J-A22019-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ALEXANDER MALOFIY 

Appellant

v.

MEDIA REAL ESTATE COMPANY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 12 EDA 2018

Appeal from the Order Dated November 1, 2017

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 170300759

BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 14, 2019

Appellant Alexander Malofiy appeals from the order sustaining, in part,

Appellee Media Real Estate Company’s preliminary objections to venue and 

transferring this matter from Philadelphia to Delaware County.

1

 Appellant 

claims that the trial court erred in failing to compel disclosure of Appellee’s 

Philadelphia taxes and in transferring venue to Delaware County. We affirm.

The trial court set forth the background of this matter as follows:

This case arises out of a slip-and-fall incident that occurred in 

Media, Delaware County, Pennsylvania. According to the 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 See Pa.R.A.P. 311(c) (“An appeal may be taken as of right from an order in 

a civil action or proceeding changing venue, transferring the matter to another 

court of coordinate jurisdiction, or declining to proceed in the matter on the 

basis of forum non conveniens or analogous principles.”).
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Complaint, [Appellant] Alexander M[a]lofiy rented an accounting 

office in a building owned by [Appellee] Media Real Estate 

Company, a Pennsylvania [limited2] partnership. On March 9, 

2015, [Appellant] slipped on black ice as he was exiting the 

building, sustaining injuries.

On March 9, 2017, [Appellant] instituted this action in Philadelphia 

County by writ of summons. [Appellant] filed a Complaint on July 

10, 2017. Paragraph 50 of the Complaint averred that “[v]enue 

is proper in the Philadelphia County Court of Common Pleas under 

Pennsylvania Rules of Civil Procedure 2130, 2179, and 1006 

inasmuch, on information and belief, [Appellee] is an entity that 

regularly conducts business in Philadelphia.”

[Appellee] filed preliminary objections as to improper venue, inter 

alia, on July 31, 2017, requesting a transfer to Delaware County. 

An oral argument and evidentiary hearing was held on October 

25, 2017.

[Appellee] argued it had no residence, place of business, or 

registered office in Philadelphia, and no employees or agents did 

business in Philadelphia. As evidence, [Appellee] offered a July 

31, 2017 affidavit of [Strine], general partner of [Appellee], which 

affirmed the same.

In response, [Appellant] contended [that Appellee] did regularly 

conduct business in Philadelphia. As proof, [Appellant] offered 

screenshots of [Appellee]’s website, 

mediarealestate.com/featured-shortterm-listings.asp. The 

website included multiple rental listings for properties located 

within Philadelphia County. 

Trial Ct. Op., 3/19/18, at 1-2.

On August 28, 2017, the trial court issued a rule to show cause as to

why Appellee’s preliminary objections should be granted on the issue of venue. 

____________________________________________

2 See Appellee’s Preliminary Objections, 7/31/17, at ¶ 3; Aff. of Walter M. 

Strine, Jr. (Strine), 7/31/17, at ¶ 2.
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Order, 8/28/17. The order further scheduled an evidentiary hearing, 

providing, in relevant part:

An argument and evidentiary proceeding, limited solely to 

the issue of venue, is scheduled for October 25, 2017 . . . .

The [c]ourt will accept affidavits or deposition 

evidence and upon application for good cause shown, 

live testimony, relevant to the issue of venue. All 

affidavits must be submitted to opposing counsel no later 

than thirty (30) days from the docketing of this Order. If 

the party receiving an affidavit wishes to depose the affiant 

on venue related issues, said deposition must occur between 

the date the affidavit is produced and the hearing date. 

Nothing in this Rule shall prevent the parties from taking 

venue-related depositions prior to the production of an 

affidavit.

Id. (emphasis added).

On September 21, 2017, Appellant filed a motion for sanctions claiming 

that Appellee failed to withdraw false statements in its preliminary objection 

to venue and Strine’s supporting affidavit. Specifically, Appellant asserted 

that Appellee’s denial that it regularly conducted business in Philadelphia was 

contradicted by its listings of rental properties in Philadelphia on its website. 

On October 12, 2017, Appellee filed an answer to Appellant’s motion for 

sanctions denying that it conducted adequate business in Philadelphia to 

establish venue. Appellee asserted that the motion for sanctions was 

premature in light of its attempts to depose Jeffrey Cadorette (Cadorette), 

Appellee’s executive vice president, as a fact witness on venue. See

Appellee’s Mem. of Law in Support of its Answer to Appellant’s Mot. for 

Sanctions, 10/12/17, at 2. Appellee indicated that it previously attempted to 
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schedule a deposition of Cadorette by a letter dated September 21, 2017, and 

issued its notice to depose Cadorette on September 28, 2017. According to 

Appellee, Appellant failed to respond to its requests to depose Cadorette. 

