A firm’s reference on its website to an office in Exton, Pa., accommodating “its clients in Philadelphia and the surrounding Delaware Valley” does not show that the firm had enough business in the city to keep a legal malpractice case in Philadelphia courts, the Superior Court has ruled.
In the decision, which upholds a Philadelphia Court of Common Pleas ruling transferring the case to the Dauphin County Court of Common Pleas, the court decided that the website reference and the firm’s “infrequent” business in Philadelphia were insufficient to overrule the transfer.
Writing the memorandum opinion in Schriner v. Latsha Davis Yohe & McKenna, Judge Jacqueline O. Shogan relied on the state Supreme Court’s 1990 decision in Purcell v. Bryn Mawr Hospital, holding that advertisements in a Philadelphia phonebook and newspaper were not sufficient to require Philadelphia venue.
“The same sort of advertisement appearing on an Internet website is not treated any differently,” she said. “The trial court’s determination that appellees have not regularly conducted business in Philadelphia County is supported by the record.”
In a separate ruling involving matters stemming from the same toxic tort, the Superior Court further found that the case against several insurers was likewise properly moved to Dauphin County from Philadelphia.
Judges Susan Peikes Gantman and William H. Platt joined the opinion. Platt wrote the memorandum opinion for the decision in Schriner v. One Beacon Insurance, the case against the insurance carriers.
Both cases stem from a toxic tort claim litigated in Dauphin County. Plaintiffs Michael and Robin Schriner alleged that they were exposed to toxic mold in a property they rented in Dauphin County.
After the jury awarded $5.1 million for the plaintiffs’ allegedly resultant brain damage and breast cancer, several insurance carriers, including One Beacon Insurance Co., sought to intervene in the underlying action and strike the judgment.
The Dauphin County Court of Common Pleas granted the intervention and struck the judgment, and the Schriners then filed suit in Philadelphia against the insurance carriers alleging bad faith, negligence, breach of contract, breach of fiduciary duty and unfair trades, among other things.
The Schriners also filed a separate claim against attorneys Kevin M. McKenna and Mark Morford, and their firm, Latsha Davis Yohe & McKenna, alleging legal malpractice. Although Shogan’s opinion did not explain who the attorneys represented, an earlier opinion described the attorneys as representing the property owners.
The carriers filed a motion to transfer the case under forum non conveniens, and in the separate case, the attorneys made a similar motion to move the case from Philadelphia to Dauphin County.
Both motions transferring the cases to Dauphin County were granted, and the Schriners appealed the decisions.
The defendants in both cases noted that the Schriners live in Dauphin County, all transactions occurred in Dauphin County and the property where the incident occurred is in Dauphin County.
The attorneys further contended that their only connection to Philadelphia was that they periodically represented clients in both the Philadelphia Court of Common Pleas and the U.S. District Court for the Eastern District of Pennsylvania.
The Superior Court found that Philadelphia was an improper venue under Pa.R.C.P. 1006(a) because the attorneys were served in Cumberland County and the underlying incidents and litigation took place in Dauphin County. The court further found that, under Pa.R.C.P. 2179(a)(3), Philadelphia was an improper venue because the firm’s principal office is in Chester County.
However, the pivotal question, according to Shogan, was whether, pursuant to Pa.R.C.P. 2179(a)(2), Philadelphia was where the corporation conducted business.
Shogan applied the “quality” and “quantity” tests regarding a company’s business contacts, as established by the Superior Court’s 2012 decision in Wimble v. Parx Casino and Greenwood Gaming & Entertainment.
The Schriners argued that because the attorneys represented clients in Philadelphia, and representing clients directly increased their business, the activities met the “quality of acts” requirements.
Shogan agreed. However, she also held that the Schriners did not meet the “quantity of acts” threshold, as McKenna entered appearances in Philadelphia courts in eight cases over four years and Morford entered appearances in seven such cases over three years.
“We cannot conclude that these infrequent appearances can be construed as ‘so continuous and sufficient to be considered habitual,’” Shogan said, quoting Wimble.
In the case against the insurance carriers, the Schriners contended that a June 18, 2013, decision from the Superior Court, which overruled the Philadelphia trial court and allowed the insurance carriers to intervene and strike the motion, mandated that the Philadelphia transfer order was also reversed. The Schriners further contended that the insurance carriers did not prove that keeping the case in Philadelphia would be problematic.
The Superior Court, however, disagreed with both arguments.
“It is evident that the fact that, at that time, the underlying matter had been reopened was a factor in the trial court’s decision. However, it was not the only fact,” Platt said.
Darren L. Harrison of Stalker Vogrin Bracken & Frimet represented One Beacon and declined to comment without the consent of his client. Thomas Blackburn of Drake Hileman & Davis, who represented the plaintiffs, declined to comment as well. Edwin Schwartz of Marshall Dennehey Warner Coleman & Goggin, who represented Latsha Davis Yohe & McKenna, did not return calls for comment.
(Copies of the 10-page opinion in Schriner v. Latsha Davis Yohe & McKenna, PICS No. 14-0100, and the eight-page opinion in Schriner v. One Beacon, PICS No. 14-0101, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •