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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

AMANDA COLLINS AND WAYNE                :     IN THE SUPERIOR COURT OF
COLLINS,                                :           PENNSYLVANIA
                                        :
                        Appellants      :
                                        :
                   v.                   :         No. 3256 EDA 2017
                                        :
GEORGE MARAGELIS AND                    :
PANAGIOTIS MARAGELIS                    :


                Appeal from the Order Dated August 18, 2017,
            in the Court of Common Pleas of Philadelphia County
              Civil Division at No. March Term, 2017, No. 1095


BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JULY 23, 2018

      Amanda Collins and Wayne Collins (collectively, “appellants”) appeal

the August 18, 2017 order in which the Court of Common Pleas of

Philadelphia County sustained the preliminary objections of George Maragelis

and Panagiotis Maragelis (collectively, “appellees”) and transferred the

action filed by appellants against appellees from the Court of Common Pleas

of Philadelphia County to the Court of Common Pleas of Delaware County.1

After careful review, we affirm.




1This is an interlocutory appeal as of right pursuant to Pa.R.A.P. 311(c) (“an
appeal may be taken as of right from an order in a civil action or proceeding
changing venue. . . .”).
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      On March 10, 2017, appellants filed a complaint sounding in

negligence    against   appellees   and    alleged   that   either   George   or

Panagiotis Maragelis operated a motor vehicle owned by George Maragelis

that collided with a motor vehicle driven by Amanda Collins near the

Commodore Barry Bridge on Interstate 95 on March 13, 2015. Appellants

alleged that Amanda Collins, as a result of the accident, suffered disc

herniation and bulging at C5-6, disc protrusion at C4-5, disc bulging at C2-3

and C3-4, aggravation of pre-existing degenerative changes in the cervical

and thoracic spine, and various other internal and external injuries.

Wayne Collins brought a loss of consortium claim against appellees.

      On April 21, 2017, appellants served appellees at 218 Walnut Street,

Newtown Square, Delaware County, Pennsylvania.

      On June 9, 2017, appellees preliminarily objected to the complaint and

moved to dismiss and/or transfer venue as the cause of action arose in

Delaware County and each appellee resided in Delaware County.                 On

June 25, 2017, appellants filed an answer and new matter to the preliminary

objections.    Appellants stated    that   appellees through their     counsel,

Grace Lim Slocum, Esq. (“Attorney Slocum”), agreed to refrain from filing

preliminary objections in return for the agreement of appellants to strike

certain factual allegations from the complaint.

      On July 11, 2017, the trial court issued a rule to show cause why the

preliminary objections should be granted on the issue of venue.        The trial



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court stated that it would accept affidavits, deposition evidence, and upon

application for good cause shown, live testimony, relevant to the issue of

venue. On July 20, 2017, appellants moved for clarification/reconsideration

and asked the trial court to clarify or reconsider its position with respect to

appellant’s claim that appellees’ challenge to venue by preliminary objection

was barred by prior agreement of the parties.

      On August 16, 2017, the trial court held a hearing on the preliminary

objections.   Following the hearing, the trial court granted the preliminary

objections and transferred the case to the Court of Common Pleas of

Delaware County on August 17, 2017. In addition, on August 17, 2017, the

trial court denied the motion for clarification as moot.   On September 18,

2017, appellants filed a notice of appeal.2

      The trial court did not order appellants to file a statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court filed

an opinion on November 21, 2017.

      Appellant raises the following issue for this court’s review: “Whether

the [trial] court erred in sustaining a preliminary objection alleging improper

venue on the facts of record and the bare allegations of the objecting party




2  The last day to appeal, September 16, 2017, fell on a Saturday.
Accordingly, appellants’ deadline to file a timely appeal was extended to the
following business day, September 18, 2017. See 1 Pa.C.S.A. § 1908.


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without securing evidence that venue was in fact improper, as required

under Pa.R.Civ.P. 1028(a)(1) and (c)(2)?” (Appellant’s brief at 4.)3

                 Although a plaintiff, as a rule, may
                 chose [sic] the forum in which to bring
                 suit that right is not absolute. Rule 1006
                 not only articulates where the plaintiff
                 may bring the action, but also provides
                 three distinct bases upon which a
                 defendant may challenge the plaintiff’s
                 chosen forum: improper venue by
                 preliminary     objection,   forum     non
                 conveniens, and inability to hold a fair
                 and impartial trial.

           Zappala v. Brandolini Prop. Mgmt., Inc., 589 Pa.
           516, 909 A.2d 1272, 1281 (2006).

                 Pa.R.C.P. 1006(d)(1) vests the trial court
                 with     considerable      discretion      in
                 determining whether or not to grant a
                 petition for change of venue, and the
                 standard of review is one of abuse of
                 discretion. Only in such a case will the
                 order be disturbed. 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.

           Purcell [v. Bryn Mawr Hosp., 579 A.2d 1282,
           1284 (Pa. 1990)] (case citations omitted).

