West, S. v. Abington Memorial Hospital

J-A14020-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SEAN WEST AND AMY WEST, AS : IN THE SUPERIOR COURT OF
PARENTS AND NATURAL GUARDIANS : PENNSYLVANIA
OF JULIANA WEST, A MINOR, :
INDIVIDUALLY AND IN THEIR OWN :
RIGHT; AND NEW YORK PRIVATE :
TRUST COMPANY, :
:
Appellants :
: No. 3666 EDA 2017
:
v. :
:
:
ABINGTON MEMORIAL HOSPITAL :
D/B/A/ ABINGTON HOSPITAL- :
JEFFERSON HEALTH; REGINA P. :
STURGIS-LEWIS, M.S.N.; AND JOEL :
I. POLIN, M.D., :

Appeal from the Order November 2, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): November Term 2016, No. 967

BEFORE: GANTMAN, P.J., SHOGAN, J., and PLATT*, J.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 07, 2018

Sean West and Amy West, as parents and natural guardians of a minor,

Juliana West, and New York Private Trust Company (collectively “Appellants”)

appeal from the trial court’s order, entered November 2, 2017, sustaining the

preliminary objections to venue filed by Abington Memorial Hospital doing

business as Abington Hospital–Jefferson Health, Regina P. Sturgis-Lewis,

M.S.N., and Joel I. Polin. M.D. (collectively “Appellees”). After careful review,

we affirm.

The trial court set forth the following factual background:

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A14020-18

On February 13, 2007[, Appellant] Amy West delivered a
baby girl, Juliana[,] at Abington Memorial Hospital (“the
Hospital”). During [Appellant] Amy West’s labor and delivery she
suffered severe complications, including the rupture of her uterus.
Minor [Juliana] suffered a profound brain injury as a result of the
complications. The West family subsequently filed a malpractice
action against [Appellees]. The case (“West I”) went to trial and
upon the close of [Appellants’] case in chief, the parties settled for
an undisclosed amount.
One of the central legal questions presented in West I was
whether the administration of Pitocin caused [Amy West’s and
Juliana West’s] injuries. [Appellants] contended that a continuous
dosage of Pitocin-like the one [Appellant] Amy West received
during her labor and delivery-led to the serious complications she
and her baby suffered. [Appellees] contended that in an
unscarred uterus, like [Appellant] Amy West’s, there was little to
no risk for such complications. Representatives of the [Appellees]
even stated during deposition that Pitocin was safe, so long as
there was no change in the baby’s heart rate after Pitocin was
administered.
During discovery[, Appellants] sought information from the
Hospital on protocols and guidelines surrounding the use of
Pitocin. In response to these discovery requests [Appellees]
produced guidelines drafted in 2004 (“the 2004 guidelines”)
stating that there was no risk of serious complications associated
with the use of Pitocin in an unscarred uterus. Two years after
the 2004 guidelines were circulated to Hospital staff, a medical
journal published a case study detailing a catastrophic patient
outcome that resulted from administering Pitocin to a laboring
mother with an unscarred uterus. The case study detailed how
even in this unscarred uterus, a high dose of Pitocin led to uterine
rupture and severe brain injury to the baby. The publication of
this case study led the Hospital to issue a second set of guidelines
in 2006 (“the 2006 guidelines”). The 2006 guidelines discussed
the case study and detailed the risk of uterine rupture associated
with Pitocin, even when administered to women with an unscarred
uterus. During discovery in West I, the hospital turned over the
2004 guidelines, but not the 2006 guidelines.

