J-S17016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 STEPHANIE BROWN,                         :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 AUBORN TRANSPORTATION                    :    No. 3505 EDA 2017
 CORPORATION                              :

                 Appeal from the Order September 22, 2017
    In the Court of Common Pleas of Philadelphia County Civil Division at
                          No(s): No. 17-02-00226


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                                FILED MAY 08, 2019

      Appellant, Stephanie Brown, appeals from the order entered on

September 22, 2017, sustaining preliminary objections to venue filed by

Auborn Transportation Corporation (Auborn) and dismissing Appellant’s

complaint without prejudice. We affirm.

       The trial court summarized the facts and procedural history of this case

as follows:

      [Appellant] filed an amended complaint [in Philadelphia County]
      alleging that she was injured in a motor vehicle accident between
      herself and [a driver working for Auborn, which occurred on Route
      141 in Elmsworth, Delaware in April of 2015]. [Auborn] filed
      preliminary objections to the amended complaint alleging that
      venue was improper in Philadelphia County, as it does not
      regularly conduct business in Philadelphia. [Appellant] filed a
      response in opposition, arguing that [Auborn] conducts business
      in Philadelphia because [Auborn] is a trucking company and
      regularly utilizes Philadelphia County as a final destination and/or
      utilizes roadways within Philadelphia on its way to its final
J-S17016-19


      destination. [The trial] court sustained [Auborn’s] objections and
      dismissed [Appellant’s] complaint without prejudice to be refiled
      in a proper jurisdiction.

      [The trial] court granted [Appellant’s] timely motion for
      reconsideration, vacated its order, and scheduled a [] hearing for
      September 19, 2017. Following [the] hearing, [the trial] court
      issued its September 21, 2017 order, again, sustaining [Auborn’s]
      preliminary objections to venue. [Appellant] filed a motion for
      reconsideration of the September 21, 2017 order, which was
      denied. [Appellant] timely appealed and filed a court-ordered
      Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
      [The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on
      October 9, 2018.]

Trial Court Opinion, 10/9/2018, at 1-2 (superfluous capitalization and record

citations omitted).

      On appeal, Appellant presents the following issue for our review:

      Did the lower court err and/or abuse its discretion when it
      [sustained] [Auborn’s] preliminary objections as to improper
      venue and dismissed [Appellant’s] complaint without prejudice?

Appellant’s Brief at 4 (superfluous capitalization omitted).

      Appellant contends that the trial court erred by dismissing her complaint

without prejudice because the record did not adequately support that decision.

More specifically, she argues that her choice of forum was to be given great

weight and Auborn failed to meet its burden of asserting that venue was

vexatious or harassing to it.   Id. at 17-18.    Appellant maintains that she

served Auborn with specific discovery requests and scheduled depositions, but

that Auborn failed to comply. Id. at 15-16. As such, Appellant asserts that

“dismissing [her] complaint without giving [Appellant] the opportunity to

conduct discovery and without [Auborn] having offered any evidence that [it]



                                     -2-
J-S17016-19



does not conduct business in Philadelphia is extraordinarily prejudicial to

[Appellant] and improper[].” Id. at 19.

      We are guided by the following standards:

      The scope of review in determining whether a trial court erred in
      sustaining preliminary objections and dismissing a complaint is
      plenary.

      In determining whether the trial court properly sustained
      preliminary objections, the appellate court must examine the
      averments in the complaint, together with the documents and
      exhibits attached thereto, in order to evaluate the sufficiency of
      the facts averred. When sustaining the trial court's ruling will
      result in the denial of claim or a dismissal of suit, preliminary
      objections will be sustained only where the case is free and clear
      of doubt, and this Court will reverse the trial court's decision
      regarding preliminary objections only where there has been an
      error of law or an abuse of discretion.

Sulkava v. Glaston Finland Oy, 54 A.3d 884, 889 (Pa. Super. 2012)

(citation omitted).

