The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kenneth Hoot and Nicole Hoot, :
Appellants :
:
v. : No. 769 C.D. 2019
: ARGUED: November 18, 2021
American Driveline Systems, Inc., :
AAMCO Transmissions, Inc., et al. :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: December 13, 2021
Kenneth and Nicole Hoot appeal from the July 20, 2018 Orders of the
Philadelphia County Court of Common Pleas (Trial Court) sustaining the
Preliminary Objections filed by Hatfield Township (Hatfield) and the
Commonwealth of Pennsylvania, Department of Transportation (DOT) and
transferring this matter to the Montgomery County Court of Common Pleas
(Transferee Court). The Trial Court concluded that, after Hatfield and DOT were
joined as Additional Defendants, venue was proper in Montgomery County because
Hatfield is located in Montgomery County, the accident giving rise to this suit
occurred in Montgomery County, and DOT has its local office in Montgomery
County. We agree and, therefore, affirm the Trial Court’s Orders.1
1
The Superior Court of Pennsylvania transferred this appeal to this Court for disposition
by Order dated April 22, 2019.
Background
This appeal stems from an accident that occurred on October 15, 2015, in
which a vehicle operated by Curtis Pierre collided with a motorcycle operated by
Mr. Hoot on Bethlehem Pike in Colmar, Pennsylvania. Mr. Pierre was employed by
AAMCO of Colmar, which is located at 634 Bethlehem Pike. At the time of the
accident, Mr. Pierre was test driving a customer’s vehicle. As he exited the AAMCO
of Colmar parking lot and attempted to turn onto the northbound lane of Bethlehem
Pike, Mr. Pierre collided with Mr. Hoot, who was traveling southbound on
Bethlehem Pike. Mr. Hoot was vaulted through the air and came to rest unconscious
on the roadway. Mr. Hoot sustained serious injuries as a result of the collision.2
On October 12, 2017, the Hoots filed a Complaint in the Trial Court against
Mr. Pierre, AAMCO of Colmar, JZM, Inc. (JZM), John Lynn, Two Putt, Inc.,
AAMCO Transmissions, Inc. (AAMCO Transmissions), and American DriveLine
Systems, Inc. (American DriveLine).3 The Hoots asserted the following causes of
action:
• Count I: negligence against Mr. Pierre, and vicarious liability against
all other Defendants;
• Count II: failure to maintain liability insurance against Mr. Lynn, JZM,
Two Putt, Inc., and AAMCO of Colmar;
2
According to the Complaint, Mr. Hoot’s daughter, Jennifer Hoot, was seated on the rear
of the motorcycle at the time of the collision. Compl. ¶ 24. The Complaint, however, does not
allege that Jennifer Hoot was injured in the accident.
3
Mr. Lynn is the franchise owner of AAMCO of Colmar, where Mr. Pierre worked,
pursuant to a Franchise Agreement with AAMCO Transmissions. American DriveLine is the
parent company of AAMCO Transmissions. We are unable to discern from the record the precise
relationship between JZM, Two Putt, Inc., and the other Defendants.
2
• Count III: failure to maintain liability insurance against AAMCO
Transmissions and American DriveLine;
• Count IV: third-party beneficiary claims against Mr. Lynn, JZM, Two
Putt, Inc., and AAMCO of Colmar;
• County V: third-party beneficiary claims against AAMCO
Transmissions and American DriveLine; and
• Count VI: loss of consortium on behalf of Mrs. Hoot.
Thereafter, several Defendants filed Preliminary Objections to the Complaint,
asserting, among other things, that venue was improper in Philadelphia County
because Defendants are located in Montgomery County and the accident occurred in
Montgomery County. In response, the Hoots maintained that venue was proper in
Philadelphia County because AAMCO Transmissions and American DriveLine
regularly conduct business in Philadelphia County.4 After briefing and oral
argument by the parties, on March 2, 2018, the Trial Court5 overruled the
Preliminary Objections as to venue. The Trial Court did not issue an opinion in
connection with its March 2, 2018 Orders.
