J-S57002-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

GEORGE    HARTWELL  AND    ERMA         : IN THE SUPERIOR COURT OF
HARTWELL, INDIVIDUALLY AND AS           :      PENNSYLVANIA
CO-ADMINISTRATORS OF THE ESTATE         :
OF   ZACHARY     D.   HARTWELL,         :
DECEASED,                               :
                                        :
                 Appellants             :
                                        :
           v.                           :
                                        :
BARNABY’S WEST CHESTER D/B/A            :
BARNABY’S OF AMERICA AND ANDREW         :
J. DONAGHY AND RONALD DUNN, CO-         :
ADMINISTRATORS OF THE ESTATE OF         :
RYAN M. DUNN, DECEASED,                 :
                                        :
                 Appellees              : No. 25 EDA 2013

              Appeal from the Order dated November 15, 2012,
                Court of Common Pleas, Philadelphia County,
                Civil Division at No. 0300 August Term, 2012

BEFORE: DONOHUE, MUNDY and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                    FILED DECEMBER 22, 2014

     Appellants, George and Erma Hartwell (“the Hartwells”), appeal from

the November 15, 2012 orders of the Court of Common Pleas of Philadelphia

County sustaining the preliminary objections of Appellees Andrew J.

Donaghy and Ronald Dunn, as co-administrators of the Estate of Ryan M.

Dunn (“the Administrators”), and Barnaby’s West Chester, Inc. d/b/a

Barnaby’s of America bar and restaurant (“Barnaby’s”), and transferring

venue of this case to Chester County.1 We affirm.


1
  Appellate jurisdiction is proper under Pa.R.A.P. 311(c) which grants an
appeal as of right from an order changing venue.
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        The facts of this case arise from a single vehicle accident on June 20,

2011 at approximately 2:30 a.m. in West Goshen Township, Chester County,

Pennsylvania. Zachary D. Hartwell was a front seat passenger in a vehicle

driven by Ryan M. Dunn. Prior to the accident, Mr. Dunn and Mr. Hartwell

were at the Barnaby’s restaurant and bar located at 15 South High Street,

West Chester, Pennsylvania. As a result of the accident, both Mr. Dunn and

Mr. Hartwell died.

        The Hartwells, who are Mr. Hartwell’s parents, filed a wrongful death

and survival action in Philadelphia County on August 7, 2012, alleging that

Mr. Dunn operated his vehicle negligently, recklessly, and in an intoxicated

condition, and that Barnaby’s served alcohol to Mr. Dunn while he was

visibly intoxicated in violation of the Pennsylvania Dram Shop Act. 2

Appellant’s Brief at 4. The Administrators were served with the complaint in

Delaware County, and Barnaby’s was served at its Chester County location.

The    Administrators   filed   preliminary   objections   to   the   complaint    on

September      7,   2012,   and   Barnaby’s    filed   preliminary    objections   on

September 21, 2012.         Both parties’ preliminary objections challenged the

Hartwells choice of venue, arguing that venue was improper in Philadelphia

County because both Mr. Hartwell and Mr. Dunn were residents of Chester

County; the accident took place in Chester County; and none of Barnaby’s




2
    47 Pa.C.S.A §§ 4-493, 4-497.


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four establishments are located within Philadelphia County.3 The Hartwells

filed a response to the Administrators’ preliminary objections, but did not file

a response or preliminary objections to Barnaby’s untimely preliminary

objections.4

        On November 15, 2012, the trial court entered orders sustaining the

preliminary objections of the Administrators and Barnaby’s, respectively, and

transferred the case to Chester County.       The Hartwells filed a motion for

reconsideration on November 30, 2012 requesting that discovery be

conducted on the issues raised by the preliminary objections.          Appellants’

Brief at 6.     On December 14, 2012, before the trial court ruled on this

motion, the Hartwells filed a notice of appeal.      On January 22, 2013 the

Hartwells filed their concise statement of matters complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and the trial court issued its Pa.R.A.P.

1925(a) opinion on January 21, 2014.