      Pennsylvania Rule of Civil Procedure 2179 prescribes venue for personal

actions against corporations. See Pa.R.C.P. 1006(b) (“[a]ctions 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”). As is relevant to the current

appeal, Rule 2179(a)(2) declares: “a personal action against a corporation or




                                    -3-
J-S17016-19



similar entity may be brought in and only in . . . a county where it regularly

conducts business.” Pa.R.C.P. 2179(a)(2).1

       Our Supreme Court has held that the determination of whether a

corporation “regularly conducts business” in a particular county depends upon

the “quality” and “quantity” of the business conducted within the county.

Thus, for a corporation to “regularly conduct business” in a county:

         the business engaged in must be sufficient in quantity and
         quality. The term “quality of acts” means those directly
         furthering, or essential to, corporate objects; they do not
         include incidental acts. By “quantity of acts” is meant those
         which are so continuous and sufficient to be termed general
         or habitual. A single act is not enough.

Monaco v. Montgomery Cab Co., 208 A.2d 252, 256 (Pa. 1965) (corrections

and some quotations omitted), quoting Shambe v. Delaware & H.R. Co.,

135 A. 755, 757 (Pa. 1927).

       In essence, the venue criteria found at Rule 2179(a)(2) “provide[] a

theory of transient jurisdiction by counties in which the corporation is present

by virtue of its business activities or contacts.   In this circumstance, and

provided that the business contacts are more than incidental, a corporation

can be compelled to defend itself.” Purcell v. Bryn Mawr Hosp., 579 A.2d

1282, 1284 (Pa. 1990). The rationale and purpose of the rule is to “permit a

plaintiff to institute suit against the defendant in the county most convenient

for him and his witnesses” while, at the same time, assuring that “the
____________________________________________


1Rule 2179 lists other circumstances in which a plaintiff may properly bring a
personal action against a corporation in a certain county. See Pa.R.C.P. 2179.
However, none of the other provisions are applicable herein.

                                           -4-
J-S17016-19



corporation which has been sued ha[s] sufficient connection to the county.”

Burdett Oxygen Co. v. I.R. Wolfe & Sons, Inc., 249 A.2d 299, 302 (Pa.

1969) (quotations and citations omitted); Purcell, 579 A.2d at 1286.

       In this case, the trial court determined:

       On September 19, 2017, this court held a rule returnable hearing
       to show cause why [Auborn’s] [p]reliminary [o]bjections should
       not be granted as to the issue of venue. An order was issued
       notifying both parties that affidavits, depositions, and/or
       discovery, relevant to the question of venue would be accepted by
       the [trial c]ourt.[2] [Appellant] did not provide admissible
       evidence, deposition testimony, nor any affidavits to show cause
       why venue was proper in Philadelphia. [Appellant] alleged that
       [she] did not have any evidence because [Auborn] failed to
       respond to [her] discovery requests specific to venue. [Appellant]
       had ample time to conduct an investigation into [Auborn’s]
       contacts with Philadelphia and file a motion to compel if necessary.

Trial Court Opinion, 10/9/2018, at 3.

       Upon review, we agree that the trial court gave Appellant sufficient time

to conduct discovery in this matter and Appellant did not follow the proper

procedure to compel Auborn to comply with her discovery requests. Appellant

filed her complaint in February of 2017 and did not complete discovery by

June of 2017, when the trial court initially sustained Auborn’s original

preliminary objections.         Thereafter, the trial court granted Appellant
____________________________________________


2   The trial court entered an order on July 6, 2017 granting Appellant
reconsideration of its prior order sustaining Auburn’s preliminary objections.
The trial court scheduled a rule returnable hearing for August 8, 2017. The
order specified that the trial court “will accept [a]ffidavits or deposition
evidence and upon application, for cause shown, testimony relevant to the
question of venue.” Trial Court Order, 7/6/2017, at *1. The rule returnable
hearing for August 8, 2017 was later rescheduled, upon Appellant’s request,
for September 19, 2017.

                                           -5-
J-S17016-19



reconsideration and gave Appellant additional time to complete discovery.