On December 11, 2017, JZM, Mr. Lynn, and AAMCO of Colmar (together,
Joining Defendants) filed Praecipes for Writ to Join Additional Defendant, directed
to DOT and Hatfield. On April 9, 2018, Joining Defendants filed a Joinder
Complaint Directed to Additional Defendants DOT and Hatfield (Joinder
Complaint) in the Trial Court. Joining Defendants alleged that: (1) the accident
4
See Pa.R.Civ.P. 1006(c)(1) (“[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.”).
5
Judge Arnold L. New ruled on the initial round of Preliminary Objections. Judge Karen
Shreeves-Johns ruled on the Preliminary Objections at issue in this appeal.
3
occurred on a DOT-owned roadway and DOT was negligent in redesigning,
maintaining, and inspecting the roadway; and (2) Hatfield was negligent in
designing, maintaining, and inspecting the traffic light at the intersection near the
accident site. Joinder Compl. ¶¶ 5, 6. Joining Defendants further averred that
Hatfield and DOT were “solely liable to [the Hoots],” or “have liability to the
[J]oining Defendants for indemnity and/or contribution,” or were “jointly and
severally liable” for the Hoots’ injuries. Id. ¶ 9.
Hatfield and DOT both filed Preliminary Objections to the Joinder Complaint
based on improper venue, seeking transfer of the matter to Montgomery County.
The Hoots also filed Preliminary Objections to the Joinder Complaint, seeking
dismissal of the Joinder Complaint on immunity grounds. In their Preliminary
Objections, the Hoots asserted that DOT and Hatfield are immune from suit under
Section 502(b)(4)(i) of the Pennsylvania Construction Code Act, Act of November
10, 1999, P.L. 491, as amended, 35 P.S. § 7210.502(b)(4)(i), commonly known as
the Driveway Immunity Provision.6
On July 20, 2018, the Trial Court entered two Orders, sustaining Hatfield’s
and DOT’s Preliminary Objections and transferring the matter to the Transferee
Court. The Trial Court first rejected the Hoots’ claim that the Trial Court was
required to rule on their Preliminary Objections before addressing venue. Relying
on this Court’s decisions in Alter v. Pennsylvania Gas and Water Company, 532
A.2d 913 (Pa. Cmwlth. 1987), and Bradley v. O’Donoghue, 823 A.2d 1038 (Pa.
Cmwlth. 2003), the Trial Court determined that it “was required to transfer venue to
6
The Driveway Immunity Provision states: “Neither [DOT] nor any municipality to which
permit-issuing authority has been delegated under [S]ection 420 of the State Highway Law[, Act
of June 1, 1945, P.L. 1242, as amended, 36 P.S. § 670-420,] shall be liable in damages for any
injury to persons or property arising out of the issuance or denial of a driveway permit or for failure
to regulate any driveway.” 35 P.S. § 7210.502(b)(4)(i).
4
Montgomery County based on [Hatfield’s and DOT’s] proper objections to venue.”
Trial Ct. Op., 10/17/18, at 5 (unpaginated). The Trial Court explained that “Alter
and Bradley clearly demonstrate[ that] th[e Trial C]ourt was under no obligation to
rule on the [Hoots’] demurrers [seeking dismissal on immunity grounds] before
transfer and [that] th[e Trial Court] did not have the authority to do so once it
determined it lacked venue.” Id.
The Trial Court then concluded that venue was proper in Montgomery County
because: (1) Hatfield, a political subdivision, is located in Montgomery County; (2)
the accident occurred in Montgomery County; and (3) DOT has its local office in
Montgomery County. The Trial Court explained its reasoning as follows:
Venue as to Hatfield . . . is governed by [Pa.R.Civ.P.] 2103[,] which
mandates that “an action against a political subdivision may be brought
only in the county in which the political subdivision is located.”
[Section 333 of t]he JARA Continuation Act of 1980 [(JARA
Continuation Act), Act of October 5, 1980, P.L. 693, as amended, 42
P.S. § 20043,] further mandates that “claims against a local agency may
be brought in and only in a county in which the local agency is located
or in which the cause of action arose or where a transaction or
occurrence took place out of which the cause of action arose.” . . .
