J-A02005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PENNSYLVANIA COUNSELING SERVICES                   IN THE SUPERIOR COURT OF
INC.,                                                    PENNSYLVANIA

                            Appellant

                       v.

DEBORAH YAMBOR,

                            Appellee                   No. 1287 MDA 2015


                  Appeal from the Order Entered June 29, 2015
                In the Court of Common Pleas of Lebanon County
                        Civil Division at No: 2014-01166


BEFORE: PANELLA, STABILE, and FITZGERALD, JJ.*

MEMORANDUM BY STABILE, J.:                          FILED OCTOBER 17, 2016

        Appellant, Pennsylvania Counseling Services, Inc. (“PCS”), appeals

from the June 29, 2015 order of the Court of Common Pleas of Lebanon

County (“trial court”), which sustained the preliminary objections of

Appellee, Deborah Yambor (“Yambor”), and transferred the matter to York

County, Pennsylvania. Upon review, we affirm.

        The trial court provided the following factual history:

              [PCS] . . . provides counseling services in Adams, Berks,
              Cumberland, Dauphin, Franklin, Lancaster, Lebanon, and
              York Counties. [PCS] employed . . . Yambor . . . as a
              Counselor/Therapist from October 6, 2008 until she
              voluntarily resigned as of November 1, 2013. [Yambor]
              signed employment contracts with [PCS] on September
              16, 2008; September 26, 2011; and March 3, 2012. All 3
              contracts contained the following non-compete clause:
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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                  That s/he shall not engage for one year from
                  the time of termination of his PCS affiliation for
                  any cause (exception in clause 5), in the
                  practice    of    counseling/social    work     or
                  psychology by him/herself or with any other
                  individual or group (exception: an established
                  IRS approved tax exempt nonprofit corporation
                  to include school district) within a radius of 45
                  miles of the PCS sites previously worked at
                  regularly. If the office is closed down and
                  ceases operations, the employees released
                  from all points of this noncompetition clause
                  (i.e., see point 3 of this contract.)

            [Yambor] regularly worked at [PCS’s] York City office at
            128 N. George St., York, Pennsylvania.      [Yambor] is
            currently employed by GSC Counseling Associates, LLC
            (herein “GSC”). [PCS] believes GSC is not a non-profit
            agency and provides counseling services. GSC’s office is
            at 2575 Eastern Blvd, York, Pennsylvania. This is four (4)
            miles from [PCS’s] York Office where [Yambor] formerly
            worked.

            The contracts between [PCS] and [Yambor] also contained
            buy-out provisions which allow former employees to pay to
            be released from the non-compete clause. The buy-out
            provision states:

                  Should the employee choose to work within the
                  for-profit and or private practice competitive
                  arena within said 45 mile radius within one
                  year of termination; employee has the option
                  to negate and void this noncompetition clause
                  with a contract buy-out. Said buy-out shall
                  serve as compensation to Employer for
                  ongoing competitive costs which may include
                  but be not limited to lost revenue for
                  transferred clients to Employee’s new working
                  environment, Employee’s knowledge of referral
                  sources, business and insurance practices
                  gained in employment training, and potentially
                  continued managed care provider credentialing
                  status achieved during PCS employment. It is
                  agreed that this contract buyout option shall
                  amount to 30% of the most recent 12 months
                  of gross pay at time of negotiation or
                  $4,000.00 whichever is greater. Payment shall
                  be due upon termination unless otherwise
                  extended by mutual written agreement.

Trial Court Opinion 06/29/15 at 2 – 4 (citation omitted).



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        On August 13, 2014, PCS filed an amended complaint against Yambor

alleging a breach of contract, namely that Yambor breached the non-

compete clause of her employment contract.              On September 2, 2014,

Yambor filed preliminary objections challenging venue.            In response, PCS

filed preliminary objections to Yambor’s preliminary objections on September

18, 2014.     By order and opinion of November 12, 2014, the trial court

sustained PCS’ preliminary objections and struck Yambor’s preliminary

objections and granted Yambor twenty days to file amended preliminary

objections.