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J-A14020-18

[Appellants] in this subsequent case (“West II”) now assert
two claims against the Hospital: (1) fraud in the inducement; and
(2) negligence. Underlying these claims is [Appellants’] argument
that [Appellees] deliberately withheld the 2006 guidelines during
West I discovery in an effort to get [Appellants] to settle for less
than their case was worth. [Appellants] also argue that
[Appellees] had a duty to be truthful during discovery, which they
breached.
Trial Court Opinion, 2/13/18, at unnumbered 1–3.
The trial court also provided the following procedural background:
On November 14, 2016[, Appellants] filed the present
lawsuit in the Philadelphia County Court of Common Pleas. On
January 12, 2017[, Appellees] filed Preliminary Objections to
[Appellants’] complaint. On [January] 31, 2017[, Appellants] filed
an amended complaint and on February 6, 2017[,] the Preliminary
Objections were marked moot. On February 21, 2017[, Appellees]
filed a second set of Preliminary Objections and on March 13,
2017[, Appellants] filed a second amended complaint. As a result,
on March 16, 2017[,] the Preliminary Objections were once again
marked moot. Both of these prior iterations of Preliminary
Objections raised the issue of venue.
On April 3, 2017[, Appellees] filed a third set of Preliminary
Objections arguing that venue is improper in Philadelphia because
(1) the individual [Appellees] do not work or reside in
Philadelphia; (2) Abington Hospital does not have a registered
office or principal place of business in Philadelphia; (3) Abington
Hospital does not regularly conduct business in Philadelphia; and
(4) the transaction or occurrence did not take place in
Philadelphia. [Appellants] responded on April 24, 2017[,] arguing
that there were multiple bases to make Philadelphia a proper
venue. Specifically[, Appellants] stated that venue was proper
because the relevant legal work in West I took place in
Philadelphia, that Abington Hospital regularly conducts business
in Philadelphia pursuant to a recent merger between the Hospital
and Thomas Jefferson University and certain incidental activities
with Philadelphia Hospitals. [Appellants] also argued . . . that
venue was proper against the individual [Appellee] because Dr.
Joel I. Polin worked at Temple University Hospital.

-3-
J-A14020-18

On April 28, 2017[,] this [c]ourt ordered the parties to
submit supplemental briefing on the issue of venue and allowed
the parties to conduct limited discovery related to venue. The
Order stated that supplemental briefing on the issue of venue was
due from the parties on June 30, 2017. On May 11, 2017[,] this
case was consolidated with a case subsequently filed on March 17,
2017. On July 5, 2017[,] the parties and this [c]ourt agreed to
extend the deadline for supplemental briefing and set a new due
date of August 18, 2017. The parties timely filed supplemental
briefing consistent with this extension.
On November [2], 2017[,] this Court sustained [Appellees’]
Preliminary Objections to venue and transferred the case to
Montgomery County. Appellants timely appealed this [c]ourt’s
Order on November 7, 2017. Pursuant to this [c]ourt’s Order,
[Appellants] filed a Statement of Matters Complained of on Appeal
pursuant to Pa. R.A.P. 1925(b) on December 21, 2017.

Trial Court Opinion, 2/13/18, at unnumbered 3–4.

Appellants present a single question for our review:

1. In this negligence and fraud action, did the trial court err in
finding that Abington is not subject to venue in Philadelphia
where Abington conducts substantial and regular business in
Philadelphia (generating [redacted] annually in revenue)?”

Appellants’ Brief at 2.

Our scope and standard of review are as follows:

It is well established that a trial court’s decision to transfer venue
will not be disturbed absent an abuse of discretion. A [p]laintiff’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.

Wimble v. Parx Casino and Greenwood Gaming & Entertainment, Inc.,

40 A.3d 174, 177 (Pa. Super. 2012) (citation omitted). The presumption in

-4-
J-A14020-18

favor of the 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.” Kring v. University of Pittsburgh, 829 A.2d 673, 676 (Pa.

Super. 2003). Venue is a specific inquiry and each case must be judged upon

its individual facts. Wimble, 40 A.3d at 177. Furthermore, the propriety of

venue is to be determined at the time the suit is initiated. Zappala v.

Brandolini Property Management, 909 A.2d 1272, 1281 (Pa. 2006).