Hatfield . . . . is a political subdivision located entirely[] within
Montgomery County and the occurrence which triggered the cause of
action occurred entirely within Montgomery County. Therefore, venue
was only proper for this action against Hatfield . . . in Montgomery
County.
Venue as to [DOT] is governed by Section 8523(a) of the Judicial
Code[,] which states that “claims against a Commonwealth party may
be brought in and only in a county in which the principal or local office
of the Commonwealth party is located or in which the cause of action
arose or where a transaction or occurrence took place out of which the
cause of action arose.” 42 Pa.[]C.S. §[]8523(a). [DOT] is a
“Commonwealth party” as defined by Section 8501 of the Judicial
Code. 42 Pa.[]C.S. §[]8501. The Pennsylvania Code further defines
5
the local office of the Commonwealth party as “the local office located
in that county where the cause of action arose or where a transaction
or occurrence took place out of which the cause of action arose.” 37
Pa. Code § 111.4(c). [DOT’s] principal office is located in Harrisburg,
P[ennsylvania,] which is located in Dauphin County. [DOT’s] local
office based on this action is located in King of Prussia, P[ennsylvania,]
which is located in Montgomery County. Therefore, in this action,
venue for [DOT] is proper [either] in Dauphin County, the location of
its principal office, or Montgomery County, the location of its local
office and the cause of action.
Id. at 5-7 (some internal citations omitted) (emphasis added).
The Trial Court also rejected the Hoots’ claim that Joining Defendants’
impetus in filing the Joinder Complaint was to circumvent proper venue in
Philadelphia County, finding that the Hoots “provide[d] no support for this
contention. Unsubstantiated claims of improper motivation are not enough to
overturn a trial court’s determination of venue.” Id. at 5.
Therefore, the Trial Court sustained both Hatfield’s and DOT’s Preliminary
Objections as to venue and transferred the matter to the Transferee Court. The Hoots
now appeal to this Court.7
Analysis
On appeal, the Hoots assert that the Trial Court was required to rule on the
merits of their Preliminary Objections before considering whether venue was proper
in Philadelphia County. The Hoots contend that by sustaining Hatfield’s and DOT’s
venue objections, without considering the viability of the underlying joinder claims,
the Trial Court committed an error of law. We disagree.
7
Our scope of review of the Trial Court’s Order sustaining preliminary objections on the
basis of improper venue is limited to determining whether the Trial Court committed an error of
law or abused its discretion. Keystone Sanitary Landfill, Inc. v. Monroe Cnty. Mun. Waste Mgmt.
Auth., 148 A.3d 915, 916 n.2 (Pa. Cmwlth. 2016).
6
Our Court has held on two prior occasions that venue, when properly objected
to, must be decided before any non-venue-related preliminary objections. In Alter,
the plaintiffs filed an action against Pennsylvania Gas and Water Company and
various municipalities, some of which were not located in the county in which the
plaintiffs filed suit. 532 A.2d at 913-14. Several defendants filed preliminary
objections to the complaint. Id. at 914. While those preliminary objections were
pending, several municipalities filed motions to transfer venue, which the trial court
granted before adjudicating the pending preliminary objections. Id.
On appeal, the defendants argued that the trial court erred in failing to rule on
their preliminary objections before transferring venue. Id. We concluded that the
trial court was not required to adjudicate the pending preliminary objections before
transferring venue, stating:
It is a fundamental and basic concept that any court has jurisdiction to
decide if it has jurisdiction or venue. And, should it decide that it lacks
venue in an instance where there has been a proper objection to venue,
then the court must transfer or dismiss the case, for it is without legal
authority to do anything else.
Id. at 915 (emphasis added). We noted that, following transfer, the transferee court
could rule on the outstanding preliminary objections and was well-equipped to hear
those objections because it had already attained jurisdiction of similar cases. Id. at
915-16.
Subsequently, in Bradley, a 16-year-old girl was struck by a vehicle while
walking across the road after purchasing food at a Burger King restaurant in Bristol
Borough, sustaining catastrophic injuries. 823 A.2d at 1039. She and her mother
filed suit in Philadelphia County against several defendants, including O’Donoghue,
the driver of the vehicle; Burger King and its parent company (together, Burger
7
King); and Bristol Township and Bristol Borough (together, Bristol). Id.
