J-S24035-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANI KAZANJIAN 

Appellant

v.

THE FIRST LIBERTY INSURANCE 

CORPORATION

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 507 EDA 2021

Appeal from the Order Dated January 28, 2021

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

No(s): No. 200100687

BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 23, 2022

Ani Kazanjian (Kazanjian) appeals from the January 28, 2021 order of 

the Court of Common Pleas of Philadelphia County (trial court) sustaining the 

preliminary objection filed by The First Liberty Insurance Corporation (FLIC) 

and transferring venue over this case to Delaware County.1 We affirm.

We glean the following facts from the certified record. In April 2014, 

Kazanjian was struck by another motorist while driving in Delaware County 

and sustained serious injuries. She obtained a settlement of $40,000 from 

the tortfeasors’ insurance company, which was the combined policy limits of 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 “An appeal may be taken as of right from an order in a civil action or 

proceeding changing venue. . . .” Pa. R.A.P. 311(c).
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their coverage. The settlement was insufficient to compensate Kazanjian fully 

for her damages so she filed a claim with her insurer, FLIC, for underinsured 

motorist benefits. FLIC denied her claim and she filed the instant action 

seeking to be compensated fully under the policy.

In her complaint, Kazanjian set for the following related to venue in 

Philadelphia County: “Defendant, [FLIC], is a lawfully existing business entity 

authorized to conduct business and issue policies of insurance in the 

Commonwealth of Pennsylvania, regularly conducts business in Philadelphia 

County, Pennsylvania, and has an office or usual place of business at the 

above-captioned address.” Complaint in Civil Action, 1/8/20, at ¶ 2. The 

captioned business address was in Boston, Massachusetts. The complaint 

further averred that Kazanjian resides at an address in Delaware County.

FLIC filed a preliminary objection to venue arguing that Kazanjian had 

failed to allege how FLIC’s business in Philadelphia County was sufficient to 

establish venue there. It contended that FLIC “does not operate any business 

in Philadelphia County that is necessary to its existence” and that under the 

Rules of Civil Procedure, “[t]here [was] no basis for the [c]ourt to find that 

Philadelphia County is a proper venue for this action.” Preliminary Objections, 

10/13/20, at ¶¶ 12-13. It requested that the trial court sustain the objection 

and transfer the case to Delaware County. The preliminary objection was 

verified by FLIC’s counsel but did not include any affidavits or additional 

evidence regarding venue.
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Kazanjian filed a response to the preliminary objection arguing that her

averment in Paragraph 2 of the complaint was sufficient to plead venue in 

Philadelphia County. She contended that FLIC was required to first set forth 

evidence to support its claim of lack of venue before the burden shifted to her 

to establish that venue was proper. She argued that FLIC had failed to meet 

the threshold evidentiary burden to support its preliminary objection and 

requested it be overruled. In the alternative, she requested additional time 

for the parties to conduct discovery on the issue of venue.

The trial court sustained FLIC’s preliminary objection and entered an 

order transferring the case to Delaware County, reasoning that Kazanjian had 

repeatedly failed to provide relevant factual averments to support her 

contention that FLIC regularly conducted business in Philadelphia County. See

Trial Court Opinion, 2/2/22, at 7-8, 10-11. Kazanjian timely appealed and 

she and the trial court have complied with Pa. R.A.P. 1925. On appeal, she

argues that the trial court abused its discretion in holding that venue was 

improper in Philadelphia County because FLIC did not properly place venue at 

issue in its preliminary objection.

2

 In the alternative, she argues that the trial 

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2 Our standard of review is well-settled:

A decision to transfer venue will not be reversed unless the trial 

court abused its discretion. A plaintiff’s choice of forum is given 

great weight, and the burden is on the party challenging that 

choice to show it is improper.

(Footnote Continued Next Page)
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court erred by granting the preliminary objection without allowing her to 

conduct discovery on venue.

