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In moving a products liability case against outdoor power tools manufacturer Husqvarna back to Philadelphia after it was initially transferred to Bucks County, the Pennsylvania Superior Court warned trial judges making venue determinations against assigning too much weight to the percentage of a company's sales in a given locale.

In Hangey v. Husqvarna Professional Products, a three-judge panel of the appeals court ruled 2-1 to reverse a Philadelphia trial court's ruling transferring plaintiffs Ronald and Rosemary Hangey's lawsuit against Husqvarna and a Quakertown lawnmower retailer to Bucks County.

According to the April 1 unpublished majority opinion, the Hangeys had filed suit in Philadelphia, alleging Ronald Hangey was maimed when he fell off of his Husqvarna riding lawnmower and it ran over his legs. The suit named as defendants Trumbauer's Lawn and Recreation in Bucks County, where the lawnmower allegedly was purchased, along with Husqvarna Professional Products (HPP), Husqvarna Group, Husqvarna U.S. Holdings and Husqvarna AB.

The trial court dismissed Husqvarna U.S. Holdings and Husqvarna AB from the suit, and transferred the claims against the remaining defendants to Bucks County, finding that HPP, which is based in Charlotte, North Carolina, did not have sufficient contacts with Philadelphia to satisfy the “quantity” prong of the venue analysis under Pennsylvania Rule of Civil Procedure 2179(a)(2). The trial court based its reasoning on the fact that Philadelphia accounted for only a “'de minimis'” percentage of HPP's national sales.

But the majority, led by Judge Maria McLaughlin, said the trial court erred in relying almost exclusively on the percentage of HPP's sales, while ignoring “the number and dollar figure of sales in Philadelphia, and that HPP has an authorized dealer in Philadelphia to sell its products.”

“Because courts must consider each case on its own facts, and the venue analysis must be viewed within the context of the defendant's business, the percentage of small or local businesses should not be viewed as the same as the percentage of business of a large corporation,” McLaughlin said. “The percentage of sales a multibillion-dollar company makes in a particular county will often be a tiny percentage of its overall sales. Courts should not consider percentages alone. Rather, courts must determine whether the defendant's business activities in the county were regular, continuous, and habitual.”

McLaughlin, joined in the majority by President Judge Jack Panella, added that in previous cases where the appeals court found that a percentage of sales in a particular venue was insufficient to satisfy the quantity prong of the test, “the court's core finding was that the contacts failed the quality prong of the venue test and the cases often addressed defendants who were small and/or local companies, not multibillion-dollar corporations.”

The trial court, according to McLaughlin, already determined that the Hangeys' case met the quality prong because HPP is “'in the business of distributing consumer outdoor products … to retailers, who in turn sell the products to consumers'” and the company furthered that business objective by distributing its products to retailers in Philadelphia.

Judge Judith Ference Olson dissented, however, arguing in a 15-page opinion that the trial court's determination “was reasonable in light of our fairly muddled precedent and the facts of this case.”

“From a review of our case law, it is apparent that, in determining whether a corporation's qualitative acts satisfy the 'quantity' prong, our Supreme Court and this court have consistently looked at the percentage of a corporation's total business consummated within the county,” Olson said. “Given this, I believe that the majority is incorrect to assail the trial court's method of analysis. Further, given the facts of this case and our chaotic precedent regarding the specific metrics that suffice to fulfill the 'quantity' prong, I believe that the majority is incorrect to find that the trial court abused its discretion in transferring venue.”

Counsel for HPP, Frederick William Bode III of Dickie, McCamey & Chilcote in Pittsburgh, said the matter is still being litigated, pointing to a motion for reconsideration en banc filed April 15.

Counsel for the plaintiffs, Ara Avrigian of Saltz Mongeluzzi Barrett & Bendesky in Philadelphia, could not be reached for comment.

(Copies of the 26-page opinion in Hangey v. Husqvarna Professional Products, PICS No. 19-0495, are available at http://at.law.com/PICS.)