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STEVEN L. CHUNG, ESQUIRE, LLC MAJOR NON JURY
Steven L. Chung, Esquire
John Aitchison, Esquire
Identification No 78834 /
1515 Market Street, Suit
Philadelphia, PA 19102 Attorney for Plainti
(215)688
DENNIS ZAVALA COURT OF COMMON PLEAS
2021 Arthur Stre PHILADELPHIA COUNTY
Philadelphia, PA 19152
Plaintiff,
MOLDING DISCIPLES MINISTRIES
211 Brookhaven Roa
Rose Valley, PA 19086
and
CC MALONEY LANDSCAPING SERVICE
950 W. Ridge Road
Ste. C22
Claymont, DE 19703
and
JOHN DOE
Defendan
CIVIL ACTION COMPLAINT
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(215 238 1701 Ph ad lph PA 19107
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STEVEN L. CHUNG, ESQUIRE, LLC MAJOR NON JURY
Steven L. Chung, Esquire
John Aitchison, Esquire
Identification Nos. 78834 / 208528
1515 Market Street, Suite 910
Philadelphia, PA 19102 Attorneys for Plainti
(215)688
DENNIS ZAVALA COURT OF COMMON PLEAS
2021 Arthur Stre PHILADELPHIA COUNTY
Philadelphia, PA 19152
Plaintiff,
MOLDING DISCIPLES MINISTRIES
211 Brookhaven Road
Rose Valley, PA 19086
and
CC MALONEY LANDSCAPING SERVICES
950 W. Ridge Road
Ste. C22
Claymont, DE 19703
and
JOHN DOE
Defendan
COMPLAINT
Plaintiff Dennis Zavala an adult individual residing at Arthur Street,
Philadelphia, Pennsylvania
Upon information and belief, Defendant Molding Disciples Ministrie einafter
“De endant Molding Discipl ”) nonprofit corporation address of 211 Brookhaven
Road Rose Valley ennsylvania
Upon information and belief, De endant CC Maloney Landscaping Services
(hereinafter “De endant CC Maloney”) is business entity with an address of 950 W. Ridge Road
Suite C22, Claymont, Delaware
Upon information and belief, at all times materia hereto, D endant CC Maloney
maintained, managed, supervised, inspected, possessed, controlled, and was responsible for
and removal emediation th parking lot and exterior walkways and grounds at or
about 211 Brookhaven R d, Rose Valley, Pennsylvania
Defendant John Doe is a currently unknown individual and/or business entity that
at all times material hereto, owned, operated, maintained, managed, supervised, inspected,
possessed controlled, and/or was responsible for snow and ic emoval/remediation 211
Brookhaven Road, Rose Valley, Pennsylvania
Pursuant to Pennsylvania Rule of Civil Procedure 2005, Defendant John Doe is
currently unidentified, fictitious Defendant with th added Doe designated to this ction where the
Defendant’s actual name/identity is unknown despite a re able and diligent sea ch.
reasonable and diligent search was conducted to determine the ctual
name/identity of D endant John Doe
ction and venu are prop in the Court of Common Pleas of Philadelphi
County, Commonwealth of Pennsylvania, in , upon information and belief, Defendant Molding
Discipl , Defendant CC Maloney, and De endant John Doe (coll ctively “Defendants”) regularly
conduct business, and can be served with original process in, Philadelphi County
Upon information and beli at all times material he eto, De endant either
individually, jointly, and/or seve ally, owned, opera ed, maintained, managed, supervised,
inspected, possessed, controlled and/or were responsible for snow and ic removal/remediation,
in whole or in pa the grounds, building, and premises located at or about 211 Brookhaven
Road, Rose Valley, Pennsylvania, spe ifically the parking lot and exterior walkways and grounds
(hereinafter “the premise ”).
all times material hereto, existed dangerous and ha ardous condition
emises in the nature of ic and/or snow on the ground
all times material hereto, De endants, either individually, jointly, and/or
severally, had duty to maintain the premise and to ensure said premises was safe and did not
pose a ha ard to business invitees such as Plainti
all times material hereto, De endants, either individually, jointly, and/or
severally, had duty to identify, remove, and/or remedy dangerous and ha ardous conditions
ated on the premises.
all times material hereto, De endants, either individually, jointly, and/or
severally cted and/or ailed to ct by and through their respective agents, servants, workmen, and
employees, who were at all times cting within the course and scope of their agency, servi e, and/or
employment.
On or about ebruary 2 , 202 Plaintiff Dennis Zavala as an invitee, li ense
and/or otherwise egally present on emises when he was aused to slip and fall on dangerous
and/or ha ardous condition in the nature and/or snow on the ground of the premises, ausing
to sustain severe and permanent injuries to h body.
Upon information and belief, efendan either individually, jointly and/or
severally, knew or should have known that the are whe ff injured was an are
regularly aversed by Plaintiff and/or other invitees, li ensees, and persons, and that said are was
unsafe to traverse
Defendant , either individually, jointly, and/or severally had actual or constructive
e of the dangerous condition on the premises.
Defendant vicariously liable for the ctions of agent , servant , workm
and/or employe , who were at all times cting within the course and scope of their agency, servic
and/or employment.
COUNT I NEGLIGENCE
DENNIS ZAVALA v. DEFENDANT MOLDING DISCIPLES
Plaintiff incorporates he ein by referen the allegations contained in the above
paragraphs as though the same w e he ein set forth at
afore ident was aused as ct and proximate result of the
are essness and negligence of efendant Molding Discipl and consisted of the following:
failing to ensure that the premise was safe for business invit es such as Plaintiff:
creating and/or allowing to exist the afor aid dangerous and ha ardous condition;
ausing or permitting the conc alment of the dangerous and ha ardous condition;
failing to remove the dangerous and ha ardous condition;
failing to warn ff of the said dangerous or h ardous condition in the nature
ice and/or snow on the ground
failing to properly and adequately maintain, repair and inspe emise
failing to exercise due care
failing to protect the rights and safety of by permitting the dangerous
condition to exist
creating, permitting and allowing to exist a forese able risk of harm to ff;
creating, permitting and allowing to exist a forese able risk of harm to Plaintiff;
failing to protect the sa ety of siness invit as it relates to the above
cts of negligen e; and
failing to properly perform its statutory, common law and ordinance duties as it
relates to the above acts of negligenc
As a direct and proximate result of the aforesaid negligence of Defendant Molding
Discipl ennis Zavala suf ered severe and permanent injuries to h which
include, but are not limited to his neck, back, and left wrist
As a direct and proximate result of the aforesaid negligence of Defendant Molding
Discipl , Plaintiff Dennis Zavala suffered internal injuries of an unknown nature, suf ered sev
ches, pains, mental anguish, and severe shock to the entire nervous sys em and other injuries
the full extent of which is not yet known.
As a direct and proximate result of the aforesaid negligence of Defendant Molding
Discipl ff ennis Zavala ained an aggravation and ex rbation of injurie both
nd unknown. has in the past and will in the futur undergo severe pain and suf ering
as esult of which he has been in the past and will in the futur be unable to attend to h
es and a airs, all to h at financ al detriment and loss.
As a direct and proximate result of the aforesaid negligence of Defendant Molding
Discipl ff Dennis Zavala as been compelled in order to ffectuate cur for the afor aid
injuries, to expend large sums of money for medicine and medical ention and may be required
to expend additional sums for the same purpose in the future
As a direct and proximate result of the aforesaid negligence of Defendant Molding
Discipl ff Dennis Zavala has been prevented from attending to h usual daily ctivities
and duties and may b so prevented for an indefinit period of time in the future, all to h
detriment and loss.
As a direct and proximate result of the aforesaid negligence of fendant Molding
Discipl , P ff Dennis Zavala has suffered physical pain and mental anguish and humiliation
and may continue to su er the same for an indefinite period of time in the future
As a direct and proximate result of the aforesa egligence of Defendant Molding
Discipl , P Dennis Zavala has incur ed in the past and will continue to incur in the futur
additional financial expenses or losses which he is entitled to recove
As a direct and proximate result of the aforesaid negligence of efendant Molding
Discipl , Plainti Dennis Zavala has suffered los wages.
