J-S47039-23
2024 PA Super 24
JENNIFER MAZZUCA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SOLANGE ANEURI ABREU, ALPHA : No. 1264 EDA 2023
DENTAL EXCELLENCE, INC., :
INFINITY DENTAL MANAGEMENT, :
LLC, ARPAN N. PATEL, :
INDIVIDUALLY AND D/B/A ALPHA :
DENTAL EXCELLENCE, ABC :
COMPANIES, JOHN DOE A/K/A JANE :
DOE
Appeal from the Order Entered May 15, 2023
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 220901774
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED FEBRUARY 12, 2024
Appellant Jennifer Mazzuca files this appeal from the order of the Court
of Common Pleas of Philadelphia County sustaining the preliminary objections
filed by Appellees Solange Aneuri Abreu, Alpha Dental Excellence, Inc., Infiniti
Dental Management, LLC, Arpan N. Patel, individually and d/b/a Alpha Dental
Excellence, Inc. and transferring the case to Bucks County. We vacate the trial
court’s order and remand for proceedings consistent with this decision.
On September 20, 2022, Appellant initiated a dental malpractice action
through the filing of a writ of summons against Appellees in Philadelphia
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* Former Justice specially assigned to the Superior Court.
J-S47039-23
County. On November 2, 2022, Appellant filed a pro se complaint in
Philadelphia County, alleging that Appellee Solange Aneuri Abreu (“Dr.
Abreu”) negligently performed a tooth implant procedure and perforated
Appellant’s lingual nerve. Complaint, 11/2/22, at ¶ 12.
The parties do not dispute that Dr. Abreu performed the procedure in
question at the Alpha Dental Excellence facility in Langhorne which is located
in Bucks County. Appellee Arpan N. Patel (“Dr. Patel”) operates Alpha Dental
Excellence, Inc., which is owned by Infinity Dental Management, LLC.1 The
complaint acknowledged that all Appellees either reside in or have business
addresses in Bucks County or Delaware County.
Appellant’s complaint listed Dr. Abreu’s residential address as a home
in Havertown, Delaware County, Pennsylvania, but also alleged that Dr. Abreu
“practices dentistry at 5675 N. Front Street, Philadelphia, PA 19120.”
Complaint, 11/2/22, at ¶ 2. However, the record also contains an affidavit
from a process server indicating that it could not locate Dr. Abreu at the North
Front Street address. Affidavit, 10/19/22, at 1. The affidavit indicated that the
location at 5675 North Front Street was a shopping center with a dental
practice, but Dr. Abreu was unknown to the staff. Affidavit, 10/19/22, at 1.
On December 9, 2022, Appellees Dr. Patel, Alpha Dental Excellence,
Inc., and Infinity Dental Management, LLC (“Patel Appellees”) filed preliminary
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1 Appellant also added as defendants ABC Companies, John Doe, and Jane
Doe as unknown companies and individuals who either managed, maintained,
or were responsible for Dr. Abreu’s practice of dentistry.
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objections, raising multiple issues including, inter alia, a claim of improper
venue. Since Appellant’s treatment was rendered in Appellees’ office in Bucks
County, the Patel Appellees argued that Appellant was required to file this suit
in Bucks County. The Patel Appellees initially relied on former Pa.R.C.P.
1006(a.1), which stated “[e]xcept as otherwise provided by subsection (c), a
medical professional liability action may be brought against a health care
provider for a medical professional liability claim only in a county in which the
cause of action arose.” Pa.R.C.P. 1006(a.1).2
On December 27, 2022, Appellant filed a pro se amended complaint,
which again alleged that Dr. Abreu practiced dentistry at 5675 N. Front Street,
Philadelphia. The amended complaint did not contain any response to the Patel
Appellees’ claim of improper venue or change any averments regarding venue,
but instead amended other parts of the complaint.
On January 6, 2023, the Patel Appellees filed preliminary objections to
Appellant’s amended complaint, including their challenge to improper venue
and request for the trial court to transfer the case to Bucks County.
On January 9, 2023, Appellant filed a praecipe to reinstate the
complaint. The certified record contains an accompanying docket entry
indicating that the amended complaint was reinstated.