Pursuant to Pa.R.C.P. 2179(a), which governs venue in actions involving

corporations:

[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, or

(5) a county where the property or a part of the property which
is the subject matter of the action is located provided that
equitable relief is sought with respect to the property.

Pa.R.C.P. 2179(a).

On appeal, Appellants argue, pursuant to Pa.R.C.P 2179(a)(2), that

venue was proper in Philadelphia County because the Hospital regularly

conducts business there. “In determining whether a corporation or

partnership regularly conducts business in a county, we employ a quality-

-5-
J-A14020-18

quantity analysis.” Zampana-Barry v. Donaghue, 921 A.2d 500, 503 (Pa.

Super. 2007). “A business entity must perform acts in a county of sufficient

quality and quantity before venue in that county will be established.” Id. The

quality prong is satisfied when the entity performs acts that are essential to

its business objective in the county; incidental acts are not sufficient. Id. The

quantity prong requires the acts “are sufficiently continuous so as to be

considered habitual.” Id.

Instantly, we have thoroughly reviewed the briefs of the parties, the

relevant law, and the certified record before us, including the opinion of the

trial court dated February 13, 2018, which addresses the issues raised by

Appellants in their Pa.R.A.P. 1925(b) statement. Upon review, it is our

determination that Appellants have failed to establish that the trial court

abused its discretion when it sustained Appellees’ preliminary objections to

venue and transferred venue from Philadelphia County to Montgomery

County. Thus, we conclude that the issue presented by Appellants lacks merit,

and the trial court’s opinion adequately addresses Appellants’ claim raised on

appeal. Accordingly, we affirm on the basis of the trial court’s opinion and

adopt its reasoning as our own. The parties are directed to attach a copy of

that opinion in the event of further proceedings in this matter.

Order affirmed.

-6-
J-A14020-18

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/7/18

-7-
 Circulated 09/06/2018 02:32 PM

f.

IN THE COURT OF COMMON PLEAS i

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

SEAN WEST and AMY WEST, p/n/g of November Term, 2016
21,"
JULIANA WEST, a minor, individually and �:. r-.»

in their own right; and NEW YORK PRIVATE (.
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TRUST COMPANY,
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Plaintiffs :1
No. 161100967 c..
v. 3666 EDA 2017 (..

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ABINGTON MEMORIAL HOSPIT AL d/b/a ..
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ABINGTON HOSPITAL - JEFFERSON ..: . c.
HEALTH; REGINA P. STURGIS-LEWIS, M.S.N. :
and JOEL I. POLIN, M.D.
Defendants

SEAN WEST and AMY WEST, p/n/g of March Term, 2017
JULIANA WEST, a minor, individually and
in their own right; and NEW YORK PRIVATE
TRUST COMPANY,
Plaintiffs
No. 170301833 '-""'
V. 3666 EDA 2017 v

ABINGTON MEMORIAL HOSPITAL d/b/a
ABINGTON HOSPITAL - JEFFERSON
HEALTH; REGINA P. STURGIS-LEWIS, M.S.N. : West Etal Vs Ab11gton Men-.onal Hospital Etal..()PFLD

and JOEL I. POLIN, M.D.
Defendants
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Ill H 17030183300046 IUIIIII _
OPINION

A. FACfUALBACKGROUND

On February 13, 2007 Plaintiff Amy West delivered a baby girl, Juliana at Abington

Memorial Hospital ("the Hospital"). During Plaintiff Amy West's labor and delivery she

suffered severe complications, including the rupture of her uterus. Minor Plaintiff suffered a

profound brain injury as a result of the complications. The West family subsequently filed a
malpractice action against Defendants. The case ("West I") went to trial and upon the close of

Plaintiffs' case in chief, the parties settled for an undisclosed amount.