Appellee’s Answer to Appellant’s Mot. for Sanctions, 10/12/17, at ¶ 31. 

On October 12, 2017, the parties deposed Cadorette, and the trial court 

summarized Cadorette’s testimony as follows;

[Cadorette] explained that some of the listings on the websites 

are listed as part of a partnership agreement with another real 

estate company[, Regus]. The agreement allowed the other 

company to place ads for short-term furnished rentals on 

[Appellee]’s website in exchange for a ten percent commission. 

[Appellee] acted solely as a referral source and was otherwise not 

in the business of short-term furnished leasing.

. . . Mr. Cadorette testified there was one sale of a warehouse 

property in Philadelphia in 2014 that netted a commission of 

$42,000, split evenly between Mr. Cadorette and [Appellee]. The 

commission was the only revenue generated by [Appellee] arising 

from business in Philadelphia since 2014. [Appellee] has not 

earned a commission on any other Philadelphia listing on the 

website.

Trial Ct. Op., 3/19/18, at 2. Cadorette identified Amanda Iacavino as a contact 

at Regus. Cadorette Dep., 10/12/17, at 105. He also identified Appellee’s tax 

accountant as Wipfli. Id. at 41. 

On October 17, 2017, Appellant issued an amended notice to depose 

Strine, which included a request for Appellee’s Philadelphia taxes from 2012 

to 2017.3 Two days later, on October 19, 2017, Appellant deposed Strine. 

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3 The record does not establish when Appellant issued his original notice to 

depose Strine. 
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See Strine Dep., 10/19/17. During Strine’s deposition, Appellee’s counsel 

objected to 

the production of any federal, state, and non-Philadelphia County 

local tax returns, as they may be in an unredacted fashion, used 

to calculate and contemplate [Appellee]’s net worth in violation of 

the discovery rules requiring such production until leave of Court 

is granted.

Id. at 101. Strine identified Appellee’s tax accountant at Wipfli as Kelly Fisher 

(Fisher). Strine did not produce Appellee’ Philadelphia tax returns based on 

Strine’s testimony that Appellee did not conduct business in Philadelphia and 

did not file Philadelphia tax returns. See id. at 101-02. 

On October 20, 2017, Appellant filed an application for the live 

testimony of Regus’s general manager Iacavino and Appellee’s accountant 

Fisher. See Appellant’s Appl. for Live Testimony, 10/20/17. Appellant’s 

subpoena to Fisher requested that she appear at the courthouse on October 

25, 2017, the day the evidentiary hearing was scheduled. Id. at Ex. 4. The 

subpoena also requested that she provide Appellee’s Philadelphia tax returns 

from 2012 to 2017. Id.

At the evidentiary hearing, on October 25, 2017, the following relevant 

exchange occurred:

[Fisher’s Counsel]: Good morning, Your Honor, Jason Sweet on 

behalf of Kelly Fisher. She was a subpoenaed witness for this 

matter. We filed a motion to quash yesterday. It hasn’t been 

docketed yet.

THE COURT: My written permission permitting you to present live 

testimony?
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[Appellant’s Counsel]: You did not rule on that yet, Your Honor, 

and it might be resolved, because I think there’s ample evidence 

that we’ve established through deposition testimony.

THE COURT: So if it’s resolved, can we send [Fisher] home?

[Appellant’s Counsel]: It might be resolved pending the hearing 

today without further live testimony.

THE COURT: No.

[Appellant’s Counsel]: Okay.

THE COURT: No. There is a reason I don’t permit live testimony. 

Turn around and look at this courtroom.

[Appellant’s Counsel]: Yes, Your Honor.

* * *

THE COURT: All 60 [attorneys] wish to present live testimony. It 

is why I permit only deposition testimony.

[Appellant’s Counsel]: I understand, Your Honor. It was in the 

order for application.

THE COURT: So start off by telling me what made this one special 

. . . that you could not depose or move the deposition.

[Appellant’s Counsel]: Well, we did depose both Mr. Walter Strine, 

Jr., as well as one of the two general partners of Media Real 

Estate, as well as the senior or the executive vice-president of 

Media Real Estate. We do have those depositions, and we do have 

them to hand up to Your Honor. The issue at the deposition was 

the general partner who was responsible for taxes said he did 

absolutely no investigation whatsoever, did not ask his accountant 

whether or not there was any business done in Philadelphia, did 

no investigation or ask the person who aggregates and compiles 

the business records.

