J-A27045-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT D. KLINE 

Appellant

v.

ERIC A. ROWLEY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 657 MDA 2022

Appeal from the Order Entered April 6, 2022

In the Court of Common Pleas of Mifflin County Civil Division at No(s): 

2021-00285

BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED JANUARY 23, 2023

Appellant Robert D. Kline appeals, pro se, from the order of the Court 

of Common Pleas of Mifflin County (“trial court”) that sustained Appellee Eric 

A. Rowley’s preliminary objection asserting improper venue and dismissed

Kline’s complaint. We vacate and remand for further proceedings.

Kline initiated the instant action in 2021 by filing a praecipe for writ of 

summons. On February 15, 2022, he filed a complaint against Rowley

asserting claims against Rowley under the federal Telephone Consumer 

Protection Act of 1991 (“TCPA”),

1

the Pennsylvania Telemarketer Registration 

Act,

2 and the Pennsylvania Unfair Trade Practices and Consumer Protection 

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* Retired Senior Judge assigned to the Superior Court.

1 Appellant asserts violations of the portions of the TCPA set forth in 47 U.S.C. 

§ 227 and related regulations.

2 73 P.S. §§ 2241 to 2250.
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Law,3 as well as an invasion of privacy claim. Kline’s complaint relates to 

Rowley’s alleged pre-recorded telemarketing calls made to Kline for the 

purpose of soliciting insurance business. Kline listed his home address in the 

complaint as being at an address on Fairview Road in McClure, Pennsylvania. 

Complaint ¶1.

Rowley filed a preliminary objection to the complaint alleging that venue 

properly lies in Snyder County rather than Mifflin County because Rowley lives 

in Florida and McClure, the town where Kline resides, is in Snyder County. On 

April 6, 2022, the trial court entered its order sustaining Rowley’s objection 

and directing that “[Kline]’s claims against [Rowley] are dismissed.” Order, 

4/6/22.

On April 19, 2022, Kline filed a motion to vacate the trial court’s order, 

in which he averred that the events that gave rise to his complaint occurred 

in Mifflin County and that Rowley is registered as an insurance agent in the 

Commonwealth of Pennsylvania. Kline further noted that the preliminary 

objection did not contain a notice to plead, nor was it verified, and the court

thus should not have resolved the issue of venue without holding a hearing. 

Therefore, he requested that the court vacate its April 6, 2022 order and allow 

Kline to file an amended complaint addressing the venue issue.

On May 2, 2022, prior to the trial court ruling on his motion to vacate, 

Appellant filed a notice of appeal from the April 6, 2022 order. On May 9, 

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3 73 P.S. §§ 201-1 to 201-10. 
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2022, the trial court filed an order directing Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), 

and Appellant did so on May 31, 2022. On June 29, 2022, the trial court filed 

its Pa.R.A.P. 1925(a) opinion. In its opinion, the court requested that this 

Court remand this case so that a hearing can be held on Rowley’s preliminary 

objection. The court explained that Kline has filed numerous actions asserting 

TCPA claims in the past, McClure is a rural town that falls partly in Snyder 

County and partly in Mifflin County, and the court only had just become aware 

that Kline resides in the Snyder County portion of McClure. Trial Court 

Opinion, 6/29/22, at 1. The court stated that it was prepared to hold a hearing 

on Kline’s motion to vacate, but that he filed his notice of appeal stripping the 

court of jurisdiction prior to the court being able to rule on the motion. Id. at 

1-2. 

Kline raises the following issues on appeal:

1. Did the Trial Court err by sustaining [Rowley]’s preliminary 

objection relating to venue that raised statements of unverified 

facts not of record, with a hearing or other testimony?

2. Did the Trial Court err by not transferring [Kline]’s case to the 

proper venue if venue was improper?

Kline’s Brief at 3 (suggested answers omitted).