One of the central legal questions presented in West I was whether the administration of

Pitocin caused Plaintiffs' injuries. Plaintiffs contended that a continuous dosage of Pitocin-like

the one Plaintiff Amy West received during her labor and delivery-led to the serious

complications she and her baby suffered. Defendants contended that in an unscarred uterus, like

Plaintiff Amy West's, there was little to no risk for such complications. Representatives of the

Defendants even stated during deposition that Pitocin was safe, so long as there was no change in

the baby's heart rate after Pitocin was administered.

During discovery Plaintiffs sought information from the Hospital on protocols and

guidelines surrounding the use of Pitocin. In response to these discovery requests Defendants

produced guidelines drafted in 2004 ("the 2004 guidelines") stating that there was no risk of

serious complications associated with the use of Pitocin in an unscarred uterus. Two years after

the 2004 guidelines were circulated to Hospital staff, a medical journal published a case study

detailing a catastrophic patient outcome that resulted from administering Pitocin to a laboring

mother with an unscarred uterus. The case study detailed how even in this unscarred uterus, a

high dose of Pitocin led to uterine rupture and severe brain injury to the baby. The publication of

this case study led the Hospital to issue a second set of guidelines in 2006 ("the 2006

guidelines"). The 2006 guidelines discussed the case study and detailed the risk of uterine

rupture associated with Pitocin, even when administered to women with an unscarred uterus.

During discovery in West I, the hospital turned over the 2004 guidelines, but not the 2006

guidelines.
 The Wests in this subsequent case ("West If') now assert two claims against the Hospital:

(1) fraud in the inducement; and (2) negligence. Underlying these claims is Plaintiffs' argument

that Defendants deliberately withheld the 2006 guidelines during West I discovery in an effort to

get Plaintiffs to settle for less than their case was worth. Plaintiffs also argue that Defendants had

a duty to be truthful during discovery, which they breached.

B. PROCEDURAL BACKGROUND
On November 14, 2016 Plaintiffs filed the present lawsuit in the Philadelphia County Court

of Common Pleas. On January 12, 2017 Defendants filed Preliminary Objections to Plaintiffs'

complaint. On Janaury 31, 2017 Plaintiffs filed an amended complaint and on February 6, 2017

the Preliminary Objections were marked moot. On February 21, 2017 Defendants tiled a second

set of Preliminary Objections and on March 13, 2017 Plaintiffs filed a second amended complaint.

As a result, on March 16, 201 7 the Preliminary Objections were once again marked moot. Both of

these prior iterations of Preliminary Objections raised the issue of venue.

On April 3, 2017 Defendants filed a third set of Preliminary Objections arguing that venue

is improper in Philadelphia because (1) the individual defendants do not work or reside in

Philadelphia; (2) Abington Hospital does not have a registered office or principal place of business

in Philadelphia; (3) Abington Hospital does not regularly conduct business in Philadelphia; and

(4) the transaction or occurrence did not take place in Philadelphia. Plaintiff responded on April

24, 2017 arguing that there were multiple bases to make Philadelphia a proper venue. Specifically

Plaintiff stated that venue was proper because the relevant legal work in West I took place in

Philadelphia, that Abington Hospital regularly conducts business in Philadelphia pursuant to a

recent merger between the Hospital and Thomas Jefferson University and certain incidental
activities with Philadelphia Hospitals. Plaintiffs also argued and that venue was proper against the

individual defendant because Dr. Joel I. Polin worked at Temple University Hospital.

On April 28, 2017 this Court ordered the parties to submit supplemental briefing on the

issue of venue and allowed the parties to conduct limited discovery related to venue. The Order

stated that supplemental briefing on the issue of venue was due from the parties on June 30, 2017.

On May 11, 2017 this case was consolidated with a case subsequently filed on March 17, 2017.

On July S, 2017 the parties and this Court agreed to extend the deadline for supplemental briefing

and set a new due date of August 18, 2017. The parties timely filed supplemental briefing

consistent with this extension.