WHEREFORE, Dennis Zavala emands judgment in h favor and against
Defendant Molding Discipl sum in excess of Fifty Thousand Dollars ($50,000) plus costs,
delay damages, pre and post judgment interest, attorney fees, and all other elief provided by law
COUNT II NEGLIGENCE
PLAINTIFF DENNIS ZAVALA v. DEFENDANT CC MALONEY
Plaintiff incorporates he ein by referen the allegations contained in the above
paragraphs as though the same w e he ein set forth at length.
aforementioned ident was aused as dir ct and proximate result of the
are essness and negligence of Defendant CC Maloney and consisted of the following:
failing to ensure that the premise was safe for business invit es such as Plaintiff:
creating and/or allowing to exist the afor aid dangerous and ha ardous condition;
ausing or permitting the conc alment of the dangerous and ha ardous condition;
failing to remove the dangerous and ha ardous condition;
failing to warn ff of the said dangerous or h ardous condition in the nature
e and/or snow on the ground
failing to properly and adequately maintain, repair and inspe emise
failing to exercise due care
failing to protect the rights and safety of by permitting the dangerous
condition to exist
creating, permitting and allowing to exist a forese able risk of harm to ff;
cre ting, permitting and allowing to exist a forese able risk of harm to Plaintiff;
failing to protect the sa ety of business invit as it relates to the above
cts of negligen e; and
failing to properly perform its statutory, common law and ordinance duti as it
relates to the above acts of negligenc
direct and proximate result of the aforesaid negligenc of Defendant
Maloney, P Dennis Zavala has suffered evere and permanent injuries to h which
include, but are not limited his neck, back, and left wrist
direct and proximate result of the aforesaid negligenc of Defendant
Maloney, Plaintiff Dennis Zavala suffered interna injuries of an unknown nature, suf ered severe
ches, pains, mental anguish, and severe shock to the entire nervous system and other injuries
the full extent of which is not yet known.
dir ct and proximate result of the aforesaid negligenc of Defendant
Maloney, Plaintiff Dennis Zavala sustained an aggravation and exa erbation of injuries both
and unknown. He has in the past and will in the futur undergo severe pain and suf ering
as esult of which he has been in the past and will in the futur be unable to attend to his usua
es and a airs, all to his great financ al detriment and loss.
direct and proximate result of the aforesaid negligenc of Defendant
Maloney, Plaintiff Dennis Zavala has been compelled in order to ffectuate cure for the aforesaid
injuries, to expend large sums of money for medicine and medical attention and may be required
to expend additional sums for the same purpose in the future
direct and proximate result of the aforesaid negligenc of Defendant
Maloney, Plaintiff Dennis Zavala ha been prevented from attending to his usual daily ctivities
and duties and may b so prevented for an indefinit period of time in the futur all to his gr
detriment and loss.
direct and proximate result of the aforesaid negligenc of Defendant
Maloney, Plaintiff Dennis Zavala has suffe ed physical pain and mental anguish and humiliation
and may continue to su er the same for an indefinite period of time in the future
direct and proximate result of the aforesa d negligenc of Defendant
Maloney, P Dennis Zavala as incurred in the past and will continu to incur in the futur
additional financial expenses or losses which he is entitled to recove
direct and proximate result of the aforesaid negligenc of efendant
Maloney, Plainti Dennis Zavala has suffered los wages.
WHEREFORE, Dennis Zavala demands judgment in h favor and against
Defendant CC Maloney sum in excess of Fifty Thousand Dollars ($50,000) plus costs, delay
damages, pre and post judgment interest, attorney fees, and all other relief provided by law
COUNT I NEGLIGENCE
PLAINTIFF DENNIS ZAVALA v. DEFENDANT JOHN DOE
Plaintiff incorporates he ein by referen the allegations contained in the above
paragraphs as though the same w e he ein set forth at length.
aforementioned ident was aused as dir ct an proximate result of the
are essness and negligence of Defendant John Doe and consisted of the following:
failing to ensure that the premise was safe for business invit es such as Plaintiff:
creating and/or allowing to exist the afor aid dangerous and ardous condition;
ausing or permitting the conc alment of the dangerous and ha ardous condition;
failing to remove the dangerous and ha ardous condition;
failing to warn ff of the said dangerous or h ardous condition in the nature
e and/or snow on the ground
failing to properly and adequately maintain, repair and inspe emise
failing to exercise due care
failing to protect the rights and safety of by permitting the dangerous
condition to exist
creating, permitting and allowing to exist a forese able risk of harm to ff;
creating, permitting and allowing to exist a forese able risk of harm to Plaintiff;
failing to protect the sa ety of business invit as it relates to the above
cts of negligen and
failing to properly perform its statutory, common law and ordinance duties as it
relates to the above acts of negligenc
direct and proximate result of the aforesaid negligenc of Defendant John Doe
Dennis Zavala as suffered severe and permanent injuries to h body which include, but
are not limited to his neck, back, and left wrist
direct and proximate result of the aforesaid negligenc of Defendant John Doe
Plaintiff Dennis Zavala suffe ed internal injurie of an unknown nature, suffe ed severe ches,
pains, mental anguish, and severe shock to the entire nervous system and other injuries the full
extent of which is not yet known.
direct and p ate result of the aforesaid negligenc of Defendant John Doe
Plaintiff Dennis Zavala sustained an aggravation and ex erbation of injuries both known and
He has in the past and will in the futur undergo eve pain and suffering as result
which he has b en in the past and will in the future be unable to attend to his usual duties and
airs, all to his great financial detriment and loss.
direct and proximate result of the aforesaid negligenc of Defendant John Doe
Plaintiff Dennis Zavala has been compelled in order to effectuate a cure for the aforesaid injuries,
expend larg sums of money for medicin and medical attention and may be required to expend
additional sums for the same purpose in the future
direct nd proximate result of the aforesaid negligenc of Defendant John Doe
Plaintiff Dennis Zavala has been prevented from attending to his usual daily ctivities and duti
and may be so prevented for an indefinite period of time in the future, all to his great detriment
and loss.
direct and proximate result of the aforesaid negligenc of Defendant John Doe
Plaintiff Dennis Zava has suf ered physi al pain and mental anguish and humiliation and may
continue to suffer the same for an indefinite period of time in the futur
direct and proximate result of the aforesa d negligenc of Defendant John Doe
Dennis Zavala has incurred in the past and will continue to incur in the futur additional
financial expenses or losses which he is entitled to recove
direct and proximate result of the aforesaid negligenc of efendant John Doe
Plainti Dennis Zavala as suffered los wages.
WHEREFORE, Dennis Zavala demands judgment in h favor and against
Defendant John Doe sum in excess of Fifty Thousand Dollars ($50,000) plus costs, delay
damages, pre and post judgment interest, attorney fees, and all other relief provided by law
STEVEN L. CHUNG, ESQUIRE, LLC
BY
JOHN AITCHISON, ESQUIRE
Attorney for Plainti
BY /s/ Steven L. Chung
STEVEN L. CHUNG, ESQUIRE
Attorney for Plainti
§ 4904,
I certify of the
I hereby certify that I have served a copy of this paper upon all
other parties or their attorneys by:
regular mail
certified mail
other Mail
BY: /s/ Ryan C. Smith
Ryan C. Smith Attorney for Defendant,
rsmith@margolisedelstein.com Moldin isciples Ministries
Identification No. 318891
MARGOLIS EDELSTEIN
The Curtis Center
170 S. Independence Mall W., Suite 400E
Philadelphia, PA 19106
DENNIS ZAVALA COURT OF COMMON PLEAS
PHILADELPHIA COUNTY
LDING DISCIPLES MINISTRIES, NO.
CC MALONEY LANDSCAPING
SERVICES and JOHN DOE
ENTRY OF APPEARANCE
AND JURY TRIAL DEMAND (PERFECTED)
TO THE PROTHONOTARY:
Please enter appearance on behalf of the Defendant, Molding Disciples Mini
in the above captioned case.
Defendant, Molding Disciples Ministries, demands and perfects a jury trial in the
above case. Jury of 12 plus alternates demanded.
MARGOLIS EDELSTEIN
/s/ Ryan C. Smith
BY:
RYAN C. SMITH, ESQUIRE
Attorney for Defendant,
ding Disciples Ministries
DENNIS ZAVALA COURT OF COMMON PLEAS
PHILADELPHIA COUNTY
MOLDING DISCIPLES MINISTRIES, C
MALONEY LANDSCAPING SERVICES,
and JOHN DOE
AND NOW, this ________ day of ________________, 202 , upon consideration of the
Preliminary Objections of Molding Disciples Ministries and any response thereto, it is hereby
that said objection to venue is SUSTAINED and this ma ter shall be transferred to
the Court of Common Pleas of Delaware County with all costs of transfer to be borne by Plaintiff
pursuant to Pa. R. C. P. 1006(e).
BY THE COURT:
MARGOLIS EDELSTEIN
Ryan C Smith, Esquire
I.D. No.: 3
rsmith@margolisedelstein.com
The Curtis Center Suite 400E
170 S. Independence Mall W.
Philadelphia, PA
Phone:
DENNIS ZAVALA COURT OF COMMON PLEAS
PHILADELPHIA COUNTY
MOLDING DISCIPLES MINISTRIES, C
MALONEY LANDSCAPING SERVICES,
and JOHN DOE
PRELIMINARY OBJECTIONS OF DEFENDANT MOLDING DISCIPLES
MINISTRIES TO PLAINTIFF’S COMPLAINT
Defendant Molding Disciples Ministries (hereinaf er moving Defendant”) by and through
counsel, Margolis Edelstein, hereby preliminar y object to Plaintiff s Complaint, and in
support thereof aver the following:
Plaintiff filed a Complaint in this matter on December . A true and correct of copy
aintiff Complaint is attached hereto as Exhibit A
The slip and fall incident which is the subject of Plaintiff Complaint allegedly occurred
on or about moving Defendant property, which is located at 11 W. Brookhaven Road, Rose
Valley, Delaware County, Pennsylvania.
Moving Defendant Molding Disciples Ministries s a Pennsylvania profit business
entity that is located at 211 W. Brookhaven Road, Rose Valley, Delaware County, Pennsylvania
According to Plaintiff s Complaint, CC Maloney Landscaping Services is located in
Claymont, Delaware. See Exhibit
Plaintiff so lists a Defendant in their Complaint, but do not provide any
facts identifying this entity or providing evidence as to how this entity is related to Philadelphia
County.
Moving Defendant is a church located in Rose Valley, Delaware County, Pennsylvania,
that does not regularly conduct business in Philadelphia County.
To the extent Plaintiff alleges in his Complaint that moving Defendant regularly conducts
business in Philadelphia County, Plaintiff has failed to provide any evidence to substantiate t
unsupported and inaccurate assertion.
Any allegation that moving Defendant complete work in Philadelphia County is a legal
conclusion that is expressly denied.
Pursuant to Pennsylvania Rule of Civil Procedure 2179(a), an action against a
corporation or similar entity may be brought in, and only in
(1) county where its registered office or principal place of business 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 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.
In the case at hand, venue is improper in Philadelphia County. nitially, Molding
Disciples Ministries is located in Rose Valley, Delaware County, Pennsylvania.
11. Because moving Defendant is located in Delaware County, their business is conducted in
Delaware County.
12. Furthermore, Plaintiff is alleging a slip and fall on ice at the 211 W. Brookhaven Road,
Rose Valley, Delaware County, Pennsylvania property, so the cause of action arises in Delaware
County.
Similarly, if the slip and fall were viewed as an occurrence, then th occurrence arose in
Delaware County, Pennsylvania.
14. According to Pa. R.C.P. 2179(a), the proper venue for this matter is Delaware C
Pennsylvania.
Therefore, the matter should be transferred to the Court of Common Pleas of Delaware
County.
WHEREFORE moving Defendant respectfully request that this Honorable Court
sustain Preliminary Objections in accordance with the attached Order.
Respectfully submitted,
MARGOLIS EDELSTEIN
/s/ Ryan C. Smith
BY:
RYAN C. SMITH, ESQUIRE
Attorney for Defendant
Molding Disciples Ministries
MARGOLIS EDELSTEIN
Ryan C Smith, Esquire
I.D. No.: 3
rsmith@margolisedelstein.com
The Curtis Center Suite 400E
170 S. Independence Mall W.
Philadelphia, PA
Phone:
DENNIS ZAVALA COURT OF COMMON PLEAS
PHILADELPHIA COUNTY
MOLDING DISCIPLES MINISTRIES, C
MALONEY LANDSCAPING SERVICES,
and JOHN DOE
MEMORANDUM OF LAW IN SUPPORT OF PRELIMINARY OBJECTONS OF
DEFENDANT MOLDING DISCIPLES MINISTRIES
Defendant Molding Disciples Ministries ( moving Defendant , by and through its
counsel, Margolis Edelstein, hereby submit the following Memorandum of Law in support of its
Preliminary Objections to Plaintiff’s Complaint, and in support thereof aver the following:
MATTER BEFORE THE COURT
Defendant hereby preliminar y object to Plaintiff’s Complaint. This matter should be
transferred to the Court of Common Pleas of Delaware County.
QUESTION PRESENTED
Should this matter be transferred to the Court of Common Pleas of Delawar County
when the cause of action arose in Delaware County, moving Defendant has its main business
location in Delaware County, and moving Defendant does not conduct regular business in
Philadelphia County
uggested Answer: Yes.
STATEMENT OF FACTS
matter arises from an alleged slip and fall on ice that occurred at a property located at
211 W. Brookhaven Road in Rose Valley, Delaware County, Pennsylvania. Plaintiff filed a
Complaint in this matter on December 6, 2022. A true and correct of copy of Plaintiff Complaint
is attached hereto as Exhibit oving Defendant Molding Disciples Ministries, is a
Pennsylvania profit business entity that is located at 211 W. Brookhaven Road, Rose Valley,
Delaware County, Pennsylvania According to Plaintiff’s Complaint, CC Maloney Lands aping
Services is located in Claymont, Delaware. See Exhibit ”. Plaintiff so lists a
Defendant in their Complaint but do not provide any facts identifying this entity or providing
evidence as to how this entity is related to Philadelphia County.
Moving Defendant is a church located in Rose Valley, Delaware County, Pennsylvania,
that does not regularly conduct business in Philadelphia County. To the extent Plaintiff alleges in
his Complaint that moving Defendant regularly conducts business in Philadelphia County, Plaintiff
has failed to provide any evidence to substantiate this unsupported assertion. Any allegation that
moving Defendant complete work in Philadelphia County is a legal conclusion that is expressly
denied. Rather, all of moving Defendants business is conducted in Delaware County, where it is
located.
RGUMENT
Standard for Preliminary Objections
Pennsylvania Rule of Civil Procedure 1028 allows for the filing of preliminary objections
by any party as a responsive pleading. Specifically, preliminary objections may only be filed on
the following grounds:
Lack of jurisdiction over the subject matter of the action or the
person of the defendant, improper venue or improper service of a
writ of summons or complaint;
failure of a pleading to conform to law or rule of court or inclusion
of scandalous or impertinent matter;
insufficient specificity in a pleading;
legal insufficiency of a pleading (demurrer);
lack of capacity to sue, nonjoinder of a necessary party or
misjoinder of cause of action;
pendency of a prior action or agreement for alternative dispute
resolution;
failure to exercise or exhaust statutory remedy; and
full, complete and adequate non statutory remedy at law.
Pa.R.C.P. 1028. In the instant matter, venue in Philadelphia County is improper. For these
reasons, Defendant Preliminary Objections should be granted in accordance with the attached
Order.
B. Improper Venue
Plaintiff’s alleged slip and fall occurred at 211 W. Brookhaven Road in Rose Valley,
Delaware County, Pennsylvania Moving Defendant is located at this location, in Delaware
County, and does not regularly conduct business in Philadelphia County. ursuant to Pennsylvania
Rule of Civil Procedure 2179(a), an action against a corporation or similar entity may be brought
(1) county where its registered office or principal place of business 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 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.
In the case at hand, venue is improper in Philadelphia County. nitially, Molding Disciples
Ministries is located in Rose Valley, Delaware County, Pennsylvania. Because moving Defendant
is located in Delaware County, their business is generally conducted in Delaware County.
Furthermore, Plaintiff is alleging a slip and fall on ice at the 211 W. Brookhaven Road, Rose
lley, Delaware County, Pennsylvania property, so the cause of action arises in Delaware
County. Similarly, if the slip and fall were viewed as an occurrence, then th occurrence arose in
Delaware County, Pennsylvania. Therefore, the matter should be transferred to the Court of
Common Pleas of Delaware County.
CONCLUSION
For the aforementioned reasons, moving Defendant respectfully request that this
Honorable Court sustain Preliminary Objection in accordance with the attached Order.
Respectfully submitted,
MARGOLIS EDELSTEIN
/s/ Ryan C. Smith
BY:
RYAN C. SMITH, ESQUIRE
Attorney for Defendant
Molding Disciples Ministries
MARGOLIS EDELSTEIN
Ryan C Smith, Esquire
I.D. No.: 3
rsmith@margolisedelstein.com
The Curtis Center Suite 400E
170 S. Independence Mall W.
Philadelphia, PA
Phone:
DENNIS ZAVALA COURT OF COMMON PLEAS
PHILADELPHIA COUNTY
MOLDING DISCIPLES MINISTRIES, C
MALONEY LANDSCAPING SERVICES,
and JOHN DOE
Certificate of Service
I, Ryan C. Smith, Esquire hereby certify that I have caused this document to be filed
electronically on this day. It is available for reviewing and downloading from the ECF System
and will be served electronically on all counsel.
MARGOLIS EDELSTEIN
/s/ Ryan C. Smith
BY:
RYAN C. SMITH, ESQUIRE
Attorney for Defendant
Molding Disciples Ministries
Dated: December , 2022
DENNIS ZAVALA : COURT OF COMMON PLEAS
: PHILADELPHIA COUNTY
Plaintiff, :
v. :
:
MOLDING DISCIPLES MINISTRIES No.: 221200535
and :
CC MALONEY LANDSCAPING SERVICES :
and :
JOHN DOE :
Defendants :
ORDER
AND NOW, this ___________day of ___________________, 20 , upon consideration
of the Preliminary Objections of Defendant Molding Disciples Ministries and Plaintiff’s Response
thereto it is hereby ORDERED and DECREED that the Preliminary Objections of Defendant
Molding Disciples Ministries are OVERRULED Defendant Molding Disciples Ministries
ORDERED to file an Answer to Plaintiff’s Complaint with tw (20) days of the docketing of
this Order.
Case ID: 221200535
Control No.: 22125692
DENNIS ZAVALA : COURT OF COMMON PLEAS
: PHILADELPHIA COUNTY
Plaintiff, :
v. :
:
MOLDING DISCIPLES MINISTRIES No.: 221200535
and :
CC MALONEY LANDSCAPING SERVICES :
and :
JOHN DOE :
Defendants :
ORDER
AND NOW, this ___________day of ___________________, 202 upon consideration
of the Preliminary Objections of Defendant Molding Disciple Ministries and Plaintiff’s Response
thereto, it is hereby ORDERED and DECREED that Plaintiff is granted ninety ( 0) days to conduct
discovery related to venue.
BY THE COURT:
Case ID: 221200535
Control No.: 22125692
STEVEN L. CHUNG, ESQUIRE, LLC
Steven L. Chung, Esquire
John Aitchison, Esquire
Identification Nos. 78834 / 208528
1515 Market Street, Suite 910
Philadelphia, PA 19102 Attorneys for Plaintiff
(215) 688-5777
__________________________________________
DENNIS ZAVALA : COURT OF COMMON PLEAS
: PHILADELPHIA COUNTY
Plaintiff, :
v. :
:
MOLDING DISCIPLES MINISTRIES No.: 221200535
and :
CC MALONEY LANDSCAPING SERVICES :
and :
JOHN DOE :
Defendants :
PLAINTIFF’S RESPONSE TO PRELIMINARY OBJECTIONS OF
DEFENDANT MOLDING DISCIPLES MINISTRIES
Plaintiff Dennis Zavala, by and through h attorneys, Steven L. Chung, Esquire, LLC
hereby responds to the Preliminary Objections of Defendant Molding Disciples Ministries, and in
support thereof avers as follows:
Admitted
Admitted.
After reasonable investigation, Plaintiff is without knowledge or information
sufficient to form a belief as to the remaining averments of this paragraph, and the same are
therefore denied. Strict proof is demanded at trial.
4. Denied insofar as Plaintiff’s Complaint is a document which speaks for itself.
5. Denied insofar as Plaintiff’s Complaint is a document which speaks for itself.
Case ID: 221200535
Control No.: 22125692
After reasonable investigation, Plaintiff is without knowledge or information
sufficient to form a belief as to the remaining averments of this paragraph, and the same are
therefore denied. Strict proof is demanded at trial.
Denied. The averments contained in this paragraph are conclusions of law and/or
fact to which no responsive pleading is required. By way of further answer, Plaintiff’s complaint
must only set forth the essential facts upon which the cause of action is based and is not required
to cite evidence in support of those claims. McShea v. City of Philadelphia, 606 Pa. 88, 995 A.2d
334 (Pa. 2010), see also Commonwealth of Pennsylvania v. Golden Gate National Senior Care,
, 194 A.3d 1010 (Pa.Super. 2018).
8-15. Denied. The averments contained in these paragraphs are conclusions of law and/or
fact to which no responsive pleading is required By way of further answer, see Plaintiff’s
Memorandum of Law attached hereto.
WHEREFORE Plaintiff respectfully requests that this Honorable Court overrule the
Preliminary Objections of Defendant Molding Disciples Ministries and order Defendant Molding
Disciples Ministries to answer the Complaint within twenty (20) days.
STEVEN L. CHUNG, ESQUIRE, LLC
BY: /s/ John Aitchison
John W. Aitchison, Esquire
Attorney for Plaintiff
Case ID: 221200535
Control No.: 22125692
STEVEN L. CHUNG, ESQUIRE, LLC
Steven L. Chung, Esquire
John Aitchison, Esquire
Identification Nos. 78834 / 208528
1515 Market Street, Suite 910
Philadelphia, PA 19102 Attorneys for Plaintiff
(215) 688-5777
__________________________________________
DENNIS ZAVALA : COURT OF COMMON PLEAS
: PHILADELPHIA COUNTY
Plaintiff, :
v. :
:
MOLDING DISCIPLES MINISTRIES No.: 221200535
and :
CC MALONEY LANDSCAPING SERVICES :
and :
JOHN DOE :
Defendants :
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF RESPONSE TO
PRELIMINARY O JECTIONS OF
DEFENDANT MOLDING DISCIPLES MINISTRIES
Plaintiff Dennis Zavala, by and through h attorneys, Steven L. Chung, Esquire, LLC
responds to the Preliminary Objections of Defendant Molding Disciples Ministries and in support
thereof avers as follows:
MATTER BEFORE THE COURT
Defendant Molding Disciples Ministries (hereinafter Objecting Defendant)’s Preliminary
Objections challenging venue.
COUNTER STATEMENT OF QUESTIONS PRESENTED
SHOULD THIS COURT OVERRULE OBJECTING DEFENDANT’S PRELIMINARY
OBJECTIONS ON THE BASIS OF IMPROPER VENUE BECAUSE DEFENDANT FAILED TO
PRODUCE EVIDENCE IN SUPPORT OF ITS OBJECTIONS?
Suggested Answer: Yes.
Case ID: 221200535
Control No.: 22125692
ALTERNATIVELY, SHOULD THIS OURT STAY OBJECTING DEFENDANT’S
PRELIMINARY OBJECTIONS ON THE BASIS OF IMPROPER VENUE AND PERMIT
DISCOVERY ON THE ISSUE OF VENUE?
Suggested Answer: Yes.
FACTS
This matter arises from a slip and fall accident which occurred on February 2 at
211 W. Brookhaven Road, Rose Valley, Pennsylvania (hereinafter “the premises”). At
approximately 6:10 a.m., Plaintiff delivered a package to the premises in the course and scope of
his employment. As Plaintiff was traversing the parking lot, he was caused to slip and fall on a
dangerous a hazardous condition in the nature of ice and/or snow on the ground. See Plaintiff’s
Complaint, attached hereto as Exhibit A.
On or about December 6, 2022, Plaintiff filed the complaint giving rise to this action
alleging, among other things, Objecting Defendant’s joint and/or several ownership, management,
supervision, possession, and/or control of the location of the accident and negligent maintenance
thereof See Exhibit A.
In addition to Objecting Defendant, Plaintiff named as co defendants CC Maloney
Landscaping Services and any unknown adult individual or business entity (identified in the
complaint as John Doe) which was also responsible for the management, supervision, possession,
maintenance, and/or control of the premises See Exhibit A.
On December 3 Objecting Defendant filed the instant Preliminary Objections to
Plaintiff’s Complaint. See Preliminary Objections of Defendant Molding Disciples Ministries to
Plaintiff’s Complaint, attached hereto as Plaintiff’s Exhibit B (without exhibits) Plaintiff now
files his Response and Memorandum of Law in support thereof.
Case ID: 221200535
Control No.: 22125692
IV. ARGUMENT
Although venue and jurisdiction are distinct legal concepts, "for procedural purposes,
objections to venue are treated as raising a question of jurisdiction." Deyarmin v. Consolidated
Rail Corp., 931 A.2d 1, 9 (Pa. Super. Ct. 2007), citing County Constr. Co. v. Livengood Const.
Corp., 142 A.2d 9, 13 (Pa. 1958).
A defendant challenging venue/jurisdiction assumes the burden of proof. The
Pennsylvania Supreme Court has explained that, where a defendant files preliminary objections to
venue/jurisdiction:
The moving party has the burden of supporting its objections to the
court's jurisdictio . Once the plaintiff has produced some evidence to
support jurisdiction, the defendant must come forward with some evidence
of his own to dispel or rebut the plaintiff's evidence. The moving party may
not sit back and, by the bare allegations as set forth in the preliminary
objections, place the burden upon the plaintiff to negate those allegations.”
Schmitt v. Seaspray Sharkline, Inc., 531 A.2d 801, 803-804 (Pa. 1987) (internal citations omitted,
emphasis in original).
The Pennsylvania Rules of Civil Procedure require the court to “determine promptly all
preliminary objections” and to “consider evidence by deposition or otherwise” if an issue of fact
has been raised. Pa.R.C.P. 1028(a)(2). Where a factual issue regarding the defendant’s scope of
activities within the Commonwealth arises, “the plaintiff has the right to depose defe
Preview
STEVEN L. CHUNG, ESQUIRE, LLC MAJOR NON JURY Steven L. Chung, Esquire John Aitchison, Esquire Identification No 78834 / 1515 Market Street, Suit Philadelphia, PA 19102 Attorney for Plainti (215)688 DENNIS ZAVALA COURT OF COMMON PLEAS 2021 Arthur Stre PHILADELPHIA COUNTY Philadelphia, PA 19152 Plaintiff, MOLDING DISCIPLES MINISTRIES 211 Brookhaven Roa Rose Valley, PA 19086 and CC MALONEY LANDSCAPING SERVICE 950 W. Ridge Road Ste. C22 Claymont, DE 19703 and JOHN DOE Defendan CIVIL ACTION COMPLAINT NOTICE ADVISO You hav b en sued in cou you w sh to d end ag inst th ims han demandado usted en la corte. Si usted quier de ende de stas demanda fo th in th fo lowing pages, you must ak ion w thin twenty (20 days expuestas en las paginas siguientes usted tiene veint (20) dias de plazo parti de la th comp in and no served by en ing w en app an cha de la demanda y la notificacion. 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Vaya en pe sona o llame por telefono la oficina cuya dir cion encuentr rit abajo pa averiguar donde puede nseguir law er or canno a ford on go to or ephon th o se fo th b low to sistencia legal. ind ou wh you can g ega h lp sociacion de Licenciados Ph ad lph County B Asso ion Philadelphi County Lawy R Leg and Information S rv rv io d R en On R ading Cen Informa ion Leg Ph ad lph PA 19107 On R ading Cen (215 238 1701 Ph ad lph PA 19107 (215 238 1701 STEVEN L. CHUNG, ESQUIRE, LLC MAJOR NON JURY Steven L. Chung, Esquire John Aitchison, Esquire Identification Nos. 78834 / 208528 1515 Market Street, Suite 910 Philadelphia, PA 19102 Attorneys for Plainti (215)688 DENNIS ZAVALA COURT OF COMMON PLEAS 2021 Arthur Stre PHILADELPHIA COUNTY Philadelphia, PA 19152 Plaintiff, MOLDING DISCIPLES MINISTRIES 211 Brookhaven Road Rose Valley, PA 19086 and CC MALONEY LANDSCAPING SERVICES 950 W. Ridge Road Ste. C22 Claymont, DE 19703 and JOHN DOE Defendan COMPLAINT Plaintiff Dennis Zavala an adult individual residing at Arthur Street, Philadelphia, Pennsylvania Upon information and belief, Defendant Molding Disciples Ministrie einafter “De endant Molding Discipl ”) nonprofit corporation address of 211 Brookhaven Road Rose Valley ennsylvania Upon information and belief, De endant CC Maloney Landscaping Services (hereinafter “De endant CC Maloney”) is business entity with an address of 950 W. Ridge Road Suite C22, Claymont, Delaware Upon information and belief, at all times materia hereto, D endant CC Maloney maintained, managed, supervised, inspected, possessed, controlled, and was responsible for and removal emediation th parking lot and exterior walkways and grounds at or about 211 Brookhaven R d, Rose Valley, Pennsylvania Defendant John Doe is a currently unknown individual and/or business entity that at all times material hereto, owned, operated, maintained, managed, supervised, inspected, possessed controlled, and/or was responsible for snow and ic emoval/remediation 211 Brookhaven Road, Rose Valley, Pennsylvania Pursuant to Pennsylvania Rule of Civil Procedure 2005, Defendant John Doe is currently unidentified, fictitious Defendant with th added Doe designated to this ction where the Defendant’s actual name/identity is unknown despite a re able and diligent sea ch. reasonable and diligent search was conducted to determine the ctual name/identity of D endant John Doe ction and venu are prop in the Court of Common Pleas of Philadelphi County, Commonwealth of Pennsylvania, in , upon information and belief, Defendant Molding Discipl , Defendant CC Maloney, and De endant John Doe (coll ctively “Defendants”) regularly conduct business, and can be served with original process in, Philadelphi County Upon information and beli at all times material he eto, De endant either individually, jointly, and/or seve ally, owned, opera ed, maintained, managed, supervised, inspected, possessed, controlled and/or were responsible for snow and ic removal/remediation, in whole or in pa the grounds, building, and premises located at or about 211 Brookhaven Road, Rose Valley, Pennsylvania, spe ifically the parking lot and exterior walkways and grounds (hereinafter “the premise ”). all times material hereto, existed dangerous and ha ardous condition emises in the nature of ic and/or snow on the ground all times material hereto, De endants, either individually, jointly, and/or severally, had duty to maintain the premise and to ensure said premises was safe and did not pose a ha ard to business invitees such as Plainti all times material hereto, De endants, either individually, jointly, and/or severally, had duty to identify, remove, and/or remedy dangerous and ha ardous conditions ated on the premises. all times material hereto, De endants, either individually, jointly, and/or severally cted and/or ailed to ct by and through their respective agents, servants, workmen, and employees, who were at all times cting within the course and scope of their agency, servi e, and/or employment. On or about ebruary 2 , 202 Plaintiff Dennis Zavala as an invitee, li ense and/or otherwise egally present on emises when he was aused to slip and fall on dangerous and/or ha ardous condition in the nature and/or snow on the ground of the premises, ausing to sustain severe and permanent injuries to h body. Upon information and belief, efendan either individually, jointly and/or severally, knew or should have known that the are whe ff injured was an are regularly aversed by Plaintiff and/or other invitees, li ensees, and persons, and that said are was unsafe to traverse Defendant , either individually, jointly, and/or severally had actual or constructive e of the dangerous condition on the premises. Defendant vicariously liable for the ctions of agent , servant , workm and/or employe , who were at all times cting within the course and scope of their agency, servic and/or employment. COUNT I NEGLIGENCE DENNIS ZAVALA v. DEFENDANT MOLDING DISCIPLES Plaintiff incorporates he ein by referen the allegations contained in the above paragraphs as though the same w e he ein set forth at afore ident was aused as ct and proximate result of the are essness and negligence of efendant Molding Discipl and consisted of the following: failing to ensure that the premise was safe for business invit es such as Plaintiff: creating and/or allowing to exist the afor aid dangerous and ha ardous condition; ausing or permitting the conc alment of the dangerous and ha ardous condition; failing to remove the dangerous and ha ardous condition; failing to warn ff of the said dangerous or h ardous condition in the nature ice and/or snow on the ground failing to properly and adequately maintain, repair and inspe emise failing to exercise due care failing to protect the rights and safety of by permitting the dangerous condition to exist creating, permitting and allowing to exist a forese able risk of harm to ff; creating, permitting and allowing to exist a forese able risk of harm to Plaintiff; failing to protect the sa ety of siness invit as it relates to the above cts of negligen e; and failing to properly perform its statutory, common law and ordinance duties as it relates to the above acts of negligenc As a direct and proximate result of the aforesaid negligence of Defendant Molding Discipl ennis Zavala suf ered severe and permanent injuries to h which include, but are not limited to his neck, back, and left wrist As a direct and proximate result of the aforesaid negligence of Defendant Molding Discipl , Plaintiff Dennis Zavala suffered internal injuries of an unknown nature, suf ered sev ches, pains, mental anguish, and severe shock to the entire nervous sys em and other injuries the full extent of which is not yet known. As a direct and proximate result of the aforesaid negligence of Defendant Molding Discipl ff ennis Zavala ained an aggravation and ex rbation of injurie both nd unknown. has in the past and will in the futur undergo severe pain and suf ering as esult of which he has been in the past and will in the futur be unable to attend to h es and a airs, all to h at financ al detriment and loss. As a direct and proximate result of the aforesaid negligence of Defendant Molding Discipl ff Dennis Zavala as been compelled in order to ffectuate cur for the afor aid injuries, to expend large sums of money for medicine and medical ention and may be required to expend additional sums for the same purpose in the future As a direct and proximate result of the aforesaid negligence of Defendant Molding Discipl ff Dennis Zavala has