J-A17030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BETH FEGER AND KERRY FEGER,                     IN THE SUPERIOR COURT OF
INDIVIDUALLY AND AS CO-                               PENNSYLVANIA
ADMINISTRATORS OF THE ESTATE OF
LOUISE FEGER, DECEASED

                         Appellants

                    v.

MICHAEL J. FIORILLO, ESQUIRE AND
FIORILLO LAW OFFICES,

                         Appellees                   No. 2888 EDA 2014


               Appeal from the Order Entered August 29, 2014
            In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): 3955 March Term, 2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                          FILED JULY 22, 2015

      Appellants, Beth and Kerry Feger (hereinafter collectively referred to

as “the Fegers”), individually and as co-administrators of the estate of their

deceased mother, Louise Feger (hereinafter referred to as “the decedent”),

appeal from the trial court’s August 29, 2014 order sustaining Appellees’,

Michael J. Fiorillo, Esq., and Fiorillo Law Offices (hereinafter collectively

referred to as “Fiorillo”), preliminary objection asserting improper venue.

The order also directed that this case be transferred to the Court of Common

Pleas of Schuylkill County. After careful review, we affirm.

      By way of background, Fiorillo represented the decedent when State

Auto Property and Casualty Insurance Company (hereinafter “State Auto”)
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filed an insurance fraud lawsuit against her in the U.S. District Court for the

Eastern District of Pennsylvania, which is located in Philadelphia County.

During the course of that lawsuit, State Auto filed a motion for summary

judgment, to which Fiorillo allegedly did not file a timely response on

decedent’s behalf.   On January 8, 2009, the district court granted State

Auto’s motion for summary judgment against the decedent.

      Thereafter,

      [o]n February 12, 2010, [] Fiorillo sent a letter to the [district]
      [c]ourt representing that [the Fegers] would be willing to pay
      $25,000 to settle State Auto’s claims against [the decedent].
      [The decedent] passed away a few days later. … Fiorillo then
      filed a Motion to Withdraw as Counsel for [the Fegers] citing
      financial hardship. In March of 2012, State Auto filed suit
      against [the] Feger[s] alleging fraudulent conveyance of [the
      decedent’s] home which [the] … Feger[s] had purportedly
      purchased for $1 on February 11, 2009.

Trial Court Opinion (TCO), 12/23/14, at 3 (footnoted citations to the record

omitted).

      On March 11, 2014, the Fegers filed a complaint against Fiorillo in

Philadelphia County, asserting various legal malpractice claims.      The trial

court summarized the Fegers’ assertions, as follows:

            [The Fegers] claim that … Fiorillo negligently failed to
      respond to State Auto’s … [m]otion for [s]ummary [j]udgment.
      [The] … Feger[s] also allege that they never authorized … Fiorillo
      to offer $25,000 to settle State Auto’s claims against their
      mother. [The] … Feger[s] also allege that … Fiorillo was never
      authorized to represent them. Thus, [the Fegers] contend that
      … Fiorillo’s misrepresentations to the Court during the underlying
      Eastern District of Pennsylvania litigation are actionable.

TCO at 3-4 (footnoted citations to the record omitted).


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       After the Fegers filed their complaint, Fiorillo filed a timely preliminary

objection, contesting venue in Philadelphia County.             A hearing was

conducted on August 18, 2014. On August 29, 2014, the court issued an

order sustaining Fiorillo’s preliminary objection and directing that the case

be transferred to the Court of Common Pleas of Schuylkill County, where

Fiorillo’s residence and law office are located.

       The Fegers filed a timely notice of appeal.1      Herein, they raise one

question for our review:

       1. Was the trial court’s August 29, 2014 order transferring venue
       a clear error of law and/or abuse of discretion because the trial
       court erroneously applied Pa. R.C.P. 2179 (a)(2) instead of Pa.
       R.C.P. 1006 (a)(1) as to Defendant/Appellee Fiorillo, and Pa.
       R.C.P. 2179 (a)(2) instead of Pa. R.C.P. 2179 (a)(3) or (a)(4) as
       to Defendant[/]Appellee Fiorillo Law Offices in deciding
       Defendants’/Appellees’ motion to transfer venue?

Fegers’ Brief at 2 (unnecessary capitalization omitted).

       Initially, as the trial court noted, it “is accorded ‘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.’”

Zampana-Barry v. Donaghue, 921 A.2d 500, 503 (Pa. Super. 2007)

(quoting Purcell v. Bryn Mawr Hospital, 579 A.2d 1282, 1284 (Pa.



____________________________________________


1
 “[A]lthough an order transferring venue in a civil action is interlocutory in
nature, such order is appealable as of right.” Deutschbauer v. Barakat,
814 A.2d 246, 248 (Pa. Super. 2002) (citing Pa.R.A.P. 311(c)).




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1990)).2 This Court has repeatedly stated that “[i]f there exists any proper

basis for the trial court’s decision to grant the petition to transfer venue, the

decision must stand.” Deutschbauer, 814 A.2d at 248 (quoting Masel v.

Glassman, 689 A.2d 314, 316 (Pa. Super. 1997)). Moreover, our Supreme

Court “has described the heavy burden facing the appellant from a

discretionary trial court determination: ‘[I]t is not sufficient to persuade the

appellate court that it might have reached a different conclusion if, in the
____________________________________________


2
    We point out that the trial court further stated:

        The plaintiff’s choice of forum is given great weight. The party
        seeking a change of venue “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.”

TCO at 4 (footnotes omitted). Fiorillo challenges this portion of the
trial court’s decision, arguing that “the doctrine that plaintiff’s choice of
forum should be given deference does not apply where the only
question is whether venue in a particular county is proper or not
proper.”      Fiorillo’s Brief at 5 (citing Kring v. University of
Pittsburgh, 829 A.2d 673 (Pa. Super. 2003)).               We agree with
Fiorillo’s reading of Kring. See Kring, 829 A.2d at 676 (concluding
that the presumption in favor of a plaintiff’s choice of forum has no
application where the trial court was faced not with a question of
forum non conveniens, but with the question of whether venue was or
was not proper in a particular county). Here, Fiorillo argued in the
preliminary objection “that Philadelphia County is an improper venue
for Plaintiff’s action.” Preliminary Objection, 3/31/14, at 8 ¶ 55
(emphasis added). Additionally, the trial court’s August 29, 2014
order stated that it was sustaining Fiorillo’s and the law firm’s
“[p]reliminary [o]bjection raising improper venue….”             Trial Court
Order, 8/29/14 (emphasis added). Accordingly, we agree with Fiorillo
that pursuant to Kring, we do not apply a presumption in favor of the
Fegers’ choice of forum in this case.



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first place, charged with the duty imposed on the court below; it is

necessary to go further and show an abuse of the discretionary power.’”

Brown v. Delaware Valley Transplant Program, 538 A.2d 889, 891 (Pa.

Super. 1988) (quoting In re Mackarus’ Estate, 246 A.2d 661, 666-667

(Pa. 1968) (citation omitted)).

      In this case, the trial court decided to grant the petition to transfer

venue to Schuylkill County, where Fiorillo and the law firm are located,

because Fiorillo only appeared in the U.S. District Court located in

Philadelphia County “to defend [the decedent] because that is where she

was sued.   The mere fact of defending a client in the Eastern District of

Pennsylvania when she is sued, without greater involvement in the County

of Philadelphia, does not subject the attorney to venue in Philadelphia

County Court of Common Pleas.” TCO at 4-5.

      The Fegers interpret the court’s language as indicating that it decided

Fiorillo’s change of venue motion under Pa.R.C.P. 2179(a)(2), which states:

“[A] personal action against a corporation or similar entity may be brought

in and only in [] a county where it regularly conducts business[.]”       They

maintain, however, that Rule 2179(a)(2) “is one predicate for venue as to a

corporation, but not the exclusive predicate….” Fegers’ Brief at 6 (emphasis

added).   The Fegers also argue that because Rule 2179 “applies only to

‘corporations or similar entities[,’] … not individuals, … the trial court’s

application of this Rule to decide the venue appropriate for Mr. Fiorillo was …

erroneous.” Id.

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      The Fegers go on to contend that venue in Philadelphia County is

proper under Pa.R.C.P. 1006(a)(1) and 2179(a)(4). Rule 1006(a)(1), which

would pertain to the action against Fiorillo, as an individual, states:

      (a) Except as otherwise provided by subdivisions (a.1), (b) and
      (c) of this rule, an action against 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.C.P. 1006(a)(1). Rule 2179(a)(4), which governs venue in the action

against the law firm, reads:

      (a) Except as otherwise provided by an Act of Assembly, by Rule
      1006(a.1) or by subdivision (b) of this rule, a personal action
      against a corporation or similar entity may be brought in and
      only in

      ***

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

Pa.R.C.P. 2179(a)(4).

