The state Supreme Court has agreed to hear arguments on whether a suit against Harrisburg law firm Keefer Wood Allen & Rahal and other defendants should be moved from Philadelphia to Dauphin County, where eight key witnesses are located.
Counsel on both sides of the case said forum non conveniens is an important issue that affects a significant number of litigants in Pennsylvania.
In April 2012, a split en banc state Superior Court panel reversed a Philadelphia trial court’s ruling that had allowed the venue change.
The panel, hearing the case on reargument, ruled 6-3 to reverse Philadelphia Court of Common Pleas Judge Mark I. Bernstein’s ruling, which had granted the defendants’ petition to transfer the case to Dauphin County on the grounds of forum non conveniens.
Before reargument en banc, Bernstein’s ruling had originally been upheld 2-1 by a three-judge Superior Court panel.
In the en banc panel’s 12-page opinion filed in April 2012, Judge Sallie Updyke Mundy, who had dissented on the original panel, said the defendants had failed to show why litigating in Philadelphia would be inconvenient and that the trial court had relied on "irrelevant" factors in arriving at its decision.
"Specifically, the trial court articulated concern that ‘none of the [appellants] are from Philadelphia County,’" Mundy said. "This court has made clear that this consideration is irrelevant to a claim of forum non conveniens."
Mundy was joined in the majority by President Judge Correale F. Stevens and Judges Kate Ford Elliott, John L. Musmanno, Jack A. Panella and Anne E. Lazarus.
Judge Susan Peikes Gantman filed a 15-page dissenting opinion in which she argued that while the trial court did improperly rely on the defendants’ location in its analysis, that was only a "single misstep" and "did not lead to an abuse of discretion."
"There is no indication in the court’s opinion that it gave this one factor undue weight or based its decision to transfer the case solely on the location of appellants’ home and offices," Gantman said. "Importantly, the court held appellees to the proper burden."
Gantman was joined by Judges John T. Bender and Cheryl Lynn Allen.
In Bratic v. Rubendall, plaintiffs Alexander Bratic and Joseph Proko filed suit in the Philadelphia Court of Common Pleas in February 2009 against defendants Charles W. Rubendall II and his firm, Keefer Wood, along with Residential Warranty Corp. of Pennsylvania and Integrity Underwriters Inc., alleging wrongful use of civil proceedings and abuse of process, according to Mundy.
In April 2009, the defendants filed preliminary objections arguing that the venue was improper, followed by a May 2009 petition to transfer venue on the grounds of forum non conveniens, which Bernstein granted in July 2009, Mundy said.
In January 2011, the Superior Court ruled 3-1 to uphold Bernstein’s ruling, finding that he had not abused his discretion in determining that the defendants had met their burden to prove that the plaintiffs’ selected venue was "vexatious and oppressive," according to Mundy.
Soon after, the plaintiffs filed an application for reargument en banc, which the court granted in March 2011, Mundy said. On appeal, according to Mundy, the plaintiffs argued that the defense had not met the burden of proof for forum non conveniens and had instead relied on "general, unspecified allegations of inconvenience for witnesses who probably will not testify at trial."
Mundy began the en banc panel’s analysis by pointing to the state Supreme Court’s 1997 ruling in Cheeseman v. Lethal Exterminator, which held that deference must be given to a plaintiff’s choice of forum unless a defendant can show that the forum is either vexatious or oppressive beyond being "merely inconvenient."
According to Mundy, Bernstein had based his ruling on the facts that all of the defendants are from Dauphin County, neither of the plaintiffs are from Philadelphia and eight key witnesses are in Dauphin County.
Bernstein found that the defendants’ only connection to Philadelphia was that all of them occasionally do business in Philadelphia, Mundy said.
But Mundy said the Superior Court ruled in the 2009 case Walls v. Phoenix Insurance, that, under Cheeseman, the fact that the plaintiff is not a resident of the forum is irrelevant to a determination of forum non conveniens.
The Walls court also found that under the Superior Court’s 2004 ruling in Catagnus v. Allstate Insurance, the location and convenience of a plaintiff’s witnesses generally has no bearing on whether a forum is oppressive to a defendant, according to Mundy.
Bernstein also based his ruling on the fact that the claim on which the complaint was based took place in Dauphin County, according to Mundy.
But Mundy said the Superior Court has previously held in the 2002 case Borger v. Murphy that a defendant’s claims that the facts of a case did not significantly involve a plaintiff’s chosen forum and that another forum would be more convenient do not prove that the forum is either oppressive or vexatious.
As for the location of the eight defense witnesses and the travel costs they claimed they would incur, Mundy, citing the reasoning used by the Walls court, said four of them are officers or employees of the defendants and would likely be reimbursed by their companies, which would constitute a normal litigation expense for the defendants.
The other four witnesses are "engaged in client-based professions," Mundy said, adding that the defendants failed to show how the witnesses’ participation in the case would affect their businesses or the defendant employers’ businesses.
In addition, Mundy noted, all of the defendants’ attorneys are based in Philadelphia.
But Gantman, who had formed the majority along with Judge Jacqueline O. Shogan on the original Superior Court panel, took issue with this point in her dissent, saying the Cheeseman court had held that a venue change’s potential effect on defense counsel is irrelevant and should not be considered.
"The act of filing a motion to transfer based on forum non conveniens shows appellees believe Dauphin County is a more convenient forum than Philadelphia County. For this court to conclude to the contrary, based on the location of appellees’ counsel, flies in the face of the motion to transfer," she said, adding that the majority "also ignores the common practice of retaining local counsel and, in part, punishes appellees for hiring lawyers based in the jurisdiction where appellees were sued."
Likewise, Gantman called the majority’s reliance on Walls to dismiss the alleged hardships the defense witnesses would face if Philadelphia County remained the venue "tenuous and misplaced" since the key witness in Walls was an insurance claims adjuster and the witnesses in Bratic hold a number of different positions.
Gantman also emphasized in her dissent that the Superior Court’s scope of review is limited to whether or not the trial court abused its discretion.
Gantman said Bernstein had properly considered "the totality of the circumstances" in reaching his decision.
"Appellants might take issue with the respective weight the trial court gave certain factors, but our role at the appellate level is not to assess the trial court’s discretionary ruling as if we were deciding the motion to transfer in the first instance," Gantman said.
The plaintiffs’ attorney, Joseph R. Podraza of Sprague & Sprague in Philadelphia, said forum non conveniens is an important issue for all litigants.
Counsel for Rubendall and Keefer Wood, Jeffrey R. Lerman of Montgomery McCracken Walker & Rhoads in Philadelphia, said a ruling allowing cases to proceed in venues hundreds of miles away from key witnesses would put filing parties at a significant strategic advantage.
Lerman said venue issues similar to the one in Bratic arise fairly often.
Counsel for Residential and Integrity, Lloyd G. Parry of Davis, Riter, Parry & Tyler in Philadelphia, declined to comment.