THE COURT: So why don’t we have the deposition of anybody 

else that you may have wished to [depose] as opposed to bringing 

somebody in live, which again . . . I was very specific in my order 

stating not permitted without my permission?

[Appellant’s Counsel]: Right, Your Honor. And the reason is that 

we presume[d] that the general partner, one of two general 

partners would have his actual Philadelphia tax returns when he 
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did actually receive income in Philadelphia. Those records were 

indicated by opposing counsel to be produced, but then he said he 

didn’t want to reveal the net worth. We’re not interested in net 

worth. We’re interested in income, which is different than net 

worth. So they say they have the records or they say there are 

records, but they’re not going to produce them. We asked the 

general partner for those records who is in charge of that. He 

doesn’t produce them. We have a notice of deposition, amended 

notice. We ask for business records relating to income, business 

income receipts tax, net profits tax, BPT tax, things that are 

standard in any business. We’ve established that there was sales 

in Philadelphia of about $700,000 mere months away. We 

established that there’s multiple listings in Philadelphia for leased 

property in Philadelphia. We established that there’s ongoing 

contracts for commissions in Philadelphia properties. We 

established they received $42,000 in commissions. Yet they put 

an affidavit together saying they did no business whatsoever.

THE COURT: Okay.

[Appellant’s Counsel]: So that’s why we deposed Mr. Walter 

Strine, believing we were going to get all these documents, and 

opposing counsel represented that he doesn’t see there would be 

an issue producing them, but then at the deposition, he qualified 

that, saying there’s an objection, “We’re producing nothing, 

because we don’t want to reveal the net worth of the business.” I 

would like to get the Philadelphia taxes, the income in 

Philadelphia, the revenues from Philadelphia, and so at that point, 

we had to subpoena the accountant who said he’s his accountant 

for 50 years.

THE COURT: Got you. [Fisher] is excused.

See N.T., 10/25/17, at 4-8. The trial court denied Appellant’s application for 

live testimony. Id. a 4.

On November 1, 2017, the trial court sustained Appellee’s preliminary 

objection as to venue. The trial court transferred the case to the Delaware 

County Court of Common Pleas without deciding the remainder of Appellee’s 

preliminary objections.
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Appellant filed a timely notice of appeal4 and a court-ordered Pa.R.A.P. 

1925(b) statement. The trial court filed a Pa.R.A.P. 1925(a) opinion

suggesting that Appellant failed to demonstrate that Appellee regularly 

conducted business in Philadelphia. Id. at 4. The court, however, did not 

address Appellant’s further assertion that the court erred by failing to compel 

Appellee’s production of tax documents. 

Appellant raises two issues on appeal, which we have reordered as 

follows:

1. Whether the [trial c]ourt committed reversible error when it 

failed to compel [Appellee] to produce discovery related to its 

Philadelphia income, including its tax filings[.]

* * *

2. Whether [Appellee] does regular and continuous business in 

Philadelphia that allows suit in Philadelphia forum and was it 

reversible error for the [trial] court to transfer venue to 

Delaware County[.]

* * *

Appellant’s Brief at 6-7 (some capitalization omitted).

In his first issue, Appellant argues that the trial court erred in failing to 

compel disclosure of Appellee’s Philadelphia tax returns from 2012 to 2017.

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4 Appellant filed a notice of appeal on December 6, 2017. However, the docket 

indicated that notice of the order was not issued until November 6, 2017. 

Therefore, Appellant’s notice of appeal was timely. See Pa.R.A.P. 108(b); 

Pa.R.C.P. 236; see also In re L.M., 923 A.2d 505, 509 (Pa. Super. 2007) 

(stating that “an order is not appealable until it is entered on the docket with 

the required notation that appropriate notice has been given”

(emphasis in original) (citing Frazier v. City of Philadelphia, 735 A.2d 113, 

115 (Pa. 1999)).
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Id. at 27. Appellant maintains that he served document requests on Strine,

Appellee’s general partner, who agreed to produce the Philadelphia tax returns 

at his deposition. Id. at 23. Appellant continues that Strine reneged and 

refused to produce the documents. Id. 

In sum, Appellant contends that Appellee’s failure to produce the tax 

records is proof that said records are damaging to Appellee’s position. Id. 

According to Appellant, Appellant asked the trial court to compel Appellee to 

produce its Philadelphia tax returns and commissions due to Appellee’s failure 

to answer questions or produce the requested documents. Id. at 27. 

Appellant maintains that the court’s failure to order Appellee to produce its 

tax returns constitutes reversible error. Id. According to Appellant, “[i]f these 

tax returns showed income in Philadelphia, then that would prove beyond any 

doubt regular and continuous business in Philadelphia sufficient to establish 

venue.” Id. at 22.

Appellee counters that Appellant “failed to properly preserve and raise 

his objection to any alleged failure by [Appellee] to produce local Philadelphia 

tax returns it may have filed.” Appellee’s Brief at 15. Appellee argues that 

after the trial court scheduled an evidentiary hearing on the issue of venue, 

Appellant conducted extensive depositions of Strine and Cadorette. Id. at 16. 

Appellant’s notice of deposition to Strine included a request to produce 

Appellee’s Philadelphia tax returns. Id. At Strine’s deposition, however, 

Appellee objected to the production of the tax returns “as discovery of 

unredacted tax returns could be used to calculate [Appellee]’s wealth in 
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violation of Pa.R.C.P. 4003.7.”5 Id. Appellee continues that Appellant did not 

seek to depose, or serve a subpoena duces tecum, on Fisher, Appellee’s 

accountant. Id. at 16. Rather, prior to the evidentiary hearing, Appellant

filed an application to present the live testimony of Fisher, which the court 

denied. Id. at 17. Therefore, Appellee contends, Appellant should not be able 

to pursue his discovery issue because he never filed a motion to compel 

discovery. Id.

We review a trial court’s determination regarding discovery requests for 

an abuse of discretion. PECO Energy Co. v. Ins. Co. of N. Am., 852 A.2d 

1230, 1233 (Pa. Super. 2004); Kerns v. Methodist Hosp., 574 A.2d 1068, 

1073 (Pa. Super. 1990). “The trial court is responsible for [overseeing] 

discovery between the parties and therefore it is within that court’s discretion 

to determine the appropriate measure necessary to insure adequate and 

prompt discovering of matters allowed by the Rules of Civil Procedure.” PECO 

Energy Co., 852 A.2d at 1233 (citation and quotation marks omitted).

Instantly, the order scheduling an evidentiary hearing allowed for 

sufficient time to take depositions regarding the issue of venue. See Order, 

8/28/17. Rather than deposing Fisher prior to the date of the hearing, 

Appellant sought to present her live testimony at the evidentiary hearing. See

____________________________________________

5 Pennsylvania Rule of Civil Procedure 4003.7 provides that “[a] party may 

obtain information concerning the wealth of a defendant in a claim for punitive 

damages only upon order of court setting forth appropriate restrictions as to 

the time of the discovery, the scope of the discovery, and the dissemination 

of the material discovered.” Pa.R.C.P. 4003.7.
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Appellant’s Appl. for Live Testimony, 10/20/17, at Ex. 4. The trial court did 

not find that Appellant had good cause to present the live testimony of Fisher

as required in its August 28, 2017 order. See N.T., 10/25/17, at 4-8. 

Moreover, because Appellant did not file a motion to compel the production of 

documents, namely, any Philadelphia tax returns that Appellee might have 

filed from 2012 to 2017, the court did not abuse its discretion in failing to 

order that Appellee produce such documents.6 Accordingly, we conclude the

court did not abuse its discretion in denying Appellant’s application. See 

PECO Energy Co., 852 A.2d at 1233.

Next, Appellant contends that the trial court erred in transferring venue 

to Delaware County because Appellee did “regular and continuing business in 

Philadelphia.” Appellant’s Brief at 13-14. Appellant provides a list of reasons 

that he claims demonstrate that Appellee conducts regular and continuous 

business in Philadelphia:

1. [Appellee] brokered the sale of a commercial/industrial 

Philadelphia property in 2014 for $700,000 and received a 6% 

commission ($42,000),

2. [Appellee] has active contracts with the real estate company 

Regus for the lease of Philadelphia office space under which 

[Appellee] receives commissions for customers it refers to 

Regus,

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6 We acknowledge that Appellant apparently learned about Fisher and the 

purported refusal to produce the requested documents a few days before the 

scheduled hearing. Appellant, however, has not explained why he could not 

have sought Appellee’s financial information, deposed Strine, or moved to 

reschedule the hearing pending the disposition of any motion to compel in a 

timely fashion.
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3. [Appellee] lists the same Philadelphia office space on its 

website for the purpose of targeting customers in Philadelphia 

and earning money in the city, and

4. Regus and [Appellee] have referred each other customers and 

have an ongoing mutually beneficial business partnership.

Id. at 15 (record citations omitted). Appellant claims that these contacts are 

“central and not tangential to [Appellee]’s purpose,” which is to sell and lease 

real estate. Id. at 19. Therefore, Appellant maintains these contacts are 

sufficient to establish venue in Philadelphia. Id.

