J-S84042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 PISANCHYN LAW FIRM, LLC                 :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                    Appellant            :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 MATTHEW J. SCANLON, ESQ. AND            :   No. 1219 MDA 2017
 SCANLON & WOJTON, LLC                   :

                 Appeal from the Order Entered July 10, 2017
            In the Court of Common Pleas of Lackawanna County
                     Civil Division at No(s): 16 CV 3573

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

MEMORANDUM BY OTT, J.:                                 FILED MAY 18, 2018

      Pisanchyn Law Firm, LLC (Pisanchyn) appeals from the July 10, 2017,

order, entered in the Court of Common Pleas of Lackawanna County,

sustaining the preliminary objections as to venue filed by Matthew J. Scanlon,

Esq., and Scanlon & Wojton LLC (collectively, Scanlon), and transferring the

case to the Court of Common Pleas of Allegheny County. The sole issue raised

in this appeal is stated by Pisanchyn, as follows:

      Whether the trial court committed an error of law or abused its
      discretion by failing to follow Lucas Enterprises, Inc. v. Paul C.
      Harmon, Co., 417 A.2d 720 (Pa. Super. 1980) and Scarlett v.
      Mason, 89 A.3d 1290 (Pa. Super. 2014), when concluding that
      venue was improper in Lackawanna County under Pa.R.C.P. 1006
      when the contract was taken by [Pisanchyn] while [Pisanchyn]
      was located in Lackawanna County and/or in the absence of an
      agreement to the contrary, payment was/is due at [Pisanchyn’s]
      princip[al] place of business, which is located in Lackawanna
      County.

Pisanchyn’s Brief at 3. Based upon the following, we affirm.
J-S84042-17



      By way of background, Pisanchyn is a Professional Limited Liability

Company with its registered office and principal place of business located in

Scranton, Lackawanna County. See Complaint, 9/6/2016, at ¶1. Matthew J.

Scanlon, Esq., is a partner of Scanlon & Wojton LLC, which has its registered

office and principal place of business located in Pittsburgh, Allegheny County.

See id. at ¶¶2-3.

      The trial court has aptly summarized the factual background of this case,

as follows:

      [Pisanchyn] was approached by Frank Repchick, Kirmberle
      Repchick, and Sidney Warner, “the Repchicks,” to represent them
      in a motor vehicle accidence occurring in Susquehanna County,
      Pennsylvania. The Repchicks signed a Contingent Fee Agreement
      for [Pisanchyn] to represent them regarding their personal injury
      and property damage claims. [Pisanchyn filed a Complaint in the
      Court of Common Pleas of Susquehanna County on behalf of the
      Repchicks and, thereafter, a Praecipe for Trial. Pisanchyn] claims
      that [Pisanchyn] provided substantial work on the Repchicks’
      case, incurring fees and expenses in excess of $4,000. Following
      the Complaint and a Praecipe for Trial on behalf of the Repchicks,
      [Scanlon] requested to file a Praecipe for Substitution of Counsel
      and assume handling the case in place of [Pisanchyn]. [On
      October 16, 2014, Pisanchyn] sent correspondence to [Scanlon]
      outlining the expenses [Pisanchyn] has paid on the case and its
      fee agreement, offering to file a time stamped copy of the
      substitution of counsel form, and “placing you [Scanlon] on notice
      of [Pisanchyn’s] lien in regard to this matter in the amount of
      $39,238.67.” In response, [Scanlon] sent the Praecipe for
      Substitution of Counsel.      [Pisanchyn] filed the Praecipe for
      Substitution of Counsel, but claims it continued to offer [Scanlon]
      assistance in the case. [Scanlon] settled the Repchicks’ case in
      August 2015, but to this date ha[s] not supplied any payment to
      [Pisanchyn]. …

Trial Court Opinion, 7/10/2017, at 2 (unnumbered).




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J-S84042-17



      On June 15, 2016, Pisanchyn filed a Praecipe for a Writ of Summons.

Following a Rule to file a complaint, Pisanchyn filed a Complaint on September

6, 2016.      Pisanchyn alleged, inter alia, that “[Scanlon] agreed to repay

[Pisanchyn] for costs and expenses as well as an attorney fee concerning the

Repchick[s’] case.” Complaint, 9/6/2016, at ¶21. Pisanchyn further alleged

“[Pisanchyn] accepted [Scanlon’s] offer to accept the case while in the

Scranton Lackawanna County office.” Id. at ¶28. Scanlon filed Preliminary

Objections to Pisanchyn’s Complaint on September 26, 2016, raising (1)

Improper Venue, (2) Failure of a Pleading to Conform to Law under Rule

1019(h), (3) Failure of a Pleading to Conform to Law under Rule 1019(i), and

(4) Failure of a Pleading to Conform to Law under Rule 1020(a).