           “Each case must be based upon its own individual
           facts.” Zampana-Barry v. Donaghue, 921 A.2d
           500, 504 (Pa.Super. 2007), appeal denied, 596 Pa.
           709, 940 A.2d 366 (2007) (citing Purcell). “A trial
           court has discretion to determine the lack of need for

3 Although appellants also challenged the venue change on the basis of an
alleged agreement between counsel, appellants have not pursued this
argument on appeal.


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           further discovery on the issue of venue, and we
           review its decision in that regard for abuse of
           discretion.” Deyarmin [v. Consol Rail Corp., 931
           A.2d 1, 7 (Pa.Super. 2007), appeal denied, 948
           A.2d 805 (Pa. 2008)].

           Similarly, our standard of review for a challenge to
           an order transferring venue is well settled.
                 A trial court’s ruling on venue will not be
                 disturbed if the decision is reasonable in
                 light of the facts. A decision to transfer
                 venue will not be reversed unless the
                 trial court abused its discretion.        A
                 plaintiff’s choice of forum is given great
                 weight, and the burden is on the party
                 challenging that choice to show it is
                 improper.

                 However, if there exists any proper
                 basis for the trial court’s decision to
                 grant the petition to transfer venue, the
                 decision must stand.

           Krosnowski v. Ward, 836 A.2d 143, 146
           (Pa.Super. 2003) (citations and internal quotation
           marks omitted) (emphasis added). “An abuse of
           discretion occurs when the trial judge overrides or
           misapplies the law, or exercises judgment in a
           manifestly unreasonable manner, or renders a
           decision based on partiality, prejudice, bias or
           ill-will.”  Sehl v. Neff, 26 A.3d 1130, 1132
           (Pa.Super. 2011) (citation omitted).

Schultz v. MMI Prod., Inc., 30 A.3d 1224, 1227-1228 (Pa.Super. 2011).

      The Rules of Civil Procedure address venue in pertinent part as

follows:

           Rule 1006. Venue. Change of Venue.

           (a)   Except as otherwise provided by subdivisions
                 (a.1), (b) and (c) of this rule, an action against



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                 an individual may be brought in and only in a
                 county in which

                 (1)      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.Civ.P. 1006(a)(1).

     Pennsylvania Rule of Civil Procedure 402(a) sets forth where an

individual may receive service. In relevant part, Rule 402 provides:

           (a)   Original process may be served

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

                 (2)      by handing a copy

                          (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



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                              to the person for the time
                              being in charge thereof.

Pa.R.Civ.P. 402(a)(1).

      Appellants argue that the trial court lacked the authority to relieve

appellees of their burden to prove venue was improper, dispense with

discovery altogether, and order a transfer of venue based on the pleadings

in disregard of Pa.R.Civ.P. 1028(c)(2)4 and its note stating that preliminary

objections alleging improper venue cannot be determined from facts of

record.

      Appellants argue that the trial court failed to hold appellees to their

burden of proving that objections to venue were valid. See Gale v. Mercy

Catholic Med. Ctr. Eastwick, Inc., 698 A.2d 647, 651 (Pa.Super. 1997).

Appellants also assert that the trial court did not resolve the dispute through

the reception of evidence but on its own view of the facts, as appellees did


4 Rule 1028(c)(2) of the Pennsylvania Rules of Civil Procedure provides as
follows:

            (2)   The court shall determine promptly all
                  preliminary objections. If an issue of fact is
                  raised, the court shall consider evidence by
                  depositions or otherwise.

                  Note: Preliminary objections raising an issue
                  under subdivision (a)(1), (5), (6), (7) or (8)
                  cannot be determined from facts of record. In
                  such a case, the preliminary objections must
                  be endorsed with a notice to plead or no
                  response will be required under Rule 1029(d).

Pa.R.Civ.P. No. 1028.


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not prepare affidavits that set forth facts that established that venue in

Philadelphia County was improper.

         Appellants concede that the trial court did not err when it determined

that the accident occurred in Delaware County based on the location of the

Commodore Barry Bridge.        However, appellants assert that the trial court

erred when it ruled venue was improper based on the affidavits of service

that indicated service was made on appellees in Delaware County.5

According to appellants, these affidavits only proved that venue was proper

in Delaware County not that venue in Philadelphia County was improper.

         Here, the trial court appears to have taken judicial notice that the

alleged accident occurred in Delaware County. Appellants do not argue this

point.    Furthermore, the affidavits of service indicate that appellees were

served in Delaware County. In the record, there is no evidence of service in

another county or that service was not effectuated in Delaware County. The

key question for this court is whether the trial court’s decision to transfer

venue was reasonable in light of the facts presented.        See Schultz.     In

Krosnowski, 836 A.2d at 146, this court stated that if there is any basis to

affirm a trial court’s decision to transfer venue, the decision must stand.

Given that the accident occurred in Delaware County and appellees were




5 At the trial court hearing, appellees referenced the affidavits of service that
indicated that appellees were served in Delaware County.               (Notes of
testimony, 8/16/17 at 6.)


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served in Delaware County, the trial court’s transfer of venue appears

reasonable in light of the facts.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 7/23/18




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