J-A30035-14

                                   2015 PA Super 27

FRANCES R. B. BAYLSON AND                         IN THE SUPERIOR COURT OF
MICHAEL M. BAYLSON                                      PENNSYLVANIA

                            Appellants

                       v.

GENETICS & IVF INSTITUTE A/K/A
FAIRFAX CRYOBANK AND MORRIS AND
CLEMM, PC AND MARK CLEMM

                            Appellees                 No. 228 EDA 2014


               Appeal from the Order Entered November 27, 2013
              In the Court of Common Pleas of Philadelphia County
                       Civil Division at No(s): 130500893


BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

OPINION BY LAZARUS, J.:                           FILED FEBRUARY 09, 2015

        Frances R.B. Baylson (Dr. Batzer) and her husband, Michael M.

Baylson (collectively, Appellants) appeal from the orders of the Court of

Common Pleas of Philadelphia County, transferring this matter to the Court

of Common Pleas of Montgomery County. After careful review, we reverse

and remand.

        On May 10, 2013, Appellants commenced this action for wrongful use

of civil proceedings (Dragonetti Act, 42 Pa.C.S. §§ 8351-8354) by filing a

praecipe for a writ of summons against Genetics & IVF Institute a/k/a Fairfax

Cryobank (Genetics) and Morris and Clemm, PC (M&C) and Mark Clemm,

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A30035-14



Esquire (Clemm).        In their complaint filed August 12, 2013, Appellants

averred that their claim arose out of a lawsuit filed in the Court of Common

Pleas of Montgomery County, Genetics & IVF Institute, et al. v.

Pennsylvania Reproductive Associates, Inc., et al., No. 2011-27330

(the Montgomery County action), in which Genetics was represented by M&C

and Clemm, and Dr. Batzer was named as an individual defendant. On May

16, 2012, the Montgomery County trial court dismissed that matter with

prejudice, having determined that, pursuant to the contract at issue,

jurisdiction was proper only in the courts of Virginia.1

       In their Dragonetti Act complaint, Appellants aver the following: they

are residents of Philadelphia; Genetics is a Virginia corporation that conducts

____________________________________________


1
  In its amended complaint in the Montgomery County action, plaintiff
Genetics states that it is in the business of storing reproductive material. It
names as defendants Pennsylvania Reproductive Associates, Inc. (PRA),
Philadelphia Fertility Institute, Inc. (PFI), and Fertility Testing Laboratories,
Inc. (FTL). Genetics also names as individual defendants four physicians,
including Dr. Batzer, whom it identifies as officers, directors and
shareholders of PRA, PFI and FTL. Genetics also avers that “PRA, PFI and
FTL were sham corporations used by [the four doctors] to conduct their own
personal business.” Amended Complaint, 11/22/11, at ¶ 16.

In 2007, Genetics entered into two-year storage lease agreements with PRA
and FTL to store frozen embryos, tissue and sperm. Genetics avers that the
corporate entities are no longer in business, the leases have expired, and
that despite its demands, “the Defendants have failed and/or refused to
remove the tanks containing the Reproductive Material.” Id. at 24. The
amended complaint seeks damages for breach of contract and equitable
relief, including an order directing defendants to remove the reproductive
material from its facility.




                                           -2-
J-A30035-14



business in Pennsylvania; at all relevant times, Genetics operated an office

in Philadelphia; and Genetics’ counsel, M&C and Clemm, practice law in

Montgomery County. Complaint, ¶¶ 1-3.

      Appellants assert that Genetics and its counsel knew that the

corporate parties to the lease had been dissolved, and that Dr. Batzer was

not personally involved in the affairs of the dissolved companies. Id. at ¶

10.   Furthermore, they allege that Genetics and its counsel knew that

Genetics’ claim could not be brought in any Pennsylvania court because the

lease agreement limited jurisdiction to Virginia courts. Id. at ¶ 12.

      Appellants further allege that Genetics knew the allegations that the

corporate entities were a sham were “completely false and meritless.” Id.

at ¶ 31. They also allege that M&C and Clemm “ignored and breached their

duty to investigate the facts concerning Dr. Batzer before filing the original

complaint and before filing the amended complaint against Dr. Batzer.” Id.

at ¶ 32.

      On August 14, 2013, M&C and Clemm filed preliminary objections

raising improper venue and failure to state a cause of action, and on

September 4, 2013, Genetics filed preliminary objections on several bases,

none of which related to venue. On November 27, 2013, the court issued

separate orders sustaining the preliminary objections to venue filed by




                                     -3-
J-A30035-14



Genetics and M&C and Clemm, transferring the case to Montgomery

County.2

       This timely appeal followed in which the sole issue raised is whether

the trial court erred by ordering a change of venue from Philadelphia County

to Montgomery County in a wrongful use of civil proceedings case, solely

because the underlying litigation was filed in Montgomery County.3

       When reviewing a trial court’s decision to transfer venue, our
       standard of review is as follows: A trial court’s decision to
       transfer venue will not be disturbed absent an abuse of
       discretion. 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 and quotation

marks omitted).

       As an initial matter, we note that pursuant to Pa.R.C.P. 2179, a

personal action against a corporation may be brought in the county where its

registered office or principal place of business is located, or a county where

it regularly conducts business.          See Pa.R.C.P. 2179(a).   Here, Genetics

operated an office at 3401 Market Street in Philadelphia, thus making

Philadelphia County a proper venue for Appellants’ action against it.
____________________________________________


2
 As noted above, Genetics did not object to venue. “Improper venue shall
be raised by preliminary objection and if not so raised shall be waived.”
Pa.R.C.P. 1006(e).
3
  “An appeal may be taken as of right from an order in a civil action . . .
changing venue . . . .” Pa.R.A.P. 313(c).



                                           -4-
J-A30035-14



Furthermore, an action to enforce joint and several liability against two or

more defendants “may be brought against all defendants in any county in

which the venue may be laid against one of the defendants.”             Pa.R.C.P.

1006(c). Accordingly, under Rule 1006(c), Philadelphia County was a proper

venue to sue both Genetics and its counsel.4

       Nevertheless, the trial court transferred the instant matter to

Montgomery County relying upon two decisions from this Court: Harris v.

Brill, 844 A.2d 567 (Pa. Super. 2004); and Kring v. University of

Pittsburgh, 829 A.2d 873 (Pa. Super. 2003).            While these cases, which

both involve Dragonetti actions, are relevant, we disagree that they support

the trial court’s conclusion that “[v]enue is proper only in Montgomery

County.      Venue is not proper in Philadelphia and this court has no

jurisdiction to hear the case.”        Order, 11/27/13, Ex. A, at 2.   Rather, as

explained herein, venue is proper in both counties.

       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


____________________________________________


4
  We note that the Pennsylvania Supreme Court has not provided an
exception to the general venue rules for Dragonetti actions, as it did for
medical professional liability actions against a healthcare provider, which
may only be brought in the county in which the cause of action arose. See
Pa.R.C.P. 1006(a.1).



                                           -5-
J-A30035-14



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.

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.




                                     -6-
J-A30035-14



      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 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

                                    -7-
J-A30035-14



County. However, we noted, “this does not mean that venue in this case is

improper in Crawford County.”           Harris, supra at 572.5   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.

       Likewise, in the instant matter, venue is proper in Philadelphia because

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 Appellees 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.

       Because the trial court erred when it held that venue is proper only in

Montgomery County, and not in Philadelphia County, we reverse the orders

of the Court of Common Pleas and remand for the court to rule on the

remaining preliminary objections.

       Order reversed; matter remanded for proceedings consistent with this

opinion; jurisdiction relinquished.
____________________________________________


5
  In their preliminary objections, the Harris defendants noted they were
residents of Crawford County.      Accordingly, venue was also proper in
Crawford County because the defendants could be served there. See
Pa.R.C.P. 1006(a)(1).



                                           -8-
J-A30035-14



        Judge Platt did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2015




                                      -9-
