J-A28034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JOHN FERGUSON                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    LINDA J. STENGLE, ESQUIRE,                 :   No. 3623 EDA 2016
    INDIVIDUALLY STENGLE LAW, THE              :
    ARRAS GROUP, INC., AND ROBERT              :
    MADSEN                                     :

                    Appeal from the Order October 12, 2016
      In the Court of Common Pleas of Philadelphia County Civil Division at
                              No(s): 150302491


BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                                FILED JANUARY 19, 2018

        Appellant, John Ferguson, appeals from the October 12, 2016 Order

entered in the Court of Common Pleas of Philadelphia County sustaining the

Preliminary     Objections    filed   by   Appellees,   Linda   J.   Stengle,   Esquire

(“Stengle”), Stengle Law, The Arras Group, Inc. (collectively, “Stengle

Law”), and Robert Madsen (“Madsen”), and transferring this case to

Montgomery County. After careful review, we affirm.

        This appeal pertains only to the issue of venue. Thus, we summarize

the relevant facts, as gleaned from the record and the trial court’s Opinion,

as follows.      Appellant1 retained Stengle, while she worked first as an
____________________________________________


1
    Appellant is a California resident living in Yuba City, California.
J-A28034-17



attorney at Kenney & McCaffery (“the Firm”),2         and later at her own firm,

Stengle Law,3 to represent him in a whistleblower lawsuit against Fifth Third

Bankcorp. Stengle filed this suit in the U.S. District Court for the Southern

District of New York.

        According to Appellant, while Stengle worked at the Firm, Appellant

“brokered a relationship” between Stengle and Madsen,4 which resulted in

Stengle representing Madsen in a separate whistleblower suit against Bank

of America, also filed in the U.S. District Court for the Southern District of

New York.       Appellant also alleged that Stengle informed him that, as a

broker for the relationship between Stengle and Madsen, Appellant was part

of the “client team.” Appellant, thus, believed that he was entitled to part of

Madsen’s $56 million share of the Bank of America settlement with

whistleblowers.

        When Stengle refused to meet Appellant’s demand, Appellant filed a

Writ of Summons against Appellees and the Firm in the Philadelphia County

Court of Common Pleas.           Prior to filing a Complaint, however, Appellant

settled his claims against the Firm and removed the Firm from the case

caption.
____________________________________________


2
  Kenney & McCaffery is a firm located in Blue Bell, Montgomery County.
The firm also maintains an office in Philadelphia.

3
    Stengle Law is located in Boyertown, Berks County.

4
    Appellee Madsen is a California resident living in Grass Valley, California.



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       On February 8, 2016, Appellant filed a nine-count Complaint against

Appellees, which the trial court characterized as raising legal malpractice

claims.    See Trial Ct. Op., 3/21/17, at 1.     Essentially, in his Complaint,

Appellant alleged that he is entitled to a portion of Madsen’s $56 million

dollar recovery obtained in an underlying qui tam whistleblower lawsuit

brought by Madsen against Bank of America.5 Appellant alleged that Stengle

and Stengle Law represented him, and that they conspired with Madsen to

cut Appellant out of his portion of the $56 million recovery.        Appellant

further alleged that Madsen’s attorneys received an estimated $19 million

dollars in legal fees as a result of this misconduct.

       On March 30, 2016, Appellees filed separate Preliminary Objections on

the basis of venue.6 Appellant filed Answers on April 19, 2016. Following a

hearing, on October 12, 2016, the trial court sustained the Preliminary




____________________________________________


5
  At the time Appellee Madsen filed the qui tam suit, Appellee Stengle
worked in the Firm’s office in Blue Bell, Pennsylvania. Appellee Stengle
subsequently formed her own practice in Boyertown, Berks County, Stengle
Law, where she continued to work for the Firm on this qui tam matter
pursuant to an agreement between her and the Firm.