A suit against a corporation may be brought, inter alia, in any county in 

which the corporation regularly conducts business. Pa. R.C.P. 2179(a)(2). A 

challenge to venue as improper must be raised by preliminary objection and 

“shall state specifically the grounds relied upon.” Pa. R.C.P. 1006(e) &

1028(a)(1), (b). In considering a preliminary objection based on improper 

venue, “the burden is on the party challenging venue . . . to show the plaintiff’s 

chosen venue is improper. However, once they properly raise the issue of 

venue and provide some evidence . . . to dispel or rebut the plaintiff’s choice, 

the burden shifts back to the party asserting proper venue.” Hausmann v. 

Bernd, 271 A.3d 486, 493 (Pa. Super. 2022) (citation omitted, cleaned up); 

see also Schmitt v. Seaspray-Sharkline, Inc., 531 A.2d 801, 803 (Pa. 

Super. 1987) (“The moving party may not sit back and, by the bare allegations 

as set forth in the preliminary objections, place the burden upon the plaintiff 

to negate those allegations. . . . It is only when the moving party properly 

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However, if there exists any proper basis for the trial court’s 

decision to grant the petition to transfer venue, the decision must 

stand. . . . An abuse of discretion occurs when the trial judge 

overrides or misapplies the law, or exercises judgment in a 

manifestly unreasonable manner, or renders a decision based on 

partiality, prejudice, bias or ill-will.

Schultz v. MMI Prods., Inc., 30 A.3d 1224, 1228 (Pa. Super. 2011) (cleaned 

up; citations omitted).
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raises the jurisdictional issue that the burden of proving jurisdiction is upon 

the party asserting it.”).

Courts employ a fact-specific quality-quantity analysis to determine 

whether venue is proper. Hangey v. Husqvarna Prof. Prods., Inc., 247 

A.3d 1136, 1141 (Pa. Super. 2021) (en banc), appeal granted, 147 EAL 2021 

(Pa. 2022). “The term ‘quality of acts’ means those directly, furthering, or 

essential to, corporate objects; they do not include incidental acts. To satisfy 

the quantity prong of this analysis, acts must be sufficiently continuous so as 

to be considered habitual.” Id. (citations omitted).

When a factual issue is raised by a preliminary objection, “the court shall 

consider evidence by depositions or otherwise.” Pa. R.C.P. 1028(c)(2). The 

comment to Rule 1028(c)(2) states that preliminary objections based on 

improper venue “cannot be determined from facts of record.” Pa. R.C.P. 

1028(c)(2), note. However, a trial court “has discretion to determine the lack 

of need for further discovery on the issue of venue, and we review its decision 

in that regard for abuse of discretion.” Wimble v. Parx Casino & 

Greenwood Gaming & Entertainment, Inc., 40 A.3d 174, 179 (Pa. Super. 

2012) (quoting Schultz v. MMI Prods., Inc., 30 A.3d 1224, 1228 (Pa. Super. 

2011)).

In Hausmann, we concluded that the trial court did not abuse its 

discretion in transferring venue under the burden-shifting framework and the 

quality-quantity analysis. Hausmann, supra, at 496-97. There, the 
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corporate defendants provided an affidavit in support of their preliminary 

objection to venue in which they enumerated the amount of revenue they had 

earned in Philadelphia County in the previous four years compared to their 

total revenue in that time period. Id. at 489. The plaintiff responded by citing

the defendants’ answers to interrogatories and a public activity license search 

to argue that the defendants’ business in Philadelphia County was regular and 

continuous. Id. at 489-90. We concluded that the plaintiff had failed to 

establish that venue in Philadelphia County was proper because the evidence 

he produced to rebut the affidavit did not establish that the defendants 

regularly conducted business there at the time the suit was filed. Id. at 497. 

Moreover, we faulted the plaintiff for failing to conduct further discovery to 

carry his evidentiary burden on venue despite being granted leave to do. Id.