        On November 24, 2014, Yambor filed amended preliminary objections

challenging venue to which PCS filed preliminary objections on December

10, 2014.     The trial court entered an opinion and order on March 2, 2015,

overruling PCS’s preliminary objections to Yambor’s preliminary objections.

        An evidentiary    hearing was      held   on the       amended preliminary

objections on May 12, 2015.             On June 11, 2015, the parties filed a

stipulation of counsel, which detailed the situs of the contractual history of

the parties and attached supporting exhibits.        On June 29, 2015, the trial

court    entered   an   opinion   and    order,   sustaining    Yambor’s   amended

preliminary objections and transferring the matter to York County. On July

27, 2015, PCS appealed to this Court.             PCS filed a Pa.R.A.P. 1925(b)

statement of matters complained of on appeal on August 20, 2015.               The

trial court issued a Pa.R.A.P. 1925(a) opinion on August 21, 2015.




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       On appeal,1 PCS raises three issues for review.

              I.    Did the [t]rial [c]ourt abuse its discretion and/or
              commit legal error in sustaining preliminary objections on
              grounds of improper venue, where the contract in the
              underlying breach of contract claim was silent as to where
              payment was due, making Appellant’s place of business in
              Lebanon County the legal situs of payment and thereby
              creating proper venue in Lebanon County under Scarlett
              v. Mason, 89 A.3d 1290 (Pa. Super. 2014) and Lucas
              Enterprises, Inc. v. Paul C. Herman Co., Inc., 273 Pa.
              Super. 422, 418 A.2d 720 (Pa. Super. 1980)?
              II.   Did the [t]rial [c]ourt abuse its discretion and/or
              commit legal error in sustaining preliminary objections on
              grounds of venue without proof that venue was improper
              and/or by effectively applying a forum non conveniens
              analysis of venue on preliminary objections, contrary to
              Wilson v. Levine, 963 A.2d 479 (Pa. Super. 2008)?

              III. Did the [t]rial [c]ourt abuse its discretion and/or
              commit legal error by effectively imposing Rule 1006(e)
              costs on [Appellant] even though [Appellant] established
              that venue was proper, contrary to Mateu v. Stout, 819
              A.2d 563 (Pa. Super. 2003)?

Appellant’s Brief at 4.

       PCS first asserts that the trial court abused its discretion and/or

committed legal error when it sustained Yambor’s amended preliminary

objection as to venue.          We disagree.     “The 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.’”        Scarlett 89 A.3d at 1292 (quoting Searles v.

Estrada, 856 A.2d 85, 88 (Pa. Super. 2004), appeal denied, 871 A.2d 192
____________________________________________


1
  This Court has jurisdiction under Pa.R.A.P. 311(c). See Forrester v.
Hanson, 901 A.2d 548, 552 (Pa. Super. 2006) (order transferring venue is
interlocutory order appealable as of right).



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(Pa. 2005)). “An abuse of discretion occurs when ‘there was an error of law

or the judgment was manifestly unreasonable or the result of partiality,

prejudice, bias or ill will.’” Id.

       “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, 89 A.3d at 1293

(citing Kring v. Univ. of Pittsburgh, 829 A.2d 673, 676 (Pa. Super. 2003),

appeal denied, 844 A.2d 553 (Pa. 2004)). “Ordinarily, a plaintiff’s choice

of forum carries great weight, but it is not absolute or unassailable.”

Scarlett, 89 A.3d at 1293. To determine whether venue is proper, the court

is to take a snapshot of the case at the time it is initiated: “if it is ‘proper’ at

that time, it remains ‘proper’ throughout the litigation.”       See Zappala v.

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

       In the matter sub judice, PCS asserts only that because the contract2

was silent as to where payment was due, PCS’s place of business in Lebanon

County would be the legal situs of payment and constitute a transaction or

____________________________________________


2
  All references to the contract sub judice shall be to the third and final
contract attached as Exhibit “D” to the amended complaint. The contract
contained language at the top stating “[t]his contract replaces all previous
contracts.” The trial court found that PCS can base the breach of contract
claim only on this final contract as “a basic tenet of contract law is that when
the language of a contract is clear and unambiguous its meaning must be
determined by an examination of the content of the contract itself.”
Chamberlin v. Chamberlin, 693 A.2d 970, 972 (Pa. Super. 1997) (citation
omitted).



