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J. A12042/01
2001 PA Super 220
ESTATE OF LEO L. WERNER, BY
:
ELIZABETH WERNER UNDER
: IN THE SUPERIOR COURT OF
AUTHORITY OF THE ESTATE GRANTED:
PENNSYLVANIA
BY COURT ORDER ENTERED
:
FEBRUARY 3, 2000, ELIZABETH
:
WERNER TRUST, BY ITS TRUSTEE,
:
JEFFREY R. ACKERMAN, ESTATE OF
:
ANNE L. WERNER, BY ITS EXECUTOR :
TIMOTHY F. BURKE, JR., ANNE L.
:
WERNER TRUST, BY ITS TRUSTEE,
:
TIMOTHY F. BURKE, JR., JEFFREY R.
:
ACKERMAN, MATTHEW W. WEISS
:
AND EDWARD A. POLLACK,
:
:
Appellants
:

:
v.
:
:
ERIC J. WERNER, RICHARD L.
:
WERNER, ROBERT I. WERNER,
:
DONALD M. WERNER, HOWARD L.
:
SOLOT, CRAIG R. WERNER, MARC L.
:
WERNER, MICHAEL J. SOLOT,
:
BRUCE D. WERNER, MICHAEL E.
:
WERNER AND THE WERNER FAMILY
:
TRUST THROUGH ITS TRUSTEES,
:
ERIC J. WERNER, BRUCE D. WERNER :
AND HOWARD L. SOLOT,
:
: No. 1597 WDA 2000
Appellees
:
Appeal from the Order Dated August 18, 2000,
In the Court of Common Pleas, Allegheny County,
Civil Division, at No. GD 98-4020.
BEFORE: DEL SOLE, P.J., EAKIN and BROSKY, JJ.

J. A12042/01
OPINION BY BROSKY, J.
Filed: July 27, 2001
¶ 1
This is an appeal from the order of the trial court sustaining Appellees'
preliminary objections to venue and transferring the action to the Court of
Common Pleas of Mercer County. After careful review, we affirm.
¶ 2
Appellants are the estates of Leo and Anne Werner, a trust (the
Elizabeth Werner Trust), whose sole beneficiary is their daughter (Elizabeth
Werner), Elizabeth Werner's two children (Jeffrey R. Ackerman and Matthew
W. Weiss) and a nephew of Leo Werner (Edward A. Pollack). This dispute
arises from a disagreement over decisions made relating to assets of the
family business, the Werner Company, which has its corporate headquarters
located in Mercer County, Pennsylvania. By way of background, Leo Werner
and his two brothers (Herbert and R.D. Werner) founded the Werner
Company in 1945, which eventually became the largest manufacturer of
ladders and other climbing equipment in the United States. All three of the
founders are now deceased.
¶ 3
The Appellees, except for the Werner Family Trust, are all descendants
of Herbert Werner and all are involved in the management of the Werner
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2

J. A12042/01
Company.1 The Werner Family Trust was apparently formed to benefit these
individual Appellees.
¶ 4
Leo and his wife Anne both died in 1996. Appellants commenced this
action by writ in March 1998, and filed a complaint in April 2000 alleging
that Appellees had (1) wrongfully induced Leo Werner to give all of his stock
in the Werner Company to the Appellees in 1992, and (2) wrongfully diluted
Appellants' stock in the Werner Company by awarding themselves shares
pursuant to a 1992 stock plan and thereafter concealing their self-dealing.
The complaint set forth five counts, one of which asserted a civil conspiracy
to fraudulently induce Leo Werner to execute a codicil to his will which made
the 1992 gifts to Appellees.2 Appellants aver that as a consequence of these
allegedly wrongful actions, Leo Werner's estate was vastly diminished to
their detriment.
¶ 5
Appellees filed preliminary objections to the complaint, asserting inter
alia that venue was not proper in Allegheny County, Pennsylvania.3 The trial
court afforded the parties an opportunity to conduct discovery relating to the
venue question, which was accomplished. Thereafter the trial court

1 The individual Appellees, along with Leo Werner, served as the company's
sole officers and directors in 1992 when the acts complained of occurred.
2 The remaining counts were fraud, undue influence, incapacity of Leo
Werner, and the wrongful dilution of stock.
3 It is undisputed that none of the Appellees resides in Allegheny County.
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3

J. A12042/01
sustained the preliminary objections raising the issue of venue and
transferred the matter to Mercer County. This timely appeal followed.
¶ 6
At the outset, we note that the determination of whether to transfer
venue in a case is a matter within the sound discretion of the trial court.
Masel v. Glassman, 689 A.2d 314 (Pa. Super. 1997). "If there exists any
proper basis for the trial court's decision to grant the petition to transfer
venue, the decision must stand." Id. at 316 (citation omitted). The Rules of
Civil Procedure provide the following, in relevant part, with respect to venue.
Rule 1006. Venue. Change of Venue
(a) Except as otherwise provided [], an action against an
individual may be brought in and only in a county in which
the individual may be served or in which the cause of action
arose or where a transaction or occurrence took place out of
which the cause of action arose[.]
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(e) Improper venue shall be raised by preliminary
objection[.] If a preliminary objection to venue is sustained
and there is a county of proper venue within the State the
action shall not be dismissed but shall be transferred to the
appropriate court of that county....
(f) If the plaintiff states more than one cause of action
against the same defendant in the complaint pursuant to
Rule 1020(a), the action may be brought in any county in
which any one of the individual causes of action might have
been brought.
Pa.R.C.P. 1006. Appellants contend that the conspiracy count alleges a
transaction or occurrence within Allegheny County out of which the cause of
action arose. Appellees assert that none of the activities alleged by
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J. A12042/01
Appellants to have occurred within Allegheny County relate to the actual
cause of action, and that venue is therefore proper in Mercer County. We
must therefore consider whether Appellants' civil conspiracy allegations
adequately set forth a cause of action arising in Allegheny County.
¶ 7
We begin our analysis by observing that the specific question
presented has not previously been addressed by the appellate courts of this
Commonwealth. We find instructive, however, the decision of the
Pennsylvania Supreme Court in Craig v. W.J. Thiel & Sons, Inc., 149 A.2d
35 (Pa. 1959), which provides guidance for determining proper venue where
the parties perform under a contract in different counties in the
Commonwealth.4 Craig involved a contractual dispute between a truck
dealer in Luzerne County, Pennsylvania and a corporation in Cambria
County, Pennsylvania. The Cambria County corporation sold an agreed
number of truck bodies to the dealer in Luzerne County, which subsequently
discovered that the truck bodies were defectively constructed. The dealer
filed suit in Luzerne County, and the corporation challenged venue by filing
preliminary objections which the trial court overruled. Our Supreme Court
was thus required to determine whether "the place of performance of one of
several steps taken in the formation of a contract [is] sufficient to constitute
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5

J. A12042/01
a 'transaction or occurrence' upon which venue can be based?" 149 A.2d at
37. In reaching its conclusion that venue was not proper in Luzerne County,
the Court explained that the word "occurrence" does not mean "part of a
transaction," and that to hold otherwise would invite confusion and forum
shopping where a lawsuit could proceed "in any county where any facet of a
complex transaction occurred." Id. at 37; see also Pennsylvania Higher
Education Assistance Agency v. Devore, 406 A.2d 343, 344 (Pa. Super.
1979)(for venue purposes, phrase "transaction or occurrence" does not
include the performance of any act in formation of the contract but is the
ultimate formation of the contract itself.) And, although Craig involved an
action for breach of contract rather than one alleging a civil conspiracy, we
believe the principles set forth therein regarding venue must guide our
decision in the case sub judice.
¶ 8
In order to state a cause of action for civil conspiracy, a plaintiff is
required to allege "(1) a combination of two or more persons acting with a
common purpose to do an illegal act or to do a lawful act by unlawful means
or for an unlawful purpose; (2) an overt act done in pursuance of the
common purpose; and (3) actual legal damage." McKeeman v.
Corestates Bank, N.A., 751 A.2d 655, 660 (Pa. Super. 2000)(citation

4 Although Craig involved an interpretation of Pa.R.C.P. 2179 (relating to
proper venue in an action against a corporation), rather than Rule 1006, the
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6

