Burgess, J. v. Clark Electrical Contractors ( 2017 )

J-S89005-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMES BURGESS AND KAY SHARON IN THE SUPERIOR COURT OF
BURGESS, H/W, PENNSYLVANIA
Appellants
v.
CLARK ELECTRICAL CONTRACTORS,
INC., CHRISTOPHER CLARK, CABOT OIL
AND GAS CORPORATION, CABOT
PETROLEUM CORPORATION, CABOT OIL
& GAS CORPORATION OF DELAWARE,
CABOT OIL & GAS CORPORATION OF
WEST VIRGINIA, CABOT OIL & GAS
HOLDINGS COMPANY, CABOT OIL & GAS
MARKETING CORPORATION, CABOT OIL
& GAS WESTERN CORPORATION, CABOT
PETROLEUM NORTH SEA, LIMITED,
CABOT OIL, DIALIGHT CORPORATION,
ROYAL ELECTRIC SUPPLY COMPANY,
D/B/A ROYAL ELECTRIC SUPPLY CO.,
NATIONAL OILWELL VARCO, INC.,
NATIONAL OILWELL VARCO, L.P.,
NATIONAL OILWELL VARCO HOLDINGS
LLC, NATIONAL OILWELL VARCO,
Appellees
----------------------------------------------
JAMES BURGESS AND KAY SHARON
BURGESS, H/W,
v.
PATTERSON UTI, PATTERSON-UTI
ENERGY, INC., PATTERSON-UTI
DRILLING COMPANY, LLC, PATTERSON-
UTI DRILLING COMPANY SOUTH LP,
PATTERSON-UTI DRILLING COMPANY
WEST LP, PATTERSON-UTI DRILLING
INTERNATIONAL, INC., PATTERSON
DRILLING SERVICES LP, PATTERSON UTI
MANAGEMENT SERVICES, LLC,
J-S89005-16
PATTERSON-UTI INTERNATIONAL
HOLDINGS, INC., PEI/GENESIS INC.,
PATTERSON-UTI DRILLING SERVICES
LP, LLLP, PATTERSON-UTI DRILLING
COMPANY, LP, PATTERSON-UTI
DRILLING COMPANY LP, LLLP,
Appellees No. 3018 EDA 2015
Appeal from the Order August 27, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 1412-01798, 1412-01813
BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 03, 2017
James Burges and Kay Sharon Burgess, husband and wife (collectively
“Appellants”), appeal from the order entered on August 27, 2015, in the
Philadelphia County Court of Common Pleas that sustained Appellees’1
preliminary objections as to improper venue and transferred this matter to
Susquehanna County. We reverse and remand with instructions.
The factual background of this matter is as follows:
On December 12, 2012, a light fixture fell off a drill rig and
hit [Appellant James Burgess] while he was working on the drill
rig. As a result, Mr. Burgess is now a quadriplegic. This incident
occurred in Susquehanna County, Pennsylvania.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
The underlying actions were filed separately and later consolidated by the
trial court. For purposes of our discussion, we shall refer to all remaining
parties in our caption collectively as “Appellees.”
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In December of 2014, [Appellants] commenced this action,
and reinstated their Complaint on March 20, 2015. Against all
[Appellees], [Appellants] brought claims for negligence,
recklessness with a request for punitive damages, and a loss of
consortium claim on behalf of [Appellant Kay Sharon Burgess].
On August 18th, 2015, this case was consolidated with
another related case under Case ID 141201813. On August 27 th,
this [c]ourt issued an order in this case, sustaining [Appellees’
preliminary objections] as to improper venue in Philadelphia
County and to transfer venue to Susquehanna County. On
September 22, 2015, this [c]ourt issued an Order denying
[Appellants’] Motion for Reconsideration.
On October 5, 2015,[2] [Appellee] Royal Electric Supply
Company, whose principal place of business is in Philadelphia,
PA, was excused from this case. On July 8, 2015, [Appellee]
PEI/Genesis, Inc., whose principal place of business is in
Philadelphia, PA, was also excused [by stipulation on July 8,
2015].
Trial Court Opinion, 4/11/16, at 2.
Appellants filed a timely appeal on September 25, 2015. On appeal,
Appellants present the following issues:
I. Whether the lower court committed an error of law or abused
its discretion by transferring this matter to the Court of Common
Pleas of Susquehanna County despite the fact that venue in
Philadelphia County was appropriate under Rule 1006(c)(1)
because several defendants joined at the initiation of the case
maintained principal places of business in Philadelphia County?
II. Alternatively, whether the lower court committed an error of
law or abused its discretion by not considering any evidence and
not permitting the parties to complete venue discovery before
____________________________________________
2
While the stipulation dismissing Royal Electric Supply Company was
entered on the docket on October 5, 2015, the signatures of counsel for
Appellants and counsel for Royal Electric Supply Company were dated
July 23, 2015 and July 16, 2015, respectively.
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ruling on the preliminary objections and transferring the case to
the Susquehanna County Court of Common Pleas?
Appellants’ Brief at 4.