been prevented from attending to h usual daily ctivities and duties and may b so prevented for an indefinit period of time in the future, all to h detriment and loss. As a direct and proximate result of the aforesaid negligence of fendant Molding Discipl , P ff Dennis Zavala has suffered physical pain and mental anguish and humiliation and may continue to su er the same for an indefinite period of time in the future As a direct and proximate result of the aforesa egligence of Defendant Molding Discipl , P Dennis Zavala has incur ed in the past and will continue to incur in the futur additional financial expenses or losses which he is entitled to recove As a direct and proximate result of the aforesaid negligence of efendant Molding Discipl , Plainti Dennis Zavala has suffered los wages. WHEREFORE, Dennis Zavala emands judgment in h favor and against Defendant Molding Discipl sum in excess of Fifty Thousand Dollars ($50,000) plus costs, delay damages, pre and post judgment interest, attorney fees, and all other elief provided by law COUNT II NEGLIGENCE PLAINTIFF DENNIS ZAVALA v. DEFENDANT CC MALONEY Plaintiff incorporates he ein by referen the allegations contained in the above paragraphs as though the same w e he ein set forth at length. aforementioned ident was aused as dir ct and proximate result of the are essness and negligence of Defendant CC Maloney and consisted of the following: failing to ensure that the premise was safe for business invit es such as Plaintiff: creating and/or allowing to exist the afor aid dangerous and ha ardous condition; ausing or permitting the conc alment of the dangerous and ha ardous condition; failing to remove the dangerous and ha ardous condition; failing to warn ff of the said dangerous or h ardous condition in the nature e and/or snow on the ground failing to properly and adequately maintain, repair and inspe emise failing to exercise due care failing to protect the rights and safety of by permitting the dangerous condition to exist creating, permitting and allowing to exist a forese able risk of harm to ff; cre ting, permitting and allowing to exist a forese able risk of harm to Plaintiff; failing to protect the sa ety of business invit as it relates to the above cts of negligen e; and failing to properly perform its statutory, common law and ordinance duti as it relates to the above acts of negligenc direct and proximate result of the aforesaid negligenc of Defendant Maloney, P Dennis Zavala has suffered evere and permanent injuries to h which include, but are not limited his neck, back, and left wrist direct and proximate result of the aforesaid negligenc of Defendant Maloney, Plaintiff Dennis Zavala suffered interna injuries of an unknown nature, suf ered severe ches, pains, mental anguish, and severe shock to the entire nervous system and other injuries the full extent of which is not yet known. dir ct and proximate result of the aforesaid negligenc of Defendant Maloney, Plaintiff Dennis Zavala sustained an aggravation and exa erbation of injuries both and unknown. He has in the past and will in the futur undergo severe pain and suf ering as esult of which he has been in the past and will in the futur be unable to attend to his usua es and a airs, all to his great financ al detriment and loss. direct and proximate result of the aforesaid negligenc of Defendant Maloney, Plaintiff Dennis Zavala has been compelled in order to ffectuate cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention and may be required to expend additional sums for the same purpose in the future direct and proximate result of the aforesaid negligenc of Defendant Maloney, Plaintiff Dennis Zavala ha been prevented from attending to his usual daily ctivities and duties and may b so prevented for an indefinit period of time in the futur all to his gr detriment and loss. direct and proximate result of the aforesaid negligenc of Defendant Maloney, Plaintiff Dennis Zavala has suffe ed physical pain and mental anguish and humiliation and may continue to su er the same for an indefinite period of time in the future direct and proximate result of the aforesa d negligenc of Defendant Maloney, P Dennis Zavala as incurred in the past and will continu to incur in the futur additional financial expenses or losses which he is entitled to recove direct and proximate result of the aforesaid negligenc of efendant Maloney, Plainti Dennis Zavala has suffered los wages. WHEREFORE, Dennis Zavala demands judgment in h favor and against Defendant CC Maloney sum in excess of Fifty Thousand Dollars ($50,000) plus costs, delay damages, pre and post judgment interest, attorney fees, and all other relief provided by law COUNT I NEGLIGENCE PLAINTIFF DENNIS ZAVALA v. DEFENDANT JOHN DOE Plaintiff incorporates he ein by referen the allegations contained in the above paragraphs as though the same w e he ein set forth at length. aforementioned ident was aused as dir ct an proximate result of the are essness and negligence of Defendant John Doe and consisted of the following: failing to ensure that the premise was safe for business invit es such as Plaintiff: creating and/or allowing to exist the afor aid dangerous and ardous condition; ausing or permitting the conc alment of the dangerous and ha ardous condition; failing to remove the dangerous and ha ardous condition; failing to warn ff of the said dangerous or h ardous condition in the nature e and/or snow on the ground failing to properly and adequately maintain, repair and inspe emise failing to exercise due care failing to protect the rights and safety of by permitting the dangerous condition to exist creating, permitting and allowing to exist a forese able risk of harm to ff; creating, permitting and allowing to exist a forese able risk of harm to Plaintiff; failing to protect the sa ety of business invit as it relates to the above cts of negligen and failing to properly perform its statutory, common law and ordinance duties as it relates to the above acts of negligenc direct and proximate result of the aforesaid negligenc of Defendant John Doe Dennis Zavala as suffered severe and permanent injuries to h body which include, but are not limited to his neck, back, and left wrist direct and proximate result of the aforesaid negligenc of Defendant John Doe Plaintiff Dennis Zavala suffe ed internal injurie of an unknown nature, suffe ed severe ches, pains, mental anguish, and severe shock to the entire nervous system and other injuries the full extent of which is not yet known. direct and p ate result of the aforesaid negligenc of Defendant John Doe Plaintiff Dennis Zavala sustained an aggravation and ex erbation of injuries both known and He has in the past and will in the futur undergo eve pain and suffering as result which he has b en in the past and will in the future be unable to attend to his usual duties and airs, all to his great financial detriment and loss. direct and proximate result of the aforesaid negligenc of Defendant John Doe Plaintiff Dennis Zavala has been compelled in order to effectuate a cure for the aforesaid injuries, expend larg sums of money for medicin and medical attention and may be required to expend additional sums for the same purpose in the future direct nd proximate result of the aforesaid negligenc of Defendant John Doe Plaintiff Dennis Zavala has been prevented from attending to his usual daily ctivities and duti and may be so prevented for an indefinite period of time in the future, all to his great detriment and loss. direct and proximate result of the aforesaid negligenc of Defendant John Doe Plaintiff Dennis Zava has suf ered physi al pain and mental anguish and humiliation and may continue to suffer the same for an indefinite period of time in the futur direct and proximate result of the aforesa d negligenc of Defendant John Doe Dennis Zavala has incurred in the past and will continue to incur in the futur additional financial expenses or losses which he is entitled to recove direct and proximate result of the aforesaid negligenc of efendant John Doe Plainti Dennis Zavala as suffered los wages. WHEREFORE, Dennis Zavala demands judgment in h favor and against Defendant John Doe sum in excess of Fifty Thousand Dollars ($50,000) plus costs, delay damages, pre and post judgment interest, attorney fees, and all other relief provided by law STEVEN L. CHUNG, ESQUIRE, LLC BY JOHN AITCHISON, ESQUIRE Attorney for Plainti BY /s/ Steven L. Chung STEVEN L. CHUNG, ESQUIRE Attorney for Plainti § 4904, I certify of the I hereby certify that I have served a copy of this paper upon all other parties or their attorneys by: regular mail certified mail other Mail BY: /s/ Ryan C. Smith Ryan C. Smith Attorney for Defendant, rsmith@margolisedelstein.com Moldin isciples Ministries Identification No. 318891 MARGOLIS EDELSTEIN The Curtis Center 170 S. Independence Mall W., Suite 400E Philadelphia, PA 19106 DENNIS ZAVALA COURT OF COMMON PLEAS PHILADELPHIA COUNTY LDING DISCIPLES