J-S89005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES BURGESS AND KAY SHARON                     IN THE SUPERIOR COURT OF
BURGESS, H/W,                                          PENNSYLVANIA

                           Appellants

                      v.

CLARK ELECTRICAL CONTRACTORS,
INC., CHRISTOPHER CLARK, CABOT OIL
AND GAS CORPORATION, CABOT
PETROLEUM CORPORATION, CABOT OIL
& GAS CORPORATION OF DELAWARE,
CABOT OIL & GAS CORPORATION OF
WEST VIRGINIA, CABOT OIL & GAS
HOLDINGS COMPANY, CABOT OIL & GAS
MARKETING CORPORATION, CABOT OIL
& GAS WESTERN CORPORATION, CABOT
PETROLEUM NORTH SEA, LIMITED,
CABOT OIL, DIALIGHT CORPORATION,
ROYAL ELECTRIC SUPPLY COMPANY,
D/B/A ROYAL ELECTRIC SUPPLY CO.,
NATIONAL OILWELL VARCO, INC.,
NATIONAL OILWELL VARCO, L.P.,
NATIONAL OILWELL VARCO HOLDINGS
LLC, NATIONAL OILWELL VARCO,

                           Appellees
----------------------------------------------
JAMES BURGESS AND KAY SHARON
BURGESS, H/W,

                     v.

PATTERSON UTI, PATTERSON-UTI
ENERGY, INC., PATTERSON-UTI
DRILLING COMPANY, LLC, PATTERSON-
UTI DRILLING COMPANY SOUTH LP,
PATTERSON-UTI DRILLING COMPANY
WEST LP, PATTERSON-UTI DRILLING
INTERNATIONAL, INC., PATTERSON
DRILLING SERVICES LP, PATTERSON UTI
MANAGEMENT SERVICES, LLC,
J-S89005-16


PATTERSON-UTI INTERNATIONAL
HOLDINGS, INC., PEI/GENESIS INC.,
PATTERSON-UTI DRILLING SERVICES
LP, LLLP, PATTERSON-UTI DRILLING
COMPANY, LP, PATTERSON-UTI
DRILLING COMPANY LP, LLLP,

                            Appellees                  No. 3018 EDA 2015


                      Appeal from the Order August 27, 2015
              In the Court of Common Pleas of Philadelphia County
                Civil Division at No(s): 1412-01798, 1412-01813


BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED FEBRUARY 03, 2017

       James Burges and Kay Sharon Burgess, husband and wife (collectively

“Appellants”), appeal from the order entered on August 27, 2015, in the

Philadelphia County Court of Common Pleas that sustained Appellees’1

preliminary objections as to improper venue and transferred this matter to

Susquehanna County. We reverse and remand with instructions.

       The factual background of this matter is as follows:

             On December 12, 2012, a light fixture fell off a drill rig and
       hit [Appellant James Burgess] while he was working on the drill
       rig. As a result, Mr. Burgess is now a quadriplegic. This incident
       occurred in Susquehanna County, Pennsylvania.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
   The underlying actions were filed separately and later consolidated by the
trial court. For purposes of our discussion, we shall refer to all remaining
parties in our caption collectively as “Appellees.”



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J-S89005-16


             In December of 2014, [Appellants] commenced this action,
       and reinstated their Complaint on March 20, 2015. Against all
       [Appellees], [Appellants] brought claims for negligence,
       recklessness with a request for punitive damages, and a loss of
       consortium claim on behalf of [Appellant Kay Sharon Burgess].

             On August 18th, 2015, this case was consolidated with
       another related case under Case ID 141201813. On August 27 th,
       this [c]ourt issued an order in this case, sustaining [Appellees’
       preliminary objections] as to improper venue in Philadelphia
       County and to transfer venue to Susquehanna County. On
       September 22, 2015, this [c]ourt issued an Order denying
       [Appellants’] Motion for Reconsideration.

             On October 5, 2015,[2] [Appellee] Royal Electric Supply
       Company, whose principal place of business is in Philadelphia,
       PA, was excused from this case. On July 8, 2015, [Appellee]
       PEI/Genesis, Inc., whose principal place of business is in
       Philadelphia, PA, was also excused [by stipulation on July 8,
       2015].

Trial Court Opinion, 4/11/16, at 2.

       Appellants filed a timely appeal on September 25, 2015. On appeal,

Appellants present the following issues:

       I. Whether the lower court committed an error of law or abused
       its discretion by transferring this matter to the Court of Common
       Pleas of Susquehanna County despite the fact that venue in
       Philadelphia County was appropriate under Rule 1006(c)(1)
       because several defendants joined at the initiation of the case
       maintained principal places of business in Philadelphia County?

       II. Alternatively, whether the lower court committed an error of
       law or abused its discretion by not considering any evidence and
       not permitting the parties to complete venue discovery before
____________________________________________


2
    While the stipulation dismissing Royal Electric Supply Company was
entered on the docket on October 5, 2015, the signatures of counsel for
Appellants and counsel for Royal Electric Supply Company were dated
July 23, 2015 and July 16, 2015, respectively.



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J-S89005-16


      ruling on the preliminary objections and transferring the case to
      the Susquehanna County Court of Common Pleas?