On November l, 2017 this Court sustained Defendants' Preliminary Objections to venue

and transferred the case to Montgomery County. Plaintiffs timely appealed this Court's Order on

November 7, 2017. Pursuant to this Court's Order, Plaintiff filed a Statement of Matters

Complained of on Appeal pursuant to Pa. R.A.P. l 925(b) on December 21, 2017. Plaintiffs alleged

that this Court erred in transferring venue to Montgomery County because relevant transactions or

occurrences of this suit took place in Philadelphia, Abington Hospital regularly conducts business

in Philadelphia, and individual defendant Dr. Polin was employed by Temple University Hospital

at all times material to the relevant action.

C. DISCUSSION

1. Standard ofReview

The Pennsylvania Supreme Court has repeatedly held that a determination as to the

propriety of venue is a fact specific determination and that each case should be judged "on its own

facts .... " Shambe v. Delaware & H. R. Co., 135 A. 755, 758 (Pa. 1927); see Canter v. Amer.

Honda Motor Corp., 231 A.2d 140, 142 (Pa. 1967). In making a determination based on such facts,
trial courts are given great discretion in deciding whether venue is proper. Purcell v. Bryn Mawr

Hosp., 579 A.2d 1282, 1285 (Pa. 1990). The standard of review of a trial court's decision to

transfer venue is abuse of discretion. Peters v. Sidorov, 855 A.2d 894, 896 (Pa. Super. Ct. 2004).

An abuse of discretion is shown by a record of misapplication of the law, or judgment that is

manifestly unreasonable, or motivated by partiality, prejudice, bias, or ill-will. Id; see Kring v.

Univ. of Pittsburgh, 829 A.2d 673, 675 (Pa. Super. Ct. 2003), appeal denied, 844 A.2d 553 (Pa.

2004)). The Pennsylvania Superior Court has further elaborated that "[i]f there is any basis to

affirm a trial court's decision to transfer venue, the decision must stand." Peters, 855 A.2d at 896.

2. Analysis

Under the Pennsylvania Rules of Civil Procedure, in a case with multiple defendants venue

is proper in any county where venue may be properly laid against any defendant. PA. R. C. P. No.

1006(c); Zappala v. Brandolini Mgmt., 90 A.2d 1272, 1281 (Pa. 2006). Thus, in the present case

venue would be proper in Philadelphia if it were proper against either Abington Hospital or either

of the individual defendants. Zappala, 90 A.2d at 1281; see PA. R. C. P. No. 1006; PA. R.C.P.

2179(a).

a. Corporate Defendant Abington Hospital

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; ( 4) a county where a transaction or occurrence took place

out of which the cause ofaction arose, or (5) a county where the property or a part of the property

which is the subject matter of the action is located, provided that equitable relief is sought with

respect to the property. PA. R.C.P. 2179(a) (emphasis added). Under this statutory framework,

Plaintiff argues that in the present case venue is proper in Philadelphia for two reasons. One,
Plaintiff argues that venue is proper in Philadelphia because a transaction or occurrence-namely

the legal work in West I-took place in Philadelphia. Two, Plaintiff argues that Abington Hospital

regularly conducts business in Philadelphia. Each argument is addressed in tum below.

i. The Legal Work Completed in Philadelphia is Not a "Transaction or
Occurrence" for purposes of laying venue

As to Plaintiffs' first argument, venue is not proper in Philadelphia because even though

some relevant legal work on the West I case took place in Philadelphia, the actual transaction or

occurrence giving rise to West II took place in Montgomery County. See Craig v. W.J. Thiele, 149

A.2d 35, 37 (Pa. 1959) (stating that Pennsylvania's venue rules do not allow for suit to be brought

in any county where any facet of a transaction occurred); Kring v. Univ. of Pitt., 829 A.2d 673,

