weiner ultimately discontinued the action as to Ms. Coker's previously purported employer, Intelycare, after the Artis Defendants stipulated that she was employed by Artis SLM of Huntingdon Valley, LLC during the time in question.
The complaint alleged as follows regarding the alleged culpability of Ms. Coker and her employer:
34. Defendant, [Ms.] Coker, was the supervisor of the facility during the night shift from 7 PM on February 21, 2021[,] until 7 AM on February 22, 2021[,] and had special knowledge and knew or should have known of the facility protocols applicable to persons such as [Mr.] Weiner about the presence of ice and ice removal in the parking lot.
35. Defendant, [Ms.] Coker, was negligent and careless because:
(a) she failed to warn [Mr. Weiner] that the facility protocol was that the maintenance, salting, treating, and ice removal of the parking lot was only planned around shift changes, and it would be dangerous for anyone to walk in the parking lot before the 7 AM shift change because of dangerous icy conditions; and
(b) she failed to use reasonable care and use adequate warnings under the circumstances.
36. At all relevant times, Defendant, [Ms.] Coker, was an employee, servant, agent, workman, ostensible agent, and/or contractor of IntelyCare, Inc., and/or the Artis Defendants and acted (or failed to act) withing the course and scope of her employment, agency, and/or authority.
37. Defendants, IntelyCare, the Artis Defendants, and/or John Does (1-10) are vicariously liable for [Ms.] Coker's Negligence.
Complaint, 2/10/23, at 9-10.
Ms. Coker and the rest of the Artis Defendants filed preliminary objections to the complaint. Therein, under the heading "Petition to Transfer Venue to Montgomery County," they stated a preliminary objection pursuant to Pa.R.Civ.P. 1006(e) to the propriety of venue in Philadelphia County. See Preliminary Objections, 4/7/23, at ¶ 6. Their proffered reason for sustaining their objection was that Mr. Weiner had no valid claim against Ms. Coker and she was improperly named as a defendant solely to establish venue. Id. at ¶ 13. In their accompanying brief, the Artis Defendants explained:
[Mr. Weiner] became aware through discovery that [Ms. Coker] was a nurse on duty inside the facility when [he] allegedly slipped and fell outside in the parking lot. Despite it being clear under Pennsylvania law that only the possessor of the land who has occupation of the land with intent to control it can be liable under premises liability (See Restatement (Second) of Torts, § 328E; Rudy v. A-Best Products Co., 870 A.2d 330, 333 ([Pa.Super.] 2005); and Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643 ([Pa.Super.] 2002)), [Mr. Weiner] filed the instant lawsuit naming a nurse who was responsible for patient care inside the facility and was not the possessor of the land as a defendant in this action for the sole purpose of venue. Frankly, it is unethical.
Memorandum of Law in Support of Preliminary Objections, 4/7/23, at unnumbered 3-4.
Arguing that Mr. Weiner thus had no cognizable claim against Ms. Coker, the Artis Defendants proclaimed that her ties to Philadelphia "should not be considered when determining the proper venue in this case." Id. at ¶ 18. Additionally, the Artis Defendants posited as follows:
[T]he attempt to join [Ms.] Coker in the instant litigation for a Philadelphia venue, should be dismissed under forum non conveniens, as the law states that venue can be transferred for the convenience of the parties. Uninvolved frivolous parties that are added for the sole purpose of creating venue is improper and should not prevent the [c]ourt from transferring venue to Montgomery County. See Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156, 162 (Pa. 1997)[,] and Pa.R.C[iv].P. 1006(d)(1); Hartman v. Corporate Jet, Inc., 60 Pa. D. & C. 4th431 (Phila. Cty. 2001).Id. at ¶ 17.
In his answer, Mr. Weiner maintained that venue was proper in Philadelphia County because one of the jointly-liable defendants was served there. See Answer to Preliminary Objections, 4/25/23, at ¶ 14. Observing that the preliminary objections did not include a demurrer pursuant to Pa.R.Civ.P. 1028(a)(4), he contended that the legal sufficiency of the complaint's negligence allegations against Ms. Coker were thus waived. Id. at ¶¶ 13, 15. Mr. Weiner asserted that the invocation of forum non conveniens was irrelevant, as a motion to transfer venue on that basis cannot be raised by preliminary objection. Id. at ¶ 17 (citing Pa.R.Civ.P. 1028(a)(1), Note ("Of the three grounds available to challenge venue, only improper venue may be raised by preliminary objection as provided by Rule 1006(e). Forum non conveniens and inability to hold a fair and impartial trial are raised by petition as provided by Rule 1006(d)(1) and (2).")). Further, he decried the objecting defendants' "scurrilous and outrageous attack on the ethics of [Mr. Weiner] and his counsel." Id. at ¶ 18.
On May 3, 2023, the Artis Defendants moved for Ms. Coker's dismissal based on an affidavit of non-involvement, invoking Pa.R.Civ.P. 1036. Therein, they maintained their argument that Mr. Weiner's claims that Ms. Coker was negligent in failing to advise him of facility protocols were not viable because she was not a possessor of the premises. See Motion to Dismiss, 5/3/23, at ¶ 13. Mr. Weiner filed a response correctly highlighting that the Rule 1036 had no applicability. See Pa.R.Civ.P. 1036(a) (indicating that the Rule pertains to actions "subject to an Act of Assembly which provides for dismissal of the action as to a party based upon an affidavit of noninvolvement"); id. at Note ("Actions pursuant to the following Acts of Assembly are within the scope of this rule: . . . an action for negligence against a construction design professional and . . . a medical professional liability action naming a health care provider as a defendant.").
The trial court issued a rule to show cause why the venue objection should not be sustained and scheduled a hearing. At the outset of that proceeding, the trial court indicated that its desire was to gain "an understanding as to the basis of Ms. Coker and her position in this lawsuit." N.T. Hearing, 7/31/23, at 4. The court asserted that this Court's precedent allowed it to examine "the complaint and determine whether all the parties in front of [it] are proper, notwithstanding the -- there is no filing of a demurrer as to her claims." Id. at 5.
Mr. Weiner's counsel proceeded to offer the following explanation:
[MR. WEINER'S COUNSEL]: . . . [Mr. Weiner] filed a -- [he] is --works for an agency. He is a certified nursing assistant. He was assigned temporarily to this nursing home facility; he hadn't been there very long. So he shows up and he does not work -- he works for an agency, he is not an employee of the facility. Ms. Coker improperly gave him instructions about what he needed to do and the safety protocols of the facility. We learned that in -- at the beginning of discovery in Montgomery County.
In fact, the defendant said that my client was comparatively negligent because my client went outside during his shift to take out the trash and move his car. And the only way you -- and that was against facility protocol.
The reason why it was against facility protocol or one of the reasons is because this is a fall down on ice and snow. They schedule the landscaping -- the snow removal to be done at the time of this shift changes.
Therefore, no one should be in the parking lot during the shift changes because they can't ensure that they are continually salting and removing ice and snow.
He was not told that. They -- the defendant raised this and said my client was told that and he shouldn't -- he should have known not to go out and take out the trash and move his car. He goes out and takes out the trash and moves his car. It's dark, he slips and falls. It just so happens to be the landscaping company was there removing snow and he didn't know it. They hadn't finished yet, and he shattered his leg, Your Honor.
And they didn't demur, Your Honor. So they waived any right to this. This isn't summary judgment. This is not even proper to -- to be -- to be analyzing this because this is not a summary judgment.
THE COURT: Okay. So tell me again the -- you discovered -- how did you discover -- and what was her instruction? Was it --
[MR. WEINER'S COUNSEL]: Her instruction was you need to take out the trash. One of your duties -- he gets there and she says these are your duties. One of the duties was you need to go outside and take out the trash and throw it in the dumpster.
She didn't tell him that you are supposed to do it right before the shift ends because during cold days where there's snow on the ground and ice, they don't -- they schedule the snow removal and ice removal to coordinate right before shift changes. He goes out in the middle of his shift because the trash was overflowing. He throws it in the -- he walks to the dumpster, he moves his car, and he gets out of his car and falls on a patch of ice. The snow removal company was in the parking lot removing ice. But he --snow and ice. But he didn't know it because he wasn't told about this protocol.
So in the answer to interrogatories, they blame plaintiff and said he -- he didn't follow protocol. That's why he's at fault.
So --
THE COURT: Okay.
[MR. WEINER'S COUNSEL]: So how could he not follow protocol? He needs to be told what protocol is.Id. at 5-9.
In response, counsel for the Artis Defendants avowed their position that Ms. Coker was not a "proper defendant in this case" based upon:
an affidavit of noninvolvement by the executive director of Artis Senior Living really laying out the facts that she is not a possessor of the land as required under Pennsylvania law for premises liability to attach to this defendant. She was not responsible for monitoring the weather outside. She has no control or intent to control a parking lot outside. Her duty was to supervise patients and other employees inside the building of the nursing home as a
nurse supervisor. She has no control over what an employee does outside in the parking lot.
You know, I agree that [Mr. Weiner's counsel] could bring suit based on the premises that he was -- plaintiff slipped and fell outside the parking lot. But, you know, he brings this against the Artis Senior Living defendants and the lawn care defendant. [Ms.] Coker has absolutely no involvement in this case.Id. at 11.
The trial court took the matter under advisement. Later that day, it entered separate orders: (1) denying the Rule 1036 motion to dismiss Ms. Coker from the case, and (2) sustaining the preliminary objections and transferring the case to Montgomery County. Mr. Weiner filed a timely notice of appeal on August 7, 2023, and both he and the trial court complied with Pa.R.A.P. 1925.
Mr. Weiner presents the following question for our determination:
Where venue is presumptively proper under Pa.R.Civ.P. No. 1006(e), may the trial court rely only on the complaint to decide that a party on whom venue is based should not have been named and transfer venue without making any Rule 1006(d) analysis as required by Zappala I and Cheeseman that the defendants met their burden in (1) establishing that the present venue is burdensome and oppressive and (2) that the plaintiff's inclusion of the dismissed defendant in the case was designed to harass the other defendants?
Mr. Weiner's brief at 3 (emphasis in original).
We begin with a review of the applicable law. A trial court's ruling as to venue "will not be disturbed on appeal absent an abuse of discretion." Hangey v. Husqvarna Prof'l Products, Inc., 304 A.3d 1120, 1141 (Pa. 2023). In this vein:
An abuse of discretion is not merely an error of judgment, but occurs only where the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record. An appellate court cannot find an abuse of discretion simply because it might have reached a different conclusion; if there exists any proper basis for the trial court's decision . . . the decision must stand.Id. (cleaned up). Nonetheless, to the extent we must address questions of law, "our standard of review is de novo and our scope is plenary." Id.
A "[p]laintiff's choice of forum is entitled to weighty consideration and should not be disturbed lightly." Zappala v. Brandolini Prop. Mgmt., Inc. ("Zappala I"), 909 A.2d 1272, 1281 (Pa. 2006). However, while "a plaintiff, as a rule, may cho[o]se the forum in which to bring suit, that right is not absolute." Id. The establishment or proper venue and the procedures for seeking a change thereof are governed by Pa.R.Civ.P. 1006, which provides as follows in pertinent part:
(a) General Rule. Except as otherwise provided by subdivisions
(b) and (c) of this rule, an action against an individual may be brought in and only in a county where
(1) the individual may be served;
(2) the cause of action arose;
(3) a transaction or occurrence took place out of which the cause of action arose;
(4) venue is authorized by law; or
(5) the property or a part of the property, which is the subject matter of the action, is located provided that equitable relief is sought with respect to the property.
(b) Venue Designated by Rule. Actions against the following defendants, except as otherwise provided in subdivision (c), may be brought in and only in the counties designated by the following rules: . . . corporations and similar entities, Rule 2179.
(c) Joint and Several Liability Actions. 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).
(d) Transfer of Venue.
(1) 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.
(2) If, upon petition and hearing, the court finds that a fair and impartial trial cannot be held in the county for reasons stated of record, the court may order that the action be transferred. The order changing venue shall be certified to the Supreme
Court, which shall designate the county to which the case is to be transferred.
(3) It shall be the duty of the prothonotary of the court in which the action is pending to forward to the prothonotary of the county to which the action is transferred, certified copies of the docket entries, process, pleadings, depositions, and other papers filed in the action. The costs and fees of the petition for transfer and the removal of the record shall be paid by the petitioner in the first instance to be taxable as costs in the case.
(e) Improper Venue to be Raised by Preliminary Objection. Improper venue shall be raised by preliminary objection and if not so raised shall be waived. If 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 costs and fees for transfer and removal of the record shall be paid by the plaintiff.
Rule 2179 provides that, as a general rule, actions against corporations and similar entities may be brought only in a county where:
(1) the registered office or principal place of business of the corporation or similar entity is located;
(2) the corporation or similar entity regularly conducts business;
(3) the cause of action arose;
(4) a transaction or occurrence took place out of which the cause of action arose; or
(5) the property or a part of the property, which is the subject matter of the action, is located provided that equitable relief is sought with respect to the property.Pa.R.Civ.P. 2179(a).
Pa.R.Civ.P. 1006.
As for the timeframe pertinent to the analysis, "the venue rules exclusively address where venue properly may be laid at the time the suit is initiated." Hausmann v. Bernd, 271 A.3d 486, 493 (Pa.Super. 2022) (cleaned up). "Thus, [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 I, 909 A.2d at 1281.
Preliminary objection "is the exclusive method to challenge venue as 'improper.'" Id. Further, of the various "grounds available to challenge venue, only improper venue may be raised by preliminary objection[.]" Id. at 1272 (cleaned up) (quoting Pa.R.Civ.P. 1028, Note). Pursuant to Rule 1006(d), the other bases for contesting the plaintiff's venue choice are premised upon (1) the doctrine of forum non conveniens, and (2) the contention that a fair and impartial trial is impossible in the current forum.
Relevant to the instant case, a Rule 1006(d)(1) forum non conveniens challenge "may be invoked at any time" by petition. Id. As our High Court has explained:
The considerations guiding a court's ruling on a Rule 1006(d)(1) petition are entirely different from those regarding a Rule 1006(e) preliminary objection. Substantively, the doctrine of forum non conveniens provides that a court may resist imposition upon its jurisdiction, even when jurisdiction is authorized by the letter of a general venue statute. See Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156, 160 (Pa. 1997). When addressing a petition to transfer venue pursuant to Rule 1006(d), a trial court, giving the required deference to plaintiff's chosen forum, is faced with the question of whether a transfer of venue of a properly filed action to a court in another county is appropriate. In Cheeseman, we held that a petition to transfer venue pursuant to Rule 1006(d)(1) should not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiff's chosen forum is oppressive or vexatious to the defendant. The defendant may show that the plaintiff's choice of forum is vexatious by:
establishing with facts on the record that the plaintiff's choice of forum was designed to harass the defendant, even at some inconvenience to the plaintiff himself. Alternatively, the defendant may meet his burden by establishing on the record that trial in the chosen forum is oppressive to him; for instance, that trial in another county would provide easier access to witnesses or other sources of proof, or to the ability to conduct a view of premises involved in the dispute. But, we stress that the defendant must show more than that the chosen forum is merely inconvenient to him.
Unlike the analysis implicated by Rule 1006(e), a Rule 1006(d)(1) motion has little to do with whether the plaintiff's choice of forum is technically proper at the outset, because even if it is, the trial
court is still vested with discretion to transfer the action to another county if the defendant meets his burden of proving that the forum is oppressive or vexatious.Id. at 1282-83 (cleaned up).
This Court addressed the application of Cheesman to a Rule 1006(d)(1) motion alleging improper forum shopping in Zappala v. James Lewis Grp. ("Zappala II"), 982 A.2d 512, 519 (Pa.Super. 2009), the appeal following the remand of Zappala I to the trial court. Therein, we observed:
Pennsylvania does not forbid "forum shopping" per se-to the contrary, our venue rules give plaintiffs various choices of different possible venues, and plaintiffs are generally free to "shop" among those forums and choose the one they prefer. There may be quite appropriate reasons for a plaintiff to seek a certain forum-for example, a forum might, as here, be closer to the office of plaintiff's attorney, or closer to a transportation center. As a result, the mere invocation of that phrase "forum shopping" does not trigger such a talismanic effect as to cause an abrupt termination of the inquiryZappala II, 982 A.2d at 520-21 (cleaned up). Rather, it is only improper forum shopping that is disapproved. "[I]mproper forum shopping occurs when a plaintiff manufactures venue by naming and serving parties who are not proper defendants to the action for the purpose of manipulating the venue rules to create venue where it does not properly exist." Id. at 521. In such circumstances, "the trial court may interfere with the plaintiff's choice of forum on forum non conveniens grounds," upon a defendant's filing of a Rule 1006(d)(1) petition "and meeting the evidentiary burden established in Cheeseman." Id. at 521, 524. In other words, we held that when "the defendants that provided the basis for plaintiff's choice of forum are subsequently dismissed from the case, the remaining defendants who seek transfer pursuant to Pa.R.C[iv].P. 1006(d)(1) have the burden of proving that the plaintiff's inclusion of the dismissed defendants in the case was designed to harass the remaining defendants." Id. at 521 (Pa.Super. 2009) (emphasis in original).
From this discussion of the governing law, it is plain that the trial court erred in sustaining the preliminary objection to venue. Although Ms. Coker was served in Philadelphia, the court ruled that it "is an improper venue for [her] because [Mr. Weiner] has no actionable claim against [her]." Trial Court Opinion, 12/22/23, at 4. The court's belief that our decisions in Zappala II and Fessler v. Watchtower Bible & Tract Soc'y of New York, Inc., 131 A.3d 44 (Pa.Super. 2015), allowed it to decide a Rule 1006(e) objection by deciding whether Ms. Coker should have been named as a party is wholly unfounded. Both of those cases involved forum non conveniens petitions to transfer venue pursuant to Rule 1006(d)(1), and in both we reversed the trial court's decision to grant the petitions because the evidence of record did not support a finding that a Philadelphia defendant was named solely to harass the other defendants. See Fessler, 131 A.3d at 53; Zappala II, 982 A.2d at 525. This precedent offered no authority for the court's decision to delve into the factual and legal sufficiency of the claim pled against Ms. Coker when it was presented not with a demurrer, but solely a Rule 1006(e) objection.
See N.T. Hearing, 7/31/23, at 4-5 ("And there's certainly cases where I believe it's appropriate and the Superior Court agrees with me, Fessler one of them, Zappala is another[.]"); Trial Court Opinion, 12/22/23, at 6.
On appeal, the Artis Defendants offer Silva v. Philadelphia Yearly Meeting, 239 A.3d 107, 2020 WL 4334047 (Pa.Super. 2020) (non-precedential decision), as authority for their position that a preliminary objection to venue may be sustained where venue is proper, but only due to the naming of a "sham-defendant who does not belong in the case [and was named] for the sole purpose of manufacturing venue[.]" Artis Defendants' brief at 11-12. We are not persuaded by the Silva decision. Insofar as it conflated an improper forum shopping Rule 1006(d)(1) petition with a Rule 1006(e) preliminary objection to improper venue, and approved the trial court's decision to rule upon a venue objection by assessing the evidence of the forum defendant's liability, we find the Silva decision unsupported by precedent and inconsistent with the decisions in Zappala I and Zappala II.
The Zappala cases involved the naming of forum defendants "whose connection to the case was tenuous at best" and who were ultimately dismissed without opposition because "they did not have an ownership interest or responsibility in the land where the accident occurred[.]" Zappala II, 982 A.2d at 516-17. Nonetheless, as we discussed above, Zappala I affirmed that venue was proper because a forum defendant was named in the case, and Zappala II reversed the trial court's decision to grant the subsequent Rule 1006(d)(1) petition to transfer venue because no evidentiary record existed to support a Cheeseman-based finding that the forum shopping was improperly designed to harass the non-forum defendants.
Here, Mr. Weiner has yet to concede the non-viability of his claims against Ms. Coker, no record has been developed to decide the issue, and he has proffered legitimate reasons for desiring to litigate his claims in Philadelphia, which is where he and other witnesses reside, where he received medical treatment, and where his lawyer's office is located. See Appellant's reply brief at 22. Pursuant to the governing precedent, resolution of the preliminary objections should have been a simple matter. Ms. Coker was served in Philadelphia. Hence, Rule 1006(a) renders venue proper in Philadelphia County as to her, and venue is proper as to the rest of the defendants pursuant to Rule 1006(c).
If the objecting defendants wish to pursue the claim that Mr. Weiner's decision to litigate in his home county was improper forum shopping, or is otherwise oppressive or vexatious, they must raise it by petition pursuant to Rule 1006(d)(1), and the court must decide in accordance with the principles enunciated in Cheeseman and Zappala II. In the meantime, the court's decision to accept the defendants' proposal to short-circuit the process and sustain Rule 1006(e) preliminary objections in the face of proper venue must be reversed.
Order reversed. Case remanded for further proceedings in Philadelphia County. Jurisdiction relinquished.
Judge Nichols joins this Memorandum.
Judgment Entered.
CONCURRING STATEMENT
SULLIVAN, J.
I agree with the learned majority's conclusion that the trial court erred in transferring this case to Montgomery County. I write separately to further address the parties', and the trial court's, apparent confusion regarding claims of improper forum shopping.
This appeal arises out of a slip-and-fall action brought by Matthew Weiner ("Weiner") to recover for injuries he suffered while working as an aide at a nursing home ("the facility"). Weiner asserts he fell on snow or ice in the facility's parking lot. The facility is owned and operated by Artis Senior Living, LLC, Artis Senior Living of Lower Moreland, LLC, d/b/a Artis Senior Living of Huntingdon Valley, Artis Senior Living Management, LLC; Artis SLM of Huntingdon Valley, LLC, d/b/a Artis Senior Living of Huntingdon Valley, Artis Holdings, LLC (collectively, "Artis").
Weiner previously commenced an action against Artis in Philadelphia ("the first Philadelphia action"). However, Weiner could not establish Philadelphia was a proper venue for the first Philadelphia action, and the court transferred the matter to Montgomery County in August 2022. After the transfer to Montgomery County, Weiner apparently discovered additional information, namely, that Betty-Ann Coker ("Coker"), who was his nursesupervisor when he fell, failed to inform him of Artis's work and safety protocols, including an alleged policy that snow and ice removal at the facility's parking lot would only occur at the end of his shift. Coker lives in Philadelphia. In February 2023, Weiner discontinued his action in Montgomery County and filed the instant complaint in Philadelphia, naming Artis and Coker ("the second Philadelphia action"). Weiner served Coker with the complaint at her residence in Philadelphia.
Artis and Coker filed joint preliminary objections based on improper venue. See Prelim. Objs., 4/7/23, at ¶¶ 5-7 (citing, inter alia, Pa.R.Civ.P. 1006(e) and 1028(a)(1)). They also cited the principle of forum non conveniens and alleged Weiner engaged in improper forum shopping. See id. at ¶ 17 (citing, inter alia, Pa.R.Civ.P. 1006(d)(1)). In short, Artis and Coker asserted Weiner had no valid claim against Coker, and without the inclusion of Coker as a defendant, venue in Philadelphia could not be proper as against Artis. See id. Additionally, Artis and Coker filed a motion to dismiss Coker based on an affidavit of Coker's non-participation, wherein they asserted Coker was not a possessor of Artis's property and could not be held liable in an action for premises liability. See Mot. to Dismiss, 5/3/23, at ¶ 10. Weiner answered the preliminary objections and the motion to dismiss Coker, and he separately filed an affidavit stating that Philadelphia was a more convenient forum for him and his witnesses. See Praecipe to Supp., Aff. of Matthew Weiner, 5/26/23.
In the motion to dismiss based on the affidavit of Coker's non-participation, appellees also alleged Coker's duties to supervise staff only extended to the inside of the facility. See Mot. to Dismiss, 5/3/23, at ¶ 15.
Although Weiner objected to appellees' raising forum non conveniens in preliminary objections in his answers, he did not file a separate preliminary objection to the appellees' preliminary objections. His answers also addressed the merits of a forum non conveniens claim.
The trial court permitted the parties to take discovery on the question of venue; but Artis and Coker did not avail themselves to the opportunity to reply to Weiner's answers to the preliminary objections and motion to dismiss or present any additional evidence. At oral arguments before the trial court, Weiner's counsel explained that Weiner's employment agency had only recently assigned him to the facility before Weiner fell. See N.T., 7/31/23, at 5. Weiner fell in the parking lot toward the end of his shift, after taking out the trash, and then moving his car. See id. at 5-6. Weiner's counsel stated that, during discovery in Montgomery County, Artis indicated it would raise comparative negligence because, according to Artis's protocols, Weiner should not have been outside when he fell. See id. Upon learning of this intended defense, Weiner claimed Coker "improperly gave him instructions about what he needed to do and the safety protocols[ at the facility,]" and Coker could be held liable, along with Artis, because she participated in the negligence at issue. Id. at 5-7. Counsel for Artis and Coker maintained the participation theory did not apply to a premises liability case and Coker had no involvement in the case. Id. at 11-12.
Weiner filed a memorandum of law in response to Artis's motion to dismiss Coker. Therein, he also attached interrogatories answered by Artis during discovery in Montgomery County and an additional affidavit from Weiner. For the purpose of background to the arguments raised at the hearing, Artis, in its response to interrogatories, asserted Weiner had taken an unauthorized break due to the fact he should have been performing morning rounds and should have notified Coker if he was leaving his assigned area. See Weiner's Mem. of Law Contra Artis's Mot. to Dismiss Coker, 7/24/23, Ex. A (Interrogatories), at ¶¶ 18, 24. Additionally, Artis alleged that if Weiner had been taking out the trash, he should have done so at the end of rounds at 6:45 a.m., and not gone to his car. See id. Ex. A, at ¶ 18. In his additional affidavit, Weiner stated Coker told him he was responsible for taking out the trash. See id. Ex. B (Aff. of Matthew Weiner), at ¶ 5. He also averred Coker failed to mention he should do so at the end of his shift, the parking lot would not be plowed or treated until the shift change, and he should take breaks inside the facility, not outside the facility. See id. Ex. B, at ¶¶ 5, 7. He asserted that at 5:45 a.m., he asked Coker if he could take out the trash and move his car, and Coker gave him her okay. See id. Ex. B, at ¶ 6. Weiner claimed if Coker had given him proper training, instruction, and supervision and warned him about Artis's protocols, he would have waited until 7:00 a.m. when salting and deicing would have been complete. See id. Ex. B, at ¶ 7. Artis and Coker offered no evidence or additional legal responses to these allegations.
The trial court thereafter sustained appellee's preliminary objection and transferred the matter back to Montgomery County because (1) Weiner could not establish Philadelphia was a proper venue as to Artis, (2) Weiner failed to plead Coker's negligence under a participation theory of liability, and (3) Weiner engaged in improper forum shopping. See Trial Ct. Op., 6/22/23, at 3-7. As the majority ably explains, this was error. See Majority Memorandum at 10-17. Our courts distinguish the types of improper venue claims that can be raised in a preliminary objection under Rules 1006(e) and 1028(a) from improper forum shopping claims that should be raised in a petition pursuant to Rule 1006(d). See Zappala v. Brandolini Prop. Mgmt., Inc., 909 A.2d 1272, 1281 (Pa. 2006) ("Zappala I"); Zappala v. James Lewis Grp., 982 A.2d 512, 519 (Pa. Super. 2009) ("Zappala II"); accord Fessler v. Watchtower Bible &Tract Soc'y of New York, Inc., 131 A.3d 44, 53 (Pa. Super. 2015); Wilson v. Levine, 963 A.2d 479, 485 (Pa. Super. 2008). This is so because the rules governing proper or improper venue limit the types of objections that can be raised under Rule 1028(a), and none of those objections permit a court to examine the underlying merits of a claim against a named defendant. See Pa.R.Civ.P. 1006(a)-(b), 2179. Thus, a claim based on improper forum shopping, which "occurs when a plaintiff manufactures venue by naming and serving parties who are not proper defendants to the action for the purpose of manipulating the venue rules to create venue where it does not properly exist," will generally have to await litigation as part of a forum non conveniens petition. Zappala II, 982 A.2d at 521. Moreover, when funneling improper forum shopping claims into the doctrine of forum non conveniens, the moving defendant (Artis) must plead and prove the plaintiff's inclusion of the venue-creating defendant (Coker) was designed to harass the moving defendant. See id.
A defendant may disturb a plaintiff's selected venue when joint and several liability does not exist with another defendant. See Pa.R.Civ.P. 1006(c); Sehl v. Neff, 26 A.3d 1130, 1134 (Pa. Super. 2011).
Thus, I agree with the majority that Artis and Coker should have filed their claim of improper forum shopping as a separate petition alleging forum non conveniens. By failing to do so, Artis and Coker, as well as the trial court, muddled the forms, burdens, and standards applicable to raising an improper venue claim under Rule 1006(e), on the one hand, with an improper forum shopping claim under Rule 1006(d), on the other hand. See Zappala II, 982 A.2d at 521; Wilson, 963 A.2d at 487 ("a petition to transfer venue pursuant to Rule 1006(d)(1) should not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiff's chosen forum is oppressive or vexatious to the defendant") (citation and quotations marks omitted) (emphasis added).
To the extent we could review the trial court's finding of improper forum shopping at this stage of the proceeding, I believe there is at least some record support for the trial court's conclusion Weiner engaged in the type of strategy disapproved of by our Supreme Court in Zappala I and discussed further in Zappala II. See Zappala I, 909 A.2d at 1286 n.14; Zappala II, 982 A.2d at 521; see also Aerospace Fin. Leasing, Inc. v. New Hampshire Ins. Co., 696 A.2d 810, 813 n.11 (Pa. Super. 1997) (considering a forum non conveniens claim raised in preliminary objections where the opposing party did not file preliminary objections to the preliminary objections). Weiner had improperly commenced the first Philadelphia action against Artis without any basis to establish venue in Philadelphia. He then commenced this second Philadelphia action setting forth a claim against Coker and arguing a participant theory of liability, i.e., that Coker had undertaken actions that made her liable for the actions of Artis. Weiner's attempts to state a separate cause of action against Coker are, in my view, dubious, at best. Therefore, I believe this procedural history is relevant to whether Weiner attempted to "manufacture[] venue by naming and serving parties who are not proper defendants to the action for the purpose of manipulating the venue rules to create venue where it does not properly exist." See Zappala II, 982 A.2d at 521. Even so, this is not enough-Zappala II requires a detailed showing, and a court's finding, of a design to harass to sustain a transfer for forum non conveniens. See id.
In this case, I suggest Artis's and Coker's burden was to establish their claim of improper forum shopping with detailed information on the record that Coker was not, and could not have been, a proper defendant to the action, not simply that Weiner did not state a claim against her. See id. Artis and Coker, in my view, did not meet their burden. Therefore, while there may be some support for the finding of improper forum shopping in this case, the trial court's order sustaining preliminary objections and transferring the second Philadelphia action cannot stand. If, however, Artis and Coker, upon a proper forum non conveniens petition and further development can demonstrate Weiner had no possible cause of action against Coker, I believe a transfer may be appropriate.
The Zappala II standard requires a showing not only of improper forum shopping, but also a design to harass, which is in line with Zappala I. See Zappala II, 982 A.2d at 521 (quoting Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156, 162 (Pa. 1997) for the proposition that a "defendant may meet its burden of showing that the plaintiff's choice of forum is vexatious to him by establishing with facts of record that the plaintiff's choice of forum was designed to harass the defendants, even at some inconvenience to the plaintiff himself"). I would note that our courts have not yet had occasion to define a precise standard for determining when improper forum shopping will rise to the level of a strategy designed to harass the defendants seeking a transfer based on forum non conveniens. In Zappala I, the primary issue involved the moving defendants' attempt to resurrect the right to object to improper venue after the venue-creating defendants were dismissed upon unopposed motions for summary judgment. See Zappala I, 909 A.2d at 1276-77. In that decision, our Supreme Court remanded to afford the moving defendants to file forum non conveniens petitions to address a claim of "forum shopping." See id. at 1286 n.14. Following the remand in Zappala I, the moving defendants then filed forum non conveniens petitions but failed to raise a claim of improper forum shopping. See Zappala II, 982 A.2d at 523. The defendants only asserted improper forum shopping at oral arguments before the trial court, and they presented no evidence to support their contentions. See id. at 523-25. In Fessler, 131 A.3d at 53, the Court suggested a "sole or primary purpose to harass" standard; but, there, the inclusion of the venue-creating defendant was supported by the fact that the defendant settled with the plaintiff. See Fessler, 131 A.3d at 53. I suggest that if Artis and Coker are able to demonstrate Weiner frivolously included Coker, i.e., by naming and serving her as a defendant without any possible basis in fact or law to sustain his claim and did so for the sole purpose of manufacturing venue when it should not have existed, that alone should be enough. I believe permitting transfer in cases of frivolousness would be a modest limitation on a plaintiff's choice of venue while respecting the deference which must be accorded to a plaintiff's choice of venue. In my view, the doctrine of forum non conveniens can be flexible enough to act as "a necessary counterbalance to [e]nsure . . . fairness and practicality," where a plaintiff generally has no obligation to justify the bases for his preferred venue. See Bratic v. Rubendall, 99 A.3d 1, 6 (Pa. 2014) (citation omitted). In any event, it will be for a fact-finding court, upon a properly developed record and along with any additional evidence adduced by Artis and Coker, to determine whether the inclusion of Coker had any factual or legal basis, and whether Weiner's repeated attempts to hale Artis into Philadelphia would constitute a design to harass. See Wilson, 963 A.2d at 484 (noting a trial court has considerable discretion when considering whether the forum was designed to harass the defendant). I add that Weiner's desire to litigate in his home forum would not necessarily be a relevant factor. See id. at 487 (noting that the forum non conveniens standard already affords great weight and deference to the plaintiff's initial choice of forum and a court need not expressly weigh the relative convenience of the chosen forum to the parties).
For these reasons, I respectfully concur.