2021 WL 5408725
Unpublished Disposition

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
Superior Court of Pennsylvania.
LORI A. DIBBLE AND THERESA ODDO Appellants
v.
PAGE TRANSPORTATION, INC., PAGE E.T.C., INC., AMS TRUCKING, LLC, AND UPPER CANADA STONE COMPANY, LTD
No. 565 EDA 2021
|
FILED NOVEMBER 19, 2021
Appeal from the Order Entered February 10, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 200900060
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.:

Lori A. Dibble and Theresa Oddo (collectively “Plaintiffs”) appeal from the order that sustained the preliminary objections of Page Transportation, Inc., Page E.T.C., Inc., and AMS Trucking, LLC (collectively “Defendants”) claiming venue was improper in Philadelphia County and transferring the action to Dauphin County.1 We affirm.

The trial court supplied the following summary of the history of this case:
This matter arises out of a September 10, 2018 motor vehicle accident on Interstate 90 at milepost marker 410 in the Town of Clarence, New York. The motor vehicle accident in the instant matter involved the Plaintiffs and Matthew Russel Swope, an individual who resides in Flinton, PA.1 Mr. Swope was the operator of a commercial semi-tractor with an attached commercial trailer owned by AMS Trucking, LLC. Mr. Swope is also the sole owner and only employee of AMS Trucking, LLC. The accident occurred when Mr. Swope allegedly attempted to merge from the right lane into the left lane and swiped the Plaintiffs’ vehicle causing Plaintiff[s] to strike the embankment alongside the right shoulder.
1 Flinton, PA is located in Cambria County.
The plaintiffs in this matter are Lori Dibble, the driver of the vehicle, and Theresa Oddo, a passenger in the vehicle, who reside in Batavia, NY and Corfu, NY, respectively. … The defendants in this matter are Page Transportation, Inc. and Page E.T.C., Inc., (collectively, hereinafter “Page Defendants”), both of which are New York corporations with registered business offices in Harrisburg, PA5; and AMS Trucking, LLC, (hereinafter AMS), a Pennsylvania corporation with a registered business address in Flinton, PA. The Page Defendants’ business, as trucking companies, consists solely of “hauling loads.” At the time of the accident, AMS was leased to haul loads for the Page Defendants. Mr. Swope, through AMS, was carrying a load for Page Transportation from Northern Canada to Pottstown, Pennsylvania.6
5 Harrisburg, PA is located in Dauphin County.
6 Pottstown, PA is located in Montgomery County.
Plaintiffs filed a complaint in the instant matter in the Court of Common Pleas in Philadelphia County on September 8, 2020. The Defendants filed preliminary objections to Plaintiffs’ complaint on October 13, 2020. The Plaintiffs filed an answer to Defendants[’] preliminary objections on November 2, 2020. Th[e trial] court issued a rule to show cause allowing all parties to submit supplemental briefing as to the issue of venue on November 6, 2020. Both Plaintiffs and Defendants filed supplemental briefing on December 28, 2020. Th[e trial] court issued an order on February 10, 2021 sustaining the preliminary objections and transferring the instant matter to the Court of Common Pleas, Dauphin County.
Trial Court Opinion, 5/19/21, at 1-3 (citations, unnecessary capitalization, ordinal indicators, and some footnotes omitted).

Plaintiffs filed a timely notice of appeal. The trial court ordered Plaintiffs to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Plaintiffs filed a timely statement. Thereafter, the trial court authored a Pa.R.A.P. 1925(a) opinion. Accordingly, the appeal is ripe for our disposition.

Plaintiffs present the following question for our consideration: “Whether the trial court erred when it sustained [Defendants’] preliminary objection with respect to improper venue?” Plaintiffs’ brief at 9. In particular, Plaintiffs contend that (1) the evidence of record, specifically the Page Defendants’ admitted contacts with Philadelphia County, was sufficient to establish proper venue in that county; and (2) Plaintiffs did not have “a fair opportunity to access” all pertinent documents, including reports of a search of the origin and destination of loads (“TMS reports”), bills of lading, E-Z Pass logs, fuel receipts, and maintenance records requested in discovery. See id. at 15-17.