In contrast, in Wimble, we held that the trial court did not abuse its 

discretion in transferring venue without ordering discovery because the 

plaintiffs only attempted to establish venue based on a faulty legal premise 

which could be evaluated on the pleadings. Wimble, supra; see also 

Schultz, supra (holding that venue was properly transferred when

defendants attached affidavit to preliminary objections detailing the extent of 

its business in forum county and plaintiffs did not respond with factual 

averments rebutting that evidence). No additional factual development was 

necessary to decide the merits of the preliminary objection. However, when 

the moving party fails to set forth evidence in support of the preliminary 
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objection or the pleadings evidence a factual dispute regarding whether venue 

is proper, the preliminary objection may be overruled or the court must allow 

development of an evidentiary record before ruling on the objection. See

Hamre v. Resnick, 496 A.2d 510 (Pa. Super. 1984) (remanding for discovery 

on venue when there was a factual dispute in the pleadings as to whether the 

transaction or occurrence at issue took place in plaintiff’s chosen forum);

Alumbaugh v. Wallace Bus. Forms, Inc., 313 A.2d 281, 283-84 (Pa. Super. 

1973) (trial court properly overruled preliminary objection to venue when 

movants did not present any evidence in support of objection and non-moving 

party nonetheless produced deposition suggesting jurisdiction was proper in 

Pennsylvania).

3

Here, FLIC’s preliminary objection set forth the following:

6. In paragraph 37 of her Complaint, the Plaintiff avers that “The 

Court of Common Pleas of Philadelphia County in Philadelphia, 

Pennsylvania is a Court of competent jurisdiction.” Plaintiff makes 

no other averments that Philadelphia County is the proper venue 

for this matter to be adjudicated in.

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3 We have previously recognized that “for procedural purposes, objections to 

venue are treated as raising a question of jurisdiction,” and relied on cases 

analyzing preliminary objections to jurisdiction when examining a question of 

venue. See Deyarmin v. Consol. Rail Corp., 931 A.2d 1, 9 (Pa. Super. 

2007) (citation omitted). Moreover, in Alumbaugh, even though the trial 

court overruled the preliminary objection to jurisdiction, we approved of its 

additional reasoning that the moving party could raise and prove their 

allegations at trial. Alumbaugh, supra, at 284. At the time, the comment 

to Pa. R.C.P. 1028(c) allowed the trial court to postpone disposition of doubtful 

or fact-specific preliminary objections until evidence was developed at trial. 

Id. at 282-83.
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7. Plaintiff fails to allege how the Defendant, [FLIC’s] acts are 

continuous and sufficient so as to be general or habitual, and, she 

fails to establish that any actions by the Co-Defendant[4]that are 

“necessary to its [their] existence,” occur in Philadelphia County.

***

12. As explained above, Plaintiff’s cause of action arose in 

Delaware County, Plaintiff resides in Delaware County, and 

Defendant does not operate any business in Philadelphia County 

that is necessary to its existence.

Preliminary Objections, 10/13/20, at ¶¶ 6-7, 12. The objections were verified 

by FLIC’s counsel. They do not set forth any additional factual averments or 

attach any exhibits regarding FLIC’s business in Philadelphia County.

Contrary to FLIC’s argument on appeal, the statement that it “does not 

operate any business in Philadelphia County that is necessary to its existence” 

is a legal conclusion drawn from our case law on the quality-quantity test, not 

a factual averment. Id. at ¶ 12; see, e.g., Zampana-Barry v. Donaghue, 

921 A.2d 500, 503 (Pa. Super. 2007) (“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. . . . Acts that aid a main purpose are collateral and 

incidental while those necessary to an entity’s existence are direct.”). FLIC 

did not set forth any specific factual averments to challenge venue in 

Philadelphia County, such as information regarding any revenue derived from 

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4 This appears to be a typo, as there is no dispute that FLIC is the sole 

defendant in this action.
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Philadelphia businesses, contacts or employees located there or attempts to 

advertise or solicit business in that forum. It merely pled a bare legal 

allegation, unsupported by relevant facts, that venue in Philadelphia County 

is improper. See Schmitt, supra.

