J-A32017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SWZ FINANCIAL, LLC, A DELAWARE                   IN THE SUPERIOR COURT OF
LIMITED LIABILITY COMPANY, AP                          PENNSYLVANIA
STUDENT LOAN RELIEF, LLC, A
DELAWARE LIMITED LIABILITY
COMPANY, PAYLESS FINANCIAL GROUP,
LLC, A FLORIDA LIMITED LIABILITY
COMPANY AND EDWARD C. WELKE, AN
INDIVIDUAL

                         Appellants

                    v.

SARAH WONDERS, AN INDIVIDUAL

                         Appellee                     No. 64 WDA 2015


              Appeal from the Order Dated December 9, 2014
          In the Court of Common Pleas of Westmoreland County
                   Civil Division at No(s): 1647 of 2014


BEFORE: SHOGAN, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                           FILED DECEMBER 30, 2015

      SWZ Financial, LLC, a Delaware Limited Liability Company, AP Student

Loan Relief, LLC, a Delaware Limited Liability Company, Payless Financial

Group, LLC, a Florida Limited Liability Company, and Edward C. Welke, an

Individual (collectively, “SWZ Financial”), appeal the order of the trial court,

entered December 9, 2014, in the Court of Common Pleas of Westmoreland

County, sustaining preliminary objections filed by appellee, Sarah Wonders,

an Individual (Wonders), and dismissing SWZ Financial’s complaint on the

grounds of improper venue.     SWZ Financial contends the trial court erred in

granting Wonders’ preliminary objection for improper venue and dismissing
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SWZ Financial’s complaint.           Based upon the following, we reverse and

remand to the trial court for further proceedings to address the remaining

preliminary objections.

       This appeal arises from the complaint filed by SWZ Financial against

Wonders on May 16, 2014, in the Court of Common Pleas of Westmoreland

County, alleging abuse of process.1              For purposes of this appeal, we

summarize the allegations of SWZ Financial’s complaint, as follows.



____________________________________________


1
  To establish a claim for abuse of process, the plaintiff must show the
defendant

       (1) used a legal process against the plaintiff, (2) primarily to
       accomplish a purpose for which the process was not designed;
       and (3) harm has been caused to the plaintiff. Abuse of process
       is, in essence, the use of legal process as a tactical weapon to
       coerce a desired result that is not the legitimate object of the
       process. Thus, the gravaman of this tort is the perversion of
       legal process to benefit someone in achieving a purpose which is
       not an authorized goal of the procedure in question.

Harris v. Brill, 844 A.2d 567, 572 (Pa. Super. 2004)(citation omitted). We
note that an action for abuse of process differs from an action for wrongful
use of civil proceedings (“Dragonetti action”). Pennsylvania’s Dragonetti Act
provides, in part:

       A person who takes part in the procurement, initiation or
       continuation of civil proceedings against another is subject to
       liability to the other for wrongful use of civil proceedings:

       (1) he acts in a grossly negligent manner or without probable
       cause and primarily for a purpose other than that of securing the
       proper discovery, joinder of parties or adjudication of the claim
       in which the proceedings are based; and
(Footnote Continued Next Page)


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      SWZ Financial plaintiffs each have an address in Florida.        Wonders

resides in Export, Westmoreland County, Pennsylvania. Wonders is a former

employee of United Tax Group, LLC (UTG), a Delaware limited liability

company that, until November 27, 2013, maintained its principal place of

business in Jupiter, Florida. On February 11, 2013, Wonders filed an action

against UTG in the United States District Court for the Southern District

Court of Florida, alleging, inter alia, a “hostile work environment” under Title

VII of The Civil Rights Act and a similar statute, the Florida Civil Rights Act.

The action proceeded to a jury trial on November 12 and 13, 2013, and the

jury awarded Wonders $70,000.00.

      Counsel for UTG had advised Wonders’ counsel that UTG would be

unable to pay a substantial judgment due to its poor financial situation. On

December 23, 2013, following the entry of judgment, Wonders filed an

action in the 15th Judicial Circuit in Palm Beach County, Florida, seeking

injunctive relief and damages pursuant to the Uniform Fraudulent Transfer

Act (UFTA) against UTG and SWZ Financial, and two other defendants,

claiming the party defendants had conspired in the fraudulent transfer of

UTG assets.
                       _______________________
(Footnote Continued)


      (2) the proceedings have terminated in favor of the person
      against whom they are brought.

42 Pa.C.S. § 8351(a).




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      On January 21, 2014, counsel for SWZ Financial sent documents to

Wonders that conclusively demonstrated that none of SWZ Financial

plaintiffs were members of UTG or ever received any of UTG’s assets.

Wonders refused to discontinue the UFTA case against SWZ Financial

notwithstanding receipt of the documents.         Because UTG has filed for

bankruptcy, the Florida action has been stayed.          See SWZ Financial’s

Complaint, 5/16/2014, at ¶¶1–24.

