J-E01001-20
2021 PA Super 37
RONALD SCOTT HANGEY AND IN THE SUPERIOR COURT
ROSEMARY HANGEY H/W OF PENNSYLVANIA
Appellants
v.
HUSQVARNA PROFESSIONAL
PRODUCTS, INC., HUSQVARNA GROUP,
HUSQVARNA U.S. HOLDING, INC.,
HUSQVARNA AB, AND TRUMBAUER'S
LAWN AND RECREATION, INC.
Appellees No. 3298 EDA 2017
Appeal from the Order September 7, 2017
In the Court of Common Pleas of Philadelphia County
Civil Division at No: 1015 March Term, 2017
BEFORE: PANELLA, P.J., STABILE, J., DUBOW, J., KUNSELMAN, J.,
NICHOLS, J., MURRAY, J., and McLAUGHLIN, J., KING, J., and
McCAFFERY, J.
DISSENTING OPINION BY STABILE, J.: FILED: MARCH 8, 2021
I would conclude that the trial court acted within its permissible
discretion in sustaining preliminary objections to venue in Philadelphia County.
I therefore respectfully dissent.
Our courts of appeal have explained many times that trial courts enjoy
“considerable discretion” in determining whether venue is proper, and we will
reverse only where the trial court abuses its discretion. Purcell v. Bryn
Mawr Hosp., 579 A.2d 1282, 1284 (Pa. 1990); Zampana-Barry v.
Donaghue, 921 A.2d 500, 503 (Pa. Super. 2007), appeal denied, 940 A.2d
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366 (Pa. 2007). The outcome in each case depends on its own facts. Monaco
v. Montgomery Cab Co., 208 A.2d 252, 256 (Pa. 1965) (citing Shambe v.
Delaware and Hudson R.R. Co., 135 A. 755, 757 (Pa. 1927)). Accordingly,
an appellate court will not overturn the trial court’s decision so long as it is
reasonable in view of the facts. Id.
Here, the record shows that from 2014 to 2016, approximately .005%
of the United States sales revenue of Appellee Husqvarna Professional
Products, Inc. (“HPP”) came from direct sales in Philadelphia County. HPP also
delivers products to the distribution centers of big box retailers such as Lowe’s
and Home Depot, but none of those distribution centers is located in
Philadelphia County and HPP does not control the ultimate point of sale after
it delivers its products to the big box distributors. The question presented is
whether HPP “regularly conducts business” in Philadelphia County as per Rule
2179(a)(2) of the Pennsylvania Rules of Civil Procedure. The answer depends
on our review of the trial court’s application of a quantity/quality analysis.
Quality acts are “those directly, furthering, or essential to, corporate
objects; they do not include incidental acts.” Monaco, 208 A.2d at 256. The
trial court concluded that HPP’s activities were sufficient in quality to support
venue in Philadelphia County. HPP furthers its business interests by selling
products directly to two Philadelphia retailers, which in turn sell those products
to the public. Trial Court Opinion, 3/1/18, at 5. The parties do not dispute
that HPP has quality contacts with Philadelphia County. “By ‘quantity of acts’
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is meant those which are so continuous and sufficient to be termed general or
habitual.” Monaco, 208 A.2d at 256. The trial court found that .005% of
HPP’s national sales revenue was de minimus and therefore of insufficient
quantity. Id. at 6.
I believe the trial court’s conclusion was reasonable, in accord with
applicable case law, and therefore not an abuse of discretion. For example,
in Singley v. Flier, 851 A.2d 200 (Pa. Super. 2004), this Court affirmed an
order transferring venue from Philadelphia to Delaware County. The plaintiff
slipped and fell in a parking lot on the campus of Villanova University in
Delaware County. The plaintiff argued for venue in Philadelphia County based
on three graduate courses Villanova conducted at the Philadelphia Naval Yard.
Villanova owned no property and conducted no other activity in Philadelphia.
This Court concluded that Villanova’s activities in Philadelphia failed both the
quality and quantity prongs of venue analysis, writing with regard to the latter
that “the quantity of these contacts—three graduate level courses—is lacking
when viewed in light of the University’s entire academic program, which
includes several graduate degrees, as well as a law school.” Id. at 203. In
other words, the trial court reasonably found quantity lacking where the
defendant conducted a proportionately very small amount of its activity in the
plaintiff’s county of choice. That is precisely what the trial court considered
occurred in this case on appeal.
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Other cases reinforce this point and the discretion exercised by the trial
court. In PECO Energy Co. v. Philadelphia Suburban Water Co., 802 A.2d
666 (Pa. Super. 2002), the plaintiff sued the defendant in Philadelphia County
alleging losses stemming from water pipes that ruptured in Montgomery
County. All affected water customers lived in Montgomery County. The
defendant had no connection to Philadelphia County other than one mile of
transmission pipeline—representing .036 percent of its piping system—
passing through. Id. at 670. In 2000, defendant conducted a one-time
purchase of 300,000 gallons of water from the City of Philadelphia,
representing .0007% of its water purchases over ten years. Id. This Court
concluded that the defendant’s contacts to Philadelphia County were not
essential to the furtherance of its business, and “minimal and incidental, at
best.” Id.
In Battuello v. Camelback Ski Corp., 598 A.2d 1027 (Pa. Super.