Appellant, however, did not avail herself of the opportunity.        She even

requested a continuance of the rule returnable hearing and still did not procure

discovery.   Appellant should have asked the trial court to enter an order

directing Auborn to produce any requested discovery items and/or a request

for additional sanctions pursuant to Pa.R.C.P. 4019.        Instead, Appellant

appeared for the rule returnable hearing without any evidence to support her

claim that Philadelphia was a proper venue. Appellant does not challenge the

trial court’s determination that procedural avenues were available to her and

that she did not avail herself of them. As such, aside from her bald allegation

in her complaint, there is no evidence to suggest that Philadelphia is a proper

venue.

      Next, Appellant argues that the trial court erred by allowing Auborn to

submit a revenue report, as a business record exception to hearsay, in support

of its preliminary objections to venue. Id. at 20-23. She claims that Auborn

“failed to disclose when this revenue report was created, the method used to

create it, the sources of information used to create it, and other relevant

information.” Id. at 23.

      It is well established that:

      In reviewing evidentiary decisions, [our Supreme] Court has
      repeatedly emphasized that the admissibility of evidence is within
      the sound discretion of the trial court, which appellate courts will
      not disturb absent an abuse of discretion or error of law. An abuse
      of discretion may not be found merely because an appellate court
      might have reached a different conclusion, but instead requires


                                     -6-
J-S17016-19


      demonstration that the lower court's decision was a result of
      manifest unreasonableness, or partiality, prejudice, bias, or ill-
      will, or such lack of support from the evidence or the record so as
      to be clearly erroneous.

                           *            *            *

      Our rules of evidence mandate that a witness may testify to a
      matter only if the witness has personal knowledge of the matter.
      Pa.R.E. 602. Moreover, Pennsylvania's rule against hearsay
      provides that a statement, which includes a written assertion, is
      excludable if the person who made the statement does not make
      it while testifying at the current trial and if the evidence is offered
      to prove the truth of the matter asserted in the statement. Pa.R.E.
      801, 802.

                           *            *            *

      Nevertheless, evidence may be admissible, despite its hearsay
      attributes, if it falls within an exception established by [our
      Supreme] Court's rules or by statute. Pa.R.E. 802. […] [The
      Supreme] Court has observed that exceptions to the rule against
      hearsay have developed to allow the admission of specified types
      of evidence based upon (1) the necessity for such evidence, and
      (2) the circumstantial probability of its trustworthiness.

      In regard to the business records exception, the circumstantial
      trustworthiness arises from the regularity with which business
      records are kept and the reliance that businesses place on the
      accuracy of those records.

Bayview Loan Servicing LLC v. Wicker, 2019 WL 1388516, at *6–7 (Pa.

2019) (internal case citations and quotations omitted). When proffered, the

“opponent” of the business record must “show that the source of information

or other circumstances indicate a lack of trustworthiness.” Pa.R.E. 803(6)(E).

      On this issue, the trial court determined:

      […Appellant] failed to meet the burden of proof [to show lack of
      trustworthiness in the revenue report introduced by Auborn]. The
      revenue report had markings which indicated the report was


                                       -7-
J-S17016-19


      printed from [its] [c]ompany website by Sherrie Goorahoo, the
      corporate designee. It is the regular practice of [Auborn] to
      generate such reports. Thus, the report is the type of record
      encompassed by the Rule. Based on evidence presented, [Auborn]
      met its burden of showing that [its] contacts with Philadelphia did
      not meet the quality and quantity of contacts necessary to render
      venue properly.

Trial Court Opinion, 10/9/2018, at 4-5.

      Upon review, we discern no abuse of discretion in admitting the revenue

report into evidence. Notably, Appellant does not challenge the trial court’s

determination that the revenue report was a regularly kept record Auborn

relied upon for its accuracy. Moreover, aside from merely stating that the

report failed to disclose when and how it was created, Appellant failed to show

that the source of the information or other circumstances indicate a lack of

trustworthiness pursuant to Pa.R.E. 803(6)(E). As such, we discern no abuse

of discretion in allowing Auborn to use its revenue report to refute venue in

Philadelphia.   Accordingly, for all of the foregoing reasons, we discern no

abuse of discretion or error of law in sustaining Auborn’s preliminary

objections to venue and dismissing Appellant’s complaint without prejudice.

      Order affirmed.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/19


                                     -8-
