The state Superior Court has not been giving trial court judges the proper discretion to grant venue transfers when witnesses hail from distant counties, the state Supreme Court said in a decision examining a 17-year-old standard regarding forum non conveniens.

In the high court’s ruling in Bratic v. Rubendall, issued Monday, Justice J. Michael Eakin, who wrote the court’s majority opinion, said the Superior Court’s prior ruling in the case improperly overturned a trial court’s decision to move the case from Philadelphia to Dauphin County.

“We reaffirm the Cheeseman [v. Lethal Exterminator] standard, but hold the showing of oppression needed for a judge to exercise discretion in favor of granting a forum non conveniens motion is not as severe as suggested by the Superior Court’s post-Cheeseman cases,” Eakin said. “Mere inconvenience remains insufficient, but there is no burden to show near-draconian consequences.”

The trial court had been persuaded by the fact that eight witnesses were based in Dauphin County; however, an en banc panel of the Superior Court held the defendants did not provide enough information to properly demonstrate that the original venue was oppressive.

According to Eakin, the standard for showing that a plaintiff’s choice of venue is “vexatious and oppressive” as outlined in the high court’s 1997 ruling in Cheeseman did not require defendants to provide detailed specifics about how the venue change would impact the parties.

“The witnesses need not detail what clients or tasks will be postponed or opportunities lost in order for the judge to exercise common sense in evaluating their worth; indeed, no one can foretell such detail,” Eakin said. “One hopes a judge may comprehend the existence of relevant general disruption from the allegations in the affidavit, sufficiently to rule on the issue.”

According to court papers, the plaintiffs in the case filed suit in the Philadelphia Court of Common Pleas in February 2009 against defendants Charles W. Rubendall II; his firm, Keefer Wood Allen & Rahal; Residential Warranty Corp. of Pennsylvania; and Integrity Underwriters Inc., alleging wrongful use of civil proceedings and abuse of process.

The defendants argued that the venue was improper because eight witnesses were based in Dauphin County, and petitioned to transfer on the ground of forum non conveniens.

The trial court found the defendants’ only connection to Philadelphia was that all of them occasionally do business in Philadelphia, and granted the petition.

The Superior Court upheld the decision, finding the trial court had not abused its discretion in determining that the defendants had met their burden to prove that the plaintiffs’ selected venue was “vexatious and oppressive.”

However, on reargument before the Superior Court, the plaintiffs contended the defense had relied on unspecified allegations about witnesses who were not likely to testify at trial.

In April 2012, a split en banc Superior Court panel reversed the trial court’s holding. The panel ruled 6-3. The majority opinion said the defendants failed to show why litigating in Philadelphia would be inconvenient, and the trial court relied on “irrelevant” factors, specifically the trial court’s concern that none of the appellants are from Philadelphia.

According to Eakin, the information from defendants provided sufficient basis for the trial court to transfer the case. He rejected the plaintiffs’ arguments that affidavits from the defendants were “plainly inadequate,” as they failed to give details of how the witnesses’ businesses would be affected, and six of the seven contained identical language.

“We are unsure what extra detail must be enumerated—the interference with one’s business and personal life caused by the participatory demands of a distant lawsuit is patent,” Eakin said.

Joseph R. Podraza Jr. of Sprague & Sprague in Philadelphia, who represented the plaintiffs in the case, had argued to the Supreme Court that reversing the Superior Court’s en banc majority decision to keep the trial in Philadelphia County would relax the Cheeseman standard to the point where transfers would become the norm throughout the state.

However, Jeffrey R. Lerman of Montgomery McCracken Walker & Rhoads, who represented the defendants, contended that upholding the Superior Court’s ruling would impose an oppressive standard. Not only would defendants be required to prove that witnesses are gainfully employed and live a significant distance from the chosen venue, but also that they would suffer harsh consequences, such as being fired or causing a company to lose profits, due to the chosen venue.

“The draconian standard would make forum non conveniens practically unattainable,” Lerman had said to the Supreme Court during oral arguments in November.

Eakin said the distance the parties would have to travel was an important consideration, and noted that, unlike in Cheeseman, which involved a transfer from Philadelphia to Bucks County, the transfer from Philadelphia to Dauphin County was much farther away.

“The affidavits here, of course, employed nearly identical language, as the factual basis for each is nearly identical—the oppressiveness of trial 100 miles away, which is manifestly troublesome. The judge need not be told like a child how the distance in and of itself makes things more disagreeable and disruptive to the persons obligated to travel,” he said. “As between Philadelphia and adjoining Bucks County, the situation in Cheeseman, we speak of mere inconvenience; as between Philadelphia and counties 100 miles away, simple inconvenience fades in the mirror and we near oppressiveness with every milepost of the turnpike and Schuylkill Expressway.”

Justice Thomas G. Saylor concurred in the result, but did not issue a separate opinion, and Justice Correale F. Stevens did not participate in the decision.

Lerman said Tuesday the opinion brought clarity to an important strategic issue, and that he felt gratified Eakin adopted the defendants’ position regarding the affidavits.

“There was this hyper-intense examination of literally every word of the affidavits,” he said. “The issue shouldn’t be how did the parties state it in the affidavit, the issue should be, what are the facts, where are the witnesses and what are their occupations?”

A call to Podraza was not returned.

Max Mitchell can be contacted at 215-557-2354 or Follow him on Twitter @MMitchellTLI.

(Copies of the 14-page opinion in Bratic v. Rubendall, PICS No. 14-1298, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •