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Even though a Delaware County, Pa. business has a Web site that solicits customers from Philadelphia County, a Philadelphia Court of Common Pleas judge was correct to transfer venue to Delaware County on a defense motion in a negligence case, the Pennsylvania Superior Court has ruled. In Kubik v. Route 252, the court examined several issues, but it answered one issue of first impression dealing with the defendant’s Web site. The court ruled that a Web site that provided driving directions from Philadelphia, an e-mail newsletter and the online sale of gift certificates did not equal “regularly conducted business” in the city. On Aug. 30, 1999, Daniel J. Kubik was allegedly injured while dining at Alberto’s Newtown Square Restaurant when the chair he was sitting on collapsed. Kubik filed suit in Philadelphia County in September 1999, and the restaurant filed preliminary objections challenging the venue, asking the court to transfer the case to Delaware County. The court granted the objections to venue and transferred the case. Kubik appealed. The middle appeals court first analyzed whether the restaurant waived its right to challenge venue by engaging in discovery. But because Alberto’s raised its objections at its first available opportunity, the court said the challenge was not waived. Kubik argued that Philadelphia was the proper venue because Alberto’s conducts business regularly there by soliciting customers from Philadelphia County, providing an electronic newsletter via e-mail and selling gift certificates through its Web site. The court first tackled the issue of the Web site. It noted that the Eastern District Court has spoken on the issue in Blackburn v. Walker Oriental Rug Galleries Inc. In Blackburn, the court found venue was proper and identified three types of Internet contacts: contact where the defendant “clearly does business over the Internet”; contact which “occurs when a user can exchange information with the host computer”; and contact which “involves the posting of information or advertisements on an Internet Web site.” The Superior Court noted first that it was not bound by federal precedent and that the Blackburn case was a copyright action. The Kubik court found the court’s reasoning in Blackburn inapplicable to the instant matter. The court then set out to examine if the activities on Alberto’s Web site constituted “regularly conducted business.” The court said the driving directions and e-mail newsletter were both methods of soliciting business and were similar to advertisements. The Supreme Court has held that advertisements in phone books and newspapers are not a sufficient presence to elicit venue. The sale of gift certificates, however, required a different analysis, the court said. The court said the sale of gift certificates on the Web site was not the restaurant’s main purpose. “Accordingly, the sale of gift certificates is merely incidental to its regular business,” Judge Peter Paul Olszewski wrote for the court. “Moreover, there is no evidence that such sales occur regularly. Thus, the sale of gift certificates is a collateral act, and this is simply not enough to constitute regularly conducting business in Philadelphia County.” The court dismissed several other arguments as well, ultimately upholding the trial court’s decision to transfer venue.

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