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occurrence that would establish venue in Lebanon County. See Appellant’s

Brief at 11 – 15. Pursuant to Pa.R.C.P. No. 1006,

           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. No. 1006(a).

      It has been repeatedly held that “[t]he making of a contract, which

takes place where the offer is accepted, undoubtedly constitutes a

‘transaction or occurrence’ sufficient to establish venue.”         See Lucas

Enterprises, 417 A.2d at 721 (citation omitted).      In Lucas Enterprises,

this Court held that “in the absence of agreement to the contrary, [ ]

payment is due at the plaintiff’s residence or place of business, and venue is

proper there in a breach of contract action alleging failure to make

payment.” Id. at 721 (citation omitted).

      PCS is attempting to put the cart before the horse when it identified

Yambor’s failure to make payment as the purported breach of contract,

rather than Yambor obtaining new employment.         Following an evidentiary

hearing, the trial court found that Yambor accepted the offer in York County,

primarily worked in York County, received her paycheck in York County, and

the purported breach of contract occurred in York County. See Searles v.

Estrada,   856   A.2d   85,   88   (Pa.   Super.   2004)   (“The   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



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facts.”). It is abundantly clear that venue would have been proper in York

County. The only question that remains is whether Yambor’s decision not to

elect the buy-out option constitutes a transaction or occurrence that would

establish venue in Lebanon County.

       The trial court’s finding that venue was improper in Lebanon County

was manifestly reasonable when it determined that the purported breach of

contract occurred in York County. A breach of a non-compete clause occurs

when a former employee obtains new employment that violates a term of

the non-compete agreement. The buy-out provision provides for liquidated

damages conditioned on a breach of the non-compete clause.

       If the buy-out provision was selected by Yambor, there could be no

breach; therefore, a breach of the non-compete clause must occur before

the buy-out provision can be addressed.          A breach of the non-compete

would constitute a transaction to establish venue under Rule 1006; the

failure to make payment of damages would not. Therefore, PCS’s only claim

is for breach of the non-compete clause. If this Court were to accept PCS’s

argument, it follows that venue would be proper at the employer’s principal

place of business for any employment contract containing a non-compete

clause with a liquidated damages provision.3       “If there exists any proper


____________________________________________


3
  While venue may be proper at the employer’s principal place of business
for other considerations, this argument, if accepted, would virtually ensure
that any employee who works at a satellite office would be subject to venue
(Footnote Continued Next Page)


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

stand.”     Zappala, 909 A.2d at 1284 (citation omitted).                PCS’s first issue

fails.

         We next turn to PCS’s second claim, which asserts that the trial court

abused its discretion and/or committed legal error in sustaining preliminary

objections on grounds of venue without proof that venue was improper

and/or by effectively applying a forum non conveniens analysis.4 This issue

is intertwined with the first, in that PCS asserts that the trial court

performed      the   incorrect    analysis       when   it   sustained   the   preliminary

objections. As discussed above, the court correctly performed an improper

venue analysis; therefore, PCS’s second issue fails.

         The third issue raised by PCS is that the trial court abused its

discretion and/or committed legal error by imposing costs pursuant to Rule

1006(e). As this Court has found the trial court did not err in transferring

venue pursuant to Rule 1006(e), the rule is clear that costs are to be paid by

the plaintiff, i.e., PCS.

              If 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. The costs and fees for
                       _______________________
(Footnote Continued)

at the principal place of business, even if the employee has never had any
contacts with such forum.
4
  A foum non conveniens analysis applies only if venue is already proper in
the first instance. See Pa.R.C.P. No. 1008(d).




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            transfer and removal of the record shall be paid by
            the plaintiff.

Pa.R.C.P. No. 1006(e) (emphasis added). Therefore, the trial court did not

err in directing PCS to pay the costs and fees for transfer and removal of the

record. PCS’s third issue fails.

      In conclusion, we find that the trial court did not abuse its discretion

when it sustained Yambor’s preliminary objections.    Accordingly, we affirm

the June 29, 2015 order transferring the matter to York County.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2016




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