J-A19025-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JASMINE JACKSON, AS 

ADMINISTRATRIX OF THE ESTATE OF 

MARGARET MCCLERNAN, DECEASED,

v.

COPS MONITORING; NOVINO 

TECHNOLOGIES, INC.; NTI 

SECURITY; MARGARET TOAL; 

BERNARD TOAL; J. MICHAEL 

GAMBER; TWC LLC MANAGEMENT; 

TDW FINANCIAL, LLC; KEYSTONE 

APARTMENTS JOINT VENTURE; 

KEYSTONE APARTMENTS

APPEAL OF: JASMINE JACKSON

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1944 EDA 2016

Appeal from the Order May 23, 2016

In the Court of Common Pleas of Philadelphia County 

Civil Division at No(s): February Term, 2015 No. 03319

BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 08, 2017

Appellant, Jasmine Jackson, appeals from the May 23, 2016 Order of 

the Philadelphia County Court of Common Pleas sustaining Appellees’ 

Preliminary Objections and transferring venue of this case to Delaware 

County. After careful review, we affirm.

The relevant factual and procedural history, as gleaned from the 

certified record, is as follows. On March 2, 2013, Margaret McClernan died 

in a fire at the apartment complexes located at 32 South Wycombe Avenue, 

Lansdowne, Pennsylvania. Appellant, in her capacity as the Administratrix of 
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the Estate of Ms. McClernan, filed suit in Philadelphia County against ten 

individuals and entities who allegedly owned and/or maintained the 

apartment complex where Ms. McClernan died. The amended complaint 

averred, inter alia, that the named Defendants failed to provide and 

maintain adequate fire detection and prevention equipment in the complex.1

All but two of the Defendants filed Preliminary Objections averring that 

venue is improper in Philadelphia County.2 When Appellee’s filed their 

Preliminary Objections challenging venue, they supported their Preliminary 

Objections with exhibits that the trial court determined demonstrated that:

[n]ot one single Defendant named in the above-caption was 

served in Philadelphia County. None of the Defendants reside in 

Philadelphia County or are registered to do business in 

Philadelphia County. They do not own property in Philadelphia 

County, and the property where the decedent died in the fire 

was not located in Philadelphia County. 

Trial Court Opinion, filed 12/23/16, at 2. 

On February 22, 2016, the trial court entered a Rule to Show Cause 

Order, directing Appellant to “show cause why the Preliminary Objections 

should not be sustained.” Rule to Show Cause, filed 2/22/16. The Order 

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1 Appellant filed claims for negligence and wrongful death, as well as a 

survival action.

2 Defendants Keystone Apartments and Keystone Apartments Joint Venture 

did not file Preliminary Objections. For purposes of the instant appeal we 

have used the term “Defendants” to refer to all named defendants in the 

instant case, and “Appellees” to refer to those Defendants who filed 

Preliminary Objections contesting venue. 
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also set a hearing date for the trial court to receive evidence on the question 

of venue. 

Prior to the hearing on the Rule to Show Cause, the parties conducted 

discovery on the issue of venue. At the hearing, in response to the Rule to 

Show Cause, Appellant presented evidence of the Philadelphia County 

business contacts of Appellees Novino Technologies, Inc. and COPS 

Monitoring.3 Specifically, Appellant introduced (i) the deposition of Alfred 

Novino, President of Novino Technologies, Inc.; and (ii) an “investigative 

report” compiled at Appellant’s request that detailed the results of internet 

searches designed to uncover any connection between Novino Technologies, 

Inc. or COPS Monitoring and Philadelphia County.

On May 23, 2016, the trial court entered an Order sustaining 

Appellees’ Preliminary Objections and transferring venue of this case to 

Delaware County. 

Appellant filed a timely Notice of Appeal.4 The trial court did not order 

Appellant to file a Pa.R.A.P. 1925(b) Statement, however, the trial court did 

file a Pa.R.A.P. 1925(a) Opinion. 

On appeal, Appellant raises two issues:

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3 Appellant only challenges the trial court’s ruling as it pertains to Novino 

Technologies, Inc. and COPS Monitoring. At the hearing, the parties agreed 

there is no evidence of Philadelphia contacts for the remaining Appellees.

