J-A19035-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MAX KANEVSKY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
REVOLUTION ICE RINK, LLC., BLACK : No. 3001 EDA 2019
BEAR SPORTS GROUP, INC., AND :
SCOTT F. DEROSA :
Appeal from the Order Entered October 3, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 190607507
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED SEPTEMBER 14, 2020
Max Kanevsky (Appellant) appeals from the order entered in the
Philadelphia County Court of Common Pleas sustaining the preliminary
objections to venue filed by Revolution Ice Rink, LLC (Revolution), Black Bear
Sports Group, Inc. (Black Bear), and Scott F. DeRosa (collectively,
Appellees).1 Appellant argues the trial court erred in transferring venue to
Bucks County because he satisfied the quantity and quality test established
by Pa.R.C.P. 2179(a)(2).2 For the reasons below, we affirm.
____________________________________________
1Appellees are represented by the same counsel and have filed a joint brief
on appeal.
2See Pa.R.C.P. 2179(a)(2) (personal action against a corporation or similar
entity may be brought in a county where it regularly conducts business).
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Black Bear owns and operates ice hockey rinks both in and outside the
Commonwealth, and has its principal place of business in Chevy Chase,
Maryland. Trial Ct. Op., 1/21/20, at 1-2; Appellees’ Answers & Objections to
Venue Interrogatories, 9/4/19, at 7. Revolution, which is a wholly-owned
subsidiary of Black Bear, owns and operates a single ice hockey rink, owns a
youth elite hockey team which plays its home games there, and has its
principal place of business in Warminster, Pennsylvania. Trial Ct. Op. at 1, 5;
Appellees’ Answers & Objections to Venue Interrogatories at 7. The
recreational hockey rink owned and operated by Revolution, the Revolution
Ice Gardens (the Rink), is located in Warminster, Bucks County. Trial Ct. Op.
at 1-2; Appellees’ Answers & Objections to Venue Interrogatories at 7. As
stated by the trial court, “[o]n May 2, 2019, Appellant suffered a compound
leg fracture while playing recreational ice hockey at the [Rink] in Warminster,
Bucks County.” Id.
Appellant filed a civil action against Appellees in Philadelphia County on
June 28, 2019, alleging a single count: that the negligence of Appellees
resulted in his injuries. Appellant’s Complaint, 6/27/19, at 6. Appellees filed
joint preliminary objections to venue on July 19, 2019, arguing that none of
them could be properly served in Philadelphia County because none were
domiciled or conducted any business there. Appellees’ Preliminary Objection
to Improper Venue, 8/1/19, at 1.
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The trial court conducted an evidentiary hearing on October 3, 2019. At
the hearing, Appellant argued that venue was proper in Philadelphia County,
citing a press release, published by Business Wire on March 5, 2019, written
by Black Bear’s CEO Murry Gunty and provided by Black Bear Vice President
Ryan Scott. See N.T. Deposition of Ryan Scott, 10/1/19, at 16-18. The press
release stated that the Rink is “the hockey hub of North Philadelphia.” Id. at
16. Appellant contended this statement indicated Appellees were “using
Philadelphia to generate revenue, and that’s something that could be used in
[proper venue] analysis.” N.T. Venue Hearing, 10/3/19, at 5-6. Further,
Appellant averred Appellees failed to meet their burden to provide evidence
of their lack of business activities in Philadelphia, as Black Bear Vice President
Scott could not provide data on the number of Philadelphia residents that are
customers of the Rink. See id. at 7-8.
Appellees responded that CEO Gunty’s comments were advertising, that
advertising did not create proper venue in Philadelphia County, and further
that the Rink did not keep a record of the residences of its customers, and
thus it was not possible to provide the data sought by Appellant. See N.T.
Venue Hearing at 8-9. Appellees asserted that they have not owned any
corporate entities or properties, nor maintained any storefronts to sell tickets,
within Philadelphia. See id. at 9. Further, Appellees cited their Answers and
Objections to Plaintiff’s Venue Interrogatories, which stated that neither Black
Bear nor Revolution generated revenue in or paid taxes to Philadelphia. Id.
