J-A17030-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BETH FEGER AND KERRY FEGER, IN THE SUPERIOR COURT OF
INDIVIDUALLY AND AS CO- PENNSYLVANIA
ADMINISTRATORS OF THE ESTATE OF
LOUISE FEGER, DECEASED
Appellants
v.
MICHAEL J. FIORILLO, ESQUIRE AND
FIORILLO LAW OFFICES,
Appellees No. 2888 EDA 2014
Appeal from the Order Entered August 29, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 3955 March Term, 2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 22, 2015
Appellants, Beth and Kerry Feger (hereinafter collectively referred to
as “the Fegers”), individually and as co-administrators of the estate of their
deceased mother, Louise Feger (hereinafter referred to as “the decedent”),
appeal from the trial court’s August 29, 2014 order sustaining Appellees’,
Michael J. Fiorillo, Esq., and Fiorillo Law Offices (hereinafter collectively
referred to as “Fiorillo”), preliminary objection asserting improper venue.
The order also directed that this case be transferred to the Court of Common
Pleas of Schuylkill County. After careful review, we affirm.
By way of background, Fiorillo represented the decedent when State
Auto Property and Casualty Insurance Company (hereinafter “State Auto”)
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filed an insurance fraud lawsuit against her in the U.S. District Court for the
Eastern District of Pennsylvania, which is located in Philadelphia County.
During the course of that lawsuit, State Auto filed a motion for summary
judgment, to which Fiorillo allegedly did not file a timely response on
decedent’s behalf. On January 8, 2009, the district court granted State
Auto’s motion for summary judgment against the decedent.
Thereafter,
[o]n February 12, 2010, [] Fiorillo sent a letter to the [district]
[c]ourt representing that [the Fegers] would be willing to pay
$25,000 to settle State Auto’s claims against [the decedent].
[The decedent] passed away a few days later. … Fiorillo then
filed a Motion to Withdraw as Counsel for [the Fegers] citing
financial hardship. In March of 2012, State Auto filed suit
against [the] Feger[s] alleging fraudulent conveyance of [the
decedent’s] home which [the] … Feger[s] had purportedly
purchased for $1 on February 11, 2009.
Trial Court Opinion (TCO), 12/23/14, at 3 (footnoted citations to the record
omitted).
On March 11, 2014, the Fegers filed a complaint against Fiorillo in
Philadelphia County, asserting various legal malpractice claims. The trial
court summarized the Fegers’ assertions, as follows:
[The Fegers] claim that … Fiorillo negligently failed to
respond to State Auto’s … [m]otion for [s]ummary [j]udgment.
[The] … Feger[s] also allege that they never authorized … Fiorillo
to offer $25,000 to settle State Auto’s claims against their
mother. [The] … Feger[s] also allege that … Fiorillo was never
authorized to represent them. Thus, [the Fegers] contend that
… Fiorillo’s misrepresentations to the Court during the underlying
Eastern District of Pennsylvania litigation are actionable.
TCO at 3-4 (footnoted citations to the record omitted).
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After the Fegers filed their complaint, Fiorillo filed a timely preliminary
objection, contesting venue in Philadelphia County. A hearing was
conducted on August 18, 2014. On August 29, 2014, the court issued an
order sustaining Fiorillo’s preliminary objection and directing that the case
be transferred to the Court of Common Pleas of Schuylkill County, where
Fiorillo’s residence and law office are located.
The Fegers filed a timely notice of appeal.1 Herein, they raise one
question for our review:
1. Was the trial court’s August 29, 2014 order transferring venue
a clear error of law and/or abuse of discretion because the trial
court erroneously applied Pa. R.C.P. 2179 (a)(2) instead of Pa.
R.C.P. 1006 (a)(1) as to Defendant/Appellee Fiorillo, and Pa.
R.C.P. 2179 (a)(2) instead of Pa. R.C.P. 2179 (a)(3) or (a)(4) as
to Defendant[/]Appellee Fiorillo Law Offices in deciding
Defendants’/Appellees’ motion to transfer venue?
Fegers’ Brief at 2 (unnecessary capitalization omitted).
Initially, as the trial court noted, it “is accorded ‘considerable
discretion in determining whether or not to grant a petition for change of
venue, and the standard of review is one of abuse of discretion.’”