        The Hartwells raise three issues for our review:5

               1. Whether the trial court committed an abuse of
                  discretion, misapplication of the law and/or acted
                  in a manifestly unreasonable manner by failing to
                  find that Barnaby’s waived the issue of improper


3
  Barnaby’s maintains one establishment in Chester County and three more
in Delaware County.
4
  Both appellees’ preliminary objections were endorsed with a notice to
plead. See Barnaby’s Preliminary Objections, 9/21/12, at 1; Administrators’
Preliminary Objections, 9/7/12, at 1.
5
    We have reordered the issues for ease of disposition.


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               venue by failing to file timely preliminary
               objections within 20 days of service of the
               complaint?

            2. Whether the trial court committed an abuse of
               discretion, misapplication of the law and/or acted
               in a manifestly unreasonable manner in
               transferring   venue     in   this   matter   from
               Philadelphia County to Chester County on the
               basis of improper venue […] where the only
               parties who filed timely preliminary objections
               objecting to venue […] failed to demonstrate
               record evidence of a need to change venue on the
               basis of improper venue?

            3. Whether the trial court committed an abuse of
               discretion, misapplication of the law and/or acted
               in a manifestly unreasonable manner by failing to
               order discovery regarding the extent of Barnaby’s
               business contacts in plaintiff’s chosen venue,
               Philadelphia County, as is required by Pa.R.Civ.P.
               1028(c) where a disputed issue of fact is raised
               by preliminary objections?

Appellants’ Brief at 1.

      Our standard of review for a transfer of venue is well settled:

            While a plaintiff’s choice of forum is given great
            weight and a defendant has the burden in asserting
            a challenge to venue, the decision whether or not to
            transfer venue is within the trial court’s discretion;
            thus, we will not overturn that decision absent an
            abuse of that discretion. Further, each case must
            depend on its own facts. Lastly, if there exists any
            proper basis for the trial court’s decision to grant the
            petition to transfer venue, the decision must stand.

Kubik v. Route 252, Inc., 762 A.2d 1119, 1122-23 (Pa. Super. 2000)

(internal quotations and citations omitted).




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      First, we address the Hartwells’ claim that the trial court erred by not

finding that Barnaby’s waived its challenge to venue because its preliminary

objections were untimely.      Pennsylvania Rule of Civil Procedure 1028

governs   preliminary   objections.   It   provides,   in   relevant   part,   that

“[p]reliminary objections may be filed by any party to any pleading and are

limited to the following grounds: (1) lack of jurisdiction over the subject

matter of the action or the person of the defendant, improper venue or

improper form or service of a writ of summons or a complaint[.]” Pa.R.C.P.

1028(a)(1).     Preliminary objections must be filed within 20 days after

service of the preceding pleading.     Pa.R.C.P. 1026(a).      However, when a

party fails to object to the timeliness of an adverse party’s preliminary

objections, he has waived the issue of untimeliness and the trial court may

decide the preliminary objections on the merits. Richmond v. McHale, 35

A.3d 779, 782 (Pa. Super. 2012) (“[T]he failure of the opposing party to file

preliminary objections to the defective preliminary objections … waives the

procedural defect and allows the trial court to rule on the preliminary

objections.).

      In this case, it is undisputed that the preliminary objections filed by

Barnaby’s were untimely, as Barnaby’s was served with the complaint on

August 15, 2012 but did not file its preliminary objections until September

21, 2012, which is more than 20 days after service of the complaint.

However, the Hartwells made no objections to the untimeliness of the



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preliminary objections filed by Barnaby’s,6 and only filed a response to the

Administrators’ preliminary objections.       The lack of objection by the

Hartwells   to   Barnaby’s   preliminary   objections   waived   the   issue    of

untimeliness, and so the preliminary objections filed by Barnaby’s were

properly before the trial court.7 See Hubbard, 406 A.2d at 1123.