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at 9; see Appellees’ Answers & Objections to Venue Interrogatories at 3-4, 6.
On the same day, the court entered the underlying order sustaining Appellees’
preliminary objections to improper venue and transferred this matter to the
Court of Common Pleas of Bucks County. Trial Ct. Op. at 3.
Appellant filed a timely notice of appeal on October 10, 2019, and timely
complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise
statement of matters complained of on appeal.
Appellant raises one issue on appeal:
Did the [trial] court abuse its discretion by entering an order
sustaining Preliminary Objections and transferring venue from
Philadelphia County to Bucks County when [Appellant] satisfied
the quality and quantity analysis on venue in Philadelphia
pursuant to Pa.R.C.P. 2179(a)(2), and further, when [Appellee
Black Bear]’s CEO actually admitted to substantial Philadelphia
business activities, and further when the burden of proof in
establishing improper venue rests with the party challenging
venue?
Appellant’s Brief at 4.
Appellant argues the trial court abused its discretion in transferring
venue to Bucks County, when Appellees Black Bear and Revolution regularly
conduct business in Philadelphia County. Appellant’s Brief at 18, 21.
Specifically, Appellant avers that the trial court failed to conduct a proper
quantity and quality analysis of the contacts Appellees have in Philadelphia,
as required in Purcell v. Bryn Mawr Hospital, 579 A.2d 1282 (Pa. 1990).
See Purcell, 579 A.2d at 1285 (business contacts with a county, in which
venue is sought, must be judged on the basis of their “quality” and “quantity”).
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Appellant contends the court did not properly consider the following
circumstances: (1) Black Bear’s payment for, and ownership of, a youth ice
hockey team that includes “Philadelphia” in its name was a business act
essential to furthering its corporate objectives; (2) CEO Gunty’s press release
provided a basis for venue; and (3) the Rink’s proximity to Philadelphia was
necessary to its continued existence. See id. at 21, 22, 24, 27. We disagree.
We note the relevant standard of review:
A trial court’s ruling on venue will not be disturbed if the decision
is reasonable in light of the facts. A decision to transfer venue will
not be reversed unless the trial court abused its discretion. A
plaintiff’s choice of forum is given great weight, and the burden is
on the party challenging that choice to show it is improper.
However, if there exists any proper basis for the trial court’s
decision to grant the petition to transfer venue, the decision must
stand.
Schultz v. MMI Prods., 30 A.3d 1224, 1228 (Pa. Super. 2011) (citation
omitted).
Pennsylvania Rule of Civil Procedure 1006(e) states that improper venue
must be raised by preliminary objection. Pa.R.C.P. 1006(e). Rule of Civil
Procedure 2179(a) governs where an action against a business organization
may be brought:
(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;
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(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)(1)-(5).
With respect to Subsection (a)(2), the Pennsylvania Supreme Court
noted in Purcell that:
“Our State acts, however, as to both domestic and foreign
corporations, require ‘doing business’ in the county where suit is
brought before jurisdiction can be acquired.” . . . [B]usiness
contacts must be judged on the basis of their “quality” and
“quantity.” . . . “Quality 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.”
Purcell, 579 A.2d at 1285 (citations omitted).Further, the Purcell Court
stated, “Mere solicitation of business in a particular county does not amount
to conducting business.” Id. at 1287.
Here, the trial court concluded neither Black Bear’s nor Revolution’s
activities satisfied the quantity and quality standards of Purcell. Trial Ct. Op.
at 4. The court found no evidence in the record to indicate that either Appellee
conducted any activity necessary to advance their corporate objectives in
Philadelphia County. The court noted Appellant’s own complaint averred:
[Black Bear] has its principal place of business in Chevy Chase,
Maryland, [Revolution] has its principal place of business in
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Warminster, [Bucks County,] Pennsylvania, and . . . DeRosa is a
resident of Bucks County, Pennsylvania.