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2 As discussed infra, Rule 1006(a) was amended effective January 1, 2023 to
eliminate the venue exception for medical malpractice actions in subsection
1006(a.1).
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On January 19, 2023, Appellant filed a response to the Patel Appellees’
preliminary objections, first asserting that she was not required to bring this
suit in the county where the cause of action arose pursuant to Pa.R.C.P.
1006(a.1), as this venue exception only applied to a “medical professional
liability action” against a “health care provider,” which did not include claims
of dental malpractice.
Instead, Appellant asserted that venue was proper in Philadelphia
County as Appellant alleged that she had recently served Dr. Abreu at 8355
Loretta Avenue, Philadelphia,3 which Appellant claimed was Dr. Abreu’s
“Philadelphia address.” Appellant attached a printout of a Google search list
which contains multiple addresses for Dr. Solange Abreu including one at 5675
N. Front Street, Unit #50, Philadelphia. In her accompanying memorandum,
Appellant admitted that in order for the trial court to make a judicial
determination as to Appellant’s business address, it may be necessary to take
depositions as “insufficient facts exist at this time.” Appellant Memorandum,
1/19/23, at 11.
On January 27, 2023, Appellee Dr. Abreu filed preliminary objections to
Appellant’s amended complaint, arguing that Philadelphia County was an
improper venue for this action as Dr. Abreu disputed Appellant’s claim that
she practiced dentistry in Philadelphia. Dr. Abreu submitted a signed and
sworn affidavit indicating that she had “at no point in time performed
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3 Throughout the litigation, the parties refer to this location’s address as
“Loretto Avenue,” “Loretta Avenue,” or “Loretto Street.”
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dental/medical treatment or otherwise operated a dental/medical [sic] at 5675
N. Front Street, Unit 50, Philadelphia, PA, 19120, 8355 Loretta [sic] Avenue,
Philadelphia 19152, or any other location in the city of Philadelphia.” Abreu
Prelim. Obj, 1/27/23 (Exhibit C, affidavit dated 1/26/23).
Dr. Abreu also averred in her preliminary objections that “neither Ms.
Abreu nor any [Appellee] has any connection to Philadelphia, nor may they be
properly served at any location within Philadelphia.” Abreu Prelim. Obj.,
1/27/23, at ¶ 21. Dr. Abreu did not raise any claim of improper service in her
preliminary objections.
On January 30, 2023, Appellant filed a pro se response to Dr. Abreu’s
preliminary objections claiming he had recently served Dr. Abreu at a dental
office located at 8355 Loretto Avenue, Philadelphia, where Appellant alleged
that Dr. Abreu regularly conducts business. Appellant submitted an affidavit
of service which stated that on January 14, 2022, a process server effectuated
service on a receptionist named “Emilliana” at 11:16 a.m. at a dental business
located at “8355 Loretto Street” in Philadelphia. The process server indicated
that Emilliana accepted service on behalf of Dr. Abreu, who Emilliana claimed
was busy with patients. Affidavit, 1/30/23, at 1.
On February 14, 2023, Appellant filed another pro se response to Dr.
Abreu’s preliminary objections, claiming Dr. Abreu “blatantly misrepresented
her employment” and had “perjured herself in her Affidavit” as Dr. Abreu is
“employed at Lorreta [sic] Multi-Specialty Dental Center” in Philadelphia on
Saturdays.” Appellant attached her affidavit of service to this response as well.
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On February 23, 2023, the trial court issued a rule upon Appellant to
show cause as to why Appellees were not entitled to the relief they requested
in their preliminary objections. The trial court scheduled a hearing for April
27, 2023 and indicated that the “petition shall be decided under Pa.R.C.P.
206.7.” Order, 2/23/23. The trial court emphasized that “all briefs,
supplemental briefs, and/or supplemental discovery shall be filed on or before
April 21, 2023.” Order, 2/23/23.
On April 20, 2023, Lawrence Solomon, Esq. filed a written entry of
appearance on behalf of Appellant. At the April 27, 2023 hearing, the trial
court initially disputed Atty. Solomon’s ability to enter a limited appearance
on Appellant’s behalf but allowed him to proceed as Appellant’s counsel.
