J-A18019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SUZETTE BENET, Administrator of the     :             PENNSYLVANIA
Estate of Gilberto Alvarez,             :
                                        :
                  Appellant             :
                                        :
           v.                           :
                                        :
LLOYD THOMAS, HAYDN THOMAS              :
AND/OR THE OUTDOORSMAN, INC.,           :
                                        :
                  Appellees             :          No. 1484 MDA 2014

              Appeal from the Order entered on August 18, 2014
               in the Court of Common Pleas of Luzerne County,
                        Civil Division, No. 14-CV-01427

BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED AUGUST 07, 2015

     Suzette Benet (“Benet”), Administrator of the Estate of Gilberto

Alvarez (“Alvarez”), appeals from the Order granting the Preliminary

Objections filed by Lloyd Thomas (“Lloyd”), Haydn Thomas (“Haydn”),

and/or The Outdoorsman, Inc. (“The Outdoorsman”) (collectively “the

Defendants”), and transferring venue of Benet’s action to the Susquehanna

County Court of Common Pleas. We affirm.

     Benet’s wrongful death/negligence action arises out of a shooting that

occurred on February 11, 2012, at 114 Pine Ayre Drive, Hallstead,
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Susquehanna County (hereinafter “the Pine Ayre property”).1         Haydn and

Lloyd (father and son, respectively) were the sole shareholders and

employees of The Outdoorsman, a Pennsylvania corporation registered in

Kingsley, Susquehanna County.      The Outdoorsman was engaged in the

business of buying, selling, and trading firearms and accessories with its

customers.    The Outdoorsman operated its business out of a small shop

attached to a residence situated upon the Pine Ayre property. Haydn lived in

this residence, though he was not at the Pine Ayre property at the time of

the shooting. The Outdoorsman has no other business location.

     In February 2012, Benet, a resident of Florida, filed a Complaint

against the Defendants in the Luzerne County Court of Common Pleas, on

behalf of the Estate of her son, Alvarez.2     At the time Benet filed the

Complaint, Lloyd’s listed address was the Susquehanna County Correctional

Facility. Haydn’s listed address remained the Pine Ayre property.




1
  As the instant appeal concerns only venue in Benet’s action, the facts
concerning the shooting are not germane to this appeal. However, we
observe that Lloyd shot and killed Alvarez and his companion, Joshua Rogers
(“Rogers”), while Alvarez and Rogers were on the Pine Ayre property.
2
  Around the same time, the Estate of Rogers filed a separate action against
the same Defendants in the Lackawanna County Court of Common Pleas,
docketed at Civil Action 2012-1464 (hereinafter, “the Lackawanna lawsuit”).
See Trial Court Opinion, 1/4/14, at 2 (referencing the Lackawanna lawsuit).
Concerning the Lackawanna lawsuit, Lloyd alleges in his brief that “the
Estate of … Rogers is represented, and has been represented throughout its
duration[,] by the same counsel as is now representing the Estate of []
Alvarez herein.” Brief for Lloyd at 2.


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      In March 2014, the Defendants separately filed Preliminary Objections

to Benet’s Complaint, alleging, inter alia, improper venue in Luzerne County.

The Defendants argued that venue must be transferred to Susquehanna

County, since (1) the shooting that formed the basis of Benet’s claims

occurred in Susquehanna County; (2) Lloyd and Haydn personally reside in

Susquehanna County; and (3) The Outdoorsman was registered and

maintained its sole place of business in Susquehanna County. Attached to

the   Preliminary   Objections   was   a   “Verification”   executed   by   Haydn

(hereinafter “the Verification”), stating, inter alia, that The Outdoorsman (1)

“is a business operated from [the Pine Ayre property] that sells, buys and

trades guns and accessories from the [Pine Ayre property]”; (2) “has no

business location in Luzerne County and has never done business in Luzerne

County”; (3) “appears occasionally at gun shows but has never appeared at

a gun show in Luzerne County”; and (4) “does not advertise in Luzerne

County and does not solicit customers from Luzerne County.”                   The

Verification (Exhibit B    to    Preliminary Objections of Haydn and The

Outdoorsman), 3/18/14, at ¶¶ 2-5.

      After a hearing, the trial court entered its August 18, 2014 Order,

sustaining the Preliminary Objections as to venue, and ordering that the




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case be transferred to the Susquehanna County Court of Common Pleas.3

Benet timely filed a Notice of Appeal from this Order.

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

“Whether the trial court erred in transferring venue from a county where a

corporation buys 90-95% of its guns[,] and the corporation’s business

purpose is to buy, sell and trade guns?” Brief for Appellant at 8.

      A trial court “is vested with discretion in determining whether to grant

a preliminary objection to transfer venue, and we shall not overturn a

decision to grant or deny absent an abuse of discretion.”            Searles v.

Estrada, 856 A.2d 85, 88 (Pa. Super. 2004).4        The burden rests on the

party challenging the plaintiff’s choice of venue to show that it was

improper.   Wimble v. Parx Casino & Greenwood Gaming & Entm’t,

Inc., 40 A.3d 174, 177 (Pa. Super. 2012). However, “the presumption in

favor of a plaintiff’s choice of forum has no application to the question of

whether venue is proper in the plaintiff’s chosen forum; venue either is or is

not proper.”   Scarlett v. Mason, 89 A.3d 1290, 1292 (Pa. Super. 2014).


3
  See Pa.R.C.P. 1006(e) (providing that “[i]f 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.”).
4
  When ruling on a preliminary objection alleging improper venue, “the court
relies on facts raised by deposition or otherwise.” McMillan v. First Nat.
Bank of Berwick, 978 A.2d 370, 373 (Pa. Super. 2009) (citation omitted);
see also Pa.R.C.P. 1028(c)(2) (providing that “[i]f an issue of fact is raised
[in a preliminary objection], the court shall consider evidence by depositions
or otherwise.”).


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“[A] trial court’s determination depends on the facts and circumstances of

each case and will not be disturbed if the trial court’s decision is reasonable

in light of those facts.” Searles, 856 A.2d at 88.

      In the instant case, Benet contends that venue is proper in Luzerne

county based upon the activities of The Outdoorsman.5 Venue, with regard

to personal actions against Pennsylvania corporations, is governed by

Pennsylvania Rule of Civil Procedure 2179(a), which provides that such

actions may be brought in and only in

      (1) the county where its registered office or principal place of
      business is located;

      (2) a county where it regularly conducts business;

      (3) the county where the cause of action arose;

      (4) a county where a transaction or occurrence took place out of
      which the cause of action arose, or

      (5) a 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. 2179(a) (emphasis added).

      Benet argues that The Outdoorsman regularly conducts business in

Luzerne County, and that venue as against all of the Defendants is therefore

proper in Luzerne County under Rule 2179(a)(2). Brief for Appellant at 12-

16; see also Reply Brief for Appellant at 4.         Benet cites to Canter v.

American Honda Motor Corp., 231 A.2d 140 (Pa. 1967), wherein our

5
  Benet does not assert that Lloyd or Haydn provide a basis for venue in
Luzerne County.


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Supreme Court stated that, where venue depends upon the factor of

regularly conducting business, the business engaged in must be sufficient in

“quantity” and “quality.” Id. at 142; see also Brief for Appellant at 13-14.

The Canter Court explained that (1) quality of acts means those directly

furthering, or essential to, corporate objects, and do not include incidental

acts; and (2) quantity of acts means those which are so continuous and

sufficient to be termed general or habitual. Canter, 231 A.2d at 142; see

also id. at 143 (holding that a foreign corporation doing just 1-2% of its

total sales in Philadelphia County was sufficient to satisfy this test, such that

venue in Philadelphia County was proper).

      Benet argues that the quantity component has been satisfied in this

case, based upon Haydn’s deposition testimony in the Lackawanna lawsuit

that The Outdoorsman purchased 90-95% of its firearms from a supplier

located in Luzerne County.     Brief for Appellant at 14 (citing Deposition of

Haydn, 7/1/13, at 96-97). Benet contends that the quality component was

also met, relying upon Haydn’s statement in the Verification that “The

Outdoorsman [] is a business operated from [the Pine Ayre property] that

sells, buys and trades guns and accessories from the [Pine Ayre property].”