6
  Appellees also separately raised a Preliminary Objection in the nature of a
demurrer pursuant to Pa.R.C.P. No. 1028(a)(4), alleging that Appellant had
failed to state a claim upon which he could be granted relief. The demurrer
portion of the Preliminary Objections is unresolved.




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J-A28034-17



Objections and ordered the case transferred to the Montgomery County

Court of Common Pleas. This timely appeal followed.7

       Appellant raises the following issue on appeal:

       Did the trial court erroneously conclude that venue was improper
       in Philadelphia County, when [Appellant’s] claims arose out of a
       contract for legal services that explicitly identifies Philadelphia as
       the venue for adjudicating any disputes, which [Appellant]
       entered into with [the Firm] that maintained an office in
       Philadelphia, represented clients in Philadelphia, performed legal
       work on matters filed in Philadelphia, held out the [Firm’s]
       [s]enior [p]artner who executed the contract as a “Philadelphia-
       based” attorney, and where [Appellees’] interests arose solely
       out of the contract.

Appellant’s Brief at 2-3.

       Our scope and standard of review of a trial court’s grant of preliminary

objections as to venue is as follows: “It is well established that a trial court’s

decision to transfer venue will not be disturbed absent an abuse of

discretion.” Fritz v. Glen Mills Schools, 840 A.2d 1021, 1023 (Pa. Super.

2003) (citation omitted). “[A] plaintiff must be allowed the right to choose

any appropriate forum: ‘The applicant bears the burden of proving that a

change of venue is necessary, while a plaintiff generally is given the choice

of forum so long as the requirements of personal and subject matter

jurisdiction are satisfied.’” O’Donnell v. McDonough, 895 A.2d 45, 47 (Pa.

____________________________________________


7
  The court did not order Appellant to file a Pa.R.A.P. 1925(b) Statement.
Appellant did not, however include an averment so indicating as required by
Pa.R.A.P. 2111(a)(11) and Pa.R.A.P. 2111(d).




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J-A28034-17



Super. 2006) (quoting Purcell v. Bryn Mawr Hospital, 579 A.2d 1282,

1284 (Pa. 1990)).       “Because the plaintiff's choice of forum is given great

weight, the moving party has the burden of proving that the original forum

is improper.”      Singley v. Flier, 851 A.2d 200, 201 (Pa. Super. 2004).

“However, a plaintiff’s choice of venue is not absolute or unassailable.”

Fritz, 840 A.2d at 1023 (citation omitted).           Indeed, the trial court has

substantial discretion in determining whether or not to grant a change of

venue. See Singley, 851 A.2d at 201. Accordingly, “[i]f there exists any

proper basis for the trial court's decision to grant the petition to transfer

venue, the decision must stand.” Id.

       Although Appellant only raises one question on appeal, the argument

section of his Brief contains two sub-issues. In the first sub-issue, Appellant

claims that venue is proper in Philadelphia County because Appellant and the

Firm had an agreement to litigate disputes in Philadelphia County, which the

Firm allegedly had assigned to Stengle.          Appellant’s Brief at 9-10.   In his

second sub-issue, Appellant claims that, in sustaining Appellees’ Preliminary

Objections, the trial court erroneously applied our rules of civil procedure

pertaining to venue to Stengle and Stengle Law.8 Id. at 12. See Pa.R.C.P.

Nos. 1006(a)(1) and 2179(a)(2).

____________________________________________


8
  Although Appellant filed an Answer in Opposition to Madsen’s Preliminary
Objections, he does not present any separate argument that trial court erred
in concluding that Philadelphia County is not the proper venue for his claims
against Madsen.



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J-A28034-17



      The crux of Appellant’s first sub-issue is that Philadelphia County is the

proper venue for this matter because “this legal malpractice action arises out

of a contract for legal services [(the “Retainer Agreement”)]” that explicitly

identifies Philadelphia as the venue for adjudicating disputes between

Appellant and the Firm. Appellant’s Brief at 9.