We first address Defendants’ claim that Plaintiffs waived their appellate issues by filing a deficient Rule 1925(b) statement. The issue stated in Plaintiffs’ Rule 1925(b) statement was “The Honorable Trial Court erred as a matter of law, and thereby abused its discretion, in holding that Philadelphia County is an improper venue to the instant matter where Defendants have admitted to conducting business in Philadelphia County.” Plaintiffs’ Concise Statement, 3/31/21, at 2. Defendants assert that this statement is too vague to have put the trial court on notice of the errors alleged. See Defendants’ brief at 25-29. Defendants argue that the specific challenges Plaintiffs advance on appeal, namely the adequacy of the Philadelphia County contacts of record and Defendants’ failure to respond to discovery, are not sufficiently suggested by their Rule 1925(b) statement to have put the trial court on notice of the appellate issues. Id. at 27-28.

“The function of the concise statement is to clarify for the judge who issued the order the grounds on which the aggrieved party seeks appellate review – so as to facilitate the writing of the opinion.” Commonwealth v. Rogers, 250 A.3d 1209, 1224 (Pa. 2021). Where the statement does not provide the trial court with sufficient notice of the alleged error, waiver results. See, e.g., Lineberger v. Wyeth, 894 A.2d 141, 148–49 (Pa.Super. 2006) (finding waiver where the concise statement vaguely alleged that the trial court erred in granting a motion for summary judgment).

Here, Plaintiffs’ statement clearly notified the trial judge that they believed that the evidence of record concerning Defendants’ contacts with Philadelphia County warranted overruling the preliminary objection to venue, and the trial court addressed that claim in its opinion. However, nothing in Plaintiffs’ statement alerted the trial court that they were further complaining that Defendants did not supply requested evidence. Understandably, the trial court did not address outstanding discovery in its opinion. Accordingly, we find that Plaintiffs waived their discovery-based argument by failing to include in in their Rule 1925(b) statement. See, e.g., Grabowski v. Carelink Cmty. Support Servs., Inc., 230 A.3d 465, 476 (Pa.Super. 2020) (holding issue not included in Rule 1925(b) statement was waived on appeal). However, we shall proceed to address Plaintiffs’ preserved contention that the evidence which was produced by Defendants did not support the trial court’s ruling.

We begin with a review of the pertinent legal principles. Venue is governed by Pa.R.C.P. 1006, which provides:
Improper venue shall be raised by preliminary objection and if not so raised shall be waived. If 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.C.P. 1006(e). Rule 1006 further specifies that actions against “corporations and similar entities” may be brought only in the counties designated by Pa.R.C.P. 2179.2 See Pa.R.C.P. 1006(b). Rule 2179 identifies the counties in which venue against a corporation lies as follows:
(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. 2179(a). Plaintiffs’ assertion of proper venue in the instant action is based solely upon the contention that the Page Defendants regularly conducted business in Philadelphia County.

Plaintiffs contend that we apply a de novo, plenary standard of review of the trial court’s decision to sustain Defendants’ preliminary objections alleging improper venue. See Plaintiffs’ brief at 8 (citing, inter alia, Trexler v. McDonald’s Corp., 118 A.3d 408, 412 (Pa.Super. 2015)). While that standard is generally applicable to appeals concerning preliminary objections, our Supreme Court has stated a different standard for review of a trial court’s Rule 2179(a)(2) determination. Specifically, the High Court long ago specified that an appellate court may not overturn a trial court’s determination whether a corporation regularly conducted business in a given county if “such conclusion is a reasonable one in view of the facts.” Monaco v. Montgomery Cab Co., 208 A.2d 252, 256 (Pa. 1965). As such, “[w]e review an order granting or denying preliminary objections asserting improper venue for abuse of discretion.” Hangey v. Husqvarna Prof’l Products, Inc., 247 A.3d 1136, 1140 (Pa.Super. 2021) (en banc). Accordingly, we apply the more deferential abuse-of-discretion standard in reviewing the trial court’s application of the above-refenced law to the facts of the instant case.