Kline argues that the trial court erred by ruling on Rowley’s preliminary 

objection based upon unverified claims related to the proper venue for this 

lawsuit and without accepting evidence on a disputed factual issue. Kline 

notes that the domicile of the plaintiff is not the only determinative factor in 
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determining where venue is proper and therefore the trial court’s venue 

analysis is incomplete. Kline further contends that, even if venue was 

improper in Mifflin County, the proper procedure under our Rules of Civil 

Procedure was for the trial court to transfer the case to Snyder County rather 

than ordering the dismissal of the action outright.4

We review an order sustaining preliminary objections asserting improper 

venue for an abuse of discretion or legal error. Beemac Trucking, LLC v. 

CNG Concepts, LLC, 134 A.3d 1055, 1058 (Pa. Super. 2016). A plaintiff’s 

choice of forum is given great weight, and the party asserting the venue 

objection bears the burden of showing venue is improper. Hausmann v. 

Bernd, 271 A.3d 486, 492 (Pa. Super. 2022).

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4 Rowley argues that Kline waived his appellate issues based upon his filing of 

his Pa.R.A.P. 1925(b) concise statement on May 31, 2022, one day beyond 

the 21-day deadline set forth in the trial court’s May 9, 2022 order. See 

Pa.R.A.P. 1925(b)(2)(i) (providing that trial court shall allow appellant at least 

21 days from the date of the entry of the order to file and serve the concise 

statement); U.S. Bank, N.A. for Certificateholders of LXS 2007-7N Trust

Fund v. Hua, 193 A.3d 994, 997-98 (Pa. Super. 2018) (failure to comply with 

21-day deadline set forth in trial court Rule 1925(b) order shall result in 

automatic waiver of claims appellant sought to raise). However, Rowley’s 

argument overlooks that the 21st day after the trial court filed its order—

Monday, May 30, 2022—was the Memorial Day holiday, which is excluded from 

the timeliness calculation under our appellate rules. See 1 Pa.C.S. § 1908 

(when the last day for a statutory filing deadline falls on a weekend or a federal 

or Commonwealth legal holiday, the deadline shall be extended until the next 

business day); Pa.R.A.P. 107 (incorporating 1 Pa.C.S. § 1908 with respect to 

deadlines set forth in the Rules of Appellate Procedure); see also 5 U.S.C. § 

6103(a) (listing federal holidays, including Memorial Day, which falls on the 

last Monday in May). Therefore, Kline’s concise statement filed on Tuesday, 

May 31, 2022, the following business day after Memorial Day, was timely.
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Pursuant to Rule of Civil Procedure 1006(a), where an action is brought 

against an individual and the subject matter of the case does not relate to a 

property dispute, venue is proper in any county where:

(1) the individual may be served;

(2) the cause of action arose;

(3) a transaction or occurrence took place out of which the cause 

of action arose; [or]

(4) venue is authorized by law[.]

Pa.R.Civ.P. 1006(a).5 Furthermore, “[i]f a preliminary objection to venue is 

sustained, and there is a county of proper venue within the State, the action 

shall not be dismissed but shall be transferred to the appropriate court of that 

county.” Pa.R.Civ.P. 1006(e); see also Searles v. Estrada, 856 A.2d 85, 91 

(Pa. Super. 2004) (when venue objection is sustained, court must transfer to 

the appropriate Pennsylvania county if venue is proper in that county, but 

court should dismiss when venue does not lie in any Pennsylvania county).

Upon review, and consistent with the trial court’s request in its Rule 

1925(a) opinion that we remand to allow for the court to accept evidence 

concerning the proper venue for this action, we conclude that the trial court 

erred in sustaining Rowley’s preliminary objection and dismissing the 

complaint. Under the Rules of Civil Procedure, “[i]f an issue of fact is raised” 

with respect to a preliminary objection asserting improper venue, “the court 

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5 The relevant text of Rule 1006 was amended effective January 1, 2023, but 

the amendments are not material to this matter. We quote from the current 

version of the rule.
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shall consider evidence by depositions or otherwise.” Pa.R.Civ.P. 1028(c)(2); 