At the hearing, the trial court found there were no contested issues of
fact regarding venue and determined that the only properly pled averment of
fact was Dr. Abreu’s affidavit indicating that she did not practice dentistry in
Philadelphia. On April 27, 2023, the trial court filed two separate orders
indicating that after considering Appellees’ preliminary objections to
Appellant’s amended complaint that the
case [was] transferred to Bucks County and [Appellant’s]
complaint on its face does not assert venue in Philadelphia County.
The averments of fact are improperly presented such that this
Court may find any genuine issue of disputed fact. The preliminary
objections remain uncontradicted that Dr. Abreu does not practice
dentistry at listed address in Complaint and does not reside in
Philadelphia County.
Order, 4/27/23, at 1.
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On May 4, 2023, Appellant filed a motion for reconsideration of the trial
court’s April 27, 2023 orders. On May 8, 2023, the trial court entered an order
indicating that “the court’s order dated April 27, 2023 transferring the above
matter to Bucks County, is denied.” On May 15, 2023, the trial court entered
an order vacating its May 8, 2023 order and reinstating its original order filed
on April 27, 2023. The trial court indicated that Appellant’s motion for
reconsideration was “improperly filed by an attorney whose entry of
appearance was improper under [Pa.R.C.P.] 1021.” Order, 5/15/23, at 1.
Appellant filed a timely notice of appeal and raised the following issues
for our review on appeal:
I. Should the lower court have allowed Lawrence Solomon to
represent [Appellant] and did it err in refusing to consider
[Appellant’s] Motion for Reconsideration?
II. Should [Appellant’s] preliminary objections as to venue
have been dismissed even though Abreu worked in
Philadelphia, which conferred venue in Philadelphia under
Rule 302(a)(1), Pa.R.C.P.[?]4
III. Should [Appellant’s] preliminary objections as to venue
been dismissed [sic] even though Abreu was served with a
copy of [Appellant’s] complaint in Philadelphia[?]
IV. Should Abreu’s preliminary objections been dismissed [sic]
under Rule 206.7(c)?
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4 While Appellant’s statement of questions cites Pa.R.C.P. 302, Appellant has
consistently argued that venue was proper as a result of her service of Dr.
Abreu in Philadelphia County, which is governed by Pa.R.C.P. 402.
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Appellant’s Brief, at 6 (suggested answers omitted).5
Before we reach the merits of this case, we must address the trial court’s
suggestion that this appeal be quashed. After this appeal was filed, on June
14, 2023, the trial court judge, the Honorable Linda Carpenter, sent a letter
asking this Court to quash the appeal, alleging that Appellant’s counsel, Atty.
Solomon “filed an improper limited entry of appearance on April 20, 2023 and
has never properly entered his appearance on the docket, pursuant to
Pa.R.C.P. 1012.” Letter, 6/14/23, at 1. As such, Judge Carpenter reasoned
that any issues raised in the appeal have been waived.
Atty. Solomon filed a response to the trial court’s letter, claiming that
he properly entered his appearance on the docket pursuant to Rule 1012 and
noting that the trial court permitted him to proceed as Appellant’s counsel
during the April 27, 2023 hearing.
Rule 1012 provides in pertinent part that a party may enter a written
appearance which shall state the address at which pleadings and other legal
papers may be served along with a telephone number. Pa.R.C.P. 1012(a).
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5 While Appellant filed her notice of appeal from the trial court’s May 15, 2023
order reinstating its April 27, 2023 order transferring venue based on the Patel
Appellants’ preliminary objections, we also review the trial court’s separate
order transferring venue based on Dr. Abreu’s preliminary objections. “[I]n
the circumstance where each of the defendants in a single action is dismissed
prior to trial, an appeal from the order dismissing the remaining claim or party
is sufficient to bring for review the earlier issued orders.” Fulano v. Fanjul
Corp., 236 A.3d 1, 8 (Pa.Super. 2020) (citation omitted).
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Rule 1012 states that “such appearance shall not constitute a waiver of the
right to raise any defense including questions of jurisdiction or venue.” Id.
Although Rule 1012 provides that an attorney “may” enter a written
appearance, it does not require an attorney to do so. The comment to Rule
1012 states that “[e]ntry of a written appearance is not mandatory.” Id. See
also Fleck v. McHugh,
361 A.2d 410, 413 (Pa.Super. 1976) (holding entry
of written appearance not required if pleadings provide sufficient information
notifying parties where legal papers may be served).
Our review of the record shows that Atty Solomon filed a written entry
of appearance “for the sole purpose of representing [Appellant] at the Rule to
Show Cause hearing scheduled for April 27, 2023.” Entry of Appearance,
4/20/23, at 1. The entry of appearance listed Attorney Solomon’s mailing
address and telephone number.
At the April 27, 2023 hearing, the trial court disputed Atty. Solomon’s
suggestion that he could represent Appellant solely for the hearing and
emphasized that Attorney Solomon would not be permitted to withdraw from
the case without permission from the court. As such, the trial court specifically
told Atty. Solomon, “[y]ou represent [Appellant] and you need my permission
to no longer represent her.” N.T. at 5. The trial court stated on the record that
Attorney Solomon had entered his appearance and allowed Atty. Solomon to
present argument at the hearing. N.T. at 7. Accordingly, we decline to quash
the appeal or find any of Appellant’s issues to be waived.
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Appellant’s issues on appeal challenge the trial court’s decision to
sustain Appellees’ preliminary objections as to venue and transfer the case to
Bucks County. It is well established that:
[t]he trial court “is vested with discretion in determining whether
to grant a preliminary objection to transfer venue, and we shall
not overturn a decision to grant or deny absent an abuse of
discretion.” Searles v. Estrada, 856 A.2d 85, 88 (Pa.Super.
2004), appeal denied, 582 Pa. 701,
871 A.2d 192 (2005). See
also Silver v. Thompson, 26 A.3d 514, 516 (Pa.Super. 2011).
An abuse of discretion occurs when “there was an error of law or
the judgment was manifestly unreasonable or the result of
partiality, prejudice, bias or ill will.” Id.
Scarlett v. Mason,
89 A.3d 1290, 1292 (Pa.Super. 2014).
Our rules of civil procedure require a defendant to raise any challenge
to the plaintiff’s choice of venue through preliminary objections. Pa.R.C.P.
1028(a)(1). The plaintiff generally gets to choose the forum “so long as the
requirements of personal and subject matter jurisdiction are satisfied. … A
party seeking a venue transfer therefore “bears the burden of proving that a
change of venue is necessary[.]” Hangey v. Husqvarna Pro. Prod., Inc.,
304 A.3d 1120, 1142 (Pa. 2023) (quoting Purcell v. Bryn Mawr Hosp.,
579
A.2d 1282, 1284 (Pa. 1980)).
By way of background, we consider the following principles before
commencing our review of the issues at hand:
[b]efore examining the procedure for resolving preliminary
objections to venue, it is important to review the distinction
between jurisdiction and venue. As our Supreme Court has
explained:
Subject matter jurisdiction relates to the competency of a
court to hear and decide the type of controversy presented.
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McGinley v. Scott, 401 Pa. 310,
164 A.2d 424 (1960).
Jurisdiction is a matter of substantive law. Id. at 428; 42
Pa.C.S. § 931(a) (defining the unlimited original jurisdiction
of the courts of common pleas).
Venue relates to the right of a party to have the controversy
brought and heard in a particular judicial district. McGinley,
164 A.2d at 427–28. Venue is predominately a procedural
matter, generally prescribed by rules of this Court. Id. at
429; 42 Pa.C.S. § 931(c). Venue assumes the existence of
jurisdiction. 42 Pa.C.S. § 931(b) (referencing rules for
change of venue in cases within the jurisdiction of courts of
common pleas); Pa.R.Crim.P. 584 (relating to the procedure
for a change of venue amongst courts of common pleas for
the trial of criminal actions).
Subject matter jurisdiction and venue are distinct. However,
since jurisdiction references the power of a court to
entertain and adjudicate a matter while venue pertains to
the locality most convenient to the proper disposition of a
matter, venue can only be proper where jurisdiction already
exists. 92A C.J.S., Venue § 2. The terms are often used
interchangeably because they must exist simultaneously in
order for a court to properly exercise its power to resolve a
particular controversy.
Commonwealth v. Bethea, 574 Pa. 100, 113–14,
828 A.2d
1066, 1074–75 (2003), cert. denied, Bethea v. Pennsylvania,
540 U.S. 1118,
124 S.Ct. 1065,
157 L.Ed.2d 911 (2004).
However, as our Supreme Court has also explained, “for
procedural purposes, objections to venue are treated as raising a
question of jurisdiction.” County Constr. [Co. v. Livengood
Const. Co.], 393 Pa. [39,] 45, 142 A.2d [9,] 13 [(1958)]. See
also Gaetano v. Sharon Herald Co., 426 Pa. 179,
231 A.2d 753
(1967) (same). Thus, as explained in Schmitt v. Seaspray–
Sharkline, Inc., 366 Pa.Super. 528,
531 A.2d 801 (1987), where
the defendant contested jurisdiction by filing preliminary
objections:
[t]he moving party has the burden of supporting its
objections to the court's jurisdiction. Once the plaintiff has
produced some evidence to support jurisdiction, the
defendant must come forward with some evidence of his
own to dispel or rebut the plaintiff's evidence. The moving
party may not sit back and, by the bare allegations as set
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forth in the preliminary objections, place the burden upon
the plaintiff to negate those allegations. It is only when the
moving party properly raises the jurisdictional issue that the
burden of proving jurisdiction is upon the party asserting it.
If an issue of fact is raised, the court shall take evidence by
deposition or otherwise. The court may not reach a
determination based upon its view of the controverted facts,
but must resolve the dispute by receiving evidence thereon
through interrogatories, depositions, or an evidentiary
hearing. Where an essential factual issue arises from the
pleadings as to the scope of a defendant's activities within
the Commonwealth, the plaintiff has the right to depose
defendant as to his activities within the Commonwealth, and
the court must permit the taking of the deposition before
ruling on the preliminary objections. Where neither party
presents evidence by which the court can properly resolve
the issue, it is appropriate to remand with directions that an
order be entered allowing the parties a reasonable period of
time in which to present evidence by deposition,
interrogatories or otherwise.
531 A.2d at 803–04 (internal citations omitted, emphasis in the
original). See also American Hous. Trust, III v. Jones, 548
Pa. 311,
696 A.2d 1181 (1997) (citing Schmitt favorably);
Liggitt v. Liggitt, 253 Pa.Super. 126,
384 A.2d 1261, 1263–64
(1978) (explaining that “[p]reliminary objections are pleadings
[and] [i]n raising questions of jurisdiction and venue, the
defendant is the moving party and bears the burden of supporting
his claim of lack of jurisdiction and venue.”).
Deyarmin v. Consol. Rail Corp., 931 A.2d 1, 8–9 (Pa.Super. 2007).
In this case, Appellant concedes that her medical treatment took place
in Bucks County and all plaintiffs reside or conduct business in Delaware
County or Bucks County. Appellant’s sole contention to establish venue in this
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case is her allegation that she served Dr. Abreu at a dental office in
Philadelphia County, where she alleges that Dr. Abreu practices dentistry.6
Venue in actions against individuals are governed by Pa.R.C.P. 1006(a),
which provides that:
an action against an individual may be brought in and only in a
county where:
(1) the individual may be served;
(2) the cause of action arose;
(3) a transaction or occurrence took place out of which the cause
of action arose;
(4) venue is authorized by law; or
(5) the property or part of the property, which is the subject of
the action, is located provided that equitable relief is sought with
respect to the property.
Pa.R.C.P. 1006. Pa.R.C.P. 402 sets forth various avenues for serving an
individual original process, including “at any office or usual place of business
____________________________________________
6 If Appellant was able to properly effectuate service of process on Dr. Abreu
in Philadelphia County, then venue would also be proper as to the other
defendants. Pa.R.C.P. 1006(c) provides that:
[a]n action to enforce a joint or joint and several liability against
two or more defendants, except actions in which the
Commonwealth is a party defendant, may be brought against all
defendants in any county in which the venue may be laid against
any one of the defendants under the general rules of Subdivisions
(a) or (b).
Pa.R.C.P. 1006(c).