      Moreover, “[a]verments in a pleading to which a responsive pleading is

required are admitted when not denied specifically or by necessary

implication.” Pa.R.C.P. 1029(b). Therefore, because the Hartwells failed to

respond to Barnaby’s preliminary objections, they not only waived the issue

of their untimeliness, but also admitted the facts averred therein.            See

Action Industries, Inc. v. Wiedeman, 346 A.2d 798, 800 (Pa. Super.

1975). In its preliminary objections, Barnaby’s avers that it has never



6
  The proper procedure to raise the issue of timeliness would have been for
the Hartwells to file preliminary objections to Barnaby’s preliminary
objections, alleging the failure of Barnaby’s pleading to conform to law or
rule of court. See Richmond, 35 A.3d at 782; Pa.R.C.P. 1028(a)(2).
7
   The Hartwells also fail to recognize that failure by one defendant to timely
object to improper venue does not preclude other defendants from raising
the issue, as this would “unilaterally deprive an adverse party of a personal
right to object to an improper forum.” Schultz v. MMI Products, Inc., 30
A.3d 1224, 1229 (Pa. Super. 2011). Therefore, as a general matter, as long
as one defendant raises the issue of improper venue in a timely preliminary
objection, the issue is not waived. Id. Here, it is undisputed that the
Administrators filed timely preliminary objections to venue in Philadelphia
County. Even if Barnaby’s preliminary objections were struck as untimely,
thus waiving their objections to the Hartwell’s choice of venue, the issue of
improper venue was timely raised by the Administrators’ preliminary
objections and therefore would have properly been before the court for
disposition.


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“maintained offices … engaged in specific marketing activities, employed

sales representatives, conducted targeted advertising, or otherwise regularly

conducted business in Philadelphia County.”         See Barnaby’s Preliminary

Objections, 9/21/2012, at 3.8     Accordingly, these facts are deemed to be

admitted by the Hartwells, and therefore are uncontroverted facts of record

in this case.

      In their second claim, the Hartwells argue that the Administrators, “the

only parties who filed preliminary objections within twenty [] days of service

of the complaint[,]” failed to provide “facts of record evidence ‘by deposition

or otherwise’ to disturb [Hartwells’] choice of venue” as required by

Pa.R.A.P. 1028(c)(2). Appellants’ Brief at 9.

      Rule 1028(c)(2) provides that “[t]he court shall determine promptly all

preliminary objections. If an issue of fact is raised, the court shall consider

evidence by depositions or otherwise.”           Pa.R.C.P. 1028(c)(2).      It is

apparently the Hartwells’ position that there is an issue of fact with regard

to whether Barnaby’s has business contacts in Philadelphia County, as they

state that although the Administrators “cited the alleged lack of business

activities of [Barnaby’s] … [they] [did not] set forth any affidavit, deposition


8
   We note that Barnaby’s attached the affidavit of Michael P. Gallen,
Secretary of Barnaby’s, to its preliminary objections. The averments in the
affidavit state, in relevant part, that all of the Barnaby’s locations are outside
of Philadelphia County and that Barnaby’s has never “maintained offices,
engaged in specific marketing activities, employed sales representatives,
conducted targeted advertising, or otherwise regularly conducted business in
Philadelphia County[.]” Affidavit of Michael P. Gallen, 9/13/12, ¶¶ 4-10.


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testimony or other evidence to support their assertions of Barnaby’s lack of

business activities in the chosen forum[.]”   Id.   As discussed above, as a

result of the Hartwells’ failure to respond to the preliminary objections filed

by Barnaby’s, the Hartwells admitted the averments contained therein,

including its averments that it conducts no business activities in Philadelphia

County.   See Barnaby’s Preliminary Objections, 9/21/2012, at 3.         Thus,

there was no issue of fact that would require evidence “by deposition or

otherwise” pursuant to Pa.R.C.P. 1028(c)(2).9

      In their final issue, the Hartwells argue that the trial court erred by

failing to order discovery regarding the business contacts Barnaby’s has in

Philadelphia County. Appellants’ Brief at 12. The Hartwells’ argument again

proceeds on the premise that there was no evidence of record regarding this

matter.   See id. at 12-15.   For the reasons stated above, this premise is

incorrect and there was no need for discovery to be taken.