O’Donoghue and Bristol filed preliminary objections to the complaint on the basis
of improper venue. Id. Burger King also filed preliminary objections, but did not
challenge venue. The trial court: (1) sustained Burger King’s preliminary objections
and dismissed it from the case; and (2) sustained O’Donoghue’s and Bristol’s
preliminary objections as to venue and ordered a transfer of venue to Bucks County.
Id. The plaintiffs appealed, arguing, among other things, that the trial court erred in
ruling on the merits of Burger King’s preliminary objections after finding that a
change of venue was required. Id. at 1039-40.
On appeal, after reviewing the law regarding venue, we considered our prior
decision in Alter and determined that a definitive rule was needed as to whether a
trial court, upon deciding that a transfer of venue is required, must transfer the
remaining preliminary objections to the transferee court. Id. at 1042. This Court
held:
It appears that in Alter it was agreed that a trial court could transfer the
remaining preliminary objections where a change of venue occurred,
but it was not stated that such transfer was mandatory. We believe that
a definitive rule is necessary in this area. As such, we conclude that
when a trial court grants a change of venue through preliminary
objections, it is without further authority to decide any remaining
preliminary objections.
Id. (emphasis added). Therefore, we concluded that the trial court erred in ruling on
the merits of Burger King’s preliminary objections after finding that a change of
venue was required. Id.
Both Alter and Bradley are still good law and are binding on this Court. The
Hoots do not argue otherwise. These decisions make clear that once the trial court
determines that venue is improper and transfers the case to a court with proper venue,
8
it lacks authority to rule on any remaining preliminary objections. Therefore, we
conclude that the Trial Court properly ruled on Hatfield’s and DOT’s venue
objections without considering the merits of the Hoots’ non-venue-related
preliminary objections.
We further conclude that the Hoots’ reliance on Reed v. Brown, 166 A.3d 570
(Pa. Cmwlth. 2017), is misplaced. The Hoots claim that Reed supports their
contention that the Trial Court was required to “review the sufficiency of the
allegations of [the] Joinder Complaint prior to granting the objections to venue.”
Hoots’ Reply Br. at 4. We disagree.
Reed involved a police officer’s defamation action against the borough for
which he formerly worked and the borough’s manager. Although the borough is
located in Delaware County, the officer filed the action in Philadelphia County,
alleging that the borough manager falsely stated to an agent of the City of
Philadelphia (City), where the officer had applied for a job, that he was fired for
misconduct and was ineligible for rehire due to performance issues. 166 A.3d at
572. The City’s agent communicated that statement to the City, and the City
rescinded its offer of employment to the officer. Id.
The borough defendants filed preliminary objections to the complaint, arguing
improper venue in Philadelphia County. Id. at 572-73. The trial court sustained the
preliminary objections and transferred the matter to Delaware County, concluding
that, “‘[a]lthough relevant conduct . . . also occurred in Philadelphia County, the
cause of action arose in Delaware County and the transactions upon which the cause
of action arose[] (i.e.[,] the conduct of [the borough manager]) also occurred in
Delaware County.’” Id. at 573 (quoting trial court opinion).
9
On appeal, this Court concluded that, in ruling on venue, the trial court had
misapplied the law governing defamation, which permits a cause of action to be filed
in the county in which republication of the allegedly defamatory statement occurred.
Id. at 575. We determined that the officer’s complaint sufficiently alleged that
republication of the defamatory statement occurred in Philadelphia County and that
the City, as the recipient of the republication, understood the defamatory meaning
of the statement. Id. at 576. Therefore, we concluded that venue was proper in
Philadelphia County and reversed the trial court’s ruling. Id. Importantly, in making
this determination, we explained:
Th[e trial court’s] ruling appears to be based strictly on the trial
court’s misapplication of the law of defamation and resulting
determination that the cause of action arose in Delaware County and
the transactions upon which the cause of action was based[] . . .
occurred in Delaware County. Because the trial court’s decision to
transfer venue was based solely on a legally erroneous determination
that venue did not lie in Philadelphia County, the trial court committed
an error of law.