4 When a trial court orders the change of venue in a civil action, an 

interlocutory appeal as of right exists. Pa.R.A.P. 311(c).
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1. Whether the [l]ower [c]ourt erred in shifting the burden of 

proof onto [Appellant] herein where the issue of improper venue 

was raised by [Appellees] in Preliminary Objections and, as such, 

they bore the burden of proof?

2. Whether the [l]ower [c]ourt erred in sustaining the 

Preliminary Objections regarding improper venue and in 

transferring this case to Delaware County where [Appellees] 

failed to sustain [their] burden of establishing that none of the 

non-individual Defendants regularly conducted business in 

Philadelphia at the time in question?

Appellant’s Brief at 5.

We review an order sustaining preliminary objections based on 

improper venue for an abuse of discretion or legal error. Lugo v. Farmers 

Pride, Inc., 967 A.2d 963, 970 (Pa. Super. 2009). A trial court’s decision to 

transfer a case, because venue is improper, will not be disturbed if the 

decision is reasonable in light of the facts. McMillan v. First Nat. Bank of 

Berwick, 978 A.2d 370, 371 (Pa. Super. 2009). If any proper basis exists 

for the court’s decision, that decision must stand. Goodman v. Fonslick, 

844 A.2d 1252, 1254 (Pa. Super. 2004).

Burden of Proof

Appellant’s first claim raises a pure question of law: who bears the 

burden of proof in establishing whether or not venue is proper in a given 

forum. Appellant cites Gale v. Mercy Cath. Med. Ctr. Eastwick, Inc., 698 

A.2d 647, 651 (Pa. Super. 1997), for the proposition that Appellees had the 

burden of proving “that their objections to venue are valid.” Id. at 14. 
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Appellant’s argument fails to acknowledge the shifting burden of proof that is 

inherent in improper venue claims. 

The plaintiff’s chosen forum carries great weight, but it is not absolute 

or unassailable. Fritz v. Glen Mills Schools, 840 A.2d 1021, 1023 (Pa. 

Super. 2003). Although courts often speak of a presumption in favor of a 

plaintiff’s choice of forum, the presumption “has no application where the 

trial court [is] faced not with a question of forum non conveniens but with 

the question of whether venue [is] proper in a particular county.” 

Deyarmin v. Consolidated Rail Corp., 931 A.2d 1, 10 (Pa. Super. 2007). 

This is because “[v]enue either is or it is not proper.” Id. “If . . . venue . . . 

is improper, then it is of no import that [the plaintiff] instituted this action in 

that forum, as the trial court had no jurisdiction to hear the case.” Id.

Accordingly, objections based on improper venue “are treated as raising a 

question of jurisdiction” for procedural purposes. Id. at 9. 

In effect, treating an objection based on improper venue as a 

jurisdictional claim means that the burden of proof will shift between the 

parties. Initially, “the moving party has the burden of supporting its 

objections to the court's jurisdiction.” Id. (emphasis, citation, and quotation 

omitted). However, once the moving party presents “some evidence” 

showing that venue is improper, the burden of proving venue shifts to the 

party asserting that it is proper. Id. (citation omitted).
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In the instant case, Appellant does not aver that the trial court erred in 

shifting the burden onto Appellant because Appellees failed to meet their 

burden of presenting “some evidence” showing venue was improper. 

Instead, Appellant disavows the burden-shifting nature of improper venue 

claims altogether and avers that, as a matter of law, the burden should 

remain with Appellees throughout. Appellant is mistaken, and is not entitled 

to relief on this claim.

Improper Venue

In her second issue, Appellant raises the underlying merits of the 

venue claim, averring that the trial court erred in sustaining the Preliminary 

Objections “[s]ince Novino Technologies, Inc. and COPS Monitoring both 

regularly conduct business in Philadelphia[.]” Appellant’s Brief at 24. 

A defendant can challenge the forum chosen as “improper” but must 

do so through a preliminary objection to the complaint. Pa.R.C.P. No. 

1028(a). In the context of a preliminary objection on improper venue, a 

trial court looks at the case “by taking a snapshot of” the case at the time it 

is initiated; if venue is “proper” at that time, it remains “proper” throughout 

the litigation. Wilson v. Levine, 963 A.2d 479, 483 (Pa. Super. 2008).

Corporations have a constitutional right to seek a change of venue. 