J. A12042/01
omitted). Appellants' argument is that "any overt act undertaken by any
conspirator in furtherance of the common design" is sufficient to establish
venue wherever that overt act occurred, in this case Allegheny County. Brief
for Appellants at 16. Appellants' complaint sets forth the following allegation
in support of its choice of venue in Allegheny County.
Venue is proper in this County pursuant to Pa.R.Civ.P.
1006(a) because the Gift Claims transaction arises out of
documents drafted and prepared in final form for execution
in this County pursuant to communications from [Appellee]
Eric Werner, made on behalf of all of the [Appellees] named
herein, to Mr. Burke [Leo Werner's attorney] in this County.
Complaint, ¶24. In addition, after the parties engaged in discovery limited
to the venue question, Appellants also claimed that two meetings in
Pittsburgh, Allegheny County, Pennsylvania in February 1992 provide a basis
for their choice of venue. We shall now examine these occurrences to
determine whether they relate to the actual cause of action of civil
conspiracy such that venue in Allegheny County has been established.
¶ 9
The first incident is a February 2, 1989 meeting in Pittsburgh.
Appellants allege that on that date, Eric and Richard Werner met with Leo
Werner's estate attorney (Mr. Burke) and his financial adviser (Mr. Kahan) in
order "to determine the Werner Company's interest in buying Leo Werner's
stock[.]" Brief for Appellant at 9 (citations omitted). Appellants believe that

identical language was at issue.
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7

J. A12042/01
because Leo Werner's estate planning was discussed,5 and further because
shortly after this meeting Leo Werner began to look into making some
changes in his estate, they have established that the first step toward the
later civil conspiracy was taken in Allegheny County. We disagree. Even
assuming arguendo that this meeting, which occurred approximately three
years prior to the wrongful acts alleged and which was attended by only two
of the alleged conspirators, evidences the beginnings of a civil conspiracy, its
relation to the underlying wrongful acts in 1992 is tenuous at best.
Moreover, when viewed in the context of the allegations contained in the
complaint, such a meeting can hardly constitute more than a mere "facet of
the complex transactions" which Appellants challenge herein. See Craig,
supra. We thus agree with the trial court that the February 2, 1989
meeting in Pittsburgh, Allegheny County, Pennsylvania, is insufficient to
constitute a transaction or occurrence forming the basis for the conspiracy
cause of action such that venue would properly lie there.
¶ 10 The second and third occurrences are related. Appellants assert as the
second incident that the "gift documents" executed by Leo Werner, including
the March 1992 codicil to his will, were drafted in Pittsburgh at the office of
Leo Werner's attorney, Mr. Burke; and, that Appellee Eric Werner called Mr.
Burke in Pittsburgh on many occasions to discuss these gift documents.

5 Leo Werner was not in attendance at this meeting.
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8

J. A12042/01
Thirdly, Appellants aver that the 1992 Werner Company stock plan was also
drafted in the offices of a Pittsburgh law firm and that Eric Werner traveled
to Pittsburgh in 1992 to review them. Based upon our review of the record,
however, we find that Appellants have not established that the simple
preparation of these particular legal documents form the basis for the civil
conspiracy cause of action alleged against Appellees in the complaint. There
has been no allegation that the codicil (or any gift document) was executed
by Leo Werner in Allegheny County, nor that the transfer of the gifted shares
of stock was accomplished anywhere but in Mercer County. Similarly,
neither the adoption nor execution of the stock plan bears any relationship
to Allegheny County. Moreover, we are unpersuaded that the physical
location of the attorneys drafting certain company documents, and the mere
fact that some of the Appellees engaged in long-distance communications
with them, is sufficient to constitute a transaction or occurrence within the
meaning of Pa.R.C.P. 1006.
¶ 11 We also find Appellant's citation to McLaughlin v. Bradlee, 599 F.
Supp. 839 (D.D.C. 1984), to be misplaced. Although the court there did
recognize that venue may lie against all co-conspirators where some action
in furtherance of the conspiracy was taken by at least some of them, the
nexus between those acts and the forum was much more substantial than
that in the present case. The hurdle faced by Appellants in the case sub
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9

J. A12042/01
judice is that the ancillary connection between any of the Appellees and
Allegheny County, Pennsylvania is insufficient to "constitute a 'transaction or
occurrence' upon which venue can be based[.]" Craig, supra, 149 A.2d at
37.6
¶ 12 As we find no merit to Appellants' contentions, and therefore no abuse
of discretion on the part of the trial court in granting the petition to transfer
venue to Mercer County, the order appealed from must be affirmed.
¶ 13 Order affirmed.

6 We similarly reject Appellants' citation to criminal cases which do not
involve an interpretation of the pertinent language in Pa.R.C.P. 1006.
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10