IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Abdur Raheem Muhammad, :

Appellant :

:

v. : No. 2116 C.D. 2015 : Submitted: October 21, 2016 Arthur Carl Schwotzer; Gregg A. : Schwotzer and the Estate of : Gregg A. Schwotzer (Deceased); : W. Reid Howe; Ryan Schwotzer; : Damian Winchel; Anna Mason; : Jinada Rochelle; Christine E. Rice; : JoAnn L. Edwards; Stephen A. : Glassman; Arberdella White

- Davis; : James D. Holt; Homer C. Floyd; : Tom Corbett; Edward G. Rendell; : Crossgates Management : Incorporated d/b/a Swissvale Towers : Association; Pennsylvania Human : Relations Commission; Pennsylvania : Housing Finance Agency and the : Commonwealth of Pennsylvania :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVE Y, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: February 6, 2017

Abdur Raheem Muhammad

, as administrator of the estate of his

mother

, Clarice Wilkerson

- Sudduth (decedent), appeals pro se an order of the

Philadelphia County Court of Common Pleas (trial court) that sustained the

preliminary objections filed by the Pennsylv ania Human Relations Commission,

Pennsylvania Housing Finance Agency , and other Commonwealth agents

(colle ctively

, Agencies) to Muhammad’s civil action alleging that Agencies were2

liable for the death of his mother . The trial court sustained Agencies ’ preliminary

objection s to venue and transferred the matter to the Allegheny County Court of

Common Pleas or t he Dauphin County Court of Common Pleas , by choice of

Muhammad. For the reasons that follow, we affirm the order of the trial court.

On January 6, 2015, Muhammad, pro se , commen c ed this action in

the Philadelphia County Court of Common Pleas against various private and

governmental parties , including Agencies

. 1 Muhammad alleged, inter alia

, that

Agencies were responsible for decedent’s death by allowing her to live in

“deplorable conditions” while she was a resident at Swissvale Tower Apartments,

a s ubsidized apartment complex in Allegheny County.

Agencies filed preliminary objections asserting that venue in

Philadelphia County was improper . Muhammad did not respond. By order dated

May 6, 2015, the trial court sustained Agencies’ preliminary object ions to venue

and transferred the action to Allegheny County, where the alleged negligence

occurred. On May 15, 2015, Muhammad filed a motion for reconsideration. By

order dated June 12, 2015, the trial court granted reconsideration in part and

vacated t he May 6, 2015, order. The trial court again sustained Agencies ’ venue
objections but ordered that the case should be transferred either to the Allegheny

1 The named defendants are: Arthur C. Schwotzer; Gregg A. Schwotzer and the Estate of Gregg A. Schwotzer; W. Reid Howe; Ryan Schwotzer; Damian Winchel; Anna Mason; Jinada Rochelle; Christine E. Rice; JoAnn L. Edwards; Stephen A. Glassman; Arberdella White

- Davis; James D. Holt; Homer C. Floyd; Tom Corbett; Edward G. Rendell; Crossgates Management Incorporated d/b/a Swissvale Towers Association; Pennsylvania Human Relations Commission; Pennsylvania Housing Finance Agency; and Com monwealth of Pennsylvania. Service was only perfected upon six defendants, who are now the appellees in this case : Pennsylvania Human Relations Commission and its two employees Jinada Rochelle and JoAnn L. Edwards; Pennsylvania Housing Finance Agency; Com monwealth of Pennsylvania; and Edward G.

Rendell.3

County Court of Common Pleas or the Dauphin County Court of Common Pleas

,
at Muhammad’s selection.

On July 2, 2015, Muhammad appealed to the Superior Court.

Agencies filed an application to transfer the matter to this Court, which the

Superior Court granted on September 14, 2015

, pursuant to Section 762 of the

Judicial Code, 42 Pa. C.S. §762

. 2 On Octo ber 8, 2015, Muhammad filed an

application for reconsideration of the Superior Court’s transfer order.

R econsideration was denied on October 30, 2015. Muhamm a d petitioned the

Supreme Court for permission to appeal the denial of reconsideration . The

Supr eme Court denied allocatur. Muhammad v. Schwotzer, (Pa.

, No. 8 EAL 2016,

filed February 29, 2016). As a result, Muhammad’s appeal of the trial court order

dated July 12, 2015, which transferred the case from Philadelphia County to

Dauphin or Allegheny County

, is ready for disposition

. 3

2 Section 762 states , in relevant part : (a) General rule.

– Except as provided in subsection (b), the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the

courts of common pleas in the following cases:
(1) Commonwealth civil cases.

– All civil actions or proceedings:
(i) Original jurisdiction of which is vested in another tribunal by virtue of any of the exceptions to section 761(a)(1) (relating to original jurisdiction), except actions or proceedings in the nature of applications for a writ of habeas corpus or post

- convic tion relief not ancillary to proceedings within the appellate jurisdiction of the court.
42 Pa. C.S. §762(a)(1)(i). See also Rule 751 of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 751 (relating to transfer of erroneously filed cases).

3 Pursuant to Rule 311(c) of the Pennsylvania Rules of Appellate Procedure , an order in a civil action transferring venue is interlocutory, but appealable as of right. Rule 311(c) provides: (Footnote cont inued on the next page . . .)4 On appeal, 4 Muhammad argues that the trial court erred in transferring

his complaint against Agencies because Philadelphia County is the proper venue. 5

Agencies respond that the trial court correctly transferred the m atter in accordance

with the applicable venue rules. We agree.

“The proper venue rule when Commonwealth parties are involved is

Section 8523 of the Judicial Code, 42 Pa. C.S. §8523.” Shaffer v. Department of

Transportation , 842 A.2d 989, 992 (Pa. Cmwlth

. 2004). The Judicial Code defines

(continued . . .)

(c) Changes of Venue, etc.

– An appeal may be taken as of right f rom 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.
Pa. R.A.P. 311(c).

4 “ [ O ] ur standard of review of an order of the trial court overruling or granting preliminary objections is to determine whether the trial court committed an error of law.” Feingold v.
Hendrzak , 15 A.3d 937, 941 (Pa. Super. 2011). A trial court’s decision to transfer venue “will be upheld unless the trial court abused its discretion.” Shaffer v. Department of Transportation , 842
A.2d 989

, 992 n.4 (Pa. Cmwlth. 2004).

5 Muhammad argues that his initial venue choice , Philadelphia County, deserves “weighty

consi deration” based on the doctrine of forum non conv e niens

. He cites Rule 1006(d)(1) of the Pennsylvania Rules of Civil Procedure, which provides:
For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought

. Pa. R.C.P. No. 1006(d)( 1) (emphasis added). The law governing the application of this rule is well settled, and requires a showing that the plaintiff’s choice of forum is oppressive or vexatious

to the defendant. Walls v. Phoenix Insurance Co. , 979 A.2d 847, 851 (Pa. Super. 20 09). Muhammad argues that Agencies have failed to show that defending the matter in Philadelphia County is oppressive or vexatious, and thus transfer of venue was improper . This argument is

flawed. The doctrine of f orum non conveniens cannot be used to l itigate a matter in a county where venue does not properly lie. Instead, it applies where venue lies in more than one county

. Here, because venue was never proper in Philadelphia County, forum non conveniens is inapplicable and Agencies need not prove th at defending the action in Philadelphia County is oppressive or vexatious.5

“Commonwealth party” as “[a] C ommonwealth agency and any employee thereof,

but only with respect to an act within the scope of his office or employment.” 42

Pa. C.S. §8501. It is beyond dispute that Agencies are C ommon wealth parties.

When there are multiple defendants with different venue rules, the venue rules for

the Commonwealth party controls. Shaffer, 842 A.2d at 992

- 93 (citing Ribnicky v.

