J-A02032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SCOTT F. LINDE, AS TRUSTEE OF THE                 IN THE SUPERIOR COURT OF
SCOTT F. LINDE FAMILY'S                                 PENNSYLVANIA
CORPORATION TRUST

                            Appellant

                       v.

ERIC LINDE AND LINDE ENTERPRISES,
INC., A PENNSYLVANIA CORPORATION

                            Appellees                 No. 1076 MDA 2015


                  Appeal from the Order Entered May 28, 2015
                In the Court of Common Pleas of Luzerne County
                        Civil Division at No: 2014-11830


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

MEMORANDUM BY STABILE, J.:                              FILED JUNE 16, 2016

        Appellant, Scott F. Linde (“Scott”), as Trustee of the Scott F. Linde

Family S Corporation Trust (“the Trust”), appeals from the order entered on

May 28, 2015 in the Court of Common Pleas of Luzerne County, sustaining

preliminary objections in favor of Appellees, Eric Linde (“Eric”) and Linde

Enterprises, Inc. (“LEI”), and granting a change of venue to Wayne County.

Scott contends the trial court erred or abused its discretion by transferring

venue to Wayne County because Luzerne County was the county where a

contract was accepted, because Eric and LEI did not prove venue in Luzerne
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*
    Former Justice specially assigned to the Superior Court.
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County was improper, and because the trial court failed to give appropriate

deference to Scott’s choice of venue. We disagree and, therefore, affirm.

      Our review of the record and the parties’ briefs reveals that Scott and

Eric are brothers who, along with their sister, Barbara Linde (“Barbara”),

have been involved in at least eight civil actions against each other in Wayne

County, in addition to the instant Luzerne County action.    Scott resides in

Luzerne County.    Appellant’s Amended Complaint at ¶ 1.       Eric resides in

Wayne County.     Preliminary Objections to Amended Complaint at ¶ 19.

Scott alleges that LEI is a corporation with a registered address in

Lackawanna County but has done business in Luzerne County.          Amended

Complaint at ¶¶ 2-4.    Eric contends that, at all times relevant, LEI’s sole

office was located in Wayne County, and that LEI does not conduct business

regularly in Luzerne County and, in fact, has not conducted business in any

county for years. Preliminary Objections to Amended Complaint at ¶¶ 21-

26.   In this action, Scott asserts that Eric and LEI have failed to abide by

the terms of a 1990 stock purchase agreement (“SPA”) relating to LEI stock.

Amended Complaint at ¶¶ 32-43.

      In response to Scott’s complaint, Eric and LEI filed preliminary

objections requesting an evidentiary hearing and a change of venue to

Wayne County.     Scott filed an amended complaint and Eric and LEI again

filed preliminary objections requesting an evidentiary hearing and a change

of venue to Wayne County. In the preliminary objections to the amended


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complaint, Eric alleged that Scott’s pleadings failed to acknowledge that

Eric’s obligation relating to the transfer of LEI stock is governed by a

handwritten global settlement agreement (“the Settlement Agreement”)

signed by the brothers on June 9, 2014, immediately prior to trial in Wayne

County.     Preliminary Objections to Amended Complaint at ¶¶ 4-6.        Eric

contends that Scott’s filing of the Luzerne County action without reference to

the Settlement Agreement was an attempt to mislead the Luzerne County

trial court and to avoid a tribunal in Wayne County where Scott’s “deceptive

misconduct and litigation abuses are well-known and well-documented.” Id.

at ¶¶ 4-6 and 9.

        The trial court conducted an evidentiary hearing on May 26, 2015. By

order entered on May 28, 2015, the trial court sustained Eric and LEI’s

preliminary objections pursuant to Pa.R.C.P. No. 1028(a)(1)1 and transferred

venue to Wayne County, finding “the issues to be intricately intertwined in

an ongoing and longstanding dispute which emanates from past and present

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1
    Rule 1028 provides, in relevant part:

        (a) Preliminary objections may be filed by any party to any
        pleading and are limited to the following grounds:

           (1) lack of jurisdiction over the subject matter of the
           action or the person of the defendant, improper venue or
           improper form or service of a writ of summons or a
           complaint[.]

Pa.R.C.P. No. 1028(a)(1).



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civil action and settlement agreements in Wayne County.” Trial Court Order,

5/28/15, at 1.

     Scott complied with the trial court’s directive to file a statement of

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

court did not issue a separate Rule 1925(a) opinion.

     In his brief, Scott challenges the change of venue as follows:

     Did the [t]rial [c]ourt below abuse its discretion and commit an
     error of law by granting [Eric and LEI’s] Preliminary Objections
     and transferring venue of the instant case from Luzerne County
     to Wayne County as:

     1. the venue of Luzerne County chosen by [Scott] in the
        underlying case is appropriate, pursuant to Pennsylvania
        Rules of Civil Procedure 2179, et seq., and 1006, et seq.,
        because the subject contract was formed in Luzerne
        County, which is where the offer was accepted;
        consequently a[ ] “transaction or occurrence,” sufficient to
        establish venue in Luzerne County for the case at bar
        occurred in Luzerne County; and

     2. [Eric and LEI] did not meet the appropriate burden of proof
        of supporting a claim for improper venue;

      3. The trial [c]ourt failed to give [Scott’s] choice of forum
         appropriate deference.
Appellant’s Brief at 6.

     In Schultz v. MMI Products, Inc., 30 A.3d 1224 (Pa. Super. 2011),

this Court recognized:

     [O]ur 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

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         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).