PECO Energy Co. v. Philadelphia Suburban Water Co., 802 A.2d 666, 

668 (Pa. Super. 2002). Pennsylvania Rule of Civil Procedure 2179 governs 

proper venue for personal actions against corporations as follows:
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Rule 2179. Venue

(a) Except as otherwise provided by an Act of Assembly, by Rule 

1006(a.1) or by subdivision (b) of this rule, a personal action 

against a corporation or similar entity may be brought in and 

only in

(1) the county where its registered office or principal 

place of business is located;

(2) a county where it regularly conducts business;

(3) the county where the cause of action arose;

(4) a county where a transaction or occurrence took place 

out of which the cause of action arose, or

(5) a 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. No. 2179(a) (emphasis added). These prerequisites to venue are 

stated in the disjunctive, so acts triggering any one subsection are sufficient 

to attach venue. Deyarmin, supra at 8.

Where, as here, a plaintiff asserts venue based upon regularly 

conducting business, “the court applies the ‘quality’ and ‘quantity’ test to 

determine if business contacts are sufficient to constitute regularly 

conducting business for purposes of establishing venue.” Fritz, supra at 

1023.

[I]n determining whether a corporation regularly conducts 

business in a particular county, we must focus on the nature of 

the acts the corporation allegedly performs in that county, which 

must be assessed both as to their quantity and quality. Acts 

satisfying the quality test are those directly...furthering or 

essential to...corporate objects; they do not include incidental 
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acts. Acts of sufficient quantity are those so continuous and 

sufficient to be general or habitual.

McMillan, supra at 372-73. 

“[T]he acts of the corporation must be distinguished: those in aid of a 

main purpose are collateral and incidental, while those necessary to its 

existence are direct.” Fritz, supra at 1023. “Regularly conducting 

business” does not include incidental acts or acts that are not essential to 

the business. Gale, supra at 652. For example, marketing and advertising 

in a chosen forum are insufficient contacts to confer venue. Purcell v. Bryn 

Mawr Hosp., 579 A.2d 1282, 1287 (Pa. 1990) (“Mere solicitation of 

business in a particular county does not amount to conducting business.”). 

Additionally, website activities are not sufficient because such contact with 

the chosen forum is merely incidental to a business’s activities. Kubik v. 

Rte. 252, Inc., 762 A.2d 1119, 1125 (Pa. Super. 2000).

Finally, each case rests on its own facts, which are derived from the 

parties’ pleadings and any other evidence of record. Purcell, supra at 

1286; Pa.R.C.P. No. 1028(c)(2) (allowing court to consider evidence by 

depositions or otherwise). 

Appellant asserts venue in Philadelphia County solely on the basis that 

“[a]t least two of the parties—[Novino Technologies, Inc.] and COPS 

Monitoring—regularly conducted business in Philadelphia at the requisite 

time.” Appellant’s Brief at 11. We address each Defendant in turn. 
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Novino Technologies, Inc.

Novino Technologies, Inc., based in Delaware County, is an alarm 

system dealership that installs and repairs alarm system hardware. N.T., 

4/11/17, at 8-9; Supplemental Record, filed 4/3/17, at 23. Novino 

Technologies is located in Delaware County, at 649 South Ave, Suite 3, 

Secane, Pennsylvania. Supplemental Record at 9. It is registered to do 

business in Pennsylvania, New Jersey, and Delaware. Id. at 9. 

At the hearing on the Rule to Show Cause, Appellant introduced a 

transcript of the deposition of Alfred Novino, President of Novino 

Technologies, Inc. In his deposition, Mr. Novino testified that Novino 

Technologies, Inc. pays the Philadelphia Business Privilege tax. In addition, 

he testified that over the preceding six years, Novino Technologies, Inc. 

derived between 0.25 and 1 percent of its revenue from business conducted 

in Philadelphia County. Appellant did not ask, and Mr. Novino did not 

explain, the nature of the work done in Philadelphia County. 

At Mr. Novino’s deposition, Appellant presented him with a printout of 

inquiries generated when potential customers clicked on the “Contact Us” 

button on Novino Technologies, Inc.’s website. Although many of these 

inquiries were generated by customers in Philadelphia County, Mr. Novino 

indicated that the inquiries were sent to the “junk” folder of his email inbox, 

and that Novino Technologies, Inc. had not done business with any of the 
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potential customers listed in the printout provided by Appellant. This 

printout was admitted into evidence at the hearing.

Appellant also submitted the report of a private investigator. Attached 

thereto is a list of work that Novino Technologies, Inc. completed in 

Philadelphia County. See Supplemental Record at 65. 

In sustaining Appellees’ Preliminary Objections, the trial court stated 

that:

Counsel for [Appellant] was completely unable to prove that 

[Novino Technologies, Inc.] regularly conducted business in 

Philadelphia County. The mere fact that [Novino Technologies, 

Inc.] held a Philadelphia Business Privilege License and that a 

fraction of their revenue came from Philadlephia in any fiscal 

year was insufficient to establish that they regularly conduct 

business in Philadelphia County.

Trial Court Opinion at 5.

After a careful review of the facts of this case, we conclude that the 

trial court did not abuse its discretion in finding that venue was not proper 

as to Novino Technologies, Inc. The record reflects that Novino 

Technologies, Inc., derives less than one percent of its revenue in any given 

year from business conducted in Philadelphia County. 

Moreover, all of the work cited by Appellant in the investigative report, 

and again in her Brief, was conducted between December of 2004 and 

September of 2011. Id. Ms. McClernan died in an apartment fire in March 

of 2013. Appellant filed suit in the instant case in February of 2015. When 

considering whether venue is proper, the relevant inquiry focuses on a 
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snapshot of the business contacts that exist at the time the case is initiated. 

Wilson, supra at 483. Thus, Appellant’s evidence of work orders completed 

nearly two years before the cause of action arose and nearly four years 

before the case was initiated is insufficient to establish that venue was 

proper in Philadelphia at the time the instant case was filed. 

COPS Monitoring

COPS Monitoring, based in New Jersey, monitors security alarm 

systems remotely. N.T., 4/11/17, at 8-9. At the hearing on the Rule to 

Show Cause, counsel for COPS Monitoring stated that COPS Monitoring “is 

not located in Philadelphia, has no real estate in Philadelphia, and has no 

office in Philadelphia.” Id. at 12. Although counsel acknowledged that 

COPS Monitoring had previously done limited business in Philadelphia, he 

noted that all of the work is done remotely from New Jersey, and what 

limited business they have with Philadelphia County clients is “not regular, 

it’s not systematic[,] and it’s not continuous[.]” Id.

Appellant’s only evidence regarding COPS Monitoring was the report of 

a private investigator detailing the results of various internet searches 

performed by the investigator. Specifically, the report includes: (i) a 

printout from Comcast’s website, which lists COPS Monitoring at its New 

Jersey address, as Comcast’s alarm monitoring company; (ii) the results of a 

Google search for a phone number with a 215 area code, where some of the 

results include the name COPS Monitoring; and (iii) a printout for the Angie’s 
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List page for COPS Monitoring, which lists dozens of counties, including 

Philadelphia County, under the heading “Clients Served.” Supplemental 

Record, filed 4/3/17, at 52-58. 

As the trial court noted:

[Appellant] should have conducted venue discovery directed to 

[COPS Monitoring] if [she] sought to use [its] contacts to 

establish venue in Philadelphia. [She] should have directed 

interrogatories and requests for production on venue to . . . 

COPS Monitoring if [she] thought that the contacts of [COPS 

Monitoring] could establish a right to proceed with [her] cause of 

action in Philadelphia County. The mere suspicion of counsel 

that COPS Monitoring had business contacts in Philadelphia 

County was insufficient to establish venue. [The trial court] 

expected that [Appellant] would appear at the [hearing] with 

evidence in support of [her] argument, and [her] failure to do so 

led to transfer.

Trial Court Opinion at 6.

After a careful review of the facts of this case, we conclude that the 

trial court did not abuse its discretion in finding that venue in Philadelphia 

was not proper as to COPS Monitoring. As an initial matter, Appellant did 

not submit any supporting documents that would show whether any of the 

“evidence” discovered online, all posted on websites controlled by third 

parties unrelated to COPS Monitoring, is accurate. We agree with the trial 

court that the ambiguous results of a few Google searches do little, if 

anything, to establish that venue is proper in Philadelphia. Moreover, what 

little evidence was submitted is silent as to the quality and quantity of 

COPS Monitoring’s business contacts in Philadelphia County. Fritz, supra at 

1023.
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Having concluded that the trial court did not err as a matter of law or 

abuse its discretion, we affirm the Order sustaining Appellees’ Preliminary 

Objections and transferring venue to Delaware County.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/8/2017