          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Wendell Reed,                            :
                    Appellant            :
                                         :
             v.                          : No. 670 C.D. 2016
                                         : SUBMITTED: March 3, 2017
Paula Brown and Borough of               :
Colwyn                                   :


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY JUDGE HEARTHWAY                               FILED: July 13, 2017

             Wendell Reed (Reed) appeals from an order entered March 23, 2016,
in the Court of Common Pleas of Philadelphia County (trial court) which sustained
in part the preliminary objections of Paula Brown (Brown) and the Borough of
Colwyn (Borough) (together, Defendants) alleging improper venue, and transferred
the matter to the Court of Common Pleas of Delaware County (Delaware CCP)
pursuant to Pennsylvania Rules of Civil Procedure Number (Pa. R.C.P. No.)
2103(b).1 We reverse and remand.


             Reed commenced an action in the trial court alleging, among other
claims, defamation against Defendants. The following facts are based on the




      1
         Because of the trial court’s disposition, it declined to rule on Defendants’ other
preliminary objections.
allegations as set forth in Reed’s Second Amended Complaint (Complaint).2 In
February of 2009, the Borough hired Reed as a police officer, and over time, he
rose to the rank of Deputy Chief of Police. In February of 2013, Reed resigned in
an open meeting before Borough Council; the Borough Council accepted his
resignation and wished him well. In 2014, Reed applied for a job with the City of
Philadelphia (City) and listed his previous employment with the Borough, stating
that he had voluntarily resigned. In October of 2014, the City made an offer of
employment to Reed, conditioned upon a background check and employment
verification. The City hired Sterling Infosystems (Sterling) to perform a
background check and an employment verification check. On November 8, 2014,
the City rescinded Reed’s offer of employment, because he allegedly provided
false information regarding resignation from the Borough. Reed alleges that when
Sterling contacted Brown, who was the Borough’s manager, Brown falsely stated
that Reed was terminated from his employment due to misconduct and that he was
not eligible for rehire due to performance issues. Reed contends that Brown’s false
statements were published to the City, its hiring agents, representatives and
employees, and as a result of those statements, the City rescinded Reed’s offer of
employment.




       2
          “When considering the appropriateness of a ruling on preliminary objections, the
appellate court must apply the same standard as the trial court.” Schuylkill Navy v. Langbord,
728 A.2d 964, 968 (Pa. Super. 1999). “Under that standard, the court accepts as true all well-
pled material facts set forth in the complaint along with all reasonably deducible inferences from
those facts.” Id.




                                                2
               Defendants filed preliminary objections to Reed’s Complaint, arguing,
among other things, improper venue pursuant to Pa. R.C.P. No. 1028(a)(1),
asserting that venue did not lie in Philadelphia County. Reed filed a response.
After oral argument, the trial court sustained the preliminary objections in part and
ordered the case transferred to the Delaware CCP for all further action pursuant to
Pa. R.C.P. No. 2103(b), which provides that “[e]xcept when the Commonwealth is
the plaintiff or when otherwise provided by an Act of Assembly, an action against
a political subdivision may be brought only in the county in which the political
subdivision is located.”3 In its opinion in support of its order, the trial court
reviewed Pa. R.C.P. No. 2103(b) as well as section 333 of the JARA Continuation
Act of 1980 (Section 333 of JARA),4 which permits a suit against a local agency to
also be brought in the county where the cause of action arose or where the
transaction or occurrence took place. The trial court stated that Reed’s claim was
based upon Brown’s conduct of allegedly falsely reporting the reason why Reed
left his job, and that all of that conduct occurred in Delaware County. The trial
court concluded that, “[a]lthough relevant conduct in this case also occurred in
Philadelphia County, the cause of action arose in Delaware County and the
transactions upon which the cause of action arose, (i.e. the conduct of Defendant
Brown) also occurred in Delaware County.”                     (Trial court opinion at 3.)
Accordingly, the trial court concluded that venue was proper in Delaware County
and transferred the matter to the Delaware CCP.




      3
          The parties do not dispute that the Borough is located in Delaware County.
      4
          Act of October 5, 1980 P.L. 693, 42 P.S. § 20043.


                                                3
               Reed now appeals to this Court, arguing that the trial court committed
an error of law and/or abused its discretion by sustaining Defendants’ preliminary
objections to venue and transferring this matter to the Delaware CCP. Reed argues
that the trial court failed to give proper weight to his choice of forum,5 and that
venue was proper in the Philadelphia trial court, because the cause of action
occurred in the City of Philadelphia.6


               Defendants, on the other hand, argue that nothing establishes that
Brown published any statement in Philadelphia. Defendants point out that Brown
is alleged to have spoken to an investigator from Sterling in a phone call, which is
not alleged to have occurred in Philadelphia.                 Defendants argue that while
Sterling’s reconveyance of the information may constitute publication on Sterling’s
part, it is not an act of publication by Brown. Defendants further argue that the
place where damages become manifest is not sufficient to establish an occurrence
from which a cause of action arises.


               Our scope of review of a trial court order sustaining preliminary
objections is limited to a determination of whether the trial court committed an
error of law or abused its discretion. Keystone Sanitary Landfill, Inc. v. Monroe


       5
          The presumption in favor of a plaintiff’s choice of forum has no application where, as
here, the trial court is faced with the question of venue and is not faced with a question of forum
non conveniens. See Kring v. University of Pittsburgh, 829 A.2d 673 (Pa. Super. 2003), appeal
denied, 844 A.2d 553 (Pa. 2004).
        6
          Reed also maintains that the trial court’s opinion is internally inconsistent because it
stated that “all of that conduct” (referring only to the phone interview) occurred in Delaware
County yet stated that “relevant conduct” also occurred in Philadelphia. Reed argues that the
findings are conclusory and do not address the evidence in the record.


                                                4
County Municipal Waste Management Authority, 148 A.3d 915 (Pa. Cmwlth.
2016). As to an error of law, our standard of review is de novo and our scope of
review is plenary. Id.


               In Pennsylvania, objections to venue are treated as raising a question
of jurisdiction. Deyarmin v. Consolidated Rail Corporation, 931 A.2d 1 (Pa.
Super. 2007) (citing County Construction Company v. Livengood Construction
Corporation, 142 A.2d 9 (Pa. 1958)). Venue either is or is not proper. Deyarmin.
Section 333 of JARA governs venue when a political subdivision is a defendant in
an action, whether that political subdivision is a sole defendant or one of many. 7
Township of Whitpain v. Goldenberg, 569 A.2d 1002 (Pa. Cmwlth. 1990); see also
Bradley v. O’Donoghue, 823 A.2d 1038 (Pa. Cmwlth. 2003). Pursuant to Section
333 of JARA, actions against a political subdivision may be brought only in: (i)
the county in which the political subdivision is located; (ii) the county in which the
cause of action arose; or (iii) the county where a transaction or occurrence took
place out of which the cause of action arose.                Ward v. Lower Southampton
Township, 614 A.2d 235 (Pa. 1992); see Section 333 of JARA, 42 P.S. § 20043.




       7
         In Ward v. Lower Southampton Township, 614 A.2d 235 (Pa. 1992), our Supreme Court
analyzed the interplay between Pa. R.C.P. No. 1006(c) (regarding venue when there are multiple
defendants), Pa. R.C.P. No. 2103(b) (stating that unless a statute provides otherwise, an action
against a political subdivision must be brought only in the county where the political subdivision
is located), and Section 333 of JARA, 42 P.S. § 20043, which was enacted subsequent to Pa.
R.C.P. No. 2103(b). The Supreme Court determined that Section 333 of JARA, 42 P.S. § 20043,
controlled, and in enacting that section, the General Assembly designated locations in addition to
the home county where a political subdivision may be sued. Ward.


                                                5
              Our Supreme Court interpreted the phrase “a transaction or
occurrence” “to require that a transaction … and not merely some part of the
transaction, take place in the county where venue is laid.” Craig v. W.J. Thiele &
Sons, Inc., 149 A.2d 35, 37 (Pa. Cmwlth. 1959); see Note to Pa. R.C.P. No.
1006(a)(1) (referring to Thiele for the definition of transaction or occurrence).8
“The Supreme Court explained that any other result ‘would lead only to confusion
and … ‘forum shopping’ if the law were to permit suit to be commenced against a
[defendant] in any county where any facet of a complex transaction occurred.’”
Harris v. Brill, 844 A.2d 567, 571 (Pa. Super. 2004) (quoting Thiele, 149 A.2d at
37). “[P]arties cannot avoid the ‘transaction’ requirement by characterizing ‘a part
of a transaction’ as an ‘occurrence.’” Id. (citing Thiele). “[I]n analyzing whether a
‘transaction or occurrence’ took place in a given county [it is appropriate] to
examine the nature of the claim asserted and the elements constituting the cause of
action.” Deyarmin, 931 A.2d at 13.


              Here, Reed’s claim is based on the alleged defamatory conduct of
Brown.9 “An essential element of a defamation action is publication.” Flaxman v.

       8
         Although Thiele involved Pa. R.C.P. No. 1006(a)(1), and the case before us is governed
by 42 P.S. § 20043, Pa. R.C.P. No. 1006(a)(1) contains the same language at issue here, i.e., the
action may be brought in a county in which “the cause of action arose or where a transaction or
occurrence took place out of which the cause of action arose ….” Pa. R.C.P. No. 1006(a)(1).
       9
         Reed alleges the Borough is liable for Brown’s conduct under the theory of respondeat
superior. See Complaint, ¶¶ 48 – 52.
       In an action for defamation, the plaintiff has the burden of proving, when the issue is
properly raised:
               (1) The defamatory character of the communication.
               (2) Its publication by the defendant.
               (3) Its application to the plaintiff.
               (4) The understanding by the recipient of its defamatory meaning.
(Footnote continued on next page…)
                                               6
Burnett, 574 A.2d 1061, 1066 (Pa. Super. 1990); see 42 Pa. C.S. § 8343(a).
“[R]egardless of where the defamatory statement is written or printed, no cause of
action for libel [defamation] arises until there is a publication of the defamatory
matter, which is its communication intentionally or by negligent act to one other
than the person defamed.” Gaetano v. Sharon Herald Company, 231 A.2d 753,
755 (Pa. 1967) (quotation marks and citation omitted). Moreover, the recipient
must understand the defamatory meaning and that it applies to the plaintiff. See 42
Pa. C.S. § 8343(a); Gaetano.


              In Gaetano, our Supreme Court illustrated the importance of the
recipient’s understanding of the statement as being defamatory to the element of
publication. The Supreme Court explained,

              if one writes or prints a defamatory letter in Mercer
              County and mails it to an addressee in Allegheny County,
              there obviously is no publication of the libel until the
              letter is read in Allegheny County and (which is most
              important) understood as being defamatory of the
              plaintiff.

Gaetano, 231 A.2d at 755. Similarly, the Supreme Court explained if a newspaper
is published and circulated in New York City which includes a defamatory


(continued…)

              (5) The understanding by the recipient of it as intended to be
              applied to the plaintiff.
              (6) Special harm resulting to the plaintiff from its publication.
              (7) Abuse of a conditionally privileged occasion.
42 Pa. C.S. § 8343(a). “A private figure plaintiff must also prove negligence or wilful
misconduct by the defendant.” Chicarella v. Passant, 494 A.2d 1109, 1112 (Pa. Super. 1985).


                                            7
statement of a person in Scranton but no one in New York City recognizes that
person or the defamatory nature, no publication has occurred in New York City.
Id. at 755. However, if the same newspaper circulates the defamatory statement in
Scranton where the person and its defamatory nature are recognized, the
newspaper has defamed the person in Scranton and not in New York City. Id. at
755-56. The Supreme Court stated that in determining where a cause of action for
defamation arises, we must keep in mind that the primary purpose of an action for
defamation is to restore one’s unjustly tarnished reputation. Id. at 755.


             Additionally, where a republication of a defamatory statement occurs,
it is possible for venue to be proper in the location where the statements were made
to the initial recipient, and where the republication occurred. See Flaxman. In
Flaxman, the Pennsylvania Superior Court ruled that the allegedly defamatory
statements made by the defendants were “published” in the location where the
defendants made the statements to a news reporter. Flaxman, 574 A.2d at 1066.
The court also stated a republication of the defamatory statements occurred when
those statements were written in an article and circulated to subscribers; the
republication occurred in the county where the article was circulated.                Id.
Additionally, where a recipient of a defamatory statement repeats, or republishes,
the earlier statement, the author of the earlier statement is legally responsible for
the republication only if the recipient was privileged to repeat it, or if the repetition
was authorized or intended by the original defamer, or if the repetition was
reasonably to be expected. See Restatement (Second) of Torts, § 576, cmt. b & c.
(1977). In other words, “[i]f the person who repeats the defamation is privileged to
repeat it, the repetition does not prevent the original defamation from being the


                                           8
legal cause of the resulting harm.” Restatement (Second) of Torts, § 576, cmt. b.
(1977). Thus, where the first recipient repeats the statements to a second recipient
and the first recipient was either privileged to do so, or the repetition was either
authorized, intended or reasonably expected, the original author of the statements
may be legally responsible.


            Here, Reed alleges that the City hired Sterling to perform a
background check and employment verification check. (Complaint, ¶ 17.) Reed
further alleges that Brown made the defamatory statements when contacted by
Sterling in connection with the employment verification check. (Complaint, ¶¶ 20,
21.) Reed also alleges that these statements were communicated to the City, its
hiring agents, representatives and employees. (Complaint, ¶ 24.) As a result, the
City rescinded its employment offer. (Complaint, ¶ 25.)


            These allegations sufficiently allege that publication of Brown’s
statements occurred in Philadelphia County. The allegations sufficiently allege
that the republication by Sterling to the City was authorized, intended or
reasonably expected. Additionally, the alleged relationship between Sterling and
the City may be sufficient to support a conditional privilege. Cf. Baird v. Dun &
Bradstreet, Inc., 285 A.2d 166 (Pa. 1971) (holding that a credit reporting agency
has a conditional privilege to publish defamatory matter, provided the publication
is made in response to a request); Chicarella v. Passant, 494 A.2d 1109 (Pa. Super.
1985) (finding that an investigator’s report to an insurance company constituted a
conditionally privileged publication). In such a case where the recipient was
privileged to repeat or republish the earlier statement and does so within that


                                         9
privilege, the repetition does not prevent the original defamation from being the
legal cause of the resulting harm. Restatement (Second) of Torts, § 576, cmt. b
(1977).     Thus, the Complaint sufficiently alleges facts to support that a
republication of Brown’s statement occurred in Philadelphia.                   See Flaxman.
Additionally, the Complaint sufficiently alleges that the City, as the recipient of the
republication of Brown’s statements, understood the defamatory meaning and that
it applied to Reed. See 42 Pa. C.S. § 8343(a); Gaetano. Accordingly, Reed
sufficiently alleged facts to establish that the republication occurred in
Philadelphia. Because, under the circumstances as alleged, there is venue where
the republication occurred, see Flaxman, there is venue in Philadelphia County.
Accordingly, venue was not improper in Philadelphia County.


              The trial court, however, ruled that venue was improper in
Philadelphia County. This ruling appears to be based strictly on the trial court’s
misapplication of the law of defamation and resulting determination that the cause
of action arose in Delaware County and the transactions upon which the cause of
action was based, i.e., Brown’s conduct, occurred in Delaware County. Because
the trial court’s decision to transfer venue was based solely on a legally erroneous
determination that venue did not lie in Philadelphia County, the trial court
committed an error of law.10




       10
           While venue could lie in both Philadelphia and Delaware Counties here under Section
333 of JARA, 42 P.S. § 20043, the trial court’s decision to transfer venue was based strictly on
its legally erroneous determination that venue was improper in Philadelphia.


                                              10
              Accordingly, we reverse the trial court’s order and remand the matter
to the trial court for further proceedings.11



                                            __________________________________
                                            JULIA K. HEARTHWAY, Judge




       11
         Reed’s appeal was filed before the transfer to the Delaware CCP was effectuated. See
Pa. R.A.P. 311(c) (stating an appeal may be taken as of right from an order transferring venue).


                                              11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Wendell Reed,                            :
                  Appellant              :
                                         :
            v.                           : No. 670 C.D. 2016
                                         :
Paula Brown and Borough of               :
Colwyn                                   :


                                    ORDER


            AND NOW, this 13th day of July, 2017, the order of the Court of
Common Pleas of Philadelphia County in the above-captioned matter is hereby
reversed and this matter is remanded to the Court of Common Pleas of
Philadelphia County for further proceedings.
            Jurisdiction relinquished.




                                         __________________________________
                                         JULIA K. HEARTHWAY, Judge