MINISTRIES, NO. CC MALONEY LANDSCAPING SERVICES and JOHN DOE ENTRY OF APPEARANCE AND JURY TRIAL DEMAND (PERFECTED) TO THE PROTHONOTARY: Please enter appearance on behalf of the Defendant, Molding Disciples Mini in the above captioned case. Defendant, Molding Disciples Ministries, demands and perfects a jury trial in the above case. Jury of 12 plus alternates demanded. MARGOLIS EDELSTEIN /s/ Ryan C. Smith BY: RYAN C. SMITH, ESQUIRE Attorney for Defendant, ding Disciples Ministries DENNIS ZAVALA COURT OF COMMON PLEAS PHILADELPHIA COUNTY MOLDING DISCIPLES MINISTRIES, C MALONEY LANDSCAPING SERVICES, and JOHN DOE AND NOW, this ________ day of ________________, 202 , upon consideration of the Preliminary Objections of Molding Disciples Ministries and any response thereto, it is hereby that said objection to venue is SUSTAINED and this ma ter shall be transferred to the Court of Common Pleas of Delaware County with all costs of transfer to be borne by Plaintiff pursuant to Pa. R. C. P. 1006(e). BY THE COURT: MARGOLIS EDELSTEIN Ryan C Smith, Esquire I.D. No.: 3 rsmith@margolisedelstein.com The Curtis Center Suite 400E 170 S. Independence Mall W. Philadelphia, PA Phone: DENNIS ZAVALA COURT OF COMMON PLEAS PHILADELPHIA COUNTY MOLDING DISCIPLES MINISTRIES, C MALONEY LANDSCAPING SERVICES, and JOHN DOE PRELIMINARY OBJECTIONS OF DEFENDANT MOLDING DISCIPLES MINISTRIES TO PLAINTIFF’S COMPLAINT Defendant Molding Disciples Ministries (hereinaf er moving Defendant”) by and through counsel, Margolis Edelstein, hereby preliminar y object to Plaintiff s Complaint, and in support thereof aver the following: Plaintiff filed a Complaint in this matter on December . A true and correct of copy aintiff Complaint is attached hereto as Exhibit A The slip and fall incident which is the subject of Plaintiff Complaint allegedly occurred on or about moving Defendant property, which is located at 11 W. Brookhaven Road, Rose Valley, Delaware County, Pennsylvania. Moving Defendant Molding Disciples Ministries s a Pennsylvania profit business entity that is located at 211 W. Brookhaven Road, Rose Valley, Delaware County, Pennsylvania According to Plaintiff s Complaint, CC Maloney Landscaping Services is located in Claymont, Delaware. See Exhibit Plaintiff so lists a Defendant in their Complaint, but do not provide any facts identifying this entity or providing evidence as to how this entity is related to Philadelphia County. Moving Defendant is a church located in Rose Valley, Delaware County, Pennsylvania, that does not regularly conduct business in Philadelphia County. To the extent Plaintiff alleges in his Complaint that moving Defendant regularly conducts business in Philadelphia County, Plaintiff has failed to provide any evidence to substantiate t unsupported and inaccurate assertion. Any allegation that moving Defendant complete work in Philadelphia County is a legal conclusion that is expressly denied. Pursuant to Pennsylvania Rule of Civil Procedure 2179(a), an action against a corporation or similar entity may be brought in, and only in (1) county where its registered office or principal place of business 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 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. In the case at hand, venue is improper in Philadelphia County. nitially, Molding Disciples Ministries is located in Rose Valley, Delaware County, Pennsylvania. 11. Because moving Defendant is located in Delaware County, their business is conducted in Delaware County. 12. Furthermore, Plaintiff is alleging a slip and fall on ice at the 211 W. Brookhaven Road, Rose Valley, Delaware County, Pennsylvania property, so the cause of action arises in Delaware County. Similarly, if the slip and fall were viewed as an occurrence, then th occurrence arose in Delaware County, Pennsylvania. 14. According to Pa. R.C.P. 2179(a), the proper venue for this matter is Delaware C Pennsylvania. Therefore, the matter should be transferred to the Court of Common Pleas of Delaware County. WHEREFORE moving Defendant respectfully request that this Honorable Court sustain Preliminary Objections in accordance with the attached Order. Respectfully submitted, MARGOLIS EDELSTEIN /s/ Ryan C. Smith BY: RYAN C. SMITH, ESQUIRE Attorney for Defendant Molding Disciples Ministries MARGOLIS EDELSTEIN Ryan C Smith, Esquire I.D. No.: 3 rsmith@margolisedelstein.com The Curtis Center Suite 400E 170 S. Independence Mall W. Philadelphia, PA Phone: DENNIS ZAVALA COURT OF COMMON PLEAS PHILADELPHIA COUNTY MOLDING DISCIPLES MINISTRIES, C MALONEY LANDSCAPING SERVICES, and JOHN DOE MEMORANDUM OF LAW IN SUPPORT OF PRELIMINARY OBJECTONS OF DEFENDANT MOLDING DISCIPLES MINISTRIES Defendant Molding Disciples Ministries ( moving Defendant , by and through its counsel, Margolis Edelstein, hereby submit the following Memorandum of Law in support of its Preliminary Objections to Plaintiff’s Complaint, and in support thereof aver the following: MATTER BEFORE THE COURT Defendant hereby preliminar y object to Plaintiff’s Complaint. This matter should be transferred to the Court of Common Pleas of Delaware County. QUESTION PRESENTED Should this matter be transferred to the Court of Common Pleas of Delawar County when the cause of action arose in Delaware County, moving Defendant has its main business location in Delaware County, and moving Defendant does not conduct regular business in Philadelphia County uggested Answer: Yes. STATEMENT OF FACTS matter arises from an alleged slip and fall on ice that occurred at a property located at 211 W. Brookhaven Road in Rose Valley, Delaware County, Pennsylvania. Plaintiff filed a Complaint in this matter on December 6, 2022. A true and correct of copy of Plaintiff Complaint is attached hereto as Exhibit oving Defendant Molding Disciples Ministries, is a Pennsylvania profit business entity that is located at 211 W. Brookhaven Road, Rose Valley, Delaware County, Pennsylvania According to Plaintiff’s Complaint, CC Maloney Lands aping Services is located in Claymont, Delaware. See Exhibit ”. Plaintiff so lists a Defendant in their Complaint but do not provide any facts identifying this entity or providing evidence as to how this entity is related to Philadelphia County. Moving Defendant is a church located in Rose Valley, Delaware County, Pennsylvania, that does not regularly conduct business in Philadelphia County. To the extent Plaintiff alleges in his Complaint that moving Defendant regularly conducts business in Philadelphia County, Plaintiff has failed to provide any evidence to substantiate this unsupported assertion. Any allegation that moving Defendant complete work in Philadelphia County is a legal conclusion that is expressly denied. Rather, all of moving Defendants business is conducted in Delaware County, where it is located. RGUMENT Standard for Preliminary Objections Pennsylvania Rule of Civil Procedure 1028 allows for the filing of preliminary objections by any party as a responsive pleading. Specifically, preliminary objections may only be filed on the following grounds: Lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper service of a writ of summons or complaint; failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter; insufficient specificity in a pleading; legal insufficiency of a pleading (demurrer); lack of capacity to sue, nonjoinder of a necessary party or misjoinder of cause of action; pendency of a prior action or agreement for alternative dispute resolution; failure to exercise or exhaust statutory remedy; and full, complete and adequate non statutory remedy at law. Pa.R.C.P. 1028. In the instant matter, venue in Philadelphia County is improper. For these reasons, Defendant Preliminary Objections should be granted in accordance with the attached Order. B. Improper Venue Plaintiff’s alleged slip and fall occurred at 211 W. Brookhaven Road in Rose Valley, Delaware County, Pennsylvania Moving Defendant is located at this location, in Delaware County, and does not regularly conduct business in Philadelphia County. ursuant to Pennsylvania Rule of Civil Procedure 2179(a), an action against a corporation or similar entity may be brought (1) county where its registered office or principal place of business 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 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. In the case at hand, venue is improper in Philadelphia County. nitially, Molding Disciples Ministries is located in Rose Valley, Delaware County, Pennsylvania. Because moving Defendant is located in Delaware County, their business is generally conducted in Delaware County. Furthermore, Plaintiff is alleging a slip and fall on ice at the 211 W. Brookhaven Road, Rose lley, Delaware County, Pennsylvania property, so the cause of action arises in Delaware County. Similarly, if the slip and fall were viewed as an occurrence, then th occurrence arose in Delaware County, Pennsylvania. Therefore, the matter should be transferred to the Court of Common Pleas of Delaware County. CONCLUSION For the aforementioned reasons, moving Defendant respectfully request that this Honorable Court sustain Preliminary Objection in accordance with the attached Order. Respectfully submitted, MARGOLIS EDELSTEIN /s/ Ryan C. Smith BY: RYAN C. SMITH, ESQUIRE Attorney for Defendant Molding Disciples Ministries MARGOLIS EDELSTEIN Ryan C Smith, Esquire I.D. No.: 3 rsmith@margolisedelstein.com The Curtis Center Suite 400E 170 S. Independence Mall W. Philadelphia, PA Phone: DENNIS ZAVALA COURT OF COMMON PLEAS PHILADELPHIA COUNTY MOLDING DISCIPLES MINISTRIES, C MALONEY LANDSCAPING SERVICES, and JOHN DOE Certificate of Service I, Ryan C. Smith, Esquire hereby certify that I have caused this document to be filed electronically on this day. It is available for reviewing and downloading from the ECF System and will be served electronically on all counsel. MARGOLIS EDELSTEIN /s/ Ryan C. Smith BY: RYAN C. SMITH, ESQUIRE Attorney for Defendant Molding Disciples Ministries Dated: December , 2022 DENNIS ZAVALA : COURT OF COMMON PLEAS : PHILADELPHIA COUNTY Plaintiff, : v. : : MOLDING DISCIPLES MINISTRIES No.: 221200535 and : CC MALONEY LANDSCAPING SERVICES : and : JOHN DOE : Defendants : ORDER AND NOW, this ___________day of ___________________, 20 , upon consideration of the Preliminary Objections of Defendant Molding Disciples Ministries and Plaintiff’s Response thereto it is hereby ORDERED and DECREED that the Preliminary Objections of Defendant Molding Disciples Ministries are OVERRULED Defendant Molding Disciples Ministries ORDERED to file an Answer to Plaintiff’s Complaint with tw (20) days of the docketing of this Order. Case ID: 221200535 Control No.: 22125692 DENNIS ZAVALA : COURT OF COMMON PLEAS : PHILADELPHIA COUNTY Plaintiff, : v. : : MOLDING DISCIPLES MINISTRIES No.: 221200535 and : CC MALONEY LANDSCAPING SERVICES : and : JOHN DOE : Defendants : ORDER AND NOW, this ___________day of ___________________, 202 upon consideration of the Preliminary Objections of Defendant Molding Disciple Ministries and Plaintiff’s Response thereto, it is hereby ORDERED and DECREED that Plaintiff is granted ninety ( 0) days to conduct discovery related to venue. BY THE COURT: Case ID: 221200535 Control No.: 22125692 STEVEN L. CHUNG, ESQUIRE, LLC Steven L. Chung, Esquire John Aitchison, Esquire Identification Nos. 78834 / 208528 1515 Market Street, Suite 910 Philadelphia, PA 19102 Attorneys for Plaintiff (215) 688-5777 __________________________________________ DENNIS ZAVALA : COURT OF COMMON PLEAS : PHILADELPHIA COUNTY Plaintiff, : v. : : MOLDING DISCIPLES MINISTRIES No.: 221200535 and : CC MALONEY LANDSCAPING SERVICES : and : JOHN DOE : Defendants : PLAINTIFF’S RESPONSE TO PRELIMINARY OBJECTIONS OF DEFENDANT MOLDING DISCIPLES MINISTRIES Plaintiff Dennis Zavala, by and through h attorneys, Steven L. Chung, Esquire, LLC hereby responds to the Preliminary Objections of Defendant Molding Disciples Ministries, and in support thereof avers as follows: Admitted Admitted. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the remaining averments of this paragraph, and the same are therefore denied. Strict proof is demanded at trial. 4. Denied insofar as Plaintiff’s Complaint is a document which speaks for itself. 5. Denied insofar as Plaintiff’s Complaint is a document which speaks for itself. Case ID: 221200535 Control No.: 22125692 After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the remaining averments of this paragraph, and the same are therefore denied. Strict proof is demanded at trial. Denied. The averments contained in this paragraph are conclusions of law and/or fact to which no responsive pleading is required. By way of further answer, Plaintiff’s complaint must only set forth the essential facts upon which the cause of action is based and is not required to cite evidence in support of those claims. McShea v. City of Philadelphia, 606 Pa. 88, 995 A.2d 334 (Pa. 2010), see also Commonwealth of Pennsylvania v. Golden Gate National Senior Care, , 194 A.3d 1010 (Pa.Super. 2018). 8-15. Denied. The averments contained in these paragraphs are conclusions of law and/or fact to which no responsive pleading is required By way of further answer, see Plaintiff’s Memorandum of Law attached hereto. WHEREFORE Plaintiff respectfully requests that this Honorable Court overrule the Preliminary Objections of Defendant Molding Disciples Ministries and order Defendant Molding Disciples Ministries to answer the Complaint within twenty (20) days. STEVEN L. CHUNG, ESQUIRE, LLC BY: /s/ John Aitchison John W. Aitchison, Esquire Attorney for Plaintiff Case ID: 221200535 Control No.: 22125692 STEVEN L. CHUNG, ESQUIRE, LLC Steven L. Chung, Esquire John Aitchison, Esquire Identification Nos. 78834 / 208528 1515 Market Street, Suite 910 Philadelphia, PA 19102 Attorneys for Plaintiff (215) 688-5777 __________________________________________ DENNIS ZAVALA : COURT OF COMMON PLEAS : PHILADELPHIA COUNTY Plaintiff, : v. : : MOLDING DISCIPLES MINISTRIES No.: 221200535 and : CC MALONEY LANDSCAPING SERVICES : and : JOHN DOE : Defendants : MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF RESPONSE TO PRELIMINARY O JECTIONS OF DEFENDANT MOLDING DISCIPLES MINISTRIES Plaintiff Dennis Zavala, by and through h attorneys, Steven L. Chung, Esquire, LLC responds to the Preliminary Objections of Defendant Molding Disciples Ministries and in support thereof avers as follows: MATTER BEFORE THE COURT Defendant Molding Disciples Ministries (hereinafter Objecting Defendant)’s Preliminary Objections challenging venue. COUNTER STATEMENT OF QUESTIONS PRESENTED SHOULD THIS COURT OVERRULE OBJECTING DEFENDANT’S PRELIMINARY OBJECTIONS ON THE BASIS OF IMPROPER VENUE BECAUSE DEFENDANT FAILED TO PRODUCE EVIDENCE IN SUPPORT OF ITS OBJECTIONS? Suggested Answer: Yes. Case ID: 221200535 Control No.: 22125692 ALTERNATIVELY, SHOULD THIS OURT STAY OBJECTING DEFENDANT’S PRELIMINARY OBJECTIONS ON THE BASIS OF IMPROPER VENUE AND PERMIT DISCOVERY ON THE ISSUE OF VENUE? Suggested Answer: Yes. FACTS This matter arises from a slip and fall accident which occurred on February 2 at 211 W. Brookhaven Road, Rose Valley, Pennsylvania (hereinafter “the premises”). At approximately 6:10 a.m., Plaintiff delivered a package to the premises in the course and scope of his employment. As Plaintiff was traversing the parking lot, he was caused to slip and fall on a dangerous a hazardous condition in the nature of ice and/or snow on the ground. See Plaintiff’s Complaint, attached hereto as Exhibit A. On or about December 6, 2022, Plaintiff filed the complaint giving rise to this action alleging, among other things, Objecting Defendant’s joint and/or several ownership, management, supervision, possession, and/or control of the location of the accident and negligent maintenance thereof See Exhibit A. In addition to Objecting Defendant, Plaintiff named as co defendants CC Maloney Landscaping Services and any unknown adult individual or business entity (identified in the complaint as John Doe) which was also responsible for the management, supervision, possession, maintenance, and/or control of the premises See Exhibit A. On December 3 Objecting Defendant filed the instant Preliminary Objections to Plaintiff’s Complaint. See Preliminary Objections of Defendant Molding Disciples Ministries to Plaintiff’s Complaint, attached hereto as Plaintiff’s Exhibit B (without exhibits) Plaintiff now files his Response and Memorandum of Law in support thereof. Case ID: 221200535 Control No.: 22125692 IV. ARGUMENT Although venue and jurisdiction are distinct legal concepts, "for procedural purposes, objections to venue are treated as raising a question of jurisdiction." Deyarmin v. Consolidated Rail Corp., 931 A.2d 1, 9 (Pa. Super. Ct. 2007), citing County Constr. Co. v. Livengood Const. Corp., 142 A.2d 9, 13 (Pa. 1958). A defendant challenging venue/jurisdiction assumes the burden of proof. The Pennsylvania Supreme Court has explained that, where a defendant files preliminary objections to venue/jurisdiction: The moving party has the burden of supporting its objections to the court's jurisdictio . Once the plaintiff has produced some evidence to support jurisdiction, the defendant must come forward with some evidence of his own to dispel or rebut the plaintiff's evidence. The moving party may not sit back and, by the bare allegations as set forth in the preliminary objections, place the burden upon the plaintiff to negate those allegations.” Schmitt v. Seaspray Sharkline, Inc., 531 A.2d 801, 803-804 (Pa. 1987) (internal citations omitted, emphasis in original). The Pennsylvania Rules of Civil Procedure require the court to “determine promptly all preliminary objections” and to “consider evidence by deposition or otherwise” if an issue of fact has been raised. Pa.R.C.P. 1028(a)(2). Where a factual issue regarding the defendant’s scope of activities within the Commonwealth arises, “the plaintiff has the right to depose defe