678 (Pa. Super. 2003) (stating that a "transaction or occurrence" for purposes of venue requires

more than just some part of the transaction). Pennsylvania courts have stated that "transaction or

occurrence" within the meaning of the means the happenings that make up the operative facts to

satisfy all the elements of the underlying cause of action. Kring, 829 A.2d at 678 (holding that in

an action for wrongful use of civil proceedings the relevant transaction or occurrence occurred

where the prior, allegedly wrongful case was brought and tried); see Deyarmin, 931 A.2d at 14

(holding that in an action brought under FELA the relevant transaction or occurrence occurred

where hazardous waste was processed before being transported to the situs of Plaintiffs exposure);

Sunderland v. R.A. Barlow Homebuilders, 791 A.2d 384, 392 (Pa. Super. Ct. 2002) (holding that

in an action for wrongful death the relevant transaction or occurrence was where the events

preceding and leading up to the accident occurred, not where decedent died).

As applied in the present case, the legal work that took place in Philadelphia is not a

transaction or occurrence within the meaning of the venue statute. See Estate of Werner v. Werner,

781 A.2d 188, 192 (Pa. Super. Ct. 2001) (holding that the physical location of the attorneys
working on the underlying transaction and engaging in communication with those attorneys was

insufficient to constitute a transaction or occurrence within the meaning of the statute). Although

some work did take place in Philadelphia this legal work was not the work that is critical to proving

Plaintiffs claim. See PA. R.C.P. 2 l 79(a); Deyarmin, 931 A.2d at 14; Sunderland, 791 A.2d at 392;

Werner, 781 A.2d at 192. Here, the actual settlement-which Plaintiffs base their fraud claim on-

took place in Montgomery County at the courthouse following the close of Plaintiffs case in chief.

Further, the 2006 document originated in Montgomery County and at some point was turned over

to counsel from the Hospital in Montgomery County. As such, considering that these relevant

events crucial to proving Plaintiffs' claim did not take place in Philadelphia then Philadelphia is

not a proper venue. See PA. R.C.P. 2179(a); Deyarmin, 931 A.2d at 14; Sunderland, 791 A.2d at

392; Werner, 781 A.2d at 192.

11. Abington Hospital Does Not Regularly Conduct Business in Philadelphia

Secondly, Plaintiffs argue that venue in Philadelphia is proper because the Hospital

regularly conducts business in Philadelphia. See PA. R.C.P. 2179(a). Plaintiff bases this argument

on the fact that the Hospital recently merged with Thomas Jefferson University Health System and

operates as Abington-Jefferson Health. Plaintiff also argues that the Hospital's educational and

training relationships with healthcare providers and hospitals in Philadelphia constitute regularly

conducting business in Philadelphia. See id.

For purposes of laying venue, a corporation regularly conducts business in a county if its

contacts with that county are of sufficient quantity and quality. Purcell v. Bryn Mawr Hosp., 579

A.2d 1282, 1286-87 (Pa. 1990); Zampana-Barry v. Donaghue, 921 A.2d 500, 503 (Pa. Super. Ct.

2007). Pennsylvania Courts have stated that both quantity and quality must be established to

properly lay venue. Purcell, 579 A.2d at 1284; Zampana-Barry, 921 A.2d at 503. Quality in this
context means acts directly, furthering, or essential to, corporate objects. Kisak v. Wheeling Park

Comm'n, 898 A.2d 1083, 1086 (Pa. Super. Ct. 2006); see Zampana-Barry, 921 A.2d at 503.

Quantity means acts which are so continuous and as to be general or habitual. Kisak, 898 A.2d at

1086; see Zampana-Barry, 921 A.2d at 503.

a. The Purported Merger Between Abington and Jefferson Does Not
Constitute Regularly Doing Business

With regard to the alleged merger between the Hospital and Thomas Jefferson University

this merger is insufficient in terms of the quality/quantity analysis. See Purcell, 579 A.2d at 1285;

Fritz v. Glen Mills Schools, 840 A.2d 1021, 1022-23 (Pa. Super Ct. 2003). Recently, in Griffin v.