Trial Ct. Op. at 1. The court further reasoned:
[T]he evidence shows the Philadelphia Revolution youth elite
hockey team is based out of the [Rink] in Warminster, Bucks
County. Without evidence of record showing the Philadelphia
Revolution youth elite hockey team regularly conducts business in
[Philadelphia C]ounty, the Philadelphia Revolution youth elite
team is no different than any other organization that has
Philadelphia in its name but conducts its business outside of
Philadelphia County. See e.g. Harrah’s Philadelphia Casino &
Racetrack (located in Chester, Delaware County . . . ), Philadelphia
Union major league soccer team (located in Chester), the
Philadelphia Premium Outlets (located in Limerick, Montgomery
County . . .), and [the] Philadelphia International Airport (located
in Tinicum Township, Delaware County). . . .
* * *
[The Rink] is physically located in Warminster, Bucks County.
[Appellant] asks this Court to jettison this uncontroverted fact and
find venue proper in Philadelphia because the CEO of [Black Bear]
issued a press release, i.e. an advertisement, in which he refers
to the [Rink] as “the hockey hub of North Philadelphia.” Calling
an ice rink in Warminster “the hockey hub of North Philadelphia”
does not ipso facto make venue proper in Philadelphia. The CEO’s
statement was nothing more than an advertising technique[ ] in
which the speaker embellishes a fact to make a product appear
more attractive. . . .
Trial Ct. Op. at 5-6.
We add that Appellees’ answers and objections to venue interrogatories
averred, and they again argued at the October 3, 2019, venue hearing that in
the last five years, neither Black Bear nor Revolution owned, purchased, or
sold any property in Philadelphia. Appellees’ Answers & Objections to Venue
Interrogatories at 1-2, 3-4; N.T. Venue Hearing at 9. In addition, Appellees
stated that neither Black Bear nor Revolution paid any taxes or generated any
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revenue in Philadelphia. Appellees’ Answers & Objections to Venue
Interrogatories at 4, 6.
We note Appellant argues that the circumstances of this case are similar
to the facts of Purcell. In Purcell:
Bryn Mawr Hospital . . . is located in Montgomery County, and the
Purcells ([plaintiffs]) reside in Chester County. In 1985, the
Purcells brought suit in Philadelphia County charging Bryn Mawr
and the doctors and nurse . . . with negligence in the death of
their infant daughter. Bryn Mawr filed preliminary objections to
venue in Philadelphia County.
Purcell, 579 A.2d at 1283. The trial court found Bryn Mawr Hospital had
sufficient contacts with Philadelphia, on the basis that Bryn Mawr had
contractual affiliations with residency programs in Philadelphia, purchased
goods and services from businesses in Philadelphia to further its business in
Montgomery County, and maintained and paid for continuous advertisements
in Philadelphia. Id. at 1283-84.
However, on appeal, our Supreme Court concluded that venue was
improper in Philadelphia County. Purcell, 579 A.2d at 1287. The Purcell
Court found that the business conducted by Bryn Mawr in Philadelphia was in
furtherance of its objectives in Montgomery County, and stated, “Our
conclusion would be different if, for example, Bryn Mawr established a branch
clinic in Philadelphia where paying customers would be diagnosed or treated
on the premises in Philadelphia, just as there can be no question that Bryn
Mawr does business in Montgomery County.” Id. Similar to the circumstances
in Purcell, venue might be proper in Philadelphia if Appellees owned and
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operated property in Philadelphia as they do in Warminster, Bucks County.
We conclude the trial court correctly applied the Purcell analysis and did not
abuse its discretion. Appellant is therefore not entitled to relief.
The trial court found no evidence of business activity by Appellees in
Philadelphia, and found the March 5, 2019, press release, containing CEO
Gunty’s comments, was an advertisement. See Trial Ct. Op. at 5-6. The
press release, describing the Rink as a hub of hockey activity within
Philadelphia, did not constitute an essential act for the existence of Black Bear
or the accomplishment of its corporate objectives. Even if this press release
were not an advertisement, it would be an act of Black Bear “in aid of [its]
main purpose,” not one necessary to its existence which would satisfy the
quality of contact analysis set forth in Purcell. See Purcell, 579 A.2d at
1285.
We conclude the trial court did not abuse its discretion in sustaining
Appellees’ preliminary objections to venue and transferring this matter to the
Court of Common Pleas of Bucks County. Thus, Appellant is not entitled to
relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/20
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