J-A33041-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PAMELA AND JAMES GORDON                        IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellants

                       v.

JFBB SKI AREAS, INC.

                            Appellee                No. 1454 EDA 2014


               Appeal from the Order Entered on April 28, 2014
             In the Court of Common Pleas of Philadelphia County
             Civil Division at No.: November Term, 2013 No. 1048


BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                        FILED FEBRUARY 13, 2015

       Pamela and James Gordon appeal from the order of April 28, 2014,

sustaining the preliminary objections of JFBB Ski Areas, Inc. (“JFBB”) as to

venue in Philadelphia County and transferring the underlying matter to

Carbon County. After careful review, we affirm.

       On January 21, 2013, Pamela Gordon broke her leg while snow tubing

at Jack Frost Mountain in Carbon County.       The trial court set forth the

procedural history of the case as follows:

       On November 12, 2013, a [c]omplaint was filed by plaintiffs
       Pamela Gordon and James Gordon against defendant Jack Frost
       Ski Area, Peak Resort, Jack Frost Mountain Company, Jack Frost
       Mountain, Inc., Blue Ridge Real Estate Company, and Blue Ridge
       Realty, Inc. On December 24, 2013, the defendants together
       brought [p]reliminary [o]bjections, including an objection to
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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       venue that asks the [c]ourt to move the case from the Court of
       Common Pleas of Philadelphia County to the Court of Common
       Pleas of Carbon County, where [they alleged that] venue
       properly lies. [The Gordons] filed a Supplemental Memorandum
       in Opposition to Preliminary Objections on January 17, 2014. On
       January 31, 2014, defendants filed a Reply in Support of
       Preliminary Objections and a Reply to Plaintiffs’ New Matter
       Asserted in its Response to Preliminary Objection[s]. Also on
       January 31, 2013, an [o]rder scheduled an argument and
       evidentiary proceeding relevant to the question of venue for April
       14, 2014 and authorized the parties to conduct discovery.

       On March 14, 2014, [the Gordons] filed a Motion for Leave of
       Court to Join New Defendant [JFBB].          On March 18, 2014
       defendants filed an Answer to Plaintiffs’ Motion for Leave of
       Court to Join New Defendant, [JFBB], stating that they [did] not
       oppose the motion. This motion was granted by order dated
       April 7, 2014.       [The Gordons] filed a Memorandum in
       Supplement to Plaintiffs’ Opposition to Defendants’ Preliminary
       Objections on April 10, 2014. Defendants filed a Supplemental
       Brief in Support of Defendants’ Preliminary Objections on April
       11, 2013. On April 14, 2014, the [Gordons] and defendants
       stipulated that “JFBB Ski Areas, Inc. shall be substituted for Jack
       Frost Ski Area [and] all remaining Defendants are dismissed[,]”
       and a hearing on venue arguments was held and evidence was
       accepted.    On April 22, 2014,[1] it was ordered that the
       preliminary objections are sustained as to venue only and the
       case transferred to the Court of Common Pleas of Carbon
       County. On May 2, 2014 the [Gordons] appealed from the order
       granting [the] Motion to Transfer Venue.

Trial Court Opinion (“T.C.O.”), 7/15/2014, at 1-2 (footnotes and record

citations omitted).      The trial court did not order the Gordons to file a

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

The trial court filed its Pa.R.A.P. 1925(a) opinion on July 15, 2014.

____________________________________________


1
      The order on appeal, dated April 22, 2014, was not docketed until April
28, 2014.



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      The Gordons raise two questions for our review:

      1.    Whether the trial court erred when it concluded that [JFBB]
      does not regularly conduct business in Philadelphia pursuant to
      Pa.R.C.P. 2179 when [JFBB]’s activities constitute more than
      advertising and soliciting, including regularly sending employees
      into Philadelphia County to promote the mountain, and
      specifically, the ability to purchase lift tickets though its website?

      2.    Whether the trial court erred when it concluded that the
      availability of an interactive website that allows customers to
      purchase lift tickets online and is promoted by an employee of
      [JFBB] with a physical presence in Philadelphia County, and
      when roughly 5% of its internet sales are made to Philadelphia
      residents[,] was not sufficient advertising and solicitation to
      constitute that [JFBB] regularly conducts business in Philadelphia
      County pursuant to Pa.R.C.P. 2179?

