Kinee, J. v. Vassalotti, T. ( 2019 )

J-S26032-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOSEPH KINEE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
THOMAS J. VASSALOTTI AND IRINA : No. 3526 EDA 2018
VASSALOTTI AND FREDERICK G. :
BETZ, THOMAS P. BETZ, RICHARD B. :
BETZ, INDIVIDUALLY AND AS :
TRUSTEES OF ELEANOR N. BETZ :
RESIDUARY TRUST AND ELEANOR N. :
BETZ RESIDUARY TRUST :
Appeal from the Order Entered October 31, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): February Term, 2018, No. 00866
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 04, 2019
In this premises liability action, the plaintiff, Joseph Kinee (Kinee),
appeals an order of the Court of Common Pleas of the First Judicial District
sustaining preliminary objections to venue and transferring the case to
Montgomery County. We affirm.1
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1An appeal may be taken as a matter of right from an order transferring the
matter to another court of coordinate jurisdiction. See Pa.R.App.P. 311(c).
J-S26032-19
I.
Kinee allegedly slipped and fell on property located in Montgomery
County. He asserted that the property was jointly owned and negligently
maintained by the defendants, Thomas J. Vassalotti and Irina Vassalotti;
Frederick G. Betz, Thomas P. Betz, and Richard B. Betz, individually and as
trustees of the Eleanor N. Betz Residuary Trust; and the Eleanor N. Betz
Residuary Trust (Property Owners). Kinee filed suit in Philadelphia County
despite the fact that none of the parties in the case resided there, and Property
Owners were all served with process in other counties.
Property Owners filed preliminary objections to venue. Significantly,
Frederick Betz averred in his preliminary objection that although he owned
property located at 8208 Pine Road, Philadelphia County, he did not maintain
an office or run a business from that address. He submitted a sworn affidavit
to that effect.
Kinee filed an answer to Property Owners’ preliminary objections
contending that they could be sued in Philadelphia County because Frederick
Betz also owned and operated an apartment building in Philadelphia County
under a fictitious name, “Pine Road Court.”2 The document further showed
____________________________________________
2 In addition to suing Frederick Betz individually, Kinee also sued him in his
capacity as a trustee of the Eleanor N. Betz Residuary Trust. However,
Frederick’s Betz’s role as a trustee was not an asserted basis for venue and is
irrelevant for the purposes of this appeal.
-2-
J-S26032-19
that Frederick Betz owned a business under that fictitious name but it did not
indicate which type of business entity it was.
After holding an evidentiary hearing on the issue on October 31, 2018,
the trial court ruled that Frederick Betz’s business in Philadelphia County did
not establish venue in that forum and transferred the case to Montgomery
County. Kinee appealed, and in his Rule 1925(b) Statement of Matters
Complained of, he asserted that the trial court erred because Frederick Betz
operated an unincorporated association in Philadelphia County, making venue
proper under Pennsylvania Rule of Civil Procedure 2156, which permits a
plaintiff to sue such an entity in counties where it regularly does business.
The trial court explained in its Rule 1925(a) opinion that Frederick Betz’s
mere ownership of property in Philadelphia County did not entitle Kinee to sue
him there as an individual. See Trial Court Opinion, 1/31/2019, at 3-4. The
trial court reasoned that since Kinee did not sue Frederick Betz in the capacity
of an association member, it was irrelevant whether that defendant regularly
did business or owned property in Philadelphia County. Id.
Kinee now presents two questions in his appellate brief, which we quote
below verbatim:
1. Did the lower court err and abuse its discretion when defendant,
Frederick G. Betz, owned property and had significant business
contacts with Philadelphia County as he was the owner and
manager of a nineteen-unit apartment complex in Philadelphia
County and had registered the fictitious name of the complex
listing the address in Philadelphia County?
-3-
J-S26032-19
2. Did the lower court err and abuse its discretion when it held
that [Rule 2156(a)] did not apply because the fictitious name was
not a named defendant although the facts showed that defendant,
Frederick G. Betz, was the principal owner and operator of an
apartment complex in Philadelphia County and regularly
conducted business in Philadelphia County and was therefore
subject to venue in Philadelphia County and the fictitious name
itself cannot be a named party?
Appellant’s Brief, at 5.
II.
A.