Appellants’ Brief at 4.

      The decision to transfer venue is within the discretion of the trial court,

and we shall not disturb that decision absent an abuse of discretion.

Scarlett v. Mason, 89 A.3d 1290, 1293 (Pa. Super. 2014) (citation

omitted). “Ordinarily, a plaintiff’s choice of forum carries great weight, but it

is not absolute or unassailable.”     Id. (citation omitted).   “Moreover, 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.” Id. (citation omitted).

      The exclusive method to challenge venue as “improper” is by filing a

preliminary objection. Pa.R.C.P. 1006(e) (“Improper venue shall be raised

by preliminary objection and if not so raised shall be waived.”).

      A Rule 1006(e) challenge to improper venue by preliminary
      objection has two key components: one substantive and one
      procedural.      Substantively, the basis for a Rule 1006(e)
      challenge is the defendant’s belief that venue is improper in the
      plaintiff’s chosen forum. The meaning of the word improper, as
      used in subsection (e), is, as previously noted, shaped by Rules
      2179 (providing where a personal action against a corporation
      may be brought), 1006(a) and (b) (providing where an action
      may be brought) and, relevant to this proceeding, 1006(c) (An
      action ... against two or more defendants ... may be brought
      against all defendants in any county in which the venue may be
      laid against any one of the defendants.). These rules exclusively
      address where venue properly may be laid at the time the suit is
      initiated. Thus, [a] question of improper venue is answered by
      taking a snapshot of the case at the time it is initiated: if it is
      proper at that time, it remains proper throughout the
      litigation.

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J-S89005-16


Zappala v. Brandolini Property Management, Inc., 909 A.2d 1272,

1281 (Pa. 2006) (internal quotation marks, brackets, and ellipsis omitted)

(emphasis added). In its opinion, the trial court, pursuant to the holding in

Zappala, concedes that it erred in sustaining Appellees’ preliminary

objections based on improper venue and transferring venue to Susquehanna

County. We agree.

       As the Supreme Court in Zappala explained, venue is to be considered

as a “snapshot” taken at the time the case is initiated. Zappala, 909 A.2d

at   1281.        Thus,     the    snapshot      here   included   the   Philadelphia

defendants/Appellees Royal Electric Supply Company, PEI/Genesis Inc.,

Patterson, and Cabot. As such, venue was proper in Philadelphia at the time

the case was initiated. Id. Accordingly, the trial court erred as a matter of

law, and we reverse its order sustaining the preliminary objections regarding

improper venue and transferring venue to Susquehanna County.3

       However, our decision with respect to venue does not impact

Appellees’ motion to transfer venue based on forum non conveniens because

that motion is considered separately from venue.             Zappala, 909 A.2d at

1284; Pa.R.C.P. 1006(d). Here, Appellees filed a motion raising forum non

conveniens on July 30, 2015, which the trial court deemed moot due to its


____________________________________________


3
  As our disposition of Appellants’ first issue is dispositive, we do not reach
Appellants’ second issue concerning discovery.



                                           -5-
J-S89005-16


ruling on the preliminary objections based on improper venue.           Order,

8/27/15.

       Because we conclude that the trial court erred in sustaining the

preliminary objections as to improper venue and transferring venue to

Susquehanna County, Appellees’ motion raising forum non conveniens is no

longer moot.4      As such, we reverse the order sustaining the preliminary

objections based on improper venue that resulted in this case being

transferred to Susquehanna County.               Thus, venue remains proper in

Philadelphia County. Accordingly, we remand this matter to the Philadelphia

Court of Common Pleas to address Appellees’ motion to transfer based on

forum non conveniens.5

____________________________________________


4
    See Consolidation Coal Co. v. District 5, United Mine Workers of
America, 485 A.2d 1118, 1124 (Pa. Super. 1984) (“That an action is ‘moot’
suggests that there is a legal issue involved in a case, but because of the
circumstances surrounding the case, the issue has become an academic one
and will not be resolved. What ‘mootness’ does not suggest is that an issue
was fully considered and a final judgment entered.”).
5
   The order denying as moot Appellees’ motion to transfer for forum non
conveniens was not a final appealable order. Centerre Bank of Kansas
City, N.A. v. Arthur Young & Co., 502 A.2d 251 (Pa. Super. 1985);
Pa.R.A.P. 311. The order did not become final until the August 27, 2015
order on appeal that disposed of all claims and all parties. See Betz v.
Pneumo Abex LLC, 44 A.3d 27, 54 (Pa. 2012) (holding that “an appeal of a
final order subsumes challenges to previous interlocutory decisions”);
Pa.R.A.P. 341 note (“A party needs to file only a single notice of appeal to
secure review of prior non-final orders that are made final by the entry of a
final order[.]”). While we could simply reverse the order sustaining the
preliminary objections as to improper venue that transferred venue to
Susquehanna County and permit Appellees to file new motions raising forum
(Footnote Continued Next Page)


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J-S89005-16


      Order reversed.           Case remanded with instructions.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2017




                       _______________________
(Footnote Continued)

non conveniens, in the interests of judicial economy, we place the previously
filed motion before the trial court and leave to the trial court’s discretion
whether it requires additional filings or hearings on the issue of forum non
conveniens.



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