Gordons’ Brief at 4.

      Both questions presented by the Gordons contest the trial court’s

finding that venue was not appropriate in Philadelphia County. Specifically,

the Gordons contend that the trial court erred, pursuant to Pa.R.C.P. 2179,

“when it concluded, as a matter of law, that JFBB’s only business conducted

in Philadelphia County is advertising and the availability of a website, and

that JFBB’s conduct was not sufficient to establish proper venue in

Philadelphia County.” Id. at 11. We disagree.

         In reviewing a trial court’s ruling transferring venue, we
         will not disturb the ruling if the decision is reasonable in
         light of the facts. 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, bias, or ill will. . . .

      Harris v. Brill, 844 A.2d 567, 570 (Pa. Super. 2004) (citations
      and internal quotation marks omitted).



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     Pa.R.C.P. 2179 governing venue provides in pertinent part as
     follows:

        (a) Except as otherwise provided . . . , a personal action
        against a corporation or similar entity 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[.]

     Pa.R.C.P. 2179(a)(1)-(4).

McMillan v. First Nat’l Bank of Berwick, 978 A.2d 370, 371-72 (Pa.

Super. 2009).   Here, the Gordons contest the trial court’s venue decision

under Pa.R.C.P. 2179(a)(2), arguing that Philadelphia is “a county where

[JFBB] regularly conducts business.” Gordons’ Brief at 11.

     “As to the matter of whether [an a]ppellee regularly conducts business

in [a c]ounty, this Court has held that . . . ‘each case rests on its own

facts.’” McMillan, 978 A.2d at 372-73.

     A plaintiff’s choice of forum should be “given great weight[,] and
     a defendant has the burden in asserting a challenge to the
     plaintiff’s choice of venue.” Masel v. Glassman, 689 A.2d 314,
     316 (Pa. Super. 1997) (quoting Shears v. Rigley, 623 A.2d
     821, 824 (Pa. Super. 1993)). . . . Furthermore, it is well-settled
     that “corporations have a constitutional right to seek a change of
     venue.” Purcell v. Bryn Mawr Hosp., 579 A.2d 1282, 1284
     (Pa. 1990).

PECO Energy Co. v. Phila. Suburban Water Co., 802 A.2d 666, 668-69

(Pa. Super. 2002) (citations modified). “[I]f there exists any proper basis


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for the trial court’s decision to grant the petition to transfer venue, the

decision must stand.” Kubik v. Route 252, Inc., 762 A.2d 1119, 1123 (Pa.

Super. 2000).

      In determining whether a corporation regularly conducts
      business [in a given county], we have held that “this court must
      focus on the nature of the acts the corporation allegedly
      performs in that county; those acts must be assessed both as to
      their quantity and quality.” Masel, 689 A.2d at 317 (citations
      omitted). Our Supreme Court has stated that the “quality of
      acts” means “those directly, furthering[,] or essential to,
      corporate objects; they do not include incidental acts.” Quantity
      means those acts which are “so continuous and sufficient to be
      general or habitual.” . . . The acts of the corporation must be
      distinguished: those in “aid of a main purpose” are collateral and
      incidental, while “those necessary to its existence” are “direct.”
      Purcell, 579 A.2d at 1285 (quoting Shambe v. Del. & Hudson
      R.R. Co., 135 A. 755, 755 (Pa. 1927)).

PECO Energy Co., 802 A.2d at 669 (citations modified). In PECO Energy

Co., this Court described the manner in which the quantity/quality analysis

is applied to the individual facts of a case:

      For example, in Purcell, supra, our Supreme Court analyzed the
      question of whether certain contacts and contractual affiliations
      between Bryn Mawr Hospital, located in Montgomery County,
      and Philadelphia County were sufficient to vest venue in
      Philadelphia County in a medical malpractice action. The Court
      examined the hospital’s connection to residency programs in
      Philadelphia County, recruitment and employment of medical
      residents by Bryn Mawr Hospital from Philadelphia teaching
      hospitals, purchases of goods and services from businesses
      within Philadelphia County for furtherance of its business in
      Montgomery County, maintenance of advertisements in the
      Philadelphia County telephone directories, and placement of
      advertisements in the Philadelphia Inquirer.        Despite these
      various affiliations, the Court concluded that Philadelphia was an
      improper venue for a negligence action filed by plaintiffs against



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      Bryn Mawr Hospital and the medical personnel who cared for
      plaintiffs’ deceased infant daughter. Purcell, 579 A.2d at 1287.