This Court recently conducted an examination of what type of evidence establishes that “acts are being ‘regularly’ performed within the context of the particular business.” Hangey, supra at 1141 (cleaned up). We observed that “in the venue context, ‘regularly’ does not mean ‘principally,’ and a defendant may perform acts ‘regularly’ even though these acts make up a small part of its total activities.” Id. (cleaned up). We further explained:
In determining whether venue is proper under this rule, courts employ a quality-quantity analysis. 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. (cleaned up).

The trial court summarized the evidence of Defendants’ contacts with Philadelphia County and its legal conclusions as to the import of that evidence as follows:
The undisputed facts are, since the inception of AMS in 2006, AMS has never conducted any business in Philadelphia County. AMS has a registered business office in Flinton, PA[, its only office]. Matthew Swope, the sole owner and employee of the company, testified at a deposition that “AMS Trucking has never traveled in or out of the Philadelphia area for any loads whatsoever.” The majority of AMS’[s] loads originate in Western Pennsylvania, Allentown, PA, and Maryland. Not only does AMS not have any business in Philadelphia County, AMS’[s] drivers “never” travel through Philadelphia with their loads. Furthermore, for a two year period, approximately spanning from the beginning of 2016 until November of 2018, AMS was leased to the Page Defendants to haul trucking loads. AMS never had a customer in Philadelphia County for either the Page Defendants or themselves. Since AMS has never conducted any business in Philadelphia County, venue as to AMS is improper.
The Page Defendants, upon the filing of their Preliminary Objections in the instant matter, attached an affidavit of Christopher Jorolemon. Mr. Jorolemon has worked for Page Transportation since 1999 and has been the Vice President of Operations since 2006. In Mr. Jorolemon’s affidavit dated October 6, 2020, Mr. Jorolemon asserted the Page Defendants do not currently have offices, own property, lease property or store equipment in Philadelphia County. Furthermore, the Page Defendants have never had offices, equipment or employees located in Philadelphia County. From approximately 2015 through 2020, Mr. Jorolemon asserted less than one-half of a percent of the Page Defendants’ loads either originated from or were delivered to Philadelphia County.
Mr. Jorolemon was deposed following th[e trial] court’s rule permitting supplemental briefing on the sole issue of venue. During his deposition, Mr. Jorolemon testified that the figures used in the original affidavit’s “one-half of one percent” figure was an estimate using his “understanding of our business and where we conducted business.” Mr. Jorolemon provided a supplemental affidavit and further testified to undertaking a search using the Page Defendants’ TMS system to determine the exact extent of their business in Philadelphia County.
From January 1, 2016 until December 2, 2020, the Page Defendants had eighty-six (86) loads that were delivered into Philadelphia County, delivered out of Philadelphia County or had a billing address in Philadelphia County regardless of where the delivery either began or ended. In that same period of time, the Page Defendants were responsible for five hundred twelve thousand three hundred eighty-four loads (512,384). Therefore, only .0167% of the Page Defendants[’] loads had any connection to Philadelphia County. The 86 loads with a connection to Philadelphia County derived from ten (10) customers. In order for venue to be proper in a given county, a business organization has to “regularly conduct business.” Using the [pertinent test], Plaintiffs have failed to prove the Page Defendants have either the requisite quantity or quality of business to be considered regular. The hauling of 86 loads over the course of five years is far more incidental than essential to the totality of the Page Defendants’ business.
As previously stated, the Page Defendants are New York corporations with a registered office in Harrisburg, Pennsylvania.
The Page Defendants do not have any physical locations in Philadelphia County. The only “physical location” the Page Defendants own in Pennsylvania is a “dispatch office” in Beaver County. Furthermore, the underlying accident in this matter happened in Clarence, New York. At the time of the accident, neither the Plaintiffs nor any of the Defendants were driving to or from Philadelphia County. The Plaintiffs reside in Batavia, New York and Corfu, New York, respectively. The Plaintiffs received no medical treatment in Philadelphia County. The Plaintiffs do not work in Philadelphia County. Plaintiffs do not own, lease, or rent any property in Philadelphia County. The Plaintiffs do not have any immediate relatives who live in Philadelphia County. The only connection any party in the instant matter has to Philadelphia County is the infinitesimal percentage, .0167%, of loads that either were delivered, originated or billed to an address in Philadelphia County by the Page Defendants in the past five years.
Trial Court Opinion, 5/19/21, at 5-8 (citations, footnotes, and unnecessary capitalization omitted).

