Anthony, C. v. Park Casino , 190 A.3d 605 ( 2018 )

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2018 PA Super 162CURTIS ANTHONY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
PARX CASINO, PARX CASINO AND : No. 2904 EDA 2017
RACING, PARK CASINO DESIGN, :
INC., GREENWOOD GAMING AND :
ENTERTAINMENT, INC., :
GREENWOOD RACING, INC., :
PHILADELPHIA PARK CASINO, AND :
PHILADELPHIA PARK CASINO AND :
RACETRACK
Appeal from the Order August 8, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 1491 June Term, 2017
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
OPINION BY LAZARUS, J.: FILED JUNE 12, 2018
Curtis Anthony appeals from the trial court’s order sustaining Appellees’,
Parx Casino, Parx Casino and Racing, Park Casino Design, Inc., Greenwood
Gaming and Entertainment, Inc., Greenwood Racing, Inc., Philadelphia Park
Casino, and Philadelphia Park Casino and Racetrack (collectively, Parx),
preliminary objections and transferring venue of the underlying negligence
action to Bucks County. After careful review, we affirm.
Parx, the largest casino gaming complex in Pennsylvania, is located at
2999 Street Road, Bensalem, Bucks County, Pennsylvania. Parx is owned and
operated by Greenwood Gaming and Entertainment, Inc., a wholly-owned
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subsidiary of Greenwood G & E Holding, Inc., which, in turn, is a wholly-owned
subsidiary of Greenwood Racing, Inc. Greenwood Racing, Inc., is also the
parent company of multiple subsidiaries, including City Turf Club Op Co., which
operates as the Turf Club in Philadelphia County. Neither Greenwood Gaming
and Entertainment, Inc., nor Greenwood Racing are involved in the operation
of the Turf Clubs.
On June 14, 2017, Anthony filed a complaint in the Court of Common
Pleas of Philadelphia against Parx alleging that in October 2015 he sustained
serious injuries while visiting the casino when he “was caused to trip, slip,
stumble and/or fall by reason of a broken and defective walkway and curb”
that Parx negligently failed to maintain, inspect, and repair. Anthony
Complaint, 6/4/17, at ¶¶ 14-19. On July 12 2017, Parx filed preliminary
objections alleging improper venue pursuant to Pa.R.C.P. 1006(e) (improper
venue raised by preliminary objection) and 2179 (venue for personal injury
actions). After Anthony filed several responses to Parx’s preliminary
objections, the court entered an order sustaining Parx’s objections and
ordering that the litigation be transferred, at Anthony’s cost, to the Court of
Common Pleas of Bucks County.
Anthony filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. He raises the
following issues for our consideration:
(1) Under Pa.R.C.P. 2179(a)(2), can venue in a particular
county be established over a parent corporation based upon
the business activities of its subsidiary or sister corporation?
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(2) Under Pa.R.C.P. 2179(a)(2), can venue in a particular
county be established based upon a corporation’s efforts,
through financial investment and litigation, to open a casino
in that county?
Appellant’s Brief, at 3-4.
Our scope and standard of review in venue transfer cases is well-settled:
[A] trial court’s decision to transfer venue will not be disturbed
absent an abuse of discretion. A [p]laintiff’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.
Fritz v. Glen Mills Schools, 840 A.2d 1021, 1023 (Pa. Super. 2003) (citation
omitted).
Anthony alleges that the trial court erred in transferring venue of the
case to Bucks County where venue properly lies in Philadelphia based upon
Parx’s sister corporations’ business contacts.
Rule of Civil Procedure 2179 provides that an 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 the transaction or occurrence took place out
of which the cause of action arose[.]
Pa.R.C.P. 2179(a).
In Wimble v. Parx Casino & Greenwood Gaming & Entm’t, Inc.,
40 A.3d 174 (Pa. Super. 2012), the plaintiff presented our Court with the same
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issue regarding whether he could bring suit against Parx in Philadelphia County
after sustaining injuries from tripping over a defective electrical cord at the
casino. Similarly, the trial court granted Parx’s preliminary objections and
transferred venue of the case to Bucks County, the site of the accident and
also where Greenwood Gaming’s corporate activities solely take place. Id. at
178. On appeal, plaintiff made the same argument as Anthony does here to
keep venue in Philadelphia, claiming that Greenwood Gaming conducts
business in Philadelphia County through subsidiary corporations such as
Keystone Turf Club, Inc. Id. at 177-78. In Wimble, we rejected the
argument that sister corporations should be attributed to Greenwood Gaming
for purposes of determining venue, id. at 178, concluding they are considered
separate and distinct legal entities. Id. Accordingly, we reject the same
argument proposed by Anthony as we are bound to follow Wimble as binding
precedent. Simply put, a corporation is not subject to venue based solely
upon the business activities of a sister corporation in the jurisdiction in
question.1
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1 To the extent that Anthony asserts our Court committed legal error in
Wimble when we relied upon a case for the general proposition that corporate
parents and subsidiaries are “separate and distinct,” we disagree. Appellant’s
Brief, at 24. Anthony would have us apply a “well recognized exception” where
when “domination and control by the parent corporation renders the
subsidiary a mere instrumentality of the parent, the parent corporation may
be held to be ‘doing business’ in a jurisdiction ‘under the façade of the
subsidiary.’” Id. As Parx points out, Anthony has failed to show the
overwhelming control by the corporate parent to invoke this exception.
Accordingly, we decline to find that the exception applies in this case.
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In his next issue, Anthony asserts that the court erred in transferring
venue from Philadelphia County to Bucks County where Parx is involved in a
joint venture effort to obtain a casino license in Philadelphia, which includes
related litigation that constitutes “business contacts” sufficient to establish
venue in that county. Again, we disagree.
Here, it is undisputed that Anthony’s alleged accident occurred at a
Bucks County casino that is operated by a corporation that only does business
in Bucks County. See Pa.R.C.P. 2179(a). At the time Anthony filed his
complaint, a license to operate a casino in Philadelphia had been awarded to
a joint venture that included Greenwood Racing, Inc. However, to date, the
license has yet to be issued. Accordingly, no building, slot machines or gaming
tables, or customers currently exist in relation to this joint venture. Under
such circumstances, we fail to see how the anticipated issuance of a casino
license for a casino to be located in Philadelphia2 creates either the quality or
quantity of acts necessary to sustain venue in Philadelphia. See Purcell v.
Bryn Mawr Hospital, 579 A.2d 1282, 1285 (1990) (Pennsylvania courts
apply “quality” and “quantity” test to determine if corporation's business
contacts are sufficient to constitute regular business conduct for purposes of
establishing venue); see also Shambe v. Delaware and Hudson Railroad
Co., 135 A. 755, 757 (Pa. 1927) (defining “quality of acts” as “those directly,
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2As Parx points out, litigation surrounding this joint venture and the issuance
of the casino license has never taken place in the Court of Common Pleas of
Philadelphia County.
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furthering or essential to, corporate object;” defining “quantity of act” as those
which are “so continuous and sufficient to be general or habitual”).
Accordingly, we agree with the trial court’s decision to transfer venue to
Bucks County; the court did not abuse its discretion in granting Parx’s
preliminary objections on the basis of venue. Fritz, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/18
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