      SWZ Financial alleges Wonders has “perverted and abused the legal

process for the purpose of obtaining a benefit for [Wonders] to which she is

not entitled.”    Id. at ¶30.   SWZ Financial further alleges that “[Wonders’]

sole purpose in instituting the action against SWZ Financial is to coerce SWZ

Financial, who clearly are not liable for the debts of UTG, to pay money to

[Wonders] in satisfaction of her claims against UTG,” and that “[Wonders]

willfully and intentionally made illegal, improper or perverted use of the

process, as set forth above, with the actual knowledge of the wrongfulness

of her conduct and the high probability of causing damages to [SWZ

Financial].”     Id. at ¶¶32–33.    SWZ Financial claims damages for being

required to incur substantial legal fees and other damages, including

damages to reputation. See id. at ¶34.

      In response to SWZ Financial’s complaint, Wonders filed preliminary

objections,    including   “Pa.R.C.P.   1028(a)—Improper   Venue/forum    non




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conveniens.”2,   3
                     Wonders’ Preliminary Objections, 6/19/2014, at 5–8, § III.

The court sustained Wonders’ preliminary objection for improper venue and

dismissed SWZ Financial’s complaint, stating “Florida is the appropriate

venue for an abuse of process claim such as this one, because underlying

litigation is taking place in Palm Beach County, Florida, Florida law applies to
____________________________________________


2
   Pennsylvania Rule of Civil Procedure 1028, which limits preliminary
objections to certain specified grounds, permits “improper venue” to be
raised by preliminary objection. See Pa.R.C.P. 1028(a)(1). Furthermore,
Rule 1006, governing venue, states, in relevant part, that “[i]mproper venue
shall be raised by preliminary objection and if not so raised shall be waived.”
Pa.R.C.P. 1006(e).
3
  Wonders’ preliminary objections regarding forum non conveniens cite 42
Pa.C.S. § 5322(e).     See Wonders’ Preliminary Objections, 6/19/2014, at
¶26. Section 5322(e) of the Judicial Code “controls when the alternative
venue is out-of-state. When the alternative venue is in-state, Pa.R.C.P.
1006(d)(1) controls.” Pisieczko v. Children’s Hosp., 73 A.3d 1260, 1262
n.3 (Pa. Super. 2013).

      We note that “a petition, not preliminary objections, is the proper
vehicle in which to raise a forum non conveniens challenge.” Aerospace
Fin. Leasing v. New Hampshire Ins. Co., 696 A.2d 810, 813 n.11 (Pa.
Super. 1997). See also Zappala v. Brandolini Prop. Mgmt., 909 A.2d
1272, 1282 (Pa. 2006) (“The Note to Rule 1028 provides that ‘[o]f the three
grounds available to challenge venue, only improper venue may be raised by
preliminary objection as provided by Rule 1006(e). Forum non conveniens
and inability to hold a fair and impartial trial are raised by petition as
provided by Rule 1006(d)(1) and (2).’”).

      We further note that SWZ Financial has objected to Wonders’ improper
use of preliminary objections raising forum non conveniens. See SWZ
Financial’s Response to [Wonder’s] Preliminary Objections, 7/7/2014, at
¶16.




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this case, and all Plaintiffs are Florida residents or doing business in Florida.”

Order, 12/9/2014, at 2, ¶3. This appeal followed.4

       Our standard of review 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.

Wilson v. Levine, 963 A.2d 479, 482 (Pa. Super. 2008) (citation omitted).

       SWZ Financial argues that this action was filed in Westmoreland

County, Pennsylvania, in accordance with Pa.R.C.P. 1006, which provides, in

pertinent part:

       (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).          SWZ Financial asserts “[Wonders] resided in

Westmoreland County and was served in said County and the action was

filed in Westmoreland County.           Based on Rule 1006(a)(1) Westmoreland

County is the proper venue.” SWZ Financial’s Brief at 8–9.        See also SWZ

Financial’s Response to [Wonders’] Preliminary Objections, at ¶12.         (“Rule

____________________________________________


4
  The trial court did not issue an order requiring a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).



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1006 provides that an action against an individual can be brought in a

county in which the individual may be served.      [Wonders] is a resident of

Westmoreland County where this action was initiated.”). Furthermore, SWZ

Financial asserts “[v]enue in an abuse of process case is not based on a

transaction or occurrence or in which jurisdiction an underlying action was

filed.” Id. at 9.

      Here, the trial judge determined venue was improper in Westmoreland

County, citing Harris v. Brill, 844 A.2d 567 (Pa. Super. 2004), and Kring v.

University of Pittsburgh, 829 A.2d 673 (Pa. Super. 2003).          See Order,

12/9/2014, at 4–5.      Recently, this Court explained these decisions as

follows:

      In Kring, the University of Pittsburgh School of Law’s Health Law
      Clinic represented a patient who filed an action against a
      Washington County dentist in the U.S. District Court for the
      Western District of Pennsylvania, in Pittsburgh. The suit was filed
      under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-
      12213, and, after trial, the jury ruled in favor of Kring, and
      against the patient.

      Kring subsequently filed a complaint in the Court of Common
      Pleas of Washington County raising a Dragonetti claim against
      the University. The University filed preliminary objections
      claiming improper venue, which the trial court sustained,
      “concluding that venue is improper in Washington County, but
      proper in Allegheny County.” Kring, 829 A.2d at 675.

      Venue is proper in the county where a transaction or occurrence
      took place out of which the cause of action arose. See Pa.R.C.P.
      1006(a)(1); Pa.R.C.P. 2179(a)(3), (4). Kring holds that a cause
      of action for wrongful use of civil proceedings occurs when the
      underlying lawsuit terminates in favor of the Dragonetti Act
      plaintiff. In Kring, this occurred in Allegheny County when the
      federal district court rendered a verdict in favor of Kring.

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     Accordingly, the transaction or occurrence requirement could not
     serve as a basis for venue in Washington County. Additionally,
     this Court rejected Kring’s argument that the University regularly
     conducts business in Washington County, thus precluding venue
     based on Pa.R.C.P. 2179(a)(2) (action may be brought against
     corporation or similar entity where it regularly conducts
     business).

     Faced with a situation where there was no venue in Washington
     County, but there was venue in Allegheny County, the Kring
     court properly transferred the matter to Allegheny County.

     Kring does not stand for the broad proposition that a plaintiff
     may bring a Dragonetti action only in the county where the
     underlying action took place. Rather, it stands for the more
     limited proposition that venue is proper in that county.

     In Harris, supra, three individuals, who were residents of
     Crawford County, filed a lawsuit against Harris alleging violations
     of the Racketeering Influenced Corrupt Organizations Act
     (RICO), 18 U.S.C. §§1961-1968 in the Court of Common Pleas of
     Crawford County. Harris removed the action to U.S. District
     Court for the Western District of Pennsylvania, in Erie. While the
     matter was pending, each plaintiff filed a voluntary dismissal of
     his claim.

     Subsequently, Harris filed a Dragonetti action [and abuse of
     process action] against the three individuals in the Court of
     Common Pleas of Erie County. The defendants filed preliminary
     objections asserting that venue was improper in Erie County,
     and that the case should be transferred to Crawford County
     under forum non conveniens pursuant to Pa.R.C.P. 1006(d)(1).
     The trial court agreed, and transferred the matter to Crawford
     County.

     On appeal, this Court reversed, noting that in a claim involving
     an individual, venue is appropriate where “a transaction or
     occurrence took place out of which the cause of action arose.”
     Pa.R.C.P. 1006(a). Consistent with Kring, this Court held that
     termination of the federal court litigation in Erie County rendered
     Erie County the place where the claim for wrongful use of civil
     proceedings arose. Therefore, venue was proper in Erie County.
     However, we noted, “this does not mean that venue in this case
     is improper in Crawford County.”          Harris, supra at 572.

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       Accordingly, this Court reversed the order of the trial court and
       remanded for further proceedings, including the determination of
       preliminary objections to venue based on forum non conveniens.

Baylson v. Genetics & IVF Institute, 110 A.3d 187, 189–190 (Pa. Super.

2015) (footnote omitted).5

       We find that neither Kring nor Harris support the trial court’s decision

that venue is improper in Westmoreland County. We note that both cases

only dealt with the “transaction or occurrence” portion of Rule 1006(a)(1).

We further note that both cases stand for the proposition that venue in a

Dragonetti action is proper in the county where the underlying lawsuit

terminated in favor of the Dragonetti plaintiff — not that venue is only

proper in such county.


____________________________________________


5
  In Baylson, this Court held the trial court erred in transferring the
plaintiffs’ Dragonetti action to Montgomery County based on a belief that
venue was only proper there. This Court explained:

       [V]enue is proper in Philadelphia because [defendant] Genetics
       had an office in Philadelphia and regularly conducted business
       there. See Pa.R.C.P. 2179. Accordingly, under Pa.R.C.P.
       1006(c)(2), which governs joint and several liability among
       defendants, venue is also proper in Philadelphia with respect to
       [defendants] M&C and Clemm. It is equally clear that venue is
       proper in Montgomery County because that is where the
       underlying suit was decided, leading to the events from which
       the wrongful use of civil proceedings arose. See Kring, supra;
       Harris, supra.

Id. at 190.     The Baylson Court reversed the orders sustaining the
preliminary objections and remanded for the court to rule on the remaining
preliminary objections. See id.




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      Here, Wonders does not dispute SWZ Financial’s argument that she

resides in Westmoreland County and was served in Westmoreland County.

See Pa.R.C.P. 1006(a)(1) (“[A]n action against an individual may be brought

in and only in a County in which (1) the individual may be served ….”).

Rather, Wonders contends “Because the Circuit Court in Palm Beach County,

Florida is presiding over the Florida Litigation between the parties, the

[c]ourt in Florida is the appropriate venue for the instant case.” Wonders’

Brief at 5. See also Wonders’ Preliminary Objections, 6/19/2014, at ¶25.

However, “per Rule 1006(a), venue is valid ‘where the individual may be

served.’”   Silver v. Thompson, 26 A.3d 514, 517 (Pa. Super. 2011).

Therefore, we conclude the trial court erred in granting Wonders’ preliminary

objection and dismissing SWZ Financial’s complaint on the grounds of

improper venue.

      Accordingly, we reverse and remand for the court to address Wonders’

remaining preliminary objections.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2015




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