Brief for Appellant at 15 (quoting the Verification (Exhibit B to Preliminary

Objections of Haydn and The Outdoorsman), 3/18/14, at ¶ 2) (emphasis

added by Benet)). Benet argues that, therefore, “if The Outdoorsman [] is

in the business of buying guns[,] and that is its corporate objective[,] then it



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would clearly seem that this has met the qualitative prong of the venue

analysis[,] when it buys 90% to 95% of its guns from squarely within

Luzerne County.”      Brief for Appellant at 15.    Accordingly, Benet contends

that “venue according to Rule 2179[(a)(2),] as well as the quality-quantity

test[,] is satisfied and venue must remain in Luzerne County.” Id. at 17.

      After review, we agree with the trial court that our Pennsylvania

Supreme Court’s decision in Purcell v. Bryn Mawr Hosp., 579 A.2d 1282

(Pa. 1990), is applicable and controlling. In that case, the plaintiff filed a

negligence action in Philadelphia County arising from events that occurred at

Bryn Mawr Hospital, which is located in Montgomery County.               See id. at

1283. The Purcell Court held that the trial court abused its discretion by

overruling    the   defendant’s   preliminary    objections   challenging   venue,

concluding that the plaintiff had not established sufficient quality and

quantity     of   business   contacts   to   establish   venue   under    Pa.R.C.P.

2179(a)(2).6 See id. at 1286-87. Specifically, the Court held that although

the hospital purchased goods and services from Philadelphia County

businesses, and engaged in several other activities connected to Philadelphia




6
  The Purcell Court observed that “[s]ubsection (a)(2) provides 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, 579 A.2d at 1284 (emphasis
added).


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County,7 such contacts were incidental and not essential to the operation of

the hospital, and its corporate object of caring for patients.            See id. at

1286-87.

      Here, the record belies Benet’s assertion that “The Outdoorsman [] is

in the business of buying guns[,] and that is its corporate objective ….” Brief

for Appellant at 15 (emphasis added).             Though Benet is correct that the

Outdoorsman is engaged in the business of buying, selling, and trading

firearms and accessories with its customers, the record reflects that the

corporation     does    not   exist   for   the     sole   purpose   of   purchasing

goods/inventory.       Moreover, all of The Outdoorsman’s sales to, purchases

from, or trades with customers of the business occurred at the business

location, i.e., the Pine Ayre property in Susquehanna County, or at gun

shows, none of which occurred in Luzerne County.                 The Outdoorsman’s

purchase of goods in Luzerne County is its only connection with that

jurisdiction;   we     conclude   that   same      is   merely   incidental   to   The

Outdoorsman’s business.       See Purcell, supra; see also Kubik v. Route

252, Inc., 762 A.2d 1119, 1125 (Pa. Super. 2000) (citing to Purcell and

stating that “[a]s for [the defendant’s] purchase of goods in Philadelphia, we




7
  The other contacts included that the hospital (1) had contractual affiliations
with teaching hospitals in Philadelphia; (2) recruited medical residents from
Philadelphia teaching hospitals; (3) advertised in Philadelphia County; and
(4) received a portion of its income from residents of Philadelphia County.
See id. at 1283-84.


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have previously determined that such behavior does not constitute regularly

conducted business.”).8

     Because we discern no abuse of discretion or error of law by the trial

court in granting the Defendants’ Preliminary Objections, and transferring

Benet’s action to Susquehanna County, we affirm the Order on appeal.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/7/2015




8
  We are unpersuaded by Benet’s attempts to distinguish Purcell from the
instant case based upon her assertion that, unlike The Outdoorsman, the
hospital in Purcell was not “in the business of buying” goods. Reply Brief
for Appellant at 6. Neither the hospital in Purcell nor The Outdoorsman had
a sole corporate objective of buying goods.


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