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Venue Against a Corporation Cannot Be Based Upon Incidental Advertising

In Kisak v. Wheeling Park Comm'n, 898 A.2d 1083 (Pa. Super. 2006), a husband and wife, residents of Pennsylvania, were playing miniature golf in West Virginia when the wife fell and sustained an injury. The miniature golf park was owned by the Wheeling Park Commission which is a political subdivision of the City of Wheeling, West Virginia which is a public corporation. Suit was filed in Allegheny County, Pennsylvania. The corporation filed preliminary objections claiming improper venue and alleged that it neither owned property nor conducted any business within Allegheny County. The trial court agreed and dismissed the action and an appeal followed.

In the appeal, the plaintiffs argued that the corporation regularly conducted business in Allegheny County by way of advertising and produced a chart indicating that most of the corporations advertising was in the Pittsburgh, Allegheny County, Pennsylvania area.

The Superior Court disagreed. It stated to determine if business contacts amount to regularly conducting business for purposes of establishing venue, it will continue to apply the "quality" and "quantity" test as set forth by the Pennsylvania Supreme Court in Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 579 A.2d 1282, 1284 (1990). It held that that the advertising done by the corporation is incidental to and not essential to the corporations operation of its park.

The trial court sustained the preliminary objections and dismissed the complaint based on lack of venue. On appeal, the claimant and husband asserted that the trial court erred because the foreign state park commission advertised through radio stations, television stations, newspapers, and billboards in the forum county. The appellate court found that such advertising activity was not a sufficient basis on which to conclude that the foreign state park commission regularly conducted business in the forum county and that since transfer to another county in the state was not possible, the case had to be dismissed.

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