The issue in this appeal is one of venue, which “relates to the right of a
party to have the controversy brought and heard in a particular judicial
district.” Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003). The
venue of a court of common pleas is “generally prescribed by rules” of the
Pennsylvania Supreme Court. Id. (citing 42 Pa.C.S. § 931(c)). “[A]n action
against an individual may be brought in and only in a county in which 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[.]” Pa.R.C.P. 1006(a)(1).3 A case
____________________________________________
3 Pennsylvania Rule of Appellate Procedure 402(a) provides that process
against an individual may be served through the following means:
(1) by handing a copy to the defendant; or
(2) by handing a copy
-4-
J-S26032-19
involving the joint and several liability of multiple defendants may be brought
in any county in which venue is proper as to at least one defendant. See
Pa.R.C.P. 1006(c)(1).4
Unlike in a suit against an individual, venue for actions against
unincorporated associations5 does not turn on where that entity may be
served. Instead, when the action is filed in a county other than where the
____________________________________________
(i) at the residence of the defendant to an adult member of
the family with whom he resides; but if no adult member of
the family is found, then to an adult person in charge of such
residence; or
(ii) at the residence of the defendant to the clerk or manager
of the hotel, inn, apartment house, boarding house or other
place of lodging at which he resides; or
(iii) at any office or usual place of business of the defendant
to his agent or to the person for the time being in charge
thereof.
Pa.R.App.P. 402(a).
4The standard of review is de novo as to a trial court’s ruling on a preliminary
objection to improper venue. See Zappala v. Brandolini Property
Management, Inc., 909 A.2d 1272, 1280 (Pa. 2006). Although a plaintiff
generally may decide the forum in which to file suit, the issue of whether
venue in a given county is proper is treated the same way as a challenge to a
court’s jurisdiction to hear the case, which is an issue of law. See Deyarmin
v. Consol. Rail Corp., 931 A.2d 1, 10 (Pa. Super. 2007) (citing Kring v.
Univ. of Pittsburgh, 829 A.2d 673, 676 (Pa. Super. 2003)).
5 An “‘association’ means an unincorporated association conducting any
business or engaging in any activity of any nature whether for profit or
otherwise under a common name[.]” Pa.R.C.P. 2151.
-5-
J-S26032-19
claims arose, the propriety of venue as to such an entity depends on where it
regularly operates:
(a) Except as otherwise provided by Rule 1006(a.1) and by
subdivision (b) of this rule, an action against an association
may be brought in and only in a county where the
association regularly conducts business or any association
activity, or in the county where the cause of action arose or in a
county where a transaction or occurrence took place out of which
the cause of actions arose or in the 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. 2156(a) (emphasis added).6
B.
In this case, Kinee maintains that Rule 2156 makes venue proper in
Philadelphia County. He emphasizes the fact that Frederick Betz had for many
years done business in that forum under the fictitious name, “Pine Road
Court.” Under Kinee’s interpretation of the venue rules, an individual who
owns a business under a fictitious name may be treated as if he is an
unincorporated association because the individual and the business entity are
one and the same. See generally Burlington Coat Factory of Pa., LLC v.
Grace Constr. Mgmt. Co., LLC, 126 A.3d 1010, 1024 (Pa. Super. 2015)
(“The use of a fictitious name does not create a separate legal entity, but is
____________________________________________
6 “A business entity must perform acts in a county of sufficient quality and
quantity before venue in that county will be established.” Zampana–Barry
v. Donaghue, 921 A.2d 500, 503 (Pa. Super. 2007).
-6-
J-S26032-19
merely descriptive of a person or corporation who does business under
another name.”).
However, it cannot be inferred that an unincorporated association called
Pine Road Court exists just because Frederick Betz owned and operated a
business under that fictitious name. Pennsylvania law permits individuals to
operate a business under a fictitious name without creating an unincorporated
association or any other form of business entity. See 54 Pa.C.S. §§ 302-303
(allowing a fictitious name to be used for business purposes by an individual).
In similar scenarios, this Court has applied the venue rule for individuals to
parties who do business under a fictitious name. See e.g., Gilfor ex rel.
Gilfor v. Altman, 770 A.2d 341, 345 (Pa. Super. 2001) (“[Plaintiff] has failed
to cite any law, and our research does not disclose any law, permitting an
individual to be served in a county merely because he may conduct some
business in that county.”).
Kinee failed to assert a valid factual or legal basis for venue in
Philadelphia County because he sued Frederick Betz as an individual. The
applicable venue provision as to that party is Rule 1006. Because Kinee’s
causes of action did not arise in Philadelphia County, and Frederick Betz was
not served there, venue does not lay in that forum. Moreover, Rule 2156 does
not apply because an individual does not become an unincorporated
association merely by using a fictitious name to own or manage property. See
Burlington Coat Factory of Pa., 126 A.3d at 1024; Gilfor, 770 A.2d at 345.
-7-
J-S26032-19
Accordingly, the trial court’s order sustaining Property Owners’
preliminary objections to venue and transferring the case to Montgomery
County is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/4/19
-8-