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of the defendant to his agent or the person for the time being in charge
thereof.” Pa.R.C.P. 402(a)(2)(iii).7
The trial court explained its rationale for sustaining Appellees’
preliminary objections as to venue and transferring the case to Bucks County
as follows:
Following a review of the pleadings in front of the Court, this
Court determined that the averments of the Defendants’ pleadings
would be accepted as true, that there were no credible contested
facts regarding venue, that the corporate Defendants did not
regularly conduct business in Philadelphia, and that this matter
properly belonged in Bucks County where the health care services
were rendered. The credible averments of the pleadings were that
no Defendant provided health care services in Philadelphia and did
not regularly conduct business in Philadelphia. This Court rejected
that the January 14, 2023 Affidavit of service on Dr. Abreu, filed
after the venue objections were lodged, established proper venue
in this case. The Affidavit was purportedly confirming service on
Dr. Abreu to some unnamed “dental office” to a “receptionist” not
shown to be “in charge” of the dental office, nor to be the agent
of Dr. Abreu, nor at a practice where Dr. Abreu regularly practices.
Dr. Abreu further denied doing business in Philadelphia. Other
than the deficient Affidavit of service filed to the docket, Plaintiff
did not attach any deposition or discovery to support that the
person served was an agent of Dr. Abreu.
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7 While Appellees initially argued in their preliminary objections that Pa.R.A.P.
1006(a.1) required Appellant to bring this malpractice action in Bucks County,
we clarify that Rule 1006(a.1) does not govern this case.
As noted above, Rule 1006(a) was amended effective January 1, 2023
to eliminate subsection 1006(a.1) which had limited the venue for a “medical
professional liability action” to the “county in which the cause of action arose.”
We note that Appellant’s venue claim is based on her allegation that she
effectuated service pursuant to Rule 1006(a) on Dr. Abreu in Philadelphia
County on January 14, 2023, which was after the venue exception in Rule
1006(a.1) had been eliminated.
Thus, because the venue exception in Rule 1006(a.1) was eliminated,
we need not decide whether this exception would have applied to Dr. Abreu
as a practicing dentist.
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Trial Court Opinion (T.C.O.), at 4.
Appellant asserted that her choice of venue in Philadelphia County was
proper as Appellant served Dr. Abreu at a Philadelphia dental office where she
allegedly practiced dentistry and conducted business.
Nevertheless, the trial court does not initially focus on Appellant’s
argument that venue was proper through service of Dr. Abreu in Philadelphia.
Instead, the trial court bases its conclusion on its determination that Appellee
had shown that “no Defendant provided health care services in Philadelphia
and did not regularly conduct business in Philadelphia.” T.C.O. at 4. The trial
court repeatedly emphasized that the only “credible averment of fact” was the
signed and sworn affidavit Dr. Abreu submitted with her preliminary objections
asserting that she had “at no point in time performed dental/medical
treatment or otherwise operated a dental/medical [sic] at 5675 N. Front
Street, Unit 50, Philadelphia, PA, 19120, 8355 Loretta [sic] Avenue,
Philadelphia 19152, or any other location in the city of Philadelphia.” Abreu
Prelim. Obj, 1/27/23 (Exhibit C, affidavit 1/26/23).
We first emphasize that it was not Appellant’s burden as plaintiff to show
her choice of venue was appropriate or to disprove the allegation in Appellees’
preliminary objections that Dr. Abreu did not practice dentistry in Philadelphia.
Deyarmin, supra. Yet the trial court faulted Appellant for not proving that
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Philadelphia County was an appropriate venue.8 The trial court was only
required to evaluate whether Appellant produced some evidence to support
her choice of venue through service of Dr. Abreu. Appellees, as the parties
seeking the venue transfer, had the burden of proving that a change of venue
was necessary. Hangey, supra.
We also note that the trial court ignored the subsequent admissions Dr.
Abreu’s counsel made at the April 27, 2023 hearing in contradiction of Dr.
Abreu’s affidavit, conceding Dr. Abreu did practice dentistry in Philadelphia.
At the April 27, 2023 hearing, the following exchange occurred:
[Counsel for Patel Appellees:] Your Honor, on behalf of the
corporate entities Alpha Dental Excellence, I’m here today. And
it’s our understanding that counsel for co-defendant, Dr. Abreu
was going to withdraw preliminary objections on this issue of
proper venue. It’s our position that if they withdrew, we will also
withdraw on that.
[Trial Court:] Is Dr. Abreu practicing in Philadelphia?
