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The Philadelphia Court of Common Pleas is a proper venue for an action brought against a company that conducts only one-third of 1 percent of its overall business in Philadelphia County, the Superior Court has ruled in an unpublished memorandum. The three-judge panel in DiIorio v. Testutreluctantly allowed Kim DiIorio’s suit to proceed in Philadelphia despite the fact that DiIorio does not reside in Philadelphia, the corporate defendants do not operate a registered office in the city and the underlying motor vehicle accident occurred in Delaware County. “The trial court concluded that since the corporate defendant performs only one-third of one percent of its business in Philadelphia, the quantity of the acts was insufficient to sustain jurisdiction,” the unanimous panel, consisting of Judges John T. Bender, Mary Jane Bowes and Michael T. Joyce, wrote in DiIorio. “We are constrained to disagree with this analysis and conclude that an abuse of discretion occurred.” The case stems from a November 2000 accident involving DiIorio and Richard Lee Testut, a driver for TMC Transportation Inc., according to the opinion. DiIorio’s attorney, Keith W. Kofsky of Clearfield Gaber & Kofsky in Philadelphia, said that his client was traveling alone on 1-95 South near Market Street in Chichester, Delaware County, when she was struck by a truck operated by Testut. Kofsky said that DiIorio’s resulting injuries forced her to undergo trauma-induced carpal tunnel surgery. TMC, according to the company’s Web site, is the trucking division of Des Moines, Iowa-based Annett Holdings Inc. According to the opinion, Annett and TMC deliver goods across the country, performing over a nine-month period 627 pickups or deliveries in Philadelphia out of 195,000 total nationwide — yielding an estimate of one-third of one percent for Annett/TMC business conducted in Philadelphia, with an average of 2.32 Philadelphia loads handled each day. When DiIorio sued TMC and Annett in Philadelphia’s Common Pleas Court, the defendants filed objections stating that the venue was improper and that the case should be transferred to Delaware County because of the forum non conveniens rule. The trial court agreed with the improper venue objection. DiIorio appealed to the Superior Court. According to Rule 2179 of the state’s rules of civil procedure, the opinion stated, a personal action may be brought against a corporation only in the county where the corporation’s headquarters or registered office is located, in the county in which the cause of action (or any transaction thereof) occurred or in the county in which the company “regularly conducts business.” The panel in DiIoriorelied on the regular conduct of business test outlined by the Pennsylvania Supreme Court for interpretation of Rule 2179 in its 1990 decision in Purcell v. Bryn Mawr Hospital. Under the Purcelltest, the extent of a business contact must be judged on the basis of its “quality” and “quantity.” The trial court concluded that the quality of Annett and TMC’s work in Philadelphia — delivering goods, the company’s main service — warranted jurisdiction in Philadelphia, but ultimately found that the quantity of the work done — one-third of one percent — did not meet the standard of regularly conducting business. The panel disagreed, noting the Supreme Court’s 1967 decision in Canter v. American Honda Motor Corp., which held that venue was proper in a jurisdiction accounting for only 1 to 2 percent of the company’s business, so long as that small amount of work was “regularly performed.” “In the present case,” the panel wrote in the memorandum opinion, “the percentage of business that the corporate defendant performs in Philadelphia must be viewed in light of the fact that it performs business across the entire country. Thus, the fact that it conducts one-third of one percent of its business in Philadelphia County cannot be viewed as insignificant.” The court reversed the trial court’s decision on the improper venue objection. Annett and TMC will now have the chance to argue their forum non conveniens objection in the common pleas court. Kofsky said he filed suit in the city hoping that a Philadelphia jury would compensate his client sufficiently to cover the costs of her surgery. The defense attorney of record, Christine Munion of Devlin & Devine in Conshohocken, did not immediately return a telephone call seeking comment. (Copies of the six-page opinion inDiIorio v. Testut , PICS No. 03-1707, are available fromThe Legal Intelligencer . Please call the Pennsylvania Instant Case Serviceat 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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