2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

The court acknowledged that there is a right to “legitimate” forum shopping, but that thePlaintiff here “created” a forum by suing an unwarrantedly broad choice of parties. The courtstated even if Plaintiff had support for her claims against the Philadelphia Defendants, theconsideration of forum shopping would still be an appropriate factor to consider in deciding apetition to change venue based upon forum non conveniens. Id. This statement by the trial courtis by far the most significant part of the opinion because it opens the door for non-PhiladelphiaDefendants to successfully transfer venue whenever Philadelphia Defendants are dismissed froma case, even if Defendants cannot argue that the Philadelphia Defendants were “sham”defendants. The court also stated that even if defendants do not allege forum shopping, it isproper for a court to address forum shopping to determine whether the forum was designated toharass Defendants.In Zappala v. The James Lewis Group, 982 A.2d 512 (Pa. Super. Ct. 2009), the SuperiorCourt reversed Judge New’s decision on remand and transferred the case back to Philadelphia.While the Superior Court agreed with Judge New’s analysis that improper forum shopping canprovide a basis for a change of venue forum non conveniens under Rule 1006(d)(2), the courtheld that the Chester County Defendants failed to present sufficient evidence to the trial courtdemonstrating that venue in Philadelphia County was harassing, oppressive, or vexatious suchthat transfer to Chester County was warranted. More specifically, the court held that, despitetheir assertions to the contrary, the Chester County Defendants failed to present sufficientevidence to support their claim that Plaintiffs had initially named the Philadelphia Defendants asparties to the action solely for the purpose of obtaining venue in Philadelphia, with theexpectation that the Philadelphia Defendants would ultimately be dismissed without opposition.In short, the Superior Court found that the Chester County Defendants failed to make a primafacie showing of improper forum shopping on the part of Plaintiff to support a finding of forumnon conveniens in Philadelphia County under Rule 1006(d)(2). However, it should be noted thecourt reiterated that, as a matter of law, improper forum shopping can provide grounds for forumnon conveniens if the proper evidentiary showing is made.In Bilotti-Kerrick v. St. Luke’s Hospital, 873 A.2d 728 (Pa. Super. Ct. 2005), theSuperior Court applied the amended venue rule regarding medical malpractice actions and heldthat the trial court did not abuse its discretion in transferring venue from Northampton County toLehigh County, which is where the cause of action arose. The patient at issue in this case hadbecome ill and been taken to a hospital. The doctor there recommended transfer of the patient toSt. Luke’s Hospital for immediate cardiac catheterization. He contacted a cardiologist from St.Luke’s, who was at his home in Northampton County at the time, and who agreed to accept thepatient upon her arrival and perform the needed procedure by 6 a.m. Instead, the patient wastaken to the critical care unit at St. Luke’s, and the cardiologist did not see her until much later inthe day. After the catheterization and surgery, the patient died. Plaintiff argued venue wasproper in Northampton Co. because that is where the cause of action arose, based on the fact thatthe cardiologist’s residence was there and it was from there that he managed her care before hecame to St. Luke’s.The Superior Court held, however, that “for venue purposes the cause of action arose inthe county where the negligent act or omission of failing to provide the needed care occurred.”873 A.2d at 731. In this case, Plaintiff’s allegations of negligence were based on delay in the132