The decision to transfer venue is within the discretion of the trial court,
and we shall not disturb that decision absent an abuse of discretion.
Scarlett v. Mason, 89 A.3d 1290, 1293 (Pa. Super. 2014) (citation
omitted). “Ordinarily, a plaintiff’s choice of forum carries great weight, but it
is not absolute or unassailable.” Id. (citation omitted). “Moreover, the
presumption in favor of a plaintiff’s choice of forum has no application to the
question of whether venue is proper in the plaintiff’s chosen forum; venue
either is or is not proper.” Id. (citation omitted).
The exclusive method to challenge venue as “improper” is by filing a
preliminary objection. Pa.R.C.P. 1006(e) (“Improper venue shall be raised
by preliminary objection and if not so raised shall be waived.”).
A Rule 1006(e) challenge to improper venue by preliminary
objection has two key components: one substantive and one
procedural. Substantively, the basis for a Rule 1006(e)
challenge is the defendant’s belief that venue is improper in the
plaintiff’s chosen forum. The meaning of the word improper, as
used in subsection (e), is, as previously noted, shaped by Rules
2179 (providing where a personal action against a corporation
may be brought), 1006(a) and (b) (providing where an action
may be brought) and, relevant to this proceeding, 1006(c) (An
action ... against two or more defendants ... may be brought
against all defendants in any county in which the venue may be
laid against any one of the defendants.). These rules exclusively
address where venue properly may be laid at the time the suit is
initiated. Thus, [a] question of improper venue is answered by
taking a snapshot of the case at the time it is initiated: if it is
proper at that time, it remains proper throughout the
litigation.
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Zappala v. Brandolini Property Management, Inc., 909 A.2d 1272,
1281 (Pa. 2006) (internal quotation marks, brackets, and ellipsis omitted)
(emphasis added). In its opinion, the trial court, pursuant to the holding in
Zappala, concedes that it erred in sustaining Appellees’ preliminary
objections based on improper venue and transferring venue to Susquehanna
County. We agree.
As the Supreme Court in Zappala explained, venue is to be considered
as a “snapshot” taken at the time the case is initiated. Zappala, 909 A.2d
at 1281. Thus, the snapshot here included the Philadelphia
defendants/Appellees Royal Electric Supply Company, PEI/Genesis Inc.,
Patterson, and Cabot. As such, venue was proper in Philadelphia at the time
the case was initiated. Id. Accordingly, the trial court erred as a matter of
law, and we reverse its order sustaining the preliminary objections regarding
improper venue and transferring venue to Susquehanna County.3
However, our decision with respect to venue does not impact
Appellees’ motion to transfer venue based on forum non conveniens because
that motion is considered separately from venue. Zappala, 909 A.2d at
1284; Pa.R.C.P. 1006(d). Here, Appellees filed a motion raising forum non
conveniens on July 30, 2015, which the trial court deemed moot due to its
____________________________________________
3
As our disposition of Appellants’ first issue is dispositive, we do not reach
Appellants’ second issue concerning discovery.
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ruling on the preliminary objections based on improper venue. Order,
8/27/15.
Because we conclude that the trial court erred in sustaining the
preliminary objections as to improper venue and transferring venue to
Susquehanna County, Appellees’ motion raising forum non conveniens is no
longer moot.4 As such, we reverse the order sustaining the preliminary
objections based on improper venue that resulted in this case being
transferred to Susquehanna County. Thus, venue remains proper in
Philadelphia County. Accordingly, we remand this matter to the Philadelphia
Court of Common Pleas to address Appellees’ motion to transfer based on
forum non conveniens.5
____________________________________________
4
See Consolidation Coal Co. v. District 5, United Mine Workers of
America, 485 A.2d 1118, 1124 (Pa. Super. 1984) (“That an action is ‘moot’
suggests that there is a legal issue involved in a case, but because of the
circumstances surrounding the case, the issue has become an academic one
and will not be resolved. What ‘mootness’ does not suggest is that an issue
was fully considered and a final judgment entered.”).
5
The order denying as moot Appellees’ motion to transfer for forum non
conveniens was not a final appealable order. Centerre Bank of Kansas
City, N.A. v. Arthur Young & Co., 502 A.2d 251 (Pa. Super. 1985);
Pa.R.A.P. 311. The order did not become final until the August 27, 2015
order on appeal that disposed of all claims and all parties. See Betz v.
Pneumo Abex LLC, 44 A.3d 27, 54 (Pa. 2012) (holding that “an appeal of a
final order subsumes challenges to previous interlocutory decisions”);
Pa.R.A.P. 341 note (“A party needs to file only a single notice of appeal to
secure review of prior non-final orders that are made final by the entry of a
final order[.]”). While we could simply reverse the order sustaining the
preliminary objections as to improper venue that transferred venue to
Susquehanna County and permit Appellees to file new motions raising forum
(Footnote Continued Next Page)
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Order reversed. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2017
_______________________
(Footnote Continued)
non conveniens, in the interests of judicial economy, we place the previously
filed motion before the trial court and leave to the trial court’s discretion
whether it requires additional filings or hearings on the issue of forum non
conveniens.
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