Yerex , 701 A.2d 1348, 1351 n.4 (Pa. 1997) ) . Accordingly, Section 8523 of the

Judicial Code governs venue in this matter. It provides:

(a) Venue.

-- Actions for claims against a Commonwealth party may be brought in and only in a county in which the principal or local office of t he 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. If venue is obtained in the Twelfth Judicial District (Dauphin County) solely because the principal office of the Commonwealth party is located wi thin it, any judge of the Court of Common Pleas of Dauphin County shall have the power to transfer the action to any appropriate county where venue would otherwise lie.

42 Pa. C.S. §8523(a). Similarly, the regulation governing venue of tort claims

against the Commonwealth provides :

(a) Venue in actions for claims against a Commonwealth party as defined in 42 Pa. C.S. §8501 (relating to definitions) shall be in the county in which one of the following exists:

(1) The cause of action arose.

(2) A transacti on or occurrence took place out of which the cause of action arose.

(3) The principal office of the Commonwealth party is located.

(4) The local office of the Commonwealth party is located.6 (b) The principal offices of Commonwealth parties are the same as those offices designated in §111.1(b) and (c) (relating to service of process).

(c) For purposes of subsection (a)(4), the local office of the Commonwealth party is the local office locat ed 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.

Applying the above principles, we agree with the trial court that venue

lies either in Alleghen y County or Dauphin County. Venue is proper in Allegheny

County because Muhammad’s cause of action arises out of the alleged unsafe

living conditions of decedent’s apartment, which was located in Allegheny County.

V enue is also proper in Dauphin County b ecause that is where the principal offices

of Agencies, the Pennsylvania Human Relations Commission and Pennsylvania

Housing Finance Agency

, are located. 6 Even if either or both Agencies have a

field office in Philadelphia, venue would not lie under the l ocal office rule in 37

Pa. Code §111.4(a)(4). As explained in Section 111.4(c), the “local office” of a

Commonwealth party is its office in the county where the cause of action arose or

where a transaction or occurrence took place out of which the cause o f action

arose. 37 Pa. Code §111.4(c). The allegations underlying Muhammad’s complaint

bear no relation to Philadelphia County.

6 The Pennsylvania Human Relations Commission’s principal office is located at 333 Market Street, 8 th Floor, Harrisburg, Pennsylvania 17101. The Pennsylvania Housing Finance Agen cy’s principal office is located at 211 North Front Street, Harrisburg, Pennsylvania 17105.7 For these reasons

, the trial court did not err in transferring

Muhammad’s complaint to the Court of Common Pleas of Allegheny County or

Dauphin County. 7 The trial court’s order is affirmed.

__________________ _

___________________ MARY HANNAH LEAVITT, President Judge

7 Muhammad’s brief contains various arguments regarding his need for accommodations based on a physical disability. These issues are not the subject of this appea l ; accordingly

, this Court

will not address them.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Abdur Raheem Muhammad, :

Appellant :

:

v. : No. 2116 C.D. 2015

: Arthur Carl Schwotzer; Gregg A. : Schwotzer and the Estate of : Gregg A. Schwotzer (Deceased ); : W. Reid Howe; Ryan Schwotzer; : Damian Winchel; Anna Mason; : Jinada Rochelle; Christine E. Rice; : JoAnn L. Edwards; Stephen A. : Glassman; Arberdella White

- Davis; : James D. Holt; Homer C. Floyd; : Tom Corbett; Edward G. Rendell; : Crossgates Manage ment : Incorporated d/b/a Swissvale Towers : Association; Pennsylvania Human : Relations Commission; Pennsylvania : Housing Finance Agency and the : Commonwealth of Pennsylvania :

O R D E R

AND NOW, this 6 th day of February , 2017, the order of the

Philadelphia County Court of Common Pleas dated June 12, 2015 in the above

captioned matter is AFFIRMED.

______ _ _______________________________ MARY HANNAH LEAVITT, President Judge