Id. (emphasis added).
While it is true, as the Hoots point out, that the Reed Court reviewed the
allegations in the complaint before ruling on venue, this Court did so only to
determine whether the trial court’s venue ruling was proper – i.e., whether the
defamation allegations established that the cause of action arose in Philadelphia
County. See id. at 574-75. This Court did not, as the Hoots suggest, consider the
viability or merits of the underlying defamation claims. Moreover, the Hoots do not
contend that venue as to Hatfield and DOT is improper in Montgomery County or
that the Trial Court’s venue rulings in this case were legally erroneous, as was the
case in Reed. The Hoots argue only that the Trial Court should not have reached the
10
venue issue in light of their pending Preliminary Objections seeking dismissal of the
Joinder Complaint on immunity grounds. However, whether Hatfield and DOT are
immune from liability under the Driveway Immunity Provision is immaterial to the
question of venue, which, when properly objected to, must be decided in the first
instance. See Bradley, 823 A.2d at 1042; Alter, 532 A.2d at 915.
Here, the Trial Court correctly determined that the joinder of Hatfield and
DOT in this action required that venue be transferred to Montgomery County, where
Hatfield is located, where the accident giving rise to this suit occurred, and where
DOT has its local office. Cf. Ribnicky v. Yerex, 701 A.2d 1348, 1351 (Pa. 1997)
(holding that the defendants’ joinder of the city as an additional defendant was an
“action” within the meaning of the venue statute permitting an action against a local
agency to be brought only in the county where the agency is located, the cause of
action arose, or the transaction or occurrence took place; thus, the city’s joinder in
the action required a transfer of venue); Cummings v. Elinsky, 803 A.2d 850, 852
(Pa. Cmwlth. 2002) (the plaintiffs filed a complaint against several defendants, who
brought in the township as an additional defendant; this Court held that, under
Ribnicky, because the joinder complaint constituted the commencement of an
“action,” venue was proper in the county where the township was located and where
the accident occurred). That determination precluded the Trial Court from
adjudicating any other substantive issues raised in the Hoots’ Preliminary
Objections.
Conclusion
We conclude that the Hoots’ contention that the Trial Court was required to
adjudicate the merits of their Preliminary Objections before ruling on the venue
objections is unsupported by our Court’s precedent. Once the Trial Court
11
determined that the joinder of Hatfield and DOT required that venue be transferred
to Montgomery County, the Trial Court lacked authority to adjudicate the remaining
non-venue-related Preliminary Objections to the Joinder Complaint. The remaining
Preliminary Objections may be decided by the Transferee Court.
Accordingly, because we conclude that the Trial Court properly sustained
Hatfield’s and DOT’s Preliminary Objections as to venue and transferred this matter
to the Transferee Court, we affirm the Trial Court’s Order.8
__________________________________
ELLEN CEISLER, Judge
Judge McCullough did not participate in the decision of this case.
8
In the Statement of Questions Involved section of their brief, the Hoots also assert that
the Trial Court erred in transferring venue because the Joinder Defendants, by joining Hatfield and
DOT, were merely attempting to circumvent proper venue in Philadelphia County. However, the
Hoots do not address this issue in any detail in the Argument section of their brief. Therefore, they
have waived this claim. See Singer v. Bureau of Pro. & Occupational Affs., State Bd. of
Psychology, 633 A.2d 246, 247 (Pa. Cmwlth. 1993). In any event, the Trial Court rejected the
Hoots’ claim of improper motive, finding that they offered no support for such a contention. Trial
Ct. Op., 10/17/18, at 5.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kenneth Hoot and Nicole Hoot, :
Appellants :
:
v. : No. 769 C.D. 2019
:
American Driveline Systems, Inc., :
AAMCO Transmissions, Inc., et al. :
ORDER
AND NOW, this 13th day of December, 2021, the July 20, 2018 Orders of the
Philadelphia County Court of Common Pleas are hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge