Zappala v. Brandolini Property Management
| Decision Date | 27 November 2006 |
| Parties | Michelle ZAPPALA v. BRANDOLINI PROPERTY MANAGEMENT, INC.; Paoli Shopping Center Limited Partnership; Paoli Shopping Center Limited Partnership II; Paoli Shopping Center Limited Partnership Phase II; United Builders & Constructors, Ltd.; Kortan General Maintenance, Inc.; The James Lewis Group t/a Brandolini Companies; James Lewis Corporation; Progress Bank; The Pep Boys—Manny, Moe & Jack t/a Pep Boys; Brubacher Excavating, Inc.; Green Design, Inc.; Carroll Contractors, Inc.; Pickering Valley Landscape, Inc.; Bala Electric; and Heyser Landscaping, Inc. Michelle Zappala v. The James Lewis Group t/a Brandolini Companies; James Lewis Corporation; Progress Bank; and The Pep-Boys—Manny, Moe & Jack t/a Pep Boys Appeal of Brandolini Property Management, Inc.; Paoli Shopping Center Limited Partnership; Paoli Shopping Center Limited Partnership II; United Builders & Constructors, Ltd.; The James Lewis Group t/a Brandolini Companies; James Lewis Corporation. |
| Court | Pennsylvania Supreme Court |
David S. Santee, Esq., Michael A. Meehan, Esq., Carl D. Buchholz, III, Esq., for Brandolini Property Management, Inc., et al.
Joseph Raymond Viola, Esq., Philadelphia, for Michelle Zappala.
BEFORE: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.
This case involves two slip-and-fall lawsuits arising from the same incident, consolidated for trial, and brought against numerous defendants. For ease of discussion, it will be helpful to identify the parties and designate collective terms. The first set of defendants, Appellants herein, will be referred to as "the Chester County Defendants." They are: Brandolini Property Management, Inc.; Paoli Shopping Center Limited Partnership; Paoli Shopping Center Limited Partnership II; Paoli Shopping Center Limited Partnership Phase II; United Building Constructors, Ltd.; James Lewis Group t/a Brandolini Companies; and James Lewis Corporation. The second set of defendants will be referred to as the "Philadelphia County Defendants." They are: Green Design, Inc.; Heyser Landscaping, Inc.; Progress Bank; and The Pep Boys.1 Appellee herein is Michelle Zappala (Plaintiff), who initially brought both actions in Philadelphia County. Shortly before trial, the trial court transferred the consolidated case to Chester County pursuant to the Chester County Defendants' "motion to transfer venue." Plaintiff appealed to the Superior Court, which reversed, returning the case to Philadelphia County for trial. We granted the Chester County Defendants' petition for allowance of appeal, and, because we agree with the Superior Court that the trial court erred in transferring venue from Philadelphia County to Chester County, we affirm, but remand to permit the Chester County Defendants to seek the same result through assertion of forum non conveniens or the inability to secure a fair and impartial trial in Philadelphia County.
On October 26, 1998, the day of Plaintiff's accident, PECO Energy was relocating utility poles for the Chester County Defendants, who were developing the Paoli Shopping Center.2 PECO had contracted with Riggs Distler, a company that furnishes flag-persons for construction sites, to control passing traffic while PECO worked. Plaintiff was one such flag-person. Arriving at the site that morning, Plaintiff parked her car near the work site and adjacent to a Progress Bank branch in a parking lot belonging to The Pep Boys. As she walked across the construction site to confer with employees of PECO, Plaintiff tripped and fell on two holes on the Paoli Shopping Center construction site that were covered with leaves. She sustained injuries to her ankle and back, which resulted in four separate ankle operations, including reconstructive surgery.
Plaintiff, who resides in Delaware County, filed a complaint in Philadelphia County on August 7, 2000, alleging that she was seriously injured when she tripped and fell, and seeking $50,000 in damages for pain and suffering, medical expenses, loss of earnings, and impairment of earning power and capacity. Plaintiff named as defendants two of the Chester County Defendants and two of the Philadelphia County Defendants.3 Plaintiff averred that each defendant conducted substantial and continuing business in Philadelphia. Brandolini Property Management, Inc., one of the Chester County Defendants, filed preliminary objections on September 1, 2000, asserting various minor violations of the rules governing pleading, but did not challenge venue.
After learning of additional defendants, Plaintiff filed a second complaint in October of 2000, claiming the same harm as in the first complaint and naming additional Chester County Defendants and Philadelphia County Defendants, among others.4 The complaint alleged that all defendants conducted substantial and continuing business in Philadelphia at all material times. The complaint further alleged that all defendants were involved in the ownership, possession, control, inspection, maintenance, or repair of the accident site, and that each breached its duty to Plaintiff, a business invitee, inter alia by allowing, causing, or failing to correct a dangerous and defective condition on the property. The Chester County Defendants filed an answer asserting, inter alia, that they did not conduct any business in Philadelphia.
After the trial court consolidated the two actions,5 the case proceeded through discovery until all of the defendants except the Chester County Defendants filed motions for summary judgment, asserting that discovery established that they did not have an ownership interest or responsibility in the land where the accident occurred, and therefore breached no duty to Plaintiff. Plaintiff did not oppose these motions. This resulted in dismissal of all of the defendants except the Chester County Defendants.
Following dismissal of all other defendants, the Chester County Defendants filed a pre-trial motion entitled "motion to transfer venue" requesting that venue be transferred to Chester County pursuant to Pa.R.C.P. 1006(e),6 arguing that Plaintiff improperly brought this case in Philadelphia County. Specifically, the Chester County Defendants argued that because Plaintiff resided in Delaware County, the accident occurred in Chester County, and all remaining defendants are situated in Chester County, venue in Philadelphia County was improper. The Chester County Defendants asserted that during the course of the litigation, Plaintiff failed to provide any facts to support her contention that the Philadelphia County Defendants were potentially liable for her injuries; when faced with interrogatories, admitted that she had no information to support her claims against the Philadelphia County Defendants; and therefore never should have named the Philadelphia County Defendants. The Chester County Defendants contended that venue in Philadelphia County had never been proper because they were the only defendants against whom Plaintiff had an arguable claim, and, in contrast to the Philadelphia County Defendants, they were located in Chester County and did not conduct business in Philadelphia County.
Plaintiff opposed the motion, arguing that it was barred by the explicit language of Rule 1006(e), which provides: "Improper venue shall be raised by preliminary objection and if not so raised shall be waived."7 Because the Chester County Defendants did not challenge venue as improper by preliminary objection, Plaintiff argued that they waived the challenge pursuant to the plain language of Rule 1006(e).
Upon consideration of the parties' arguments, the trial court transferred the action to Chester County. In its opinion, the trial court ruled that a preliminary objection asserting improper venue must be raised at the first reasonable opportunity, which, in this case, was after the Philadelphia County Defendants had been dismissed from the case. The trial court found support for this ruling in the Superior Court case of Jackson v. Laidlaw Transit, Inc., 822 A.2d 56 (Pa.Super.2003). The plaintiff in Jackson filed suit in Philadelphia County arising out of a car accident that occurred in Bucks County. Id. at 57. The defendants were the Rosenbaums, of Bucks County, one of whom was the driver and both of whom owned another involved vehicle, and Laidlaw Transit, Inc., the owner and operator of a bus that allegedly was involved in the accident. There was no question that Laidlaw conducted business in Philadelphia County. Id. The Rosenbaums filed preliminary objections pursuant to Rule 1006(e) challenging venue and alleging that Laidlaw was improperly joined as a defendant. Id. The trial court overruled the preliminary objections, but specified that the order was without prejudice to the Rosenbaums' right to renew the preliminary objection if Laidlaw was dismissed from the case. Id. After discovery, Laidlaw moved for summary judgment. The Rosenbaums filed a response supporting Laidlaw's motion, and again asking that the trial court transfer the action to Bucks County. The trial court granted summary judgment for Laidlaw and transferred venue to Bucks County. On appeal, the Superior Court affirmed. The Superior Court reasoned that once Laidlaw, which furnished the only tie to Philadelphia County, was dismissed from the case, venue in the remaining action against the Rosenbaums was properly in Bucks County, where the accident occurred and where all defendants could be served. Id. at 58. No further review was sought.
In the case at bar, the trial court found Jackson controlling, and determined that the Chester County Defendants' last opportunity to submit preliminary objections was after Plaintiff's second complaint. At that time, however, the Chester County Defendants could not have challenged venue as improper under Rule 1006(e) because venue was proper in ...
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