2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

By an Amendatory Order dated March 3, 2003, the Pennsylvania Supreme Court ruledthat Pa. R. Civ. P. 1006 “shall apply to medical professional liability actions filed on or afterJanuary 1, 2002 and not to such action filed prior to that date.”The Medical Care Availability and Reduction of Error (“MCARE”) Act revised existinglaw regarding venue. Specifically, section 5101.1 of the Act relates to venue in medicalmalpractice actions. See 42 Pa. Cons. Stat. § 5101.1. While previous venue principlesessentially permitted an action to be filed in a county in which any defendant conducted businessor had sufficient contacts, section 5101.1(b) specifically provides that a medical professionalliability action may only be filed in the county in which the cause of action arose. See id.Additionally, the Rules of Civil Procedure have recently been revised to conform to theGeneral Assembly’s changes set forth in MCARE. Rule 1006, relating to change of venue,provides that a medical malpractice action may be brought against a health care provider only ina county in which the cause of action arose. See Pa. R. Civ. P. 1006(a.1). Moreover, therevisions provide that if an action to enforce a joint or joint and several liability claim againsttwo or more defendants includes one or more medical malpractice claims, the action must bebrought in any county in which venue may properly be laid against any defendant undersubdivision (a.1). See Pa. R. Civ. P. 1006(c)(2). Section (f)(2) of the rule also sets forth that ifone or more of the causes of action stated against the same defendant is a medical malpracticeclaim, the action must be brought in a county required by subdivision (a.1). See Pa. R. Civ. P.1006(f)(2). The revisions to Rule 1006 as applied to individual defendants are incorporated intothe following other Rules of Civil Procedure: 2130 (Partnerships as Parties); 2156(Unincorporated Associates as Parties); and 2179 (Corporations and Similar Entities as Parties).By an Amendatory Order dated March 3, 2003, the Pennsylvania Supreme Court ruledthat Pa. R. Civ. P. 1006 “shall apply to medical professional liability actions filed on or afterJanuary 1, 2002 and not to such action filed prior to that date.”One recent venue case of interest, however, does not involve a medical malpracticeclaim. In Zappala v. Brandolini Property Management, Inc, 849 A.2d 1211 (Pa. Super. Ct. 2004),aff’d & remanded, 909 A.2d 1272 (Pa. 2006), rev’d sub nom. Zappala v. The James LewisGroup, 982 A.2d 512 (Pa. Super. Ct. 2009), the Philadelphia Court of Commons Pleas initiallytransferred a slip and fall case to Chester County based upon forum non conveniens and improperforum shopping, holding that the forum of Philadelphia was “vexatious, being designed toharass.” Plaintiff, a Delaware County resident was injured in a slip and fall accident thatoccurred in Chester County. Plaintiff sued two groups of defendants, one set from ChesterCounty who owned the land in Chester County, and another set of defendants from Philadelphiawho were allegedly responsible for maintaining the land in Chester County. After discovery wascompleted, all of the Philadelphia Defendants were dismissed from the case pursuant tounopposed motions for summary judgment, and only the Chester County Defendants remained.The initial trial judge, the Honorable Mark I. Bernstein granted the Chester CountyDefendants’ Motion to Transfer Venue, finding venue improper in Philadelphia because theChester County Defendants did not conduct business in Philadelphia. Plaintiffs appealed and theSuperior Court vacated the venue transfer order, finding that an objection to venue was waivedbecause Defendants did not challenge venue by way of preliminary objections. The Superior130