Id. at 1228.

      Here, the record supports the trial court’s determination that the

action Scott filed in Luzerne County involved issues “intricately intertwined”

in the ongoing and longstanding disputes that were the subject of the

Settlement Agreement and the civil actions pending in Wayne County.        As

noted, Scott and Eric signed the Settlement Agreement on June 9, 2014,

just as trial was to begin in a 1999 equity action filed in Wayne County. As

Eric explains, and as our review of the Settlement Agreement confirms:

      The Settlement Agreement had two (2) primary components.
      First, Eric Linde agreed to convey all of his LEI and Lackawanna
      Land & Energy, Inc. (“LLE”) capital stock to Scott Linde in
      exchange for the payment of $2 million. Second Scott Linde
      agreed to transfer to Eric Linde his forty-two and one half
      percent (42.5%) interest in three Wayne County real estate
      partnerships . . . .

      Before Eric Linde could convey his LEI stock to Scott Linde as per
      the Settlement Agreement, he had to offer his LEI stock to LEI in
      accordance with the terms of the SPA. (R. 1a-92; 273-277a).
      LEI declined to purchase any of the stock.            (R. 11 a).
      Thereafter, the Settlement Agreement and the SPA obligated

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       Eric Linde to offer his LEI stock to the other LEI shareholders. . .
       . Neither Barbara Linde nor her family trust expressed a desire
       to purchase any of the LEI stock, thus clearing the way for Eric
       Linde to convey his LEI (and LLE) stock pursuant to the terms of
       the Settlement Agreement.

Appellees’ Brief at 4-5.

       It was at that point, Eric contends, that Scott gave notice of the

Trust’s intent to purchase its pro rata share of Eric’s stock pursuant to the

terms of the SPA.2 Scott also demanded that the LEI stock be set at book

value per the terms of the SPA rather than the agreed upon $2 million

purchase price for the LEI and LLE stock, per the terms of the Settlement

Agreement.      Appellees’ Brief at 5.         By doing so, and by having the Trust

seek to purchase the pro rata three shares as well as an additional 209 of

Eric’s 300 shares, Eric would be unable to convey his 300 shares to Scott in

accordance with the Settlement Agreement.

       The offers of the stock to the various parties, as required by the SPA

before Eric could convey the LEI stock to Scott under the Settlement

Agreement, were made by letter from Eric in Wayne County to Scott in

Luzerne County. Scott contends the Trust’s acceptance of the offer by letter

from Luzerne County created a contract and established proper venue in



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2
  Eric held 300 shares of LEI stock while Barbara’s family trust held 115
shares and the Trust held one share. The pro rata share the Trust sought to
purchase totaled three shares of LEI stock. Amended Complaint at ¶ 7.



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Luzerne County for the action against Eric and LEI seeking enforcement of

the contract. See Appellant’s Brief at 8-16.

      Pa.R.C.P. No. 1006 directs, in relevant part, that an action against an

individual “may be brought in and only in a county in which (1) that 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[.]”     Eric could not be served in

Luzerne County but, Scott asserts, the acceptance of Eric’s offer of LEI stock

took place there and, as such, the action could be brought in Luzerne

County.

      While Pa.R.C.P. No. 1006 governs venue of actions against individuals,

Pa.R.C.P. No. 2179 governs venue of actions against corporations and

provides, in relevant part:

      [A] personal action against a corporation [] may be brought in
      and only in
         (1) the county where its registered office or principal place
         of business is located;
         (2) a county where it regularly conducts business;
         (3) the county where the cause of action arose;
         (4) a county where a transaction or occurrence took place
         out of which the cause of action arose[.]




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       LEI’s sole office is located in Wayne County, not Luzerne County, 3 and

it does not regularly conduct business there.          Preliminary Objections to

Amended Complaint at ¶ 11.            However, again, as the county where Scott

accepted Eric’s offer of stock, Scott argues that venue is proper in Luzerne

County as the county where the transaction took place out of which the

cause of action arose.

       Although Scott contends the cause of action arose out of his

acceptance of Eric’s offer of LEI stock, the record supports a different

conclusion. The offer was made in accordance with the process outlined in

the SPA. However, the SPA itself did not require that Eric offer the stock. It

was the Settlement Agreement that required Eric to sell the stock to Scott

after following the procedure set forth in the SPA.            That Settlement

Agreement was reached between Scott and Eric in Wayne County to resolve

litigation in that county. As the trial court properly determined, “the issues

[are] intricately intertwined in an ongoing and longstanding dispute which

emanates from past and present civic actions and settlement agreements in

Wayne County.” Trial Court Order, 5/28/15, at 1.

       We find the trial court’s ruling reasonable in light of the facts. We find

no abuse of discretion on the part of the trial court in transferring venue to

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3
  LEI previously had a registered office in Lackawanna County but did not
have an office in Luzerne County. Preliminary Objections to Amended
Complaint at ¶¶ 20-23.



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Wayne County.     Because there was a proper basis for the trial court’s

decision to transfer venue, that decision must stand.   See Shultz, supra,

and cases cited therein.

      Order affirmed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2016




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