Examination of our decision in Hangey, which involved the same trial court and similar evidence, is helpful to our review of the trial court’s determination in the case sub judice. In Hangey, the plaintiffs sued a number of defendants in Philadelphia County alleging liability for a personal injury suffered in 2016 in connection with a lawn mower purchased and used in Bucks County. The only basis for venue in Philadelphia County was that the defendant HPP regularly conducted business there pursuant to Rule Pa.R.C.P. 2179(a). Discovery revealed that HPP “had approximately $1.4 billion in sales revenue in the United States, of which $75,310.00 came from direct sales in Philadelphia County.” Hangey, supra at 1139 (cleaned up).
Of the $75,000 in sales made in Philadelphia in 2016, roughly $69,700 came from a single [HPP] authorized dealer, DL Electronics, Inc. Approximately 0.005% of HPP’s 2016 United States sales revenue resulted from direct sales in Philadelphia County. Sales data from 2014 and 2015 is substantially similar, with approximately 0.005% of [HPP]’s annual United States sale revenue resulting from direct sales within Philadelphia County.
Id. (cleaned up). The trial court held that venue was improper because, although HPP’s contacts with Philadelphia County were of sufficient quality, they did not satisfy the quantity prong of the test. “The court reasoned that only 0.005% of HPP’s national revenue came from sales in Philadelphia and concluded that because this amount was ‘de minimis,’ HPP’s contact with Philadelphia was not general and habitual.” Id. at 1140.

In considering the challenge to the trial court’s decision, we examined the significance of the percentage of a company’s business conducted in the county at issue. Specifically, we explained:
The percentage of a company’s overall business that it conducts in a given county, standing alone, is not meaningful and is not determinative of the “quantity” prong. Each case turns on its own facts, and we must evaluate evidence of the extent of a defendant’s business against the nature of the business at issue. A small or local business may do all of its work in just a few counties or even a single one, while a large business may span the entire nation. Indeed, the percentage of sales a multi-billion-dollar company makes in a particular county will almost always be a tiny percentage of its total sales. Courts thus should not consider percentages in isolation. Rather, courts must consider all of the evidence in context to determine whether the defendant’s business activities in the county were regular, continuous, and habitual.
Id. at 1142.

Applying that standard to the facts before it, this Court reversed. We held that “the trial court erred in relying almost exclusively on evidence of the percentage of defendant’s business that occurred in Philadelphia when addressing the quantity prong” of the regularly-conducts-business analysis. Id. at 1143. We further ruled that HPP’s “contacts with Philadelphia—including having an authorized dealer in Philadelphia, and selling $75,310 worth of products through that dealer in 2016 in Philadelphia—were ‘sufficiently continuous so as to be considered habitual.’ ” Id.

