2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

Court noted that Defendants claimed that the Philadelphia Defendants were “sham” Defendants,and that “[w]hile we are not entirely unsympathetic to [Defendants’] position, we are not atliberty to rewrite a rule which has been promulgated by the Supreme Court.” Id. at 1214. TheSupreme Court granted Defendants’ Petition for Allowance of Appeal.The Supreme Court stated there are only three bases which a defendant can challengevenue: (1) improper venue by preliminary objection; (2) forum non conveniens; and (3) inabilityto hold a fair and impartial trial. Zappala v. Brandolini Prop. Mgmt., Inc., 909 A.2d 1272, 1281(Pa. 2006). The court explained that when examining improper venue by preliminary objection,the court must examine whether venue is proper by taking a snapshot at the time the Complaintis filed. Id. The court stated if venue is proper at the time the Complaint was filed, then venuetechnically remains proper throughout litigation. Id. The court noted that challenges to venuevia forum non conveniens and inability to hold a fair and impartial trial can be raised at any timebefore trial. Since the Chester County Defendants did not challenge venue pursuant to forumnon conveniens, the Supreme Court remanded the case to the trial court to proceed, stating in afootnote that:any resolution of a subsection d [forum non conveniens] petitionlies within the trial court’s discretion, which, as noted wouldnecessarily involve balancing the inconvenience or fairness ofmaintaining the case in the plaintiff’s given forum, particularly inlight of the fact that the Chester County Defendants do not haveany connection thereto, against the fact that significant litigation inthe chosen forum has already occurred.Id. at 1285. The Supreme Court also stated in another footnote that “[w]e disapprove of forumshopping and explain in detail that a defendant aggrieved by such a strategy has recourse eitherthrough forum non conveniens in accord with Rule 1006(d)(1) or through averment that absent atransfer there cannot be a fair and impartial trial. See Pa. R. Civ. P. 1006(d).” Id. at 1286.Upon remand to the trial court, Judge Arnold L. New granted the Chester CountyDefendants’ Petition to Transfer Venue pursuant to forum non conveniens. The court noted thatthe forum on Philadelphia was vexatious, even considering the extent of the court’s involvementwith the case. The court stated that “Plaintiff’s claims against the Philadelphia CountyDefendants were tenuous at best when this action was brought.” The court also stated thatPlaintiff claimed both the Philadelphia and Chester County Defendants had a responsibility orownership interest in the land where the accident occurred, but “[n]othing on the record, beyondPlaintiff’s bald assertions in her complaint, supports this claim against [the Philadelphia]Defendants.” The court only pointed to one defendant, who stated “trial in Philadelphia Countywould create problems with staffing and unnecessary costs and time expenditure.” The courtalso stressed that it is important to note that the summary judgment motions against thePhiladelphia Defendants were dismissed without opposition. Additionally, the court noted, butdid not comment upon Defendants’ argument that Philadelphia County juries are more liberal inawarding damages to Plaintiffs in personal injuries suits, which results in cases settling at higherfigures.131