1991), the plaintiffs sued the defendant ski resort in Philadelphia County for
their son’s fatal accident that occurred at the defendant’s resort in Monroe
County. In support of venue, the plaintiffs cited, among other things, that the
defendant sent promotional brochures to residents of Philadelphia County;
that the defendant advertised in Philadelphia County; and that defendant
worked with a tour company in Philadelphia that regularly brought Philadelphia
residents to its resort. Id.at 1028. This Court affirmed the order transferring
venue to Monroe County, reasoning that solicitation of business in Philadelphia
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County did not establish sufficient quality, and that the sale of business
generated for the defendant by the Philadelphia-based tour company was “far
too small to qualify as ‘general or habitual’” and therefore did not establish
sufficient quantity. Id. at 1030; see also Mathues v. Tim-Bar Corp., 652
A.2d 349 (Pa. Super. 1994) (holding that the York County defendant’s
“isolated and limited” activities in Montgomery County were insufficient to
support venue there).
Granting the trial court considerable discretion, as we must, and
considering the authority of Singley, PECO Energy, and Battuello, I do not
believe we can conclude the trial court’s decision was unreasonable. Those
cases teach that quantity is lacking where a defendant’s activity in a county is
insignificant in relation to its overall activity.1 I recognize that other cases
have found that venue will lie against a defendant in a county where it
conducts a comparatively small amount of its business. See Monaco, 208
A.2d at 256 (holding that venue would lie in Philadelphia County against a
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1 The Majority misses the mark in distinguishing these cases because the
courts in those cases found a lack of quality and quantity of contacts between
the defendant and the forum. Majority Opinion, at 7-8. The law clearly
requires both quality and quantity of contacts, and they are distinct. Under
the Majority’s analysis, however, prior cases finding a lack of quantity did so
primarily because quality contacts were absent. Instantly, in contrast, the
existence of quality contacts leads inexorably to the existence of a sufficient
quantity of contacts, regardless of the fact that HPP’s contacts with
Philadelphia County represent a tiny fraction of its business. Thus, the
Majority renders the quantity prong largely irrelevant, as quantity seemingly
always follows quality in the Majority’s view, which I view as an improper
application of law.
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defendant that conducted five to ten percent of its cab business there);
Canter v. American Honda Motor Corp., 231 A.2d 140, 143 (Pa. 1967)
(holding that one to two percent of a defendant’s business was sufficient to
establish the quantity test described in Monaco); Zampana-Barry, 921 A.2d
at 506 (three to five percent of a law firm’s legal services conducted in
Philadelphia supported venue in Philadelphia County). I also recognize that
the jurisprudential law in this area is lacking in clarity. See Zampana-Barry,
921 A.2d at 506-09 (Klein, J. concurring). I do not believe, however, that any
of the foregoing cases support the Majority’s decision to overrule the trial
court’s discretion. Rather, I believe that our appellate standard of review—
which requires us to afford the trial courts considerable discretion and directs
us not to overturn any reasonable result—is a product of the inherent difficulty
in articulating precise standards governing a quality and quantity analysis.
Put simply, the lack of precise alignment in our case law in this area may be
explained by the broad discretion given our trial courts to decide these issues.
Moreover, “[a] finding by an appellate court that it would have reached
a different result than the trial court does not constitute a finding of an abuse
of discretion.” Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1123 (Pa.
2000). Rather, “an abuse of discretion exists when the trial court has
rendered a judgment that is manifestly unreasonable, arbitrary, or capricious,
has failed to apply the law, or was motivated by partiality, prejudice, bias, or
ill will.” Id. at 1124. “Where the record adequately supports the trial court’s
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reasons and factual basis, the court did not abuse its discretion.” Id. Thus,
the law recognizes that different judges might consider similar facts and reach
different results, with neither committing an abuse of discretion. Some degree
of uncertainty in the law is therefore unavoidable, and this brings with it the
inherent difficulty in reconciling the results of all of our prior precedent on this
issue.
In my view, the Majority reverses the trial court in this case because the
Majority would have reached a different result. Nothing in the Majority’s
Opinion supports a conclusion that the trial court overstepped the bounds of
its considerable discretion in applying a relatively imprecise body of law to the
facts of this case. Under our existing jurisprudence, all of which the Majority
leaves intact, trial courts have discretion to assign great weight—even decisive
weight—to the fact that a defendant conducts a vanishingly small percentage
of its business in the plaintiff’s chosen forum. In contrast with existing
precedent, the Majority has all but forbidden trial courts to transfer venue on
that basis. If five one-thousandths of a percent is sufficient to establish
quantity, it is difficult to imagine a percentage that is too small.
The Majority reasons that its result is warranted, at least in part,
because HPP is a large, multi-billion dollar company conducting business
throughout the United States and the percentage of its sales revenue in any
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county is likely to be a tiny percentage of its overall sales revenue.2 Majority
Opinion at 9. I am willing to assume that this is true, but I believe it is entirely
irrelevant to question before us. Faithful application of the quantity analysis
under existing jurisprudence will not leave plaintiffs without a forum in which
to pursue claims against large companies. Rather, it will simply restrict the
choice of forum according to the well-established criteria of our Rules of Civil
Procedure.
For all of the foregoing reasons, I would not disturb the trial court’s
exercise of discretion in transferring venue in this case from Philadelphia to
Bucks County.
I respectfully dissent.
Judge King joins the dissenting opinion.
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2 As noted above, HPP does not direct the distribution or sales of its products
by big box retailers. Moreover, Appellants failed to create a record as to sales
of HPP products at big box retailers in Philadelphia County.
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