NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P NORMAN McMAHON, v. Appellant INNOVATIVE PAYROLL SERVICES, LLC AND JOHN S. SCHOLTZ, Appellees IN THE SUPERIOR COURT OF PENNSYLVANIA No EDA 2013 Appeal from the Order Entered July 12, 2013, In the Court of Common Pleas of Philadelphia County, Civil Division, at No. 1707, September Term, BEFORE BOWES, SHOGAN and MUSMANNO, JJ. MEMORANDUM BY SHOGAN, J. FILED AUGUST 15, 2014 Appellant, Norman McMahon, appeals from the order entered July 12, 2013, denying Appellant s nunc pro tunc motion, which sought to vacate the trial court s final order dated January 9, 2013, that sustained the preliminary objections filed by Appellees, Innovative Payroll Services, LLC and John S. Scholtz, and dismissed the case. In addition, Appellees have filed a motion to quash this appeal. Upon review, we grant the motion and quash the appeal. We summarize the procedural history of this case as follows. This matter was initiated in Philadelphia County with the filing of a complaint on September 14, A praecipe to reinstate the complaint was filed on October 1, On December 7, 2012, Appellees filed preliminary

2 objections asserting, among other things, that venue was improper in Philadelphia County. On January 9, 2013, the trial court sustained the preliminary objections asserting improper venue and dismissed the case without prejudice to refile the matter in New Jersey. Six months later, on June 11, 2013, Appellant filed a nunc pro tunc motion to vacate the trial court s order dated January 9, 2013, which dismissed the complaint. On June 13, 2013, Appellees filed an answer to Appellant s nunc pro tunc motion to vacate. In an order entered July 12, 2013, the trial court denied Appellant s nunc pro tunc motion to vacate. Appellant then filed this appeal. Appellant presents the following issues for our review 1. Whether the trial court erred in failing to accord the weight and deference due to plaintiffs [sic] choice of venue, and in failing to find proper venue is in Pennsylvania because all members of the Defendant LLC are Pennsylvania residents, and at least one member, Robert Mand, has an office at the Cira Centre in Philadelphia, where Plaintiff and Defendant LLC members held meetings. 2. Whether the trial court erred in considering and crediting solely Defendant Scholtz s affidavit in finding that venue in Philadelphia was improper, while refusing to consider contradictory evidence offered in Plaintiffs [sic] response to preliminary objections, sufficiently connecting the litigation to venue in Philadelphia County. 3. Whether the trial court erred in granting Defendants Preliminary Objections in the nature of venue and entirely dismissing the Complaint on the erroneous notion that proper venue lies in New Jersey, where the members of the Defendant LLC are all citizens of Pennsylvania counties and [the] case could have therefore been transferred to a Pennsylvania county instead of dismissed. -2-

3 Appellant s Brief at viii. Before we address the merits of Appellant s claims, which challenge the propriety of the trial court s determination of January 9, 2013, sustaining preliminary objections to venue being improper in Philadelphia County and dismissing the matter, we must first address the motion to quash presented by Appellees and determine whether this appeal is properly before this Court. 1 In their motion to quash, Appellees contend that the instant appeal is untimely in that the trial court s final, appealable order was entered on January 9, 2013, and that Appellant should have appealed from that order. We are constrained to agree. In Zappala v. Brandolini Property Management, Inc., 909 A.2d 1272 (Pa. 2006), our Supreme Court addressed the relevant law pertaining to various challenges to venue and stated the following Although a plaintiff, as a rule, may [choose] the forum in which to bring suit, that right is not absolute. [Pa.R.C.P.] 1006 not only articulates where the plaintiff may bring the action, but also provides three distinct bases upon which a defendant may challenge the plaintiff s chosen forum improper venue by 1 Because the timeliness of an appeal implicates our jurisdiction, we cannot address the merits of the other issues raised by Appellant before determining whether the appeal was timely filed. Krankowski v. O Neil, 928 A.2d 284, 285 (Pa. Super. 2007). It is undisputed that a notice of appeal must be filed within thirty days of the disputed order. Pa.R.A.P. 903(a). Specifically, Rule 903(a) provides that the notice of appeal... shall be filed within 30 days after the entry of the order from which the appeal is taken. Pa.R.A.P. 903(a). -3-

4 preliminary objection, forum non conveniens, and inability to hold a fair and impartial trial. Id. at The Court in Zappala addressed the components of a venue challenge under Pa.R.C.P. 1006(e) as follows [P]ursuant to Rule 1006(e), the defendant may challenge venue as improper by preliminary objection. This is the exclusive method to challenge venue as improper. A Rule 1006(e) challenge to improper venue by preliminary objection has two key components one substantive and one procedural. Substantively, the basis for a Rule 1006(e) challenge is the defendant s belief that venue is improper in the plaintiff s chosen forum. The meaning of the word improper, as used in subsection (e), is shaped by Rules 2179 (providing where a personal action against a corporation may be brought), 1006(a) and (b) (providing where an action may be brought) and (c). These rules exclusively address where venue properly may be laid at the time the suit is initiated. Thus, question of improper venue is answered by taking a snapshot of the case at the time it is initiated if it is proper at that time, it remains proper throughout the litigation. Id. at 1281 (some parentheticals omitted) (emphasis added). The Zappala Court then explained why challenges to improper venue are presented in preliminary objections As the substantive issue governed by Rule 1006(e) relates to venue at the beginning of litigation, procedurally Rule 1006(e) requires the defendant to challenge improper venue by preliminary objection. In contrast to the other grounds to challenge venue, only a challenge to venue as improper must be raised by preliminary objection. [Pa.R.C.P.] 1028, which limits preliminary objections to several grounds, specifically includes improper venue and requires all preliminary objections to be raised at once and within twenty -4-

5 days of service of the preceding pleading. 1026(a). See Pa.R.C.P. Zappala, 909 A.2d at Thereafter, the Zappala Court discussed petitions for change of venue filed pursuant to Rule 1006(d) claiming forum non conveniens. Id. at The Court in Zappala ultimately summarized the law pertaining to challenges of venue as follows if venue is improper, then the trial court lacks superintendence to hear the case. A challenge to improper venue, therefore, must be addressed before the case proceeds. As noted, this is done via preliminary objections. If venue is proper at the preliminary objection stage, and at sometime thereafter a defendant raises forum non conveniens or questions the ability to obtain a fair and impartial trial, it is within the trial court s discretion to retain the case or transfer it to a different venue. Thus, while the failure to file a timely preliminary objection challenging improper venue pursuant to [Pa.R.C.P.] 1006(e) waives the challenge, this is not the case for challenges brought pursuant to [Pa.R.C.P.] 1006(d)(1) or (2), which may be raised by petition and, thus, are not subject to waiver at the preliminary objection stage. Id. at 1284 (emphasis added). In light of the above language in Zappala, we are constrained to conclude that a determination of a trial court sustaining preliminary objections and dismissing a case on the basis of improper forum is analogous to a determination of a lack of jurisdiction. Accordingly, such determination is a final order and subject to immediate appeal. -5-

6 Similarly, in Ro-Med Construction Co., Inc. v. Clyde M. Bartley Co., Inc., 361 A.2d 808 (Pa. Super. 1976), this Court explained that objections as to venue raise questions of jurisdiction. Specifically, we stated, As to the propriety of the venue chosen by a plaintiff, no procedural difference shall be noted between that and a strictly jurisdictional question of selecting a court possessing competence to entertain the case. Id. at 809. The Court in Ro-Med then noted that challenges to proper venue are raised by preliminary objections, and those determinations of the trial court are thus subject to appeal. Id. See also Bergere v. Bergere, 527 A.2d 171, 172 (Pa. Super. 1987) (stating that [a]n order determining that the court lacks personal jurisdiction is a final order because the parties are out of court; such an order is therefore appealable ). Again, our review of the certified record reflects that on December 7, 2012, Appellees filed preliminary objections alleging that venue in Philadelphia County was improper. On January 9, 2013, the trial court sustained the preliminary objections and dismissed the case. Six months later, on June 11, 2013, Appellant filed a nunc pro tunc motion to vacate the trial court s order dated January 9, On July 12, 2013, the trial court denied Appellant s nunc pro tunc motion to vacate. Appellant then filed this appeal on August 12,

7 Accordingly, because all of Appellant s issues challenge the propriety of the trial court s determination of the order dated January 9, 2013, sustaining the preliminary objections based on improper venue and dismissing the case, we must conclude that such issues should have been raised in a timely direct appeal from that order. Consequently, as Appellees state in their motion to quash, [I]t was necessary of [Appellant] to argue that [the trial judge] abused his discretion in denying the nunc pro tunc motion in July 2013 to vacate the Final Order of January 9, Motion to Quash, 2/12/14, at 3, 9. However, Appellant presents no issues for our review pertaining to the trial court s order presently on appeal, that being the July 12, 2013, order of the trial court denying Appellant s nunc pro tunc motion to vacate. Rather, Appellant presents issues challenging the propriety of the January 9, 2013 order, which was not timely appealed and is not presently before us on appeal. Hence, we are constrained to grant the motion to quash filed by Appellees. Motion granted. Appeal quashed. Jurisdiction relinquished. BOWES, J., Concurs in the Result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date 8/15/

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