In the instant appeal, Plaintiffs assert that the trial court again erred in relying solely on the percentage of the Page Defendants’ overall loads that were connected to Philadelphia County. Plaintiffs contend that the amount of business conducted in Philadelphia County was “enough to make venue appropriate.” Plaintiffs’ brief at 21. Plaintiffs argue that this Court has decided that relevant contacts constituting a small percentage of sales is determinative only where the defendants were small or local companies. Id. at 21-22. By contrast:
By Mr. Jorolemon’s own admission, the Page [Defendants] are a multinational company operating in both the United States and Canada. According to Mr. Jorolemon, the company has dispatch offices in Ohio, Michigan, Indiana, Kentucky, North Carolina, Kansas, New Jersey, and Pennsylvania. While [Defendants] contend that 0.0167% of its loads had a connection to Philadelphia County, [they] wholly fail to quantify the actual business they conduct within Philadelphia. Mr. Jorolemon testified that the Page [Defendants] had ten customers in Philadelphia County from 2016-2020, and multiple loads had been delivered to some of the customers throughout the five-year period. Conveniently, Mr. Jorolemon was unable to confirm the number and frequency of repeat customers requiring multiple loads to be delivered to Philadelphia. Moreover, it is strange that the Page [Defendants] have offices located in New Jersey, less than sixty miles from Philadelphia, yet contend that they do not have the requisite contact with Philadelphia for venue purposes. As such, because [the Page Defendants] have the requisite contact with Philadelphia County, the trial court erred in sustaining their Preliminary Objection.
Id. at 22-23 (citations omitted).

At first blush, it appears that there may be merit to Plaintiffs’ argument that, in the instant action, the trial court again focused too narrowly upon the percentage of the respective defendant’s overall business conducted in Philadelphia. As Hangey explained, in analyzing the quantity prong of the test, the number of contacts with Philadelphia County is to be considered from the perspective of the county rather than solely from that of the business. While a percentage of sales in a county may be miniscule viz-a-viz the company’s overall sales, they may nonetheless amount to systematic, continuous, and habitual, and therefore “regular,” business in the county.

However, looking at the specific facts of the instant case, we conclude that the trial court’s ruling is a reasonable one. Most significantly, and in contrast to the defendant in Hangey, none of Defendants here has any office or authorized dealer in Philadelphia County. Such a relationship suggests a continuous, habitual connection with a county that is simply not present in this case. The trial court acted reasonably here in determining that, despite Plaintiffs’ speculation about the strangeness and convenience in the testimony, the mere occasional delivery or pickup of a load in Philadelphia County did not rise to the level of continuous, habitual contact.

Furthermore, while the trial court in Hangey held that the defendant’s contacts in that case were indeed of the requisite quality to impart venue, here the trial court ruled that none of Defendants had such quality contacts. Plaintiffs present us with no challenge to the trial court’s quality assessment, nor authority and argument to suggest that the quantity of contacts here is such that venue is proper in the absence of quality contacts.

Accordingly, Plaintiff has failed to establish that the trial court abused its discretion in sustaining Defendants’ preliminary objections raising improper venue on the basis that none of them regularly conducted business in Philadelphia County. Therefore, we affirm the trial court’s February 10, 2021 order sustaining the venue objection and transferring the action to Dauphin County.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Judge Nichols and Judge McLaughlin concur in the result.
All Citations
Slip Copy, 2021 WL 5408725 (Table)

Footnotes

1
Named defendant Upper Canada Stone Company, LTD, was dismissed from the action upon stipulation of the parties.

2
With exceptions not pertinent here, where joint and severable liability is sought against two or more defendants, as is the case in the instant action, the action “may be brought against all defendants in any county in which the venue may be laid against any one of the defendants[.]” Pa.R.C.P. 1006(c)(1).

2021 WL 5356791

United States District Court, E.D. Pennsylvania.
ESTATE OF Abdelrazig KHALIL BY Kamal MOHAMEDALI Administrator, Plaintiff,
v.
Rustam MURSALOV, et al., Defendants.
CIVIL ACTION NO. 21-1888
|
Filed 11/17/2021
Attorneys and Law Firms
John N. Zervanos, Drew P. Von Bargen, Soloff & Zervanos, P.C., Philadelphia, PA, for Plaintiff.
Albert J. Brooks, Jr., Moore Pacaro & Brooks, LLC, Andrew P. Moore, Andrew Moore & Associates, LLC, Abington, PA, for Defendants.