9
   The only remaining basis to support the Hartwells’ claim that Barnaby’s
regularly conducts business in Philadelphia County is their assertion that
Barnaby’s might purchase goods, materials, or supplies from vendors
located in Philadelphia County. See Hartwell’s Response to Administrator’s
Preliminary Objections, 10/1/2012, at 5-6. There is no specific averment
denying that Barnaby’s purchases goods from Philadelphia County vendors in
its preliminary objections or in the affidavit attached thereto. However, this
Court has previously held that such contacts alone are not a sufficient basis
for proper venue. Kubik, 762 A.2d at 1125-26 (“Restaurant's purchase of
goods in Philadelphia County does not constitute regularly conducting
business” so as to permit a finding that venue was proper in Philadelphia
County). Thus, even if the Hartwells were able to establish that Barnaby’s
purchased goods from vendors located in Philadelphia County, it would still
not establish a basis for venue in that county.



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      Finally, to the extent that the Hartwells argue that the trial court

abused its discretion by failing to grant its motion for reconsideration, which

requested leave for discovery, we do not agree. The trial court denied the

Hartwells motion for reconsideration as moot, citing Rule 1701(a)10 as the

basis for its ruling.   Trial Court Order, 2/5/2013.        The trial court was

incorrect insofar is it concluded that it was without the authority to act

simply because the Hartwells filed a notice of appeal before it ruled on their

motion.    Pennsylvania Rule of Appellate Procedure 1701(b)(3) gives

authority to the trial court to “[g]rant reconsideration of the order which is

the subject of the appeal or petition.” Pa.R.A.P. 1701(b)(3). It provides:

            (b) Authority of a trial court or agency after
            appeal. After an appeal is taken … the trial court or
            other government unit may:

                                      ***

            (3) Grant reconsideration of the order which is the
            subject of the appeal or petition, if:

                   (i) an application for reconsideration of the
            order is filed in the trial court or other government
            unit within the time provided or prescribed by law;
            and
                   (ii) an order expressly granting reconsideration
            of such prior order is filed in the trial court or other
            government unit within the time prescribed by these
            rules for the filing of a notice of appeal or petition for
            review of a quasijudicial order with respect to such



10
   Pennsylvania Rule of Appellate Procedure 1701(a) states that “after an
appeal is taken … the trial court or other government unit may no longer
proceed further in the matter.” Pa.R.A.P. 1701(a).


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            order, or within any shorter time provided or
            prescribed by law for the granting of reconsideration.

Pa.R.A.P. 1701(b)(3). It further provides that “[a] timely order granting

reconsideration under this paragraph shall render inoperative any such

notice of appeal or petition for review of a quasijudicial order theretofore or

thereafter filed or docketed with respect to the prior order.” Id. As such,

the trial court erred as a matter of law in its conclusion that the filing of the

notice of appeal rendered the motion for reconsideration moot.         However,

“[i]t is well settled that where the result is correct, an appellate court may

affirm a lower court's decision on any ground without regard to the ground

relied upon by the lower court itself." Boyer v. Walker, 714 A.2d 458, 463

n.10. (Pa. Super. 1998).        As discussed above, there was undisputed

evidence of record that Barnaby’s never “maintained offices … engaged in

specific marketing activities, employed sales representatives, conducted

targeted   advertising,   or   otherwise   regularly   conducted   business    in

Philadelphia County[,]” see Barnaby’s Preliminary Objections, 9/21/2012, at

3, and the remaining basis upon which the Hartwells asserted venue – the

purchase of goods or services from Philadelphia County vendors – is

insufficient as a matter of law to establish venue. Kubik, 762 A.2d at 1125-

26.   Accordingly, on this basis, we affirm the trial court’s denial of the

Hartwell’s motion.




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      Having found no merit to the Hartwell’s claims, we affirm the orders of

the trial court.

      Orders affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2014




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