[Counsel for Dr. Abreu:] Your Honor, … I spoke with her
yesterday, and what she told me was that she does not regularly
practice in Philadelphia. She apparently does one day a month to
a practice in Philadelphia County. And that’s what she told me
yesterday.
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8 In its order scheduling the April 27, 2023 hearing, the trial court issued a
rule upon Appellant to show why Appellees were not entitled to the relief they
requested and indicated the preliminary objections would be decided under
Pa.R.C.P. 206.7. However, petitions to transfer venue are not considered
petitions governed by the procedures set forth in Pa.R.C.P. 206.1, et seq. in
Philadelphia County as the local rules in Philadelphia County do not designate
them as such. Smith v. CMS W., Inc., 305 A.3d 593, 600 (Pa.Super. 2023).
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And so, I’m being candid with the Court, whether or not that
qualifies as regularly doing business in Philadelphia, that’s up to
your Honor.
…
She essentially practices at a number of different practices, Your
Honor. She’s more or less what would be referred to as per diem,
and she goes one day a month to a practice in Philadelphia and
does whatever they ask her to do. I don’t believe that she’s a
partner in any of the entities in which she provides dentistry, but
she simply does it one day a month. The rest of her practice is
outside Philadelphia.
N.T. at 8-9.
This Court has recognized that a statement of fact by a party’s counsel
may be deemed an admission of fact:
Statements of fact by one party in pleadings, stipulations,
testimony, and the like, made for that party's benefit, are
termed judicial admissions and are binding on the party.
Nasim v. Shamrock Welding Supply Co., 387 Pa.Super.
225,
563 A.2d 1266, 1267 (1989) (“It is well established
that a judicial admission is an express waiver made in
court or preparatory to trial by a party or his attorney,
conceding for the purposes of trial, the truth of the
admission.”). Judicial admissions are deemed true and
cannot be contradicted by the admitting party. If there is
some support in the record for the truth of an averment, the
trial court abuses its discretion if it disregards the
admission. Such averments are binding on a party
whether admitted by counsel or the client. Such
admissions are considered conclusive in the cause of action
in which they are made—and any appeals thereof, ...—and
the opposing party need not offer further evidence to prove
the fact admitted.
For an averment to qualify as a judicial admission, it must
be a clear and unequivocal admission of fact. Judicial
admissions are limited in scope to factual matters otherwise
requiring evidentiary proof, and are exclusive of legal
theories and conclusions of law. The fact must have been
unequivocally admitted and not be merely one
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interpretation of the statement that is purported to be a
judicial admission.
[John B. Conomos, Inc. v. Sun Co., 831 A.2d 696, 712-13 (Pa.
Super. 2003), appeal denied, 577 Pa. 697,
845 A.2d 818 (Pa.
2004)] (most citations omitted); accord Tops Apparel Mfg. Co.
v. Rothman, 430 Pa. 583,
244 A.2d 436, 438 n.8 (1968)
(“Pennsylvania has followed this rule since Wills v. Kane, 2 Grant
60, 63 (Pa. 1853), where it was insisted: ‘When a man alleges a
fact in a court of justice, for his advantage, he shall not be allowed
to contradict it afterwards. It is against good morals to permit
such double dealing in the administration of justice’”).
Del Ciotto v. Pennsylvania Hosp. of the Univ. of Penn Health Sys., 177
A.3d 335, 354 (Pa.Super. 2017) (emphasis added).
As such, we disagree with the trial court’s finding that “the credible
averments of the pleadings were that no Defendant provided health care
services in Philadelphia,” as Dr. Abreu made a binding admission through her
counsel that she did practice dentistry in Philadelphia.
Further, we also question the trial court’s finding that there were no
issues of disputed fact as to venue when the trial court refused to consider
Appellant’s affidavit asserting she served Dr. Abreu at the dental office located
at 8355 Loretto Avenue in Philadelphia. The trial court sua sponte found
Appellant’s affidavit of service was untimely and defective as it did not state
the name of the dental practice, claim the individual served was Dr. Abreu’s
agent or the person in charge, or allege Dr. Abreu regularly practiced there.
However, Appellees never disputed that Appellant attempted to serve
Dr. Abreu at that location, nor claimed the return of service was defective or
untimely, nor asserted the person served could not accept service on
Appellant’s behalf. It was not appropriate for the trial court to assert a defense
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on behalf of Appellees or to act as their advocate. See Wojciechowski v.
