The state Superior Court has ruled a Philadelphia judge did not abuse his discretion in ruling in favor of a forum non conveniens argument from the Children's Hospital of Philadelphia, which sought to dismiss a personal injury lawsuit filed in Philadelphia, arguing the proper venue would be a state court in New Jersey.

Led by President Judge Correale F. Stevens, the unanimous three-judge panel in Pisieczko v. Children's Hospital of Philadelphia said that private and public interest factors lended to moving the case to New Jersey, despite the fact that CHOP's headquarters are located in Philadelphia.

"While [CHOP's] headquarters are located in Philadelphia County, the cause of action arose from injuries sustained in New Jersey," Stevens, who was recently appointed to the state Supreme Court, said in a nine-page opinion filed late last month.

"The suit was filed by New Jersey citizens, and presumably many of the witnesses also reside in that state," Stevens added. "Furthermore, a possible jury view of the accident site would be more convenient if the trial were held in New Jersey.

According to court records, Kenneth Pisieczko was seriously injured while doing independent contractor work for CHOP in November 2011 after he fell from a ladder that was positioned on a pole that broke apart.

Pisieczko and his wife, Doris Pisieczko, filed a complaint in Philadelphia in May 2012.

CHOP filed a petition for dismissal of the case for forum non conveniens under 42 Pa.C.S.A. Section 5322(e). CHOP argued New Jersey was a proper venue for the case because the accident took place there, the plaintiffs were residents of New Jersey and many of the witnesses work and live there.

The plaintiffs responded that, because CHOP is headquartered in Philadelphia and because Pisieczko's surgeon and the CHOP representative who hired him are in Philadelphia, the FJD was the appropriate forum for the case, Stevens said.

The panel, though, relied on Engstrom v. Bayer, a 2004 Superior Court case, in finding the trial court did not abuse its discretion.
In Engstrom, the Superior Court restated that the two most important factors a court must consider in deciding whether forum non conveniens controls when the alternate venue is out of state are that only "weighty reason[s]" will disturb a plaintiff's choice of venue and that another forum must be available or the action may not be dismissed.

The court also elaborated on the specific public and private factors that a court should consider when determining whether there are sufficiently weighty reasons.

The private factors include the relative ease of access to sources of proof, the availability of compulsory process for unwilling witness and the cost of bringing in the willing ones, along with "'all other practical problems that make trial of a case easy, expeditious and inexpensive.'"

The public factors have to do with a backlog of cases in "congested centers," the burden placed on a jury that is not of a community related to the litigation and to avoid conflict of laws.

Philadelphia Court of Common Pleas Judge Allan L. Tereshko said both the public and private factors provided sufficiently weighty reasons to overcome the plaintiffs' choice of forum.

It was not disputed that there exists another forum for the case and, according to Stevens, Tereshko specifically noted that Pisieczko and his wife may re-file in New Jersey.

Stevens, joined by Judges Anne E. Lazarus and Robert E. Colville, said Tereshko did not abuse his discretion.

On top of the public and private factors, Stevens pointed to statistics submitted by CHOP that demonstrated that the courts of Atlantic County, N.J., were far less burdened than the Philadelphia courts.

"Furthermore, the lower court was correct in its conclusion that a Philadelphia jury has no relation to the litigation at hand," Stevens said. "Appellants are New Jersey residents suing about an accident that took place in New Jersey; therefore, jury duty ought not to be imposed on the community of Philadelphia."

Stevens said the case would be more expeditious if tried in Atlantic County because the judges there have more experience applying New Jersey law.

One of the plaintiffs' attorneys, Alvin F. de Levie, declined to comment on the decision.

CHOP's attorney, Daniel J. Rovner of Post & Post in Berwyn, Pa., said his client was pleased with the court's decision.

"The case involved a New Jersey resident who allegedly suffered injuries while performing work in New Jersey at a medical specialty care center located in New Jersey," Rovner said.

While CHOP's headquarters are in Philadelphia, Rovner said not every case featuring a defendant that is based out of Philadelphia is automatically venued in Philadelphia.

"It's nice to have a published opinion clarifying the law in this regard," Rovner said.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.

(Copies of the 10-page opinion in Pisieczko v. Children's Hospital of Philadelphia, PICS No. 13-2244, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •