Hangey, R. v. Husqvarna Professional Products

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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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