.
Casualty

Defense Digest

After Further Review: Manufacturers & Sellers Incidental Contacts and their Impact on Venue

Defense Digest, Vol. 32, No. 1, March 2026

March 1, 2026

Key Points:

  • A manufacturer and seller of retail goods should seek a transfer of venue if their online sales in the plaintiff’s selected forum generate limited revenue for the company.
  • The mere act of online sales in a Commonwealth forum does not give rise to laying venue where these sales occur – the actions of the manufacturer or seller must also be deemed continuous, habitual, and systemic in that venue.
  • Where a manufacturer or seller has no physical presence in the forum – such as brick‑and‑mortar locations, in‑state sales representatives, or the licenses and authorizations required to conduct business in Pennsylvania – it may possess a strong basis for arguing that venue is improper.

In today’s world of online advertisement and sales, manufacturers and sellers are seemingly serving forums at an increasing level. This trend is here to stay, as consumers across the nation and Commonwealth are adapting to, and addicted to, the ease of online shopping. As discussed below, the capacity to sell goods online has resulted in an ever-evolving, liability concern: forum shopping and unfavorable venues.

While online shopping may be a boon for the consumer, it raises concerns for manufacturers and sellers of goods. Mainly, how does the nature of a manufacturer’s and seller’s online presence impact its prospective liability in forums across the Commonwealth? After all, the reality of serving consumers in Philadelphia County or Lackawanna County creates a range of exposure more dire than, say, Clinton County or Columbia County. The nature of online sales was recently addressed by the Pennsylvania Superior Court in Watson v. Baby Trend, Inc., 308 A.3d 860 (Pa. Super. 2024). While the purchase involved in Watson occurred in a retail store – Babies “R” Us – in Bucks County, Pennsylvania, the nature of the manufacturer’s online sales formed the basis of the plaintiff’s decision to select the Philadelphia Court of Common Pleas as the forum to file suit.

The Watson case was brought as a result of the plaintiffs’ infant daughter dying of asphyxiation while sleeping in a car seat manufactured by the the defendant, Baby Trend. An amended complaint was filed in October of 2021, in the Philadelphia County Court of Common Pleas, bringing products liability/strict liability, negligence, and breach of warranty claims against Baby Trend. Later that month, Baby Trend filed preliminary objections, asserting that the Philadelphia Court of Common Pleas was not the proper venue for suit.

Baby Trend argued Philadelphia was an improper venue as it did not own real estate in Philadelphia County, the car seat was not purchased in Philadelphia County, the tragic incident itself did not occur in Philadelphia County, and, most importantly, Baby Trend did not conduct substantial, continuous, and systemic business activities in Philadelphia County.

In this regard, the Philadelphia Court of Common Pleas analyzed Baby Trend’s sales data under the well-established “quality-quantity” venue test. As noted in previous Superior Court precedent, “[a] business entity must perform acts in a county of sufficient quality and quantity before venue in that county will be established.” Zampana-Barry v. Donaghue, 921 A.2d 500, 503 (Pa. Super. 2007) (emphasis added).

Baby Trend’s business model is largely to sell its goods through big-box retailers, such as Walmart and Target. The Philadelphia Court of Common Pleas determined that roughly 99% of its sales occurred through big-box retailers. While it did have an online presence, this only comprised 1% of its sales revenues. The plaintiffs attempted to use Baby Trend’s online sales in Philadelphia County as proof that their acts were of a sufficient “quality and quantity” to justify their selected venue. The Philadelphia Court of Common Pleas ultimately rejected this argument, sustaining the defendant’s preliminary objections, and transferred suit to Bucks County in August of 2022. As a result of that decision, the plaintiffs appealed to the Superior Court.

The Superior Court narrowed its review of the trial court’s decision by further analyzing Baby Trend’s sales data and its applicability to the “quality-quantity” test. The Superior Court described the 1% of online sales directed to Philadelphia County consumers as incidental and de minimis. Thus, the quality prong was not satisfied. This is a big takeaway as it provides manufacturers with a clear-cut data point as to what kind of impact their online sales will have in relation to the forum they may expect to be haled into.

Further, the Superior Court reasoned that the quality-quantity test was not satisfied because Baby Trend did not own real estate in Philadelphia; did not have a place of business there; did not employ sales representatives there; did not own licenses, authorizations, or registrations from the Commonwealth of Pennsylvania; and was not registered as a foreign corporation for the purpose of doing business in Philadelphia. Thus, the court determined that Baby Trend’s contacts in Philadelphia did not support suit in the forum because the evidence suggested that its contacts with Philadelphia were incidental by nature and would not be seen as continuous, habitual, or regular.

The Honorable Terrence R. Nealon of the Lackawanna Court of Common Pleas relied on Watson in a case currently being handled by our Scranton, PA office. While our preliminary objections to venue were overruled in that matter, Judge Nealon based his decision on the fact that an individual defendant had been properly named – making venue proper under Pa. R.C.P. 1006(a)(1). However, in his decision, Judge Nealon cited Watson as authority on proper venue, ultimately reasoning that the parties would have been directed to engage in venue discovery – as they did in Watson – to properly determine if the defendant’s actions in Lackawanna County were continuous, general, or habitual. See Celli v. Endless Mountains Extended Care, LLC, 2024 WL 4182838 (C.P. Lacka. Sept. 12, 2024).

Thus, Watson serves as a significant Pennsylvania decision for determining proper forum/venue for cases brought against manufacturers and sellers. Plaintiffs often seek to establish venue in plaintiff-friendly forums, aided by tenuous connections to the forum. However, Watson provides the defense bar with a myriad of arguments to combat these efforts, particularly in the context of retail liability.

John works in our Scranton, PA office. He can be reached at (570) 496-4640 or JPKelly@mdwcg.com.

Firm Highlights

Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

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Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

Result

$1.09 Billion Products Liability Verdict Overturned

In this products liability crashworthiness case, the Superior Court of Pennsylvania reversed a Philadelphia jury verdict of $1.09 billion, the largest verdict ever overturned by a PA appellate court.  The court ordered a new trial based on deficient jury instructions, clarified important aspects of crashworthiness law, and confirmed that so-called standard jury instructions may be incompatible with Pennsylvania law. 

Result

$19 Million Medical Malpractice Verdict Overturned

In this medical malpractice case, the trial court vacated $10 million of a $19 million verdict in post-trial motions and the Superior Court of Pennsylvania vacated the remaining $9 million on appeal.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Result

Statutory Employer Immunity Upheld

In this construction accident case that resulted in a $5 million verdict, the Supreme Court of Pennsylvania upheld the Statutory Employer Doctrine, which immunizes general contractors and other contractors on construction sites when certain elements are satisfied.