Thus, this case is distinguishable from the cases FLIC relies upon in 

arguing that it presented sufficient facts to support its preliminary objection. 

See Schultz, supra (movant submitted affidavit detailing extent of its 

business in the forum county); Silva v. Philadelphia Yearly Mtg., 2729 EDA 

2019 (Pa. Super. July 28, 2020) (unpublished memorandum) (movants 

submitted certifications averring that it had no day-to-day operations, 

property, offices, business transactions or other connections to forum 

county).

5

In these cases, the trial court could evaluate the evidence presented 

by the moving parties under the quality-quantity test and determine whether 

the facts established that they performed acts “necessary to [their] existence”

in the forum county. Zampana-Barry, supra. Here, FLIC provided the trial 

court with the bare legal conclusion that it did not meet the standard without 

providing any factual basis in support. The burden-shifting framework 

required FLIC to first adduce sufficient facts to raise a question as to venue

and its unsupported legal conclusions did not overcome this initial hurdle. 

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5 Recognizing that it is a non-precedential memorandum decision, FLIC cites 

to Silva for its persuasive value. See Pa. R.A.P. 126(b).
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Hausmann, supra, at 493; Schmitt, supra. As a result, the trial court 

misapplied the law when it concluded that Kazanjian was required to produce 

factual averments to support venue in Philadelphia County when FLIC had not 

yet put venue in dispute. See Trial Court Opinion, 2/2/22, at 7-8, 10-11.

Nevertheless, we may affirm the trial court’s order on any valid basis 

appearing of record. Schultz, supra, at 1228 (“[I]f there exists any proper 

basis for the trial court’s decision to grant the petition to transfer venue, the 

decision must stand.”); In re T.P., 78 A.3d 1166, 1170 (Pa. Super. 2013) 

(“[I]t is a well-settled doctrine in this Commonwealth that a trial court can be 

affirmed on any valid basis appearing of record.”). FLIC argues on appeal that 

the forum-selection clause of the underinsured motorist policy at issue 

requires that this case be litigated in Delaware County, where Kazanjian is 

domiciled. The clause states:

LAWSUITS AGAINST US

You must comply with the terms of the policy before you may sue 

us. Suit must be brought in a court of competent jurisdiction in 

the county and state of your legal domicile at the time of the 

accident.

Complaint in Civil Action, 1/8/20, Exhibit A, Underinsured Motorists Coverage 

– Pennsylvania (Non-Stacked) (emphasis in original) (R.R. 052a).

We have previously examined this precise language under the same 

circumstances as the instant case. See O’Hara v. First Liberty Ins. Corp., 

984 A.2d 938, 939 (Pa. Super. 2009). There, we concluded that the trial court 

did not abuse its discretion in sustaining the preliminary objection to venue 
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when it enforced this clause, as it is a clear and unambiguous term of the 

parties’ contract. Id. at 942. It is undisputed that Kazanjian’s legal domicile 

is in Delaware County, where the accident occurred. Complaint in Civil Action, 

1/8/20, at ¶¶ 1, 3-5. Accordingly, O’Hara is binding and the forum selection 

clause requires Kazanjian to litigate her claim in that forum. We affirm the 

trial court’s order transferring venue to Delaware County on that basis.6

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/23/2022

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6 Kazanjian argues only that FLIC waived the application of the forum selection 

clause by failing to raise the argument in its preliminary objection. Kazanjian’s 

Reply Brief at 7-8. However, we may affirm on any basis apparent from the 

record, even those not considered by the trial court or raised by the parties. 

In re T.P., 78 A.3d 1166, 1170 (Pa. Super. 2013).