      More recently, in Masel, supra, this Court, following Purcell,
      determined that the plaintiff in a medical malpractice action
      demonstrated insufficient contacts between the defendant
      hospital and Philadelphia County for venue to lie there, despite
      the hospital’s extensive advertising in Philadelphia newspapers
      and directories and various extensive contracts with Philadelphia
      vendors and institutions. There, we held that the nature of the
      contacts was incidental in nature and not directly tied to
      furthering the main purpose of the corporation. Masel, 689
      A.2d at 318.

PECO Energy Co., 802 A.2d at 670-71 (citations modified); see id.

(concluding that “[PSWC’s] contacts are minimal and incidental, at best.

Moreover, we do not find that those contacts are essential to the furtherance

of PSWC’s business in any significant way. In comparing the nature of the

contacts of PSWC to Philadelphia County in this case, we discern them to be

far less in quantity, as well as quality, than the contacts cited in Purcell and

Masel.”).

      In the instant case, the trial court found as follows:

      [JFBB] is a Missouri Corporation with a registered address at 1
      Jack Frost Mountain Road, Blakeslee, Pennsylvania 18610,
      Carbon County, Pennsylvania [sic]. JFBB does not own property
      in Philadelphia County, has never applied for a business license
      in Philadelphia, and does not purchase any products from
      vendors in Philadelphia.         JFBB does not sell merchandise,
      apparel or ski lift tickets in Philadelphia.

T.C.O. at 3.

      Heather Schiffbauer, JFBB’s director of marketing, testified at a

deposition that, for the last three years, JFBB has offered a promotion on



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CBSPhilly.com, a Philadelphia-based sports talk radio station, for a voucher

to be redeemed for half-priced lift and tubing tickets. Deposition of Heather

Schiffbauer, 3/13/2014, at 9-10. Roughly five percent of the sales from that

promotion come from Philadelphia County.     Id. at 13.   JFBB advertises in

Philadelphia in the form of outdoor billboards, a Dunkin’ Donuts coupon

promotion, and by placing advertisements in Philly Current, a local trade

magazine.   Id. at 17, 37, 39.   JFBB runs advertisements on Flyers radio,

which includes a January giveaway promotion; JFBB also staffs two kiosks

outside the Wells Fargo Center during Flyers games. Id. at 39.

     In addition, JFBB is a sponsor for the Wing Bowl in Philadelphia, has

previously sponsored the Temple Snowboard Club, and advertises at Temple

football games. At the Wing Bowl, JFBB sponsors a section where it gives

away T-shirts, and JFBB appears on the screen as a sponsor.       Id. at 19.

JFBB participates annually in Philly Campus, a program which introduces

new students to the Philadelphia area. Id. For the last two years, JFBB has

set up a booth in front of the Philadelphia Art Museum at Philly Campus

events to hand out promotional gifts, brochures, and rate cards, but does

not make any sales. Id. at 20-21.

     Furthermore, JFBB sets up a booth for the radio station WRRF 104.5’s

winter festival in Philadelphia. Id. at 20. As described by Schiffbauer, “we

set up a tent and, again, give away T-shirts, have games there, so it’s more

of an interactive event. They have a free concert, have a couple bands that

perform there.” Id. at 26. At this event, JFBB staff hands out rate cards

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and magazines with the website on them. Id. at 26-27. Schiffbauer also

noted that JFBB has previously offered group rates for charter buses, but not

specifically for the Philadelphia area. Id. at 29.

      As   to   whether    business   is    conducted   in   Philadelphia   County,

Schiffbauer stated that lift tickets are either purchased on the website, which

is administered through a California company, or purchased directly at Jack

Frost Mountain in Carbon County.           Because some customers pay cash for

their lift tickets, not all purchases are tracked by location. However, out of

34,000 purchases tracked, roughly 1,600, or 4.7%, were from Philadelphia

County.    Id. at 46-47.       When asked if JFBB purchases anything in

Philadelphia “[o]ther than payments made to get your advertisements on

these various media that we’ve talked about for marketing purposes,”

Schiffbauer answered “no.”      Id. at 54.      Likewise, Mark Daubert, general

manager at JFBB, stated in his deposition that none of JFBB’s vendors is

Philadelphia corporation.    See Deposition of Mark Daubert, 3/13/2014, at

16.

      We begin by assessing “the nature of the acts [that JFBB] allegedly

performs in [Philadelphia C]ounty.”         PECO Energy Co., 802 A.2d at 669.

JFBB advertises in Philadelphia County in trade magazines, billboards, with

coupon and voucher programs, and by sponsoring community events in

Philadelphia County where promotional materials are distributed. However,

no actual sales of lift tickets take place at these events or otherwise in

Philadelphia County.      The actual sale of lift tickets occurs on the JFBB

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website, with money transferred through a third-party bank, or on-site at

the resort in Carbon County.      Of those sales, to the extent they were

tracked, fewer than five percent were made by Philadelphia County

residents.    Likewise, following a radio promotion, around five percent of

sales from that promotion came from Philadelphia.

      Similarly, in Kubik, supra, a panel of this Court assessed whether a

restaurant’s sale of gift certificates in Philadelphia County constituted

regularly-conducted business for purposes of establishing venue:

      [The r]estaurant’s main purpose is not to sell gift certificates,
      but to sell food in its establishment. Certainly the sale of gift
      certificates is not “necessary to its existence,” but rather serves
      to “aid . . . [its] main purpose.” Accordingly, the sale of gift
      certificates is merely incidental to its regular business.
      Moreover, there is no evidence that such sales occur regularly.
      Thus, the sale of gift certificates is a collateral act, and this is
      simply not enough to constitute regularly conducting business in
      Philadelphia County.

Kubik, 762 A.2d at 1125-26. Here, the main purpose of JFBB is to own and

operate a ski resort.    Running promotions and distributing coupons and

vouchers are incidental to JFBB’s regular business. Unlike in Kubik, where

the gift certificates were purchased in Philadelphia, in this case, Philadelphia

residents who wish to use vouchers and coupons to buy lift tickets must do

so through JFBB’s website or at Jack Frost Mountain, not in Philadelphia

County.      Thus, these acts are even less direct than the sale of gift

certificates in deemed insufficient to support venue in Kubik.




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      Furthermore, the lift ticket sales coming from Philadelphia residents

are insufficient to justify venue. This contact is even less significant than in

Masel, supra, in which this Court determined that there were insufficient

contacts between a hospital and Philadelphia County to establish venue,

“despite the hospital’s extensive advertising in Philadelphia newspapers and

directories and various extensive contracts with Philadelphia vendors and

institutions. There, we held that the nature of the contacts was incidental in

nature and not directly tied to furthering the main purpose of the

corporation.”   PECO Energy Co., 802 A.2d at 670-71 (discussing Masel,

689 A.2d at 318).      Specifically, in Masel, the Court found that twenty

percent of the hospital’s gross revenue came from Philadelphia third-party

payers, and three percent directly from Philadelphia residents. Masel, 689

A.2d at 318.     Nonetheless, the Court rejected the venue claim despite

“acceptance of a portion of its income from residents of Philadelphia

County.”   Id. (citing Purcell, 579 A.2d at 1285).      Here, fewer than five

percent of ticket sales come from Philadelphia residents, and JFBB has no

vendor contracts in Philadelphia.

      Thus, despite the non-negligible quantity of promotional activity

directed toward Philadelphia County, those contacts were related to

advertising, rendering their quality “collateral and incidental” to the main

purpose of JFBB, which is to own and operate a ski resort in Carbon County.

Purcell, 579 A.2d at 1285.      The record does not demonstrate that any

business activities “necessary to [the] existence” of operating Jack Frost

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Mountain ever took place in Philadelphia.     Kubik, 762 A.2d at 1125-26.

“Mere solicitation of business in a particular county does not amount to

conducting business.”     Purcell, 579 A.2d at 1287.    Accordingly, the trial

court did not err or abuse its discretion in concluding that JFBB’s contacts in

Philadelphia County were insufficient to justify venue. McMillan, 978 A.2d

at 371-72. The Gordons’ issues do not merit relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2015




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