      The trial court set forth the subsequent procedural history in its opinion

as follows:

      We held oral argument ton [Scanlon’s] Preliminary Objections on
      November 29, 2016. Following oral argument, we held a hearing
      on March 16, 2017 for a factual determination of whether
      “[Pisanchyn] accepted [Scanlon’s] offer to accept the case while
      in the Scranton Lackawanna County Office” as alleged in the
      Complaint or whether “no one associated with or employed by
      Scanlon & Wojton has ever travelled to Lackawanna County for
      any reason whatsoever, business or personal” as alleged in
      [Scanlon’s] Preliminary Objections of September 26, 2016.
      During the hearing, there was no dispute that [Scanlon was] not
      physically present in Lackawanna County at the time the alleged
      contract was formed, that [Scanlon] do[es] not frequent
      Lackawanna County, and that [Scanlon] do[es] not conduct
      business in Lackawanna County. Rather, [Pisanchyn] argues that,
      because [Pisanchyn] was located in Lackawanna County and
      [Pisanchyn’s] understanding was that [Scanlon] must send a
      check to [Pisanchyn] at [Pisanchyn’s] Scranton office, venue
      would be proper in Lackawanna County.

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J-S84042-17



Trial Court Opinion, 7/10/2017, at 1-2 (unnumbered).

       On July 10, 2017, the trial court sustained Scanlon’s preliminary

objections to venue and transferred this case to Allegheny County.              This

appeal followed.1

       At the outset, we state our standard and scope of review:

       It is well established that a trial court’s decision to transfer venue
       will not be disturbed absent an abuse of discretion. A Plaintiff’s
       choice of forum is to be given great weight, and the burden is on
       the party challenging the choice to show it was improper.
       However, a plaintiff’s choice of venue is not absolute or
       unassailable. Indeed, if there exists any proper basis for the trial
       court’s decision to grant a petition to transfer venue, the decision
       must stand.

       The party seeking a change of venue bears the burden of proving
       such a change necessary.

Wyszynski v. Greenwood Gaming & Entertainment, Inc., 160 A.3d 198,

200 (Pa. Super. 2017) (citations omitted).

       The instant case involves an action against an individual and a

corporation.    In this regard, Pennsylvania Rules of Civil Procedure address

venue, as follows. Pa.R.C.P. 1006, governing venue for an action against an

individual, provides, in relevant 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



____________________________________________


1Pisanchyn timely complied with the order of the trial court to file a statement
of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).


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J-S84042-17


            (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, or ….

Pa.R.C.P. No. 1006

     With respect to venue for actions against corporations, Rule 2179

provides:

     (a) Except as otherwise provided by an Act of Assembly, by Rule
     1006(a.1) or by subdivision (b) of this rule, 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, or

              (5) a county where the property or a part of the property which
              is the subject matter of the action is located provided that
              equitable relief is sought with respect to the property.

Pa.R.C.P. No. 2179(a).

     As the trial court opined, there is no dispute that Scanlon’s principal

place of business and the county where it regularly conducts business is

Allegheny County, and that Scanlon does not conduct business in Lackawanna

County. Pisanchyn, however, contends that venue is proper in Lackawanna

County for two reasons.         First, Pisanchyn claims the transactions and

occurrences in the formation of the contract occurred with Pisanchyn in

Lackawanna County. See Lucas Enterprises, Inc., supra, 417 A.2d at 721


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(“The making of a contract, which takes place where the offer is accepted,

undoubtedly constitutes a ‘transaction or occurrence’ sufficient to establish

venue.”) Second, Pisanchyn asserts that in the absence of an agreement to

the contrary, payment is/was due at Pisanchyn’s principal place of business,

which is located in Lackawanna County. See Scarlett, supra, 89 A.3d at

1292, citing Lucas Enterprises, Inc., 417 A.2d at 721 (“[T]he rule is

universal in the absence of agreement to the contrary, that 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.”).

      In its brief, Pisanchyn claims that venue is proper in Lackawanna County

because that is where the offer was accepted, and in support cites the

testimony of its employee, Douglas Yazinski, Esquire, presented at the factual

hearing on March 16 2017.     See Pisanchyn’s Brief at 14-15. Mr. Yazinski

testified that while he was located in Pisanchyn’s primary place of business in

Scranton, Lackawanna County, he received a telephone call from Scanlon and

there was an “oral agreement,” whereby Scanlon “offer[ed]” to “honor the fee

agreement … as part of that [Pisanchyn] would give any advice … as far as

the local rules, things like that …”. N.T., 3/16/2017 at 30, 35. See also id.

at 21-22. Mr. Yazinski admitted he did not have any written proof other than

the October 16, 2014, letter, which, we note, put Scanlon on notice of

Pisanchyn’s lien and did not mention an agreement. Id. at 32-33.




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      Scanlon, for his part, vigorously disputed Yazinski’s testimony, testified

“[i]t was never a referral type of thing,” and maintained “we had no agreement

with [Pisanchyn].” N.T. 3/16/2017, at 13, 15. See also id. at 46.

      Having considered the allegations set forth in the complaint and the

testimony presented at the evidentiary hearing, the trial court found merit in

Scanlon’s position that venue was not proper in Lackawanna County, stating:

      The action in this case is against an individual Defendant, Matthew
      Scanlon, Esq., and a corporation, Scanlon & Wojton, LLC. Mr.
      Scanlon was not served in Lackawanna County. Br. in Supp. 5.
      Following our factual hearing, we are left with no question in this
      case that Defendant Scanlon could not have been served in
      Lackawanna County, as he was not present in Lackawanna County
      at any time prior to the hearing.

      The principal place of business and offices of [Scanlon] are located
      in Pittsburgh, Allegheny County, PA. Comp. ¶¶2-3. [Pisanchyn]
      provided nothing to support a finding that [Scanlon] ha[s] any
      business dealings, offices, property, or other contact with
      Lackawanna County, Pennsylvania, and the testimony from
      Matthew Scanlon, Esq. and Timothy Wojton, Esq. demonstrate[s]
      that [Scanlon has] no contacts with Lackawanna County. If
      [Scanlon is] in possession of a sum of money belonging to
      [Pisanchyn] as suggested by [Pisanchyn], that sum of money
      would be situated in Allegheny County, where [Scanlon’s] office
      and bank are located. [Scanlon] argue[s] that the fee on the
      Repchicks’ case was “ultimately handled, deposited and managed”
      in Allegheny County. P.O.s ¶12.

      The question, therefore, becomes whether Lackawanna County is
      a place where a transaction or occurrence took place. According
      to [Pisanchyn], [Scanlon] “contacted the Plaintiff, Pisanchyn Law
      Firm, LLC, in the Scranton office . . . [and] made an offer to accept
      the case.” Comp. ¶27. [Pisanchyn] alleges that “Plaintiff accepted
      Defendants[’] offer to accept the case while in the Scranton[,]
      Lackawanna County office.” Comp. ¶28. While [Pisanchyn] may
      have been present in Lackawanna County, it is clear that at no
      point [was Scanlon] present in Lackawanna County. [Pisanchyn]
      “specifically denied that said decision [to breach an agreement],


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J-S84042-17


     action or breach could have only occurred where Defendant
     Matthew J. Scanlon, Esq. was physically situated and where said
     fee was ultimately handled, deposited and managed.” Ans. to
     P.O.s ¶12.

     [Pisanchyn’s] office is located in Scranton, Lackawanna County,
     Pennsylvania.1 The allegations within the complaint suggest that
        __________________________________________________
        1 Plaintiff maintains an office in Allegheny County and
        advertises within Allegheny County. However, this office
        was not in existence at the time this claim arose, according
        to the testimony.
        __________________________________

     the alleged agreement could have taken place while the parties
     were located in two different counties, as the complaint merely
     specifies that correspondence was received, which could have
     been via facsimile, telephone conversation, and/or e-mail
     correspondence. [Scanlon] corresponded at least on one occasion
     via by (sic) first class mail. Comp. ¶13. The complaint, however,
     fails to specify whether the alleged agreement was written, oral,
     or a combination of both, and fails to explain when precisely the
     agreement took place. Without [Pisanchyn] specifying which
     correspondences occurred at what time and where, it would be
     difficult to declare that venue is proper in Lackawanna County,
     when [Scanlon] w[as] never physically present in Lackawanna
     County and we cannot determine the type of correspondence, date
     of correspondence, and location of each of the parties when a
     correspondence occurred. We acknowledge 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.” Lucas Enterprises, Inc. v. Paul C. Harman
     Co., 417 A.2d 720, 721 (Pa. Super. 1980) (citing Craig v. W.J.
     Thiele & Sons, Inc., 149 A.2d 35, 36-37 (1959)). However, the
     place where the offer was accepted in this case would appear to
     be Allegheny County, where [Scanlon was] located when they
     allegedly accepted the offer.

     [Pisanchyn] argues that venue is proper in Lackawanna County,
     as [Pisanchyn] takes the position that any fee to be collected by
     [Pisanchyn] would have been collected in Lackawanna County, as
     that is where [Pisanchyn’s] office was located. Pennsylvania has
     adopted the rule that “in the absence of agreement to the
     contrary, that payment is due at the plaintiff’s residence or place

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J-S84042-17


      of business, and venue is proper there in a breach of contract
      action alleging failure to make payment.” Lucas Enterprises,
      Inc. v. Paul C. Harman Co., 417 A.2d 720, 721-722 (Pa. Super.
      1980). This rule concerning the place for payment comes into play
      in a breach of contract case not only when the place where the
      parties formed the contract is unknown, but also in any case
      where the specific location of payment was not included in the
      agreement. Scarlet v. Mason, 89 A.3d 1290, 1293-94 (2014).

      [Scanlon] distinguished Lucas Enterprises, Inc. v. Paul C.
      Harman Co., and its progeny of cases by arguing that there is a
      different factual scenario in those cases, considering there was a
      prima facie breach of contract in those cases. We agree. Here, not
      only is there no prima facie breach, but there is a dispute between
      the parties regarding the formation/existence of a contract.
      Therefore, we find that venue would be improper in Lackawanna
      County based on the allegations contained within the Complaint

      We find that venue properly lies in Allegheny County, and this case
      shall be transferred to the Court of Common Pleas of Allegheny
      County. In light of our decision to transfer this case to Allegheny
      County, we do not decide the remaining Preliminary Objections.

Trial Court Opinion, 7/10/2017, at 4-6 (unnumbered).

      Based on our review, we conclude that here, because there is no clear

evidence of a written or oral agreement, or a specific claim of quantum meruit,

the trial court properly determined venue was proper in Allegheny County.

      Pisanchyn’s   Complaint    avers   that   in   response   to   Scanlon’s

correspondence “in which he indicated he would like to file a Praecipe for

Substitution of Counsel and assume the further handling of the Repchicks’

case,” Pisanchyn sent Scanlon a facsimile, notifying him of Pisanchyn’s lien in

the Repchick matter, for expenses and attorney fees. Complaint, ¶11. See

also id. at 12.      Pisanchyn’s facsimile and other correspondence and




                                     -9-
J-S84042-17



documents attached to the Complaint do not reflect any written agreement

between the parties.

      Furthermore, while Pisanchyn alleges in Paragraph 29 of its Complaint

that Scanlon made an “offer” to accept the case from Pisanchyn, the

uncontradicted testimony from the hearing held on March 16, 2017 was that

the Repchicks solicited Scanlon to represent them. N.T. 3/16/2017, at 6-7.

This case was not a referral from Pisanchyn to Scanlon. Therefore, assuming

arguendo that there was an agreement, the trial court properly reasoned, “the

place where the offer was accepted in this case would appear to be Allegheny

County, where Defendants were located when they allegedly accepted the

offer.” Trial Court Opinion, 7/10/2017, at 5 (unnumbered).

      Nor do we find the trial court erred in finding the cases of Lucas

Enterprises and Scarlett, supra, distinguishable. Those cases dealt with

actions alleging breach of contract based upon a failure to pay in accordance

with a contract, and held: “[I]n the absence of an 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.”

See Scarlett, supra, 89 A.3d at 1292, citing Lucas Enterprises, Inc.,

supra, 417 A.2d at 721.     On this record, we agree with the trial court’s

analysis that Lucas Enterprises and Scarlett address a different factual

scenario where there was a prima facie breach of contract in those cases.

Here, as discussed, there is no clear evidence of the existence/formation of a

contract.

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     Based upon the foregoing, we find there is no basis upon which to

disturb the trial court’s determination that venue is improper in Lackawanna

County and the case should be transferred to Allegheny County.          See

Pa.R.C.P. 1006(a) and 2179(a)(1)-(4).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/18




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