      In support of this claim, Appellant cites the terms of Paragraph U of

the December 30, 2010 Retainer Agreement between Appellant and the

Firm, which states:

      U. If a claim arises as a result of an alleged dispute, and the
      dispute involves Counsel, Clients agree that any such claim or
      dispute between Clients and Counsel will be submitted to
      binding arbitration conducted by the Philadelphia County
      Bar Association, and Clients agree to be bound by any and all
      decisions rendered.

Retainer Agreement, 12/30/10, at ¶ U (emphasis added).

      Additionally, implicitly acknowledging the significance of the fact that

the Firm is not a party to this matter, Appellant further claims—for the first

time on appeal—that the Firm effectively assigned its interests in the

Retainer Agreement with him to Stengle.       Appellant’s Brief at 6-7, 10-11.

Therefore, Appellant implies that the Philadelphia County venue clause

continued to remain in effect, and bound Stengle to litigation in Philadelphia,

even after Appellant had settled his claims with the Firm. Appellant is not

entitled to relief.

      Appellant’s claim that the Retainer Agreement is applicable on its face

as determinative of the proper venue fails. Simply, because the Firm is not

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J-A28034-17



a party to this action, the venue provision in the Retainer Agreement does

not apply to the instant case.     We also observe, that even if the venue

provision did apply, its application may likely preclude the Philadelphia

County Court of Common Pleas from hearing this case: Paragraph U requires

the submission of disputes to an arbitration panel of the county bar

association. See Pa.R.C.P. No. 1028(a)(6) (establishing the existence of an

agreement for alternative dispute resolution as grounds for Preliminary

Objections).

      With respect to Appellant’s novel argument that the Firm effectively

assigned its interest in the Retainer Agreement to Stengle, our review

indicates this theory is unsupported by the evidence of record.          Moreover,

and most importantly, Appellant has raised this issue for the first time on

appeal.   The issue is, thus, waived.       See Pa.R.A.P 302(a); Krentz v.

CONRAIL, 910 A.2d 20, 37 (Pa. 2006) (holding that arguments not raised

before the trial court cannot be raised for the first time on appeal).

      In his second sub-issue, Appellant claims that the trial court erred in

failing to consider Pa.R.C.P. No. 1006(a)(1) and Pa.R.C.P. No. 2179(a)(4),

instead analyzing the propriety of venue in Philadelphia County under

Pa.R.C.P. 2179(a)(2) as to all Appellees. Appellant’s Brief at 12. Appellant

baldly asserts that because the Retainer Agreement between him and the

Firm included a venue provision, it is “determinative for purposes of venue

analysis under [Pa.R.C.P. No. 1006(a)(1) and Pa.R.C.P. No. 2179(a)(4).”




                                      -7-
J-A28034-17



Id. Appellant has not developed this argument, nor has he cited any case

law in support of this claim.

      It is long-settled that failure to argue and to cite any authority

supporting the argument constitutes a waiver of the issue on appeal. See

Jones v. Jones, 878 A.2d 86, 90 (Pa. Super. 2005). This Court will not act

as counsel and will not develop arguments on behalf of an appellant. See

Bombar v. West American Insurance Company, 932 A.2d 78, 95 (Pa.

Super. 2007).    When deficiencies in a brief hinder our ability to conduct

meaningful appellate review, we can dismiss the appeal entirely or find

certain issues to be waived.    See Pa.R.A.P. 2101.   Because Appellant has

failed to develop this issue, he waived it.      See id.; see also Bombar,

supra at 95; Jones, supra at 90.

      Even if Appellant had not waived this issue, it would not merit relief.

The trial court properly analyzed the venue issue and concluded that the

parties lacked sufficient contact with Philadelphia County to establish

jurisdiction there. See Trial Ct. Op., at 3-7.

      Order affirmed. Jurisdiction relinquished.

      President Judge Gantman concurs in result.

      Judge Panella files a dissenting statement.




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J-A28034-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/19/2018




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