see also id., Note (“Preliminary objections raising an issue under subdivision 

(a)(1) [relating to, inter alia, objections to improper venue] cannot be 

determined from facts of record”). “This rule mandates that the court resolve 

factual disputes by hearing evidence, rather than making a non-evidentiary 

judgment on the basis of the disputed factual allegations.” C.G. v. J.H., 172 

A.3d 43, 54 (Pa. Super. 2017), affirmed, 193 A.3d 891 (Pa. 2018). Thus, 

“[t]he trial court may not reach a determination based upon its view of the 

controverted facts, but must resolve the dispute by receiving evidence thereon 

through interrogatories, depositions, or an evidentiary hearing.” Id. (citation 

omitted); see also Deyarmin v. Consolidated Rail Corp., 931 A.2d 1, 14 

(Pa. Super. 2007). However, “a trial court may appropriately resolve 

preliminary objections to venue [] without discovery in cases where no factual 

issues were raised which necessitated the reception of evidence.” Deyarmin, 

931 A.2d at 14 (citation and quotation marks omitted).

The facts underlying the question of whether venue was proper in Mifflin 

County were not settled at the time of the trial court’s ruling on Rowley’s 

objection. The complaint identifies Kline’s home address as being in McClure, 

Pennsylvania but does not state whether he lived in Mifflin or Snyder County. 

While Rowley asserts in his preliminary objection that Kline in fact lives in 

Snyder County, this averment of fact was not verified as required by our rules 

of civil procedure. See Pa.R.Civ.P. 1017(a)(4) (preliminary objection is a 

pleading); Pa.R.Civ.P. 1024(a) (averment of fact not of record in pleading
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must be verified). Absent verification, a factual assertion in “a pleading is 

mere narration and amounts to nothing.” JP Morgan Chase Bank, N.A. v. 

Murray, 63 A.3d 1258, 1271 (Pa. Super. 2013) (citation omitted).6 

Furthermore, while Kline did not file a response to the preliminary objection, 

no response was required because Rowley did not endorse the objection with 

a notice to plead; Rowley’s factual averments were thus deemed denied. 

Pa.R.Civ.P. 1028(c)(2), Note (preliminary objection raising issue of venue 

“must be endorsed with a notice to plead or no response will be required under 

Rule 1029(d)”); Pa.R.Civ.P. 1029(d) (“Averments in a pleading to which no 

responsive pleading is required shall be deemed to be denied.”).

Kline appeared to concede in his motion to vacate that his home is in 

Snyder County. However, the location of Kline’s residence is not the only 

factor relevant to determining the proper venue for this lawsuit. As explained 

above, venue for this lawsuit would be proper in any county where “the cause 

of action arose” or where “a transaction or occurrence took place out of which 

the cause of action arose.” Pa.R.Civ.P. 1006(a). Kline referenced in the 

complaint allegedly illegal prerecorded telephone calls by Rowley to at least 

one telephone number, but he did not specifically aver whether the calls were 

received on a landline at his home or at another location. 

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6 Nevertheless, trial courts have discretion to permit amendment of a pleading

to cure deficient verification. See Murray, 63 A.3d at 1270-71.
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Finally, we note that it also appears that the trial court erred in ordering 

dismissal of the action as the court evidently sustained the venue objection 

on the basis of Rowley’s argument that venue was only proper in Snyder 

County, where Kline lives. To the extent the trial court determined that venue 

was proper in any other Pennsylvania county besides Mifflin County, the 

proper recourse would have been to transfer the matter to Snyder County 

rather than ordering the outright dismissal of Kline’s complaint. See

Pa.R.Civ.P. 1006(e); Searles, 856 A.2d at 91.

Accordingly, we vacate the trial court’s April 6, 2022 order sustaining 

Rowley’s preliminary objection and dismissing Kline’s claims. We remand to 

allow the trial court to permit such further pleadings and proceedings that the 

court deems necessary to resolve Rowley’s objection to Mifflin County as the 

venue for this case. 

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/23/2023