Zampana-Barry v. Donaghue, 921 A.2d 500, 503 (Pa. Super. 2007)
(quoting Purcell v. Bryn Mawr Hospital, 579 A.2d 1282, 1284 (Pa.
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1
“[A]lthough an order transferring venue in a civil action is interlocutory in
nature, such order is appealable as of right.” Deutschbauer v. Barakat,
814 A.2d 246, 248 (Pa. Super. 2002) (citing Pa.R.A.P. 311(c)).
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1990)).2 This Court has repeatedly stated that “[i]f there exists any proper
basis for the trial court’s decision to grant the petition to transfer venue, the
decision must stand.” Deutschbauer, 814 A.2d at 248 (quoting Masel v.
Glassman, 689 A.2d 314, 316 (Pa. Super. 1997)). Moreover, our Supreme
Court “has described the heavy burden facing the appellant from a
discretionary trial court determination: ‘[I]t is not sufficient to persuade the
appellate court that it might have reached a different conclusion if, in the
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2
We point out that the trial court further stated:
The plaintiff’s choice of forum is given great weight. The party
seeking a change of venue “bears the burden of proving that a
change of venue is necessary, while a plaintiff generally is given
the choice of forum so long as the requirements of personal and
subject matter jurisdiction are satisfied.”
TCO at 4 (footnotes omitted). Fiorillo challenges this portion of the
trial court’s decision, arguing that “the doctrine that plaintiff’s choice of
forum should be given deference does not apply where the only
question is whether venue in a particular county is proper or not
proper.” Fiorillo’s Brief at 5 (citing Kring v. University of
Pittsburgh, 829 A.2d 673 (Pa. Super. 2003)). We agree with
Fiorillo’s reading of Kring. See Kring, 829 A.2d at 676 (concluding
that the presumption in favor of a plaintiff’s choice of forum has no
application where the trial court was faced not with a question of
forum non conveniens, but with the question of whether venue was or
was not proper in a particular county). Here, Fiorillo argued in the
preliminary objection “that Philadelphia County is an improper venue
for Plaintiff’s action.” Preliminary Objection, 3/31/14, at 8 ¶ 55
(emphasis added). Additionally, the trial court’s August 29, 2014
order stated that it was sustaining Fiorillo’s and the law firm’s
“[p]reliminary [o]bjection raising improper venue….” Trial Court
Order, 8/29/14 (emphasis added). Accordingly, we agree with Fiorillo
that pursuant to Kring, we do not apply a presumption in favor of the
Fegers’ choice of forum in this case.
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first place, charged with the duty imposed on the court below; it is
necessary to go further and show an abuse of the discretionary power.’”
Brown v. Delaware Valley Transplant Program, 538 A.2d 889, 891 (Pa.
Super. 1988) (quoting In re Mackarus’ Estate, 246 A.2d 661, 666-667
(Pa. 1968) (citation omitted)).
In this case, the trial court decided to grant the petition to transfer
venue to Schuylkill County, where Fiorillo and the law firm are located,
because Fiorillo only appeared in the U.S. District Court located in
Philadelphia County “to defend [the decedent] because that is where she
was sued. The mere fact of defending a client in the Eastern District of
Pennsylvania when she is sued, without greater involvement in the County
of Philadelphia, does not subject the attorney to venue in Philadelphia
County Court of Common Pleas.” TCO at 4-5.
The Fegers interpret the court’s language as indicating that it decided
Fiorillo’s change of venue motion under Pa.R.C.P. 2179(a)(2), which states:
“[A] personal action against a corporation or similar entity may be brought
in and only in [] a county where it regularly conducts business[.]” They
maintain, however, that Rule 2179(a)(2) “is one predicate for venue as to a
corporation, but not the exclusive predicate….” Fegers’ Brief at 6 (emphasis
added). The Fegers also argue that because Rule 2179 “applies only to
‘corporations or similar entities[,’] … not individuals, … the trial court’s
application of this Rule to decide the venue appropriate for Mr. Fiorillo was …
erroneous.” Id.
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The Fegers go on to contend that venue in Philadelphia County is
proper under Pa.R.C.P. 1006(a)(1) and 2179(a)(4). Rule 1006(a)(1), which
would pertain to the action against Fiorillo, as an individual, states:
(a) Except as otherwise provided by subdivisions (a.1), (b) and
(c) of this rule, an action against an individual may be brought in
and only in a county in which
(1) 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). Rule 2179(a)(4), which governs venue in the action
against the law firm, reads:
(a) Except as otherwise provided by an Act of Assembly, by Rule
1006(a.1) or by subdivision (b) of this rule, a personal action
against a corporation or similar entity may be brought in and
only in
***
(4) a county where a transaction or occurrence took place
out of which the cause of action arose[.]
Pa.R.C.P. 2179(a)(4).
The Fegers assert that here, the cause of action against both Fiorillo
and the law firm arose in Philadelphia County. They reason:
[T]he central thrust of [the Fegers’] malpractice claims is that …
Fiorillo negligently failed to respond to an August 20, 2008
motion by State Auto for leave to file for summary judgment …
and, when that motion was granted as unopposed, [Fiorillo] also
failed to respond to the summary judgment motion itself, which
was also granted as unopposed.
Applying the venue rules to these facts, it is clear that
venue in Philadelphia County is proper. Fiorillo failed to file
responsive pleadings at a court physically located in Philadelphia
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County. These omissions are the factual predicate for the
Fegers’ claims. Consequently, Philadelphia County is where “the
cause of action arose or where a transaction or occurrence took
place out of which the cause of action arose[,”] Pa. R.C.P. 1006
(a)(1), and venue … is proper as to Defendant/Appellee Fiorillo.
Similarly, Philadelphia County is “a county where a transaction
or occurrence took place out of which the cause of action
arose[,”] Pa. R.C.P. 2179 (a)(4), and venue is proper as to
Defendant/Appellee Fiorillo Law Offices.
Fegers’ Brief at 5-6.
In response, Fiorillo argues that venue is not proper in Philadelphia
County because “Fiorillo’s purported ‘failure’ occurred within his law offices,
located in Schuylkill County.” Fiorillo’s Brief at 7. Fiorillo relies on this
Court’s decision in Deutschbauer to support his argument. In that case,
Deutschbauer was represented by two attorneys (“the appellees”) who
commenced a personal injury action on Deutschbauer’s behalf in Berks
County. Deutschbauer, 814 A.2d at 247. Deutschbauer’s personal injury
action was ultimately terminated because the appellees failed to “adequately
follow through on the action filed in Berks County as required by local
rules….” Id. at 249. Deutschbauer subsequently filed a legal malpractice
action against the appellees in Philadelphia County, where Deutschbauer
resided. Id. at 247. The trial court sustained the appellees’ preliminary
objection to venue in Philadelphia County and transferred the case to Berks
County, reasoning that the appellees’ purported malpractice “more likely
than not occurred in [the] [a]ppellees' office located in Chester County or in
the courthouse in Berks County.” Id. at 249 (emphasis added).
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Here, Fiorillo focuses only on the above-emphasized language to
contend that his purported malpractice occurred in his office, which is
located in Schuylkill County. However, he ignores the last portion of that
sentence in Deutschbauer, which states, “or in the courthouse in Berks
County.”3 Id. (emphasis added). Fiorillo also disregards that the trial court
in Deutschbauer ultimately “concluded that venue properly lay in Berks
County[,]” and this Court affirmed that decision on appeal. Id.
Nevertheless, this Court did not explicitly reject the trial court’s
conclusion in Deutschbauer that the appellees’ purported malpractice
occurred either in their office in Chester County, or in the courthouse in
Berks County. Consequently, our decision in Deutschbauer supports a
conclusion that the legal malpractice cause of action against Fiorillo could
have arisen in Schuylkill County, where Fiorillo’s law office is located. As
such, the trial court had a proper basis for transferring this case to Schuylkill
County, and that decision was not an abuse of discretion.
Order affirmed.
Judge Ott joins this memorandum.
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3
Indeed, Fiorillo completely omits this language from his discussion of
Deutschbauer in his appellate brief. See Fiorillo’s Brief at 7 (presenting
the at-issue quotation from Deutschbauer, as follows: “This failure more
likely than not occurred in [the attorneys’] office located in Chester
County….”). We acknowledge, however, that Fiorillo’s counsel sent to this
Court, and opposing counsel, a letter dated June 24, 2015, acknowledging
that he mistakenly omitted the second part of the sentence in
Deutschbauer, and apologizing for this misstatement of the case.
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President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2015
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