Abington Memorial Hospital, the Honorable Arnold L. New considered this very question and

ruled that any purported merger between the two entities was insufficient because the corporate

transaction was not actually a merger creating one entity, but rather the transaction resulted in a

parent and subsidiary relationship between the two entities. 2017 WL 2734240 (Pa. Com. Pl. June

5, 2017). As such, Judge New reasoned that this was not a merger in the legal sense of the word,

but rather the transaction served a marketing purpose and therefore was more analogous to

advertising. Id.; see Wimble v. Parx Casino & Greenwood Gaming and Entmt., Inc. 40 A.3d 17 4,

178 (Pa. Super. Ct. 2012) (holding that a corporation may not be subject to venue based solely

upon the business activities of a sister corporation).

In so much as Griffin presents a nearly identical issue to the present case, this Court finds

Judge New's reasoning persuasive. See 2017 WL 2734240. Here, like in Griffin Defendants have

provided information that demonstrates that the relationship between the Hospital and Thomas

Jefferson University is one of parents and subsidiaries-not a singular entity. See Datte Tr. 8/9/17

at 10-11, 14 (stating that the entities did not merge in the legal sense of the word and that Thomas

Jefferson University does not have the ability to exercise control over the day to day operations of
Abington Hospital); Griffin, 2017 WL 2734240. As such, consistent with Superior Court

precedent, this Court finds that the actions of Thomas Jefferson University Hospital cannot be

imputed to Abington Hospital for purposes of laying venue. See Datte Tr. 8/9/17 at 10-11, 14;

Wimble, 40 A.3d at 178. Similarly, in so much as the term merger is used colloquially when

describing the underlying transaction between Abington Hospital and Thomas Jefferson

University Hospital any such usage of the word can be analogized to advertising and as such is

insufficient for purposes oflaying venue. See Datte Tr. 8/9/17 at 10-11, 14; Purcell, 579 A.2d at

1287 (noting that advertising is insufficient for purposes of laying venue); Kubik v. Route 252,

Inc., 762 A.2d 1119, 1125 (Pa. Super Ct. 2000) (analogizing certain web activities to newspaper

and phone book advertising and holding that such is insufficient for purposes of laying venue);

Zampana-Barry, 921 A.2d at 505 (discussing prior case precedent holding that advertising is

insufficient for purposes of laying venue).

b. The Incidental Business Conducted in Philadelphia Does Not
Constitute Regularly Doing Business

Plaintiffs also argue that venue is proper because Abington Hospital does certain

incidental business in Philadelphia. Applying the quantity quality analysis to this conduct the

Hospital's contacts with Philadelphia are not of sufficient quantity and quality. See Goodman v.

Fonslick, 844 A.2d 1252, 1255-56 (Pa. Super. Ct. 2004) {stating that educational affiliations with

medical schools in Philadelphia is not a sufficient contact to lay venue against Abington Hospital

in Philadelphia); Krosnowski v. Ward, 836 A.2d 143, 150 (Pa. Super. Ct. 2003) (stating that the

educational affiliation relationship between Abington Hospital and Children's Hospital of

Philadelphia is not a sufficient contact to lay venue against Abington Hospital in Philadelphia).

With regard to any educational relationship between Abington Hospital and other medical

providers in Philadelphia, the Superior Court has previously stated that such relationships are
insufficient. See Purcell, 579 A.2d at 1287; Goodman, 844 A.2d at 1252; Krosnowski, 836 A.2d

at 150. Therefore in so much as the present case is not distinguishable from prior precedent the

Hospital's contacts with Philadelphia in terms of educational relationships with other medical

providers such contacts are insufficient for purposes of venue.