Murray, 497 A.2d 1342, 1344 (Pa.Super. 1985) (admonishing the trial court
for “raising a defense on behalf of the appellee[] and, in essence, acting as its
advocate[, which] is not the function of a jurist”).9
The only objection that Appellees had with the purported service of Dr.
Abreu was that it was not appropriate to serve Dr. Abreu at the Loretto Avenue
location as Dr. Abreu’s counsel contended at the April 27, 2023 hearing that
Dr. Abreu only worked in that office once a month. Our review of the record
shows that there is still an issue of disputed fact on whether Appellant served
Dr. Abreu at her “office or usual place of business” pursuant to Pa.R.C.P.
402(a)(2)(iii).10
____________________________________________
9 To the extent that the trial court suggests that Appellant’s affidavit of service
on Dr. Abreu was somehow untimely because it was filed after Appellees filed
their preliminary objections, we disagree. Our courts have “permitted a
plaintiff …to commence an action and keep it alive until he suddenly serves
the defendant. But this, of course, has always been protected from abuse by
the doctrine of non-pros for unreasonable delay in prosecution.” Salay v.
Braun, 235 A.2d 368, 371–72 (Pa. 1967). In Salay, the Supreme Court held
that, even after the defendants filed preliminary objections to venue for an
action brought in Allegheny County involving an automobile accident that
occurred in Washington County, it was proper for the plaintiff to cause the writ
of summons to be reissued and establish venue by serving the defendant at
her recently acquired residence in Allegheny County.
Id. at 372.
10 While not specifically discussed by the trial court, our courts have held that
service of an individual at his or her office or usual place of business is only
appropriate when the person to be served has “more proprietary responsibility
and control over the business than that possessed by the average employee.”
Martin v. Gerner,
481 A.2d 903, 908 (Pa.Super. 1984).
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Based on our review of the record, additional venue-related discovery
was required on this issue of disputed fact to allow the trial court to properly
rule on Appellees’ preliminary objections as to venue.
As this Court explained in Hamre v. Resnick, 337 Pa.Super. 119,
486 A.2d 510 (1984), a trial court may appropriately resolve
preliminary objections to venue (or jurisdiction) without discovery
in cases where “no factual issues were raised which necessitated
the reception of evidence.” Id. at 511. See also Alumbaugh v.
Wallace Bus. Forms, Inc., 226 Pa.Super. 511,
313 A.2d 281
(1973) (affirming dismissal of preliminary objection to jurisdiction
where defendants offered no evidence in support of their
objection). On the other hand,
[i]f an issue of fact is raised by preliminary objections ... the
[trial] court may not reach a determination based upon its
view of the controverted facts, but must resolve the dispute
by receiving evidence thereon through interrogatories,
depositions or an evidentiary hearing.... The failure of the
parties to provide the evidence necessary for a proper
determination of the issue does not excuse the court
from further inquiry.
Holt Hauling and Warehouse Sys., Inc. v. Aronow Roofing
Co., 309 Pa.Super. 158,
454 A.2d 1131, 1133 (1983).
Deyarmin,
931 A.2d at 14 (emphasis added). “Where neither party presents
evidence by which the court can properly resolve [an issue of fact in
preliminary objections], it is appropriate to remand with directions that an
order be entered allowing the parties a reasonable period of time in which to
present evidence by deposition, interrogatories or otherwise.”
Id. at 8-9.
In sum, Appellant’s affidavit that she served Dr. Abreu in Philadelphia
County provides support for her choice of venue, Appellees, as the moving
parties, have the burden of proving that a change of venue is necessary. As
the trial court erred in determining there were no contested issues of fact
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regarding venue, we vacate the trial court’s order sustaining Appellees’
preliminary objections as to venue. We remand for the trial court to allow the
parties to present evidence as to whether venue is proper in Philadelphia
County based on Appellant’s claim that she served Dr. Abreu at her “office or
usual place of business” pursuant to Pa.R.C.P. 402(a)(2)(iii).
Orders vacated. Remand for proceedings consistent with this decision.
Jurisdiction relinquished.
Date: 2/12/2024
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