This Court has set forth our standard of review as follows:

It is well established that a trial court’s decision to transfer venue 

will not be disturbed absent an abuse of discretion. A [p]laintiff’s 

choice of forum is to be given great weight, and the burden is on 

the party challenging the choice to show it was improper. 

However, a plaintiff’s choice of venue is not absolute or 

unassailable. Indeed, if there exists any proper basis for the trial 

court’s decision to grant a petition to transfer venue, the decision 

must stand.

Wimble v. Parx Casino and Greenwood Gaming & Entm’t, Inc., 40 A.3d 

174, 177 (Pa. Super. 2012) (citation omitted).

Rule 2130 of the Pennsylvania Rules of Civil Procedure provides that 

an action against a partnership may be brought in and only in a 

county where the partnership regularly conducts business, 

or in the county where the cause of action arose or in a county 

where a transaction or occurrence took place out of which the 

cause of actions arose or in the county where the property or a 

part of the property which is the subject matter of the action is 

located provided that equitable relief is sought with respect to the 

property.

Pa.R.C.P. 2130(a) (emphasis added). 
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“In determining whether a corporation or partnership regularly conducts 

business in a county, we employ a quality-quantity analysis.” ZampanaBarry v. Donaghue, 921 A.2d 500 (Pa. Super. 2007). We explained the 

quality-quantity analysis test as follows:

A business entity must perform acts in a county of sufficient 

quality and quantity before venue in that county will be 

established. Purcell[v. Bryn Mawr Hosp., 579 A.2d 1282, 1284 

(Pa. 1990)]. Quality of acts will be found if an entity performs 

acts in a county that directly further or are essential to the entity’s 

business objective; incidental acts in the county are not sufficient 

to meet the quality aspect of the test. Id. Acts that aid a main 

purpose are collateral and incidental while those necessary to an 

entity’s existence are direct. Id. (incidental acts include 

advertising, solicitation of business from a county, education 

programs for personnel in county, hiring of personnel from the

county, and purchase of supplies from county); see also

Krosnowski v. Ward, 836 A.2d 143, 147 (Pa. Super. 2003) (en 

banc) (business referrals to and from an independently operated 

business entity in another county do not establish venue in that 

county as referrals were in aid of main business purpose and not 

actual conduct of business in that county). Quantity of acts means 

those that are sufficiently continuous so as to be considered 

habitual. Purcell, supra. Each case must be based upon its own 

individual facts. Id.

Id. at 503-04.

Instantly, the trial court found that venue was improper in Philadelphia,

as Appellee did not regularly conduct business within Philadelphia County. 

See Trial Ct. Op. at 4. The court reasoned:

[Appellee] met its burden of proving it does not regularly conduct 

business in Philadelphia. [Appellee]’s connection with Philadelphia 

was neither qualitatively nor quantitatively sufficient to show that 

they regularly conducted business in Philadelphia.

In terms of quantity, [Appellee]’s only income from Philadelphia 

business was the commission on the 2014 sale, and that 
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commission was split between [Appellee] and Mr. Cadorette. A 

single commission is hardly “habitual,” especially one which 

occurred one year prior to the incident and three years prior to 

the filing of the instant lawsuit.

Regarding quality, even though [Appellee] listed Philadelphia 

properties on its website, the fact that [Appellee] has not actually 

earned any revenue from its short-term lease listings is proof the

postings were not essential to [Appellee]’s business objective but 

merely incidental. The mere fact a business website solicits in a 

particular county does not necessarily mean that venue is proper 

therein. See Kubik v. Route 252, Inc., 762 A.2d 1119, 1126 

(Pa. Super. Ct. 2000) (holding that a business website that 

provided driving directions from Philadelphia, sent out a 

newsletter to solicit business, and sold gift certificates did not 

constitute regularly conducting business in Philadelphia); 

Shambe[ v. Delaware and Hudson Railroad Co., 135 A. 755, 

758 (Pa. 1927)] (holding solicitation on its own is not the same as 

“doing business”).

Id. at 3-4. 

Following our review, we see no basis to disturb the court’s sound 

reasoning. See Purcell, 579 A.2d at 1284; Zampana-Barry, 921 A.2d at 

503-04; Krosnowski, 836 A.2d at 147. We agree with and adopt the trial 

court’s conclusion that Appellee was not “regularly conducting business” in 

Philadelphia. See Trial Ct. Op. at 3-4. Accordingly, Appellant’s claim that the 

court abused its discretion in concluding that venue should be transferred to 

Delaware County warrants no relief. See Wimble, 40 A.3d at 177.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/14/19