Plaintiff also points to certain outpatient treatment and follow up care that Abington

Hospital provides to residents of Philadelphia. Applying the quality-quantity analysis to this

contact, such contact is equally insufficient. See Purcell 579 A.2d at 1285; Fritz, 840 A.2d at

1022-23. First, looking to the quality prong, such care is supplemental to, rather than essential to

furthering Abington Hospital's corporate object-operating a hospital and providing medical

care at that hospital. See Goodman, 844 A.2d at 1255 (stating that Abington Hospital's

ownership of small branch practices in Philadelphia County is incidental to Abington Hosptial 's

main goal of providing hospital health care). While this Court acknowledges that each case must

be considered based on its own facts, the parties have not presented this Court with information

that would require this Court to reach a different conclusion than the Superior Court reached in

previously considering this question. Purcell 579 A.2d at 1285; Goodman, 844 A.2d at 1255;

Krosnowski, 836 A.2d at 150.

At the same time, even if Abington Hospital's contacts could satisfy the quality prong of

the test, these contacts are of insufficient quantity to lay venue. In this regard, Abington Hospital

derives less than one percent of its revenue from the incidental business it conducts in

Philadelphia. Defs. Supp. Response at 4. While this Court acknowledges that even a small

fraction of business can be sufficient to satisfy the quantity prong of the analysis, in this case the

rniniscule percentage of revenue generated from contacts with Philadelphia in the present case is

simply too small. See Canter, 231 A.2d at 143 (finding venue proper when company generated
one to two percent of its gross income from sales in county where venue was sought); Lugo v.

Farmers Pride, Inc., 967 A.2d 963, 971 (Pa. Super. Ct. 2009) (finding venue proper when

company generated one to two percent of its gross income from sales in county where venue was

sought); Zampana-Barry, 921 A.2d at 503 (finding venue proper when company generated three

to five percent of its gross income from sales in county where venue was sought). In the same

vein other Pennsylvania courts have been hesitant to state that less than one percent of revenue is

sufficient quantity. See, e.g., Jackson v. Cops Monitoring, 2017 WL 3929086 at *4 (Pa. Super.

Ct. 2017) (finding venue was improper in Philadelphia County where a corporate defendant

generated less than one percent of its total revenue in Philadelphia County); Banaszewski v.

Corbo Landscaping Corp., 2013 WL 11253448 at *5 (Pa. Super. Ct. 2013) (finding venue was

improper in Philadelphia County where a corporate defendant generated less than one percent of

its total revenue in Philadelphia County).

b. Individual Defendant Dr. Joel I. Polin

An action may be brought against an individual where that individual may be served. PA.

R. C. P. No. 1006. An individual may be served where they live or at their usual place of

business. PA. R. C. P. No. 402. In this case, individual Defendant Dr. Polin does not live or work

in Philadelphia. Polin Tr. 3/7/2017 at 7-8. Rather individual Defendant Dr. Polin is retired from

Temple University School of Medicine. Id Despite this, Plaintiff states that venue is proper

against individual Defendant Joel I. Polin, M.D. because he is an Emeritus Professor of

Obstetrics and Gynecology at Temple University School of Medicine. This argument, though,

misconstrues the meaning of the tenn emeritus. According to the Merriam-Webster dictionary,

emeritus means "a person retired from professional life but permitted to retain as an honorary

title the rank of the last office held].]" By defendant Dr. Polin's own account his role at Temple
is honorary and he characterizes this role as "essentially an ex-professor." Defs. Supp. Briefs at

16wl 7 (quoting portions of Dr. Polin's deposition included as block quotes). In fact, Dr. Polin

retired in 2014 and is no longer employed by Temple. Polin Tr. 3/7/2017 at 8. Given that Dr.

Polin holds only an honorary title at his former employer, this Court finds that he cannot be

properly served in Philadelphia and as such venue would not be proper against him in

Philadelphia. See PA. R. C. P. Nos. 402, 1006.

D. CONCLUSION

For the foregoing reasons, the decision of this Court should be affirmed.

BY THE COURT:

0.- 1.u_
DENIS P. COHEN, J.

Dated: February 12, 2018