J-S26032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JOSEPH KINEE                     :         IN THE SUPERIOR COURT OF
                                     :              PENNSYLVANIA
                   Appellant         :
                                     :
                                     :
              v.                     :
                                     :
                                     :
    THOMAS J. VASSALOTTI AND IRINA   :         No. 3526 EDA 2018
    VASSALOTTI AND FREDERICK G.      :
    BETZ, THOMAS P. BETZ, RICHARD B. :
    BETZ, INDIVIDUALLY AND AS        :
    TRUSTEES OF ELEANOR N. BETZ      :
    RESIDUARY TRUST AND ELEANOR N. :
    BETZ RESIDUARY TRUST             :

               Appeal from the Order Entered October 31, 2018
     In the Court of Common Pleas of Philadelphia County Civil Division at
                   No(s): February Term, 2018, No. 00866


BEFORE:      PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                         FILED JUNE 04, 2019

       In this premises liability action, the plaintiff, Joseph Kinee (Kinee),

appeals an order of the Court of Common Pleas of the First Judicial District

sustaining preliminary objections to venue and transferring the case to

Montgomery County. We affirm.1




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*    Retired Senior Judge assigned to the Superior Court.

1An appeal may be taken as a matter of right from an order transferring the
matter to another court of coordinate jurisdiction. See Pa.R.App.P. 311(c).
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                                               I.

       Kinee allegedly slipped and fell on property located in Montgomery

County.    He asserted that the property was jointly owned and negligently

maintained by the defendants, Thomas J. Vassalotti and Irina Vassalotti;

Frederick G. Betz, Thomas P. Betz, and Richard B. Betz, individually and as

trustees of the Eleanor N. Betz Residuary Trust; and the Eleanor N. Betz

Residuary Trust (Property Owners). Kinee filed suit in Philadelphia County

despite the fact that none of the parties in the case resided there, and Property

Owners were all served with process in other counties.

       Property Owners filed preliminary objections to venue.      Significantly,

Frederick Betz averred in his preliminary objection that although he owned

property located at 8208 Pine Road, Philadelphia County, he did not maintain

an office or run a business from that address. He submitted a sworn affidavit

to that effect.

       Kinee filed an answer to Property Owners’ preliminary objections

contending that they could be sued in Philadelphia County because Frederick

Betz also owned and operated an apartment building in Philadelphia County

under a fictitious name, “Pine Road Court.”2 The document further showed



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2 In addition to suing Frederick Betz individually, Kinee also sued him in his
capacity as a trustee of the Eleanor N. Betz Residuary Trust. However,
Frederick’s Betz’s role as a trustee was not an asserted basis for venue and is
irrelevant for the purposes of this appeal.


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that Frederick Betz owned a business under that fictitious name but it did not

indicate which type of business entity it was.

      After holding an evidentiary hearing on the issue on October 31, 2018,

the trial court ruled that Frederick Betz’s business in Philadelphia County did

not establish venue in that forum and transferred the case to Montgomery

County.   Kinee appealed, and in his Rule 1925(b) Statement of Matters

Complained of, he asserted that the trial court erred because Frederick Betz

operated an unincorporated association in Philadelphia County, making venue

proper under Pennsylvania Rule of Civil Procedure 2156, which permits a

plaintiff to sue such an entity in counties where it regularly does business.

      The trial court explained in its Rule 1925(a) opinion that Frederick Betz’s

mere ownership of property in Philadelphia County did not entitle Kinee to sue

him there as an individual. See Trial Court Opinion, 1/31/2019, at 3-4. The

trial court reasoned that since Kinee did not sue Frederick Betz in the capacity

of an association member, it was irrelevant whether that defendant regularly

did business or owned property in Philadelphia County. Id.

      Kinee now presents two questions in his appellate brief, which we quote

below verbatim:

      1. Did the lower court err and abuse its discretion when defendant,
      Frederick G. Betz, owned property and had significant business
      contacts with Philadelphia County as he was the owner and
      manager of a nineteen-unit apartment complex in Philadelphia
      County and had registered the fictitious name of the complex
      listing the address in Philadelphia County?




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       2. Did the lower court err and abuse its discretion when it held
       that [Rule 2156(a)] did not apply because the fictitious name was
       not a named defendant although the facts showed that defendant,
       Frederick G. Betz, was the principal owner and operator of an
       apartment complex in Philadelphia County and regularly
       conducted business in Philadelphia County and was therefore
       subject to venue in Philadelphia County and the fictitious name
       itself cannot be a named party?

Appellant’s Brief, at 5.

                                               II.

                                               A.

       The issue in this appeal is one of venue, which “relates to the right of a

party to have the controversy brought and heard in a particular judicial

district.” Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003). The

venue of a court of common pleas is “generally prescribed by rules” of the

Pennsylvania Supreme Court. Id. (citing 42 Pa.C.S. § 931(c)). “[A]n action

against an individual may be brought in and only in a county in which 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[.]”            Pa.R.C.P. 1006(a)(1).3   A case


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3 Pennsylvania Rule of Appellate Procedure 402(a) provides that process
against an individual may be served through the following means:

       (1)    by handing a copy to the defendant; or

       (2)    by handing a copy




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involving the joint and several liability of multiple defendants may be brought

in any county in which venue is proper as to at least one defendant. See

Pa.R.C.P. 1006(c)(1).4

       Unlike in a suit against an individual, venue for actions against

unincorporated associations5 does not turn on where that entity may be

served. Instead, when the action is filed in a county other than where the


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              (i) at the residence of the defendant to an adult member of
              the family with whom he resides; but if no adult member of
              the family is found, then to an adult person in charge of such
              residence; or

              (ii) at the residence of the defendant to the clerk or manager
              of the hotel, inn, apartment house, boarding house or other
              place of lodging at which he resides; or

              (iii) at any office or usual place of business of the defendant
              to his agent or to the person for the time being in charge
              thereof.

Pa.R.App.P. 402(a).

4The standard of review is de novo as to a trial court’s ruling on a preliminary
objection to improper venue.         See Zappala v. Brandolini Property
Management, Inc., 909 A.2d 1272, 1280 (Pa. 2006). Although a plaintiff
generally may decide the forum in which to file suit, the issue of whether
venue in a given county is proper is treated the same way as a challenge to a
court’s jurisdiction to hear the case, which is an issue of law. See Deyarmin
v. Consol. Rail Corp., 931 A.2d 1, 10 (Pa. Super. 2007) (citing Kring v.
Univ. of Pittsburgh, 829 A.2d 673, 676 (Pa. Super. 2003)).

5 An “‘association’ means an unincorporated association conducting any
business or engaging in any activity of any nature whether for profit or
otherwise under a common name[.]” Pa.R.C.P. 2151.




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claims arose, the propriety of venue as to such an entity depends on where it

regularly operates:

       (a) Except as otherwise provided by Rule 1006(a.1) and by
       subdivision (b) of this rule, an action against an association
       may be brought in and only in a county where the
       association regularly conducts business or any association
       activity, or in the county where the cause of action arose or in a
       county where a transaction or occurrence took place out of which
       the cause of actions arose or in the county where 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.C.P. 2156(a) (emphasis added).6

                                               B.

       In this case, Kinee maintains that Rule 2156 makes venue proper in

Philadelphia County. He emphasizes the fact that Frederick Betz had for many

years done business in that forum under the fictitious name, “Pine Road

Court.” Under Kinee’s interpretation of the venue rules, an individual who

owns a business under a fictitious name may be treated as if he is an

unincorporated association because the individual and the business entity are

one and the same. See generally Burlington Coat Factory of Pa., LLC v.

Grace Constr. Mgmt. Co., LLC, 126 A.3d 1010, 1024 (Pa. Super. 2015)

(“The use of a fictitious name does not create a separate legal entity, but is




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6 “A business entity must perform acts in a county of sufficient quality and
quantity before venue in that county will be established.” Zampana–Barry
v. Donaghue, 921 A.2d 500, 503 (Pa. Super. 2007).

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merely descriptive of a person or corporation who does business under

another name.”).

      However, it cannot be inferred that an unincorporated association called

Pine Road Court exists just because Frederick Betz owned and operated a

business under that fictitious name. Pennsylvania law permits individuals to

operate a business under a fictitious name without creating an unincorporated

association or any other form of business entity. See 54 Pa.C.S. §§ 302-303

(allowing a fictitious name to be used for business purposes by an individual).

In similar scenarios, this Court has applied the venue rule for individuals to

parties who do business under a fictitious name. See e.g., Gilfor ex rel.

Gilfor v. Altman, 770 A.2d 341, 345 (Pa. Super. 2001) (“[Plaintiff] has failed

to cite any law, and our research does not disclose any law, permitting an

individual to be served in a county merely because he may conduct some

business in that county.”).

      Kinee failed to assert a valid factual or legal basis for venue in

Philadelphia County because he sued Frederick Betz as an individual. The

applicable venue provision as to that party is Rule 1006. Because Kinee’s

causes of action did not arise in Philadelphia County, and Frederick Betz was

not served there, venue does not lay in that forum. Moreover, Rule 2156 does

not apply because an individual does not become an unincorporated

association merely by using a fictitious name to own or manage property. See

Burlington Coat Factory of Pa., 126 A.3d at 1024; Gilfor, 770 A.2d at 345.


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     Accordingly, the trial court’s order sustaining Property Owners’

preliminary objections to venue and transferring the case to Montgomery

County is affirmed.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/19




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