The uphill battle defendants faced when trying to get their cases moved from a plaintiff’s chosen venue has been leveled somewhat thanks to the state Supreme Court’s decision last month in Bratic v. Rubendall, according to attorneys who spoke with the Law Weekly.
In August, the Supreme Court overturned the state Superior Court’s reversal of a trial court’s decision to transfer a case from Philadelphia to Dauphin County. Justice J. Michael Eakin, who wrote the high court’s opinion, reasoned that the intermediate court failed to give the trial court proper discretion under the 17-year-old standard for granting forum non conveniens motions outlined under Cheeseman v. Legal Exterminator.
Attorneys from both the plaintiffs and defense bar agreed that while the decision reaffirms the Cheeseman standard, it lowers the bar for defendants to show that a venue transfer is warranted.
“It’s been a real uphill battle,” said Barbara Gotthelf, a partner at McCarter & English. “They haven’t changed the test, but they’re going to apply the test in a less severe manner.”
SchmidtKramer attorney Scott Cooper likened the Supreme Court’s ruling to lowering standards from reasonable doubt to a preponderance of the evidence threshold.
“It’s taken away the status where the plaintiff has the preference and the defendant has a [near] impossible burden to overcome,” Cooper said. “It leaves it more up to the judge, but they’re still going to have to show on the record that it’s oppressive or vexatious.”
In the 1997 decision in Cheeseman, the Supreme Court outlined the standard for showing that a plaintiff’s choice of venue is “vexatious and oppressive.” In his Bratic decision, Eakin clarified that this standard did not require defendants to provide detailed specifics about how the venue change would impact the parties, and said trial courts have the discretion to use a balancing test of several factors, including distance traveled and court congestion, to make the determination.
The defendants in Bratic had argued that the venue transfer was warranted because eight witnesses were based in Dauphin County, and submitted affidavits to support their petition for venue transfer. The plaintiffs argued that the petitions lacked details and were inadequate, as some used identical language.
Eakin, however, disagreed.
“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.”
Pittsburgh-area plaintiffs attorney John P. Gismondi said the decision was understandable given that the plaintiffs had little to argue outside of the fact that the affidavits were not detailed. However, he said, the ruling indicated a “lowering of the bar” for venue transfers.
The court is “going to accept a little less quantum of evidence that the moving party has to come forward with to satisfy Cheeseman,” he said, noting the importance the decision placed on distance. “The Supreme Court said, ‘Look, take judicial notice. Anybody traveling that far is going to incur hardship. We don’t care the affidavits didn’t specifically go through and talk about the issue.’”
The appellate courts, Gismondi added, have continued to find for the plaintiffs “in many different fact patterns.” He said plaintiffs should be able to overcome forum non conveniens motions by establishing some contact with the chosen venue.
Gotthelf said the Superior Court’s March decision in Jones v. Morey’s Pier indicates that the sanctity of the plaintiff’s choice of venue may be eroding. In Jones, the Superior Court reversed a trial court’s decision not to allow a venue transfer from Philadelphia to a court in New Jersey. While Gotthelf noted that the standards for granting intra- and extra-state venue changes are different, she said the rulings showed a common theme.
“I think both of these decisions indicate that the plaintiff’s choice of forum is not automatically going to be correct,” she said. “I think that people are going to see that the appellate courts are willing to really look at these forum issues, and when the venue is wrong, they’re going to make the right decision.”
Plaintiffs attorneys who spoke with the Law Weekly predicted that the decision will likely lead to an uptick in forum non conveniens motions—at least in the short term. Defense attorneys, though, disputed that, and said that they have never been shy about bringing the motions.
Carl D. Buchholz III of Rawle & Henderson said he hoped the decision will increase the confidence of trial court judges when it comes to granting transfers.
“Speaking to some of the trial court judges, they got frustrated in seeing their decision reversed, and they became a little gun-shy on granting transfers,” Buchholz said. “They will have more confidence that their discretion will be affirmed or upheld. I don’t think it will lead to transfers that are not warranted, and trial courts have done a good job of granting deference to plaintiffs where it’s warranted.”
Buchholz added that he felt the ruling clarified what is required under Cheeseman.
Buchholz was the defense attorney in a series of cases captioned Zappala v. James Lewis Group and Zappala v. Brandolini Property Management, both of which went before the Supreme Court related to transfer and venue-shopping issues. Buchholz said ultimately the courts found that the defendants had not met the threshold for a venue change under the Cheeseman standard.
“It clears any ambiguity in the vexatious standard, which was an open-ended issue at the time the motion for transfer in Zappala was filed, as to what we needed to do,” he said. “Now it’s pretty clear.”
According to Cooper, outside of an initial burst of filings, the ruling will not cause a major change in Pennsylvania, as the defendants still have a high burden to overcome.
The largest impact, he predicted, will be seen in personal injury and motor vehicle cases involving insurance policies that do not specify the choice of venue. He added that the ruling will not affect medical malpractice cases due to provisions outlining venue in the Medical Care Availability and Reduction of Error Act.
“In the long run, it’s not going to be that much different,” he said. “For the most part, with Cheeseman, everyone kind of says we’re going to give the plaintiffs the benefit of the doubt. Now it’s, ‘Let’s at least look into the record.’”