MEMORANDUM
Anita B. Brody, District Judge
*1 Abdelrazig Khalil was standing on the side of the highway when he was struck and killed by a passing vehicle. Khalil was a passenger in a semi-trailer truck driven by Defendant Rustam Mursalov and owned by Defendant Eastern Express, Inc. Mursalov had pulled the truck over onto the side of the highway because the cargo load had been improperly secured for transport. Khalil was standing next to the truck when he was killed.

Plaintiff Kamal Mohamedali, in his capacity as the administrator of the Estate of Abdelrazig Khalil (the “Estate”), brings state law claims against Defendants for the death of Khalil, pursuant to Pennsylvania’s wrongful death and survival statutes, 42 Pa. Stat. and Cons. Stat. Ann. §§ 8301-02. Although the Estate commenced this action in the Philadelphia Court of Common Pleas, Defendants removed this action to federal court on the basis of diversity jurisdiction under 28 U.S.C. § 1332.1

Federal district courts have diversity jurisdiction over civil actions where the amount in controversy “exceeds the sum or value of $75,000” and is between “citizens of different States.” 28 U.S.C. 1332(a)(1). “If a party is deceased, ‘the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent.’ ” McCann v. Newman Irrevocable Tr., 458 F.3d 281, 286 (3d Cir. 2006) (quoting 28 U.S.C. § 1332(c)(2)). The Estate contends that diversity jurisdiction does not exist and moves to remand this action to the Philadelphia Court of Common Pleas.2 The Estate argues that the Court lacks diversity jurisdiction because the parties are not citizens of different states. Although the parties agree that Defendants are citizens of Pennsylvania, the Estate argues that Khalil, the decedent, was also a citizen of Pennsylvania. In contrast, Defendants argue that completely diversity exists because Khalil was a citizen of North Carolina.

On November 9, 2021, the Court held an evidentiary hearing. Based on the findings of fact from the evidentiary hearing, I conclude that Khalil was a citizen of North Carolina. Therefore, I will deny the Estate’s motion to remand for lack of jurisdiction.

I. FINDINGS OF FACT
On November 21, 2021, the Court held an evidentiary hearing to determine whether Khalil was a citizen of North Carolina or Pennsylvania. After reviewing the evidence submitted for the hearing, I make the following findings of fact:

For at least a decade, Khalil lived and worked in North Carolina. Mohamed Idress Dep. 29:3-5, 45:4-6; Ex. D-4 at 3. During that time, Khalil obtained a North Carolina driver’s license and registered to vote in North Carolina. Ex. D-2 ¶3; Ex. D-3.

*2 In 2018, Khalil moved to Philadelphia to get his commercial driver’s license (“CDL”) because he wanted to “drive trucks around the nation.” Idress Dep. 7:21-8:7, 16:17-20. For a short period of time, Khalil lived in Philadelphia with his friend, Abbel Azziz Yagab. P-1 ¶¶ 4-5. Khalil then moved to a house owned by Mohamed Idress located on Nesper Street in Philadelphia. Idress Dep. 9:2-4.

Khalil lived in a bedroom in the basement of the Nesper Street house that also had a little kitchen and bathroom. Idress Dep. 31:3-22. Idress used the remainder of the basement as an office, and he rented the upper floor of the Nesper Street house to someone else. Idress Dep. 31:3-22. Khalil never paid rent and he did not contribute to any of the bills for utilities or cable during the time he lived at the Nesper Street house. Idress Dep. 50:7-51:9. Khalil kept clothes and toiletries at the Nesper Street house, but he did not keep any personal belongings there, like photographs. Idress Dep. 60:13-16. Khalil never received any mail at the Nesper Street house.

Khalil lived at the Nesper Street house for approximately six months. Idress Dep. 9:20-25. During that time period, he travelled to North Carolina five or six times. Idress Dep. 10:10-15. He typically stayed in North Carolina for two days but on one occasion, he stayed there for a week. Idress Dep. 10:16-19. During his week-long stay, Khalil renewed his North Carolina driver’s license. Idress Dep. 10:18-11:1, 48:11-16.

While in Philadelphia, Khalil worked to obtain his CDL and began employment in Pennsylvania as a national truck driver. Idress Dep. 12:4-10; Ex. P-2 ¶ 3; Ex. P-5. When Khalil applied for employment as a truck driver for DZ Transport LLC, he listed the Nesper Street house as his address on his employment application and the accompanying IRS Form W-9. Ex. P-3; Ex. D-4 at 2. He also listed that he had a North Carolina driver’s license. Ex. D-4 at 3.

Khalil lived in Pennsylvania for approximately six to seven months.3 During the time he lived in Pennsylvania, Khalil never registered to vote in Pennsylvania and he never changed his driver’s license from North Carolina to Pennsylvania. Ex. D-2 ¶¶ 2-4. Although he owned a car, it was not registered in Pennsylvania. Idress Dep. 48:6-8; Ex. D-2 ¶ 13. Khalil had no form of identification that listed him as a Pennsylvania resident. Ex. D-2 ¶ 9.

On April 19, 2019, Khalil was standing on the side of a highway when he was struck and killed by a passing vehicle. At the time of his death, Khalil’s belongings were located in Pennsylvania, North Carolina, and the truck he was in on the day of his death. Idress Dep. 41:10-13, 57:25-58:20. On his death certificate, Khalil was listed as a resident of North Carolina. Ex. D-5. Khalil was buried in North Carolina and his estate was administered in North Carolina. Ex. D-1; Ex. D-5.

II. CONCLUSIONS OF LAW
The parties agree that Defendants are citizens of Pennsylvania. Defendants removed this case to federal court on the basis of diversity jurisdiction, arguing that the parties are diverse because North Carolina was Khalil’s domicile. The Estate moves to remand this case for lack of jurisdiction because it contends that Pennsylvania was Khalil’s domicile.

*3 The party invoking diversity jurisdiction bears the burden of proof. Washington v. Hovensa LLC, 652 F.3d 340, 345 (3d Cir. 2011). A party meets this burden by proving diversity of citizenship between the parties by a preponderance of the evidence. McCann, 458 F.3d at 290.

“Citizenship is synonymous with domicile, and ‘the domicile of an individual is his true, fixed and permanent home and place of habitation. It is the place to which, whenever he is absent, he has the intention of returning.’ ” McCann, 458 F.3d at 286 (quoting Vlandis v. Kline, 412 U.S. 441, 454 (1973)). “[D]omicile is established by an objective physical presence in the state or territory coupled with a subjective intention to remain there indefinitely.” Washington, 652 F.3d at 344. When determining a person’s domicile, a court considers factors, including declarations, place of employment, exercise of political rights, payment of personal taxes, house of residence, place of business, location of brokerage and bank accounts, location of spouse and family, membership in unions and other organizations, and driver’s license and vehicle registration. McCann, 458 F.3d at 286. “More generally, the court must locate ‘the center of one’s business, domestic, social and civic life.’ ” Washington, 652 F.3d at 344 (quoting Frett-Smith v. Vanterpool, 511 F.3d 396, 401 (3d Cir. 2008)).

An individual’s domicile changes immediately when the individual takes residence at the new domicile and intends to remain there. McCann, 458 F.3d at 286. “But ‘[a] domicile once acquired is presumed to continue until it is shown to have been changed.’ ” Id. (quoting Mitchell v. United States, 88 U.S. 350, 353 (1874)). Thus, there exists “a presumption favoring an established domicile over a new one.” Id. at 286-87. “The party claiming a new domicile bears the initial burden of producing sufficient evidence to rebut the presumption in favor of the established domicile.” Id. at 288. “This presumption does not shift the burden of proof to establish diversity of citizenship away from the proponent of federal jurisdiction….” Washington, 652 F.3d at 345. “Accordingly, the presumption’s only effect is to require the party asserting a change in domicile to produce enough evidence substantiating a change to withstand a motion for summary judgment or judgment as a matter of law on the issue.” McCann, 458 F.3d at 288. “If the party does so, the presumption disappears, the case goes forward, and the party asserting jurisdiction bears the burden of proving diversity of citizenship.” Id.

Khalil lived in North Carolina for at least a decade. He then lived in Pennsylvania for six or seven months before his death. Both parties agree that there exists a presumption favoring Khalil’s established domicile—North Carolina—over a new one. The Estate seeks to overcome this presumption and contends that Khalil changed his domicile from North Carolina to Pennsylvania. Because the Estate claims that Khalil changed his domicile, it bears the initial burden to produce sufficient evidence to overcome the presumption that Khalil remained domiciled in North Carolina. If the Estate overcomes its initial burden, the presumption disappears and Defendants, who are asserting jurisdiction, bear the burden of proving by a preponderance of evidence that Khalil’s domicile was North Carolina.

*4 The Estate is unable to overcome the presumption in favor of Khalil’s established domicile—North Carolina. Moreover, even if the Estate could overcome its initial burden of production, Defendants have established by a preponderance of the evidence that Khalil’s domicile was North Carolina.

The Estate has produced meager evidence to show that Khalil intended to remain indefinitely in Pennsylvania. To establish that Khalil intended to remain in Pennsylvania indefinitely, the Estate highlights that Khalil lived in Pennsylvania for six to seven months; he began employment in Pennsylvania; and he listed a Pennsylvania address on both his application for employment and the accompanying IRS Form W-9. These facts are insufficient to rebut the presumption that North Carolina remained Khalil’s domicile.

The evidence establishes that Khalil moved to Pennsylvania to obtain his CDL in order to work as a national truck driver. That Khalil worked for Pennsylvania trucking company, has little bearing on whether Khalil intended to remain in Pennsylvania given that Khalil’s job as a truck driver required extensive and frequent travel outside of the state. Moreover, Khalil’s use of a Pennsylvania address on his employment application and IRS Form W-9 only reflect that Khalil was living at the Nesper Street house when he filled out the paperwork. It does not reflect that Khalil intended to remain indefinitely in Pennsylvania. If anything, the paperwork might convey that Khalil intended to remain domiciled in North Carolina, as he indicated on his application that he had a North Carolina driver’s license.

Lastly, the six or seven months that Khalil lived in Philadelphia are not proof that he intended to remain indefinitely in Pennsylvania. During the six months that Khalil lived at the Nesper Street house, he did not pay rent or utilities, he received no mail, and he kept no personal belongings in his basement room. While living at the Nesper Street house, Khalil returned to North Carolina five or six times and stayed for at least two days each time. On one occasion he stayed in North Carolina for a week and renewed his North Carolina driver’s license. Although Khalil was registered to vote and obtained his driver’s license in North Carolina, he never registered to vote in Pennsylvania, never registered his car in Pennsylvania, and never sought to obtain a Pennsylvania driver’s license. Khalil also never moved all of his belongings to Pennsylvania.

At the time of his death, Khalil did not have a single form of identification that listed him as a Pennsylvania resident. Despite the fact that Khalil was living in Pennsylvania, his death certificate listed him as a North Carolina resident and his body was buried in North Carolina. Additionally, his estate was administered in North Carolina.

Even if the Estate could overcome the presumption that Khalil remained domiciled in North Carolina, Defendants have established by a preponderance of the evidence that Khalil’s domicile was North Carolina.

Because Defendants are citizens of Pennsylvania and Khalil was a citizen of North Carolina, I exercise diversity jurisdiction over this action. Therefore, I will deny the Estate’s motion to remand for lack of jurisdiction.

All Citations
Slip Copy, 2021 WL 5356791

Footnotes

1
Defendants removed this action pursuant to 28 U.S.C. § 1441. A defendant can remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a).

2
The Estate moves to remand pursuant to 28 U.S.C. § 1447(c), which provides: “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).

3
The evidence does not state the exact amount of time that Khalil lived in Pennsylvania. Plaintiff’s counsel, however, conceded at the hearing that Khalil lived in Pennsylvania for only six or seven months.