      The Fegers assert that here, the cause of action against both Fiorillo

and the law firm arose in Philadelphia County. They reason:

      [T]he central thrust of [the Fegers’] malpractice claims is that …
      Fiorillo negligently failed to respond to an August 20, 2008
      motion by State Auto for leave to file for summary judgment …
      and, when that motion was granted as unopposed, [Fiorillo] also
      failed to respond to the summary judgment motion itself, which
      was also granted as unopposed.

           Applying the venue rules to these facts, it is clear that
      venue in Philadelphia County is proper. Fiorillo failed to file
      responsive pleadings at a court physically located in Philadelphia


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      County.    These omissions are the factual predicate for the
      Fegers’ claims. Consequently, Philadelphia County is where “the
      cause of action arose or where a transaction or occurrence took
      place out of which the cause of action arose[,”] Pa. R.C.P. 1006
      (a)(1), and venue … is proper as to Defendant/Appellee Fiorillo.
      Similarly, Philadelphia County is “a county where a transaction
      or occurrence took place out of which the cause of action
      arose[,”] Pa. R.C.P. 2179 (a)(4), and venue is proper as to
      Defendant/Appellee Fiorillo Law Offices.

Fegers’ Brief at 5-6.

      In response, Fiorillo argues that venue is not proper in Philadelphia

County because “Fiorillo’s purported ‘failure’ occurred within his law offices,

located in Schuylkill County.”   Fiorillo’s Brief at 7.   Fiorillo relies on this

Court’s decision in Deutschbauer to support his argument.         In that case,

Deutschbauer was represented by two attorneys (“the appellees”) who

commenced a personal injury action on Deutschbauer’s behalf in Berks

County. Deutschbauer, 814 A.2d at 247. Deutschbauer’s personal injury

action was ultimately terminated because the appellees failed to “adequately

follow through on the action filed in Berks County as required by local

rules….”   Id. at 249.   Deutschbauer subsequently filed a legal malpractice

action against the appellees in Philadelphia County, where Deutschbauer

resided.   Id. at 247.   The trial court sustained the appellees’ preliminary

objection to venue in Philadelphia County and transferred the case to Berks

County, reasoning that the appellees’ purported malpractice “more likely

than not occurred in [the] [a]ppellees' office located in Chester County or in

the courthouse in Berks County.” Id. at 249 (emphasis added).




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       Here, Fiorillo focuses only on the above-emphasized language to

contend that his purported malpractice occurred in his office, which is

located in Schuylkill County.        However, he ignores the last portion of that

sentence in Deutschbauer, which states, “or in the courthouse in Berks

County.”3 Id. (emphasis added). Fiorillo also disregards that the trial court

in Deutschbauer ultimately “concluded that venue properly lay in Berks

County[,]” and this Court affirmed that decision on appeal. Id.

       Nevertheless, this Court did not explicitly reject the trial court’s

conclusion in Deutschbauer that the appellees’ purported malpractice

occurred either in their office in Chester County, or in the courthouse in

Berks County.       Consequently, our decision in Deutschbauer supports a

conclusion that the legal malpractice cause of action against Fiorillo could

have arisen in Schuylkill County, where Fiorillo’s law office is located.     As

such, the trial court had a proper basis for transferring this case to Schuylkill

County, and that decision was not an abuse of discretion.

       Order affirmed.

       Judge Ott joins this memorandum.
____________________________________________


3
   Indeed, Fiorillo completely omits this language from his discussion of
Deutschbauer in his appellate brief. See Fiorillo’s Brief at 7 (presenting
the at-issue quotation from Deutschbauer, as follows: “This failure more
likely than not occurred in [the attorneys’] office located in Chester
County….”). We acknowledge, however, that Fiorillo’s counsel sent to this
Court, and opposing counsel, a letter dated June 24, 2015, acknowledging
that he mistakenly omitted the second part of the sentence in
Deutschbauer, and apologizing for this misstatement of the case.



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     President Judge Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2015




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