J-A32023-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RITA WYSZYNSKI IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
GREENWOOD GAMING &
ENTERTAINMENT, INC. D/B/A PARX
CASINO & RACING
No. 766 EDA 2016
Appeal from the Order February 12, 2016
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 160101055
BEFORE: DUBOW, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY RANSOM, J.: FILED MARCH 08, 2017
Appellant, Rita Wyszynski, appeals from the order of February 12,
2016, sustaining the preliminary objections of Appellee, Greenwood Gaming
& Entertainment, Inc., d/b/a Parx Casino and Racing, and transferring this
matter to the Bucks County Court of Common Pleas. We affirm.
On January 11, 2016, Appellant filed a complaint, alleging she was
injured in a slip and fall on a wet floor in a restroom at Parx Casino. See
Complaint, 2/11/16, at ¶¶ 8-11. Appellee filed preliminary objections to the
complaint, arguing that venue was improper in Philadelphia County, as it
does not regularly conduct business in Philadelphia, and Appellant’s
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*
Retired Senior Judge assigned to the Superior Court.
J-A32023-16
allegations of recklessness were not supported by the factual averments of
the complaint. See Preliminary Objections, 1/19/16, at ¶¶ 6-48. Appellant
filed a response in opposition, arguing that Appellee regularly conducts
business in Philadelphia through extensive advertising campaigns. See
Answer to Preliminary Objections, 2/1/16, at ¶ 31. The court sustained
Appellee’s objections and transferred the case to the Bucks County Court of
Common Pleas.
Appellant filed a motion for reconsideration, timely appealed, and filed
a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on
appeal.1 The trial court issued a responsive opinion.
On appeal, Appellant raises the following issues for our review:
1. [] Did the lower court abuse its discretion in transferring this
case to Bucks County, where [Appellee] failed to sustain its
burden of proof that it did not regularly conduct business in
Philadelphia, and venue was proper in Philadelphia under
Pa.R.C.P. 2179(a)?
2. Did the lower court abuse its discretion in transferring this
case to Bucks County, where the defendant’s pervasive
advertising in Philadelphia is neither limited nor “mere
solicitation,” the defendant is successful in attracting Philadelphia
residents to its casino, and the casino is located on Street Road,
virtually on the border with Philadelphia?
Appellant’s Brief at 4.
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1
See Pa.R.A.P. 311(c) (“An appeal may be taken as of right from an order
in a civil action or proceeding changing venue, transferring the matter to
another court of coordinate jurisdiction, or declining to proceed in the matter
on the basis of forum non conveniens or analogous principles.”)
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As Appellant’s issues are interrelated, we will address them together
for ease of analysis. Appellant claims that Appellee failed to sustain its
burden of proving that it does not regularly conduct business in Philadelphia,
because it advertises heavily in Philadelphia. See Appellant’s Brief at 8.
Appellant contends that the quantity of the advertising is far more than
limited solicitation of business, and accordingly, the trial court abused its
discretion in transferring venue. Id. at 8-9.
Our standard and scope of review are well-settled:
It is well established that a trial court's decision to transfer
venue will not be disturbed absent an abuse of discretion. A
Plaintiff's choice of forum is to be given great weight, and the
burden is on the party challenging the choice to show it was
improper. However, a plaintiff's choice of venue is not absolute
or unassailable. Indeed, if there exists any proper basis for the
trial court’s decision to grant a petition to transfer venue, the
decision must stand.
Fritz v. Glen Mills Schools, 840 A.2d 1021, 1023 (Pa. Super. 2003)
(emphasis in the original). The party seeking a change of venue bears the
burden of proving such a change necessary. Zampana-Barry v.
Donaghue, 921 A.2d 500, 502 (Pa. Super. 2007).
The Pennsylvania Rules of Civil Procedure provide that an action
against a corporation may be brought 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; or
(4) a county where the transaction or occurrence took place out
of which the cause of action arose.
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Pa.R.C.P. 2179(a). Neither party disputes that Appellee has its registered
office and principal place of business in Bucks County or that the cause of
action arose in Bucks County. However, Appellant argues that Appellee
“regularly conducts business” in Philadelphia County, rendering venue proper
in Philadelphia.
Pennsylvania law regarding the transfer of venue is equally well-
settled; the court applies the “quality” and “quantity” test to determine if a
corporation’s business contacts are sufficient to constitute regular business
conduct for purposes of establishing venue. See Purcell v. Bryn Mawr
Hospital, 579 A.2d 1282, 1285 (1990). The Purcell court further stated,
[q]uality 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... [T]he 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.
Id. at 1285 (citations, quotations and quotation marks omitted).
Our courts have consistently held that mere solicitation of business in
a particular county does not amount to conducting business. Id. at 1287
(noting that advertisements in phone books and newspapers do not meet
standards for the exercise of venue); see also Battuello v. Camelback Ski
Corp., 598 A.2d 1027, 1029 (1991) (finding that activities consisting
“almost exclusively of advertisement, aimed at the solicitation of business”
were insufficient to sustain venue “under the clear mandate of Purcell”);
Kubik v. Route 252, Inc., 762 A.2d 1119, 1124–26 (Pa. Super. 2000)
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(holding contacts between Delaware County restaurant and Philadelphia
County were incidental, where they consisted of solicitation of patrons by
email newsletter, selling gift certificates to Philadelphia residents, and
purchased goods in Philadelphia County); Kisak v. Wheeling Park
Comm'n, 898 A.2d 1083, 1087 (Pa. Super. 2006) (holding that advertising,
as the sole business activity alleged in Allegheny County, does not constitute
regularly conducting business); Wimble v. Parx Casino and Greenwood
Gaming & Entertainment, Inc., d/b/a Philadelphia Park Casino, 40
A.3d 174, 178 (Pa. Super. 2012) (holding that trial court properly
transferred venue where all corporate activities occurred in Bucks County,
incident occurred in Bucks County, and sole business activities in
Philadelphia consisted of advertising).
Despite this well-established precedent, Appellant argues that
Appellee’s advertising, consisting of ads in Philadelphia newspapers and
magazines, radio stations and television channels, and sponsoring events in
Philadelphia, should be considered “substantial business.” Appellant
contends that the instant matter is distinguishable from Wimble, where no
evidentiary record was developed as to the defendant’s advertising in
Philadelphia. See Appellant’s Brief at 12 (citing in support Wimble, 40 A.3d
at 179).
However, our case law makes clear that advertising is incidental to the
purpose of the business. See Kubik, supra. Advertising, no matter how
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pervasive, may not satisfy the Purcell analysis. Accordingly, the trial court
did not abuse its discretion in transferring venue to Bucks County.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/2017
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