Gordon, P. v. JFBB Ski Area ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-A33041-14
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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