October 21, 2008

Improper Venue Vs. Forum Non Conveniens

Venue considerations present thorny legal questions at the beginning of a case. Whether removing a case to federal court or to another county, a change in venue can have a significant impact on both liability and damages. This note focuses on the Pennsylvania rules that govern venue in matters involving corporations as defendants and the distinction between improper venue and forum non conveniens.

Rule 1006 of the Pennsylvania Rules of Civil Procedure, in conjunction with Rule 2179, governs venue in actions involving corporations. Any one of the five (5) enumerated bases under Rule 2179 suffices to establish “proper” venue. Typically, plaintiffs rely on 2179(a)(1)(2) – a county where the corporation regularly conducts business. The threshold burden is relatively light and easy to surpass. For example, having an office for service of process will suffice. In Philadelphia County, performing repairs on equipment taken into Philadelphia County by other entities will support venue.

The next question to consider is whether venue can remain in a county when venue is proper against one defendant and potentially improper against another defendant. The answer is in the affirmative due to Rule 1006(c)(1). The purpose of the Rule is straightforward. It addresses the situation where plaintiff has filed suit against two corporate defendants that would not have a common county for proper venue.

The inquiry on venue does not end here. Even if venue is proper, the Pennsylvania Rules allow for a case to be transferred if the chosen forum in inconvenient to the parties, See Rule 1006(d)(1). To be clear, Rule 1006(a), (b) and (c) pertain to improper venue. Rule 1006(d) pertains to forum non conveniens. Thus, Rule 1006(e) provides that improper venue shall be raised by preliminary objections and, if not so, raised shall be waived. Rule 1006(d), however, makes clear that forum non conveniens, expressed as “for the convenience of parties and witnesses,” shall be determined by petition and hearing thereon. In fact, this is codified and made expressly clear in Rule 1028 – Preliminary Objections.

The rule on preliminary objections and the footnote thereto make clear that only improper venue may be challenged by preliminary objections. A challenge to the convenience of the forum must be made by petition. As discussed below, it is best if the moving party have its evidence in order at the time the petition is filed.

Rule 1006(d)(l) permits a trial court to transfer venue to any other county in which the action could have been brought “[f]or the convenience of parties and witnesses.” The Supreme Court case of Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156, 162 (Pa. 1997) remains the Pennsylvania authority on venue under Rule 1006(d0(1). In meeting the burden to transfer, the Court in Cheeseman made clear that the trial court may transfer venue if the plaintiff’s chosen forum is “oppressive or vexatious” to the defendant.

The courts of Philadelphia County are routinely called upon to address venue considerations and the opinions issued by the Honorable Judges of this Court are consistent with the precedent established in Cheeseman. This Honorable Court has held that transfer of venue is appropriate when trial in another county would be more convenient to the witnesses and the parties, and where adjudication in this County would be onerous and impose undue hardship. See Hartman v. Corporate Jet, Inc., 60 Pa. D. & C. 4th 431 (Phila. Cty. 2001).

The doctrine of forum non conveniens is “a necessary counterbalance to ensure fairness and practicality.” See, Okkerse v. Howe, 556 A.2d 827, 832 (Pa. 1989). Indeed, in Hartman, the Court transferred venue of a personal injury action originally filed in Philadelphia because most of the witnesses and sources of proof were located in another county. Judge Alejandro stated that “venue in Philadelphia County, while proper, constitutes a harassment to defendant and its witnesses, and is also onerous and an unnecessary hardship to the parties, particularly the defendant, and witnesses.” Hartman, at p. 3.

The rationale of Hartman was approved and followed by the Superior Court in Kyra v. EPMG of Pennsylvania, P.C., No. 3125 EDA 2000, 2001 WL 1704167 (Pa. Super., Oct. 30, 2001). In Kyra, plaintiffs filed actions in Philadelphia for injuries allegedly sustained as a result of exposure to carbon monoxide in Lehigh County. Defendants filed Petitions to Transfer Venue because the alleged injuries occurred in Lehigh County and “all of the essential fact witnesses for the trials” worked and resided in or around Lehigh County. Affirming the trial court’s decision to transfer venue, the Superior Court noted that it would be oppressive and/or vexatious to try the cases in Philadelphia. The Court focused especially on the burdensome travel that would be required of witnesses from the Lehigh County area to Philadelphia for trial.

Similarly, in Dulaney v. Consolidated Rail Corp., 715 A.2d 1217 (Pa. Super 1998), the appellate court applied the same analysis to affirm a trial court’s transfer of venue from Philadelphia to Allegheny County. The Superior Court held that transfer was appropriate because the accident did not occur in Philadelphia and all the witnesses lived in Ohio, West Virginia or Western Pennsylvania – making Allegheny County an easier, more convenient forum for litigation and trial. “[A] trial in [plaintiff’s] chosen forum would have been oppressive and a trial in Allegheny County would be more convenient because of easier access to all of the witnesses and other sources of proof.” Dulaney, 715 A.2d at 1219.

“Oppressive and vexatious” was given further definition in Seidel v. Ritz, 2007 WL 3236694 (Phila. Cty., J. Moss, 2007) In Seidel, plaintiffs initiated suit to recover for personal injuries arising out of a motorcycle accident that occurred in Berks County. Id. at *3. Defendant White’s Harley Davidson Sales filed a Motion to Transfer Venue contending that plaintiff’s choice of forum in Philadelphia County was oppressive and vexatious. The balance of the defendants joined in the motion to transfer.

Plaintiff argued that selection of another venue would undoubtedly be inconvenient to one of the defendants. Id. However, plaintiff failed to enumerate the specific connection of Philadelphia County or why plaintiff chose Philadelphia County. Noting that Harley Davidson likely has offices in Philadelphia and the product, a motorcycle seat, is in the stream of commerce in Philadelphia, the trial court was nevertheless persuaded by defendants’ arguments on oppressiveness.

The Court further noted that defendant White’s Harley Davidson was located approximately 89 miles away from the Philadelphia County Courthouse and its corporate representative resided approximately 77 miles away from Philadelphia County. The White’s Harley Davidson’s corporate representative lived less than 20 miles from the Berks County Courthouse and 11 miles from the Lebanon County Courthouse. She specifically testified, “…trying this matter in … Philadelphia would be a substantial hardship… personally and professionally, and I would suffer greatly if I am forced to commit the time and financial resources that may be necessary to testify in Philadelphia County, as opposed to Lebanon or Berks County.” Id.

In reviewing the affidavits of the witnesses, the Court, noting that certain witnesses would have to travel 63 and 52 miles, respectively, opined that “[t]ravel to Philadelphia is more than inconvenient.” Id., (emphasis added). The Court also noted that “virtually all of Plaintiff’s medical treatment ha[d] taken place in Berks, Lebanon or Lehigh counties.” Id. Accordingly, the trial court concluded that venue in Philadelphia was oppressive as none of the witnesses, sources of proof, or accident scene occurred in Philadelphia County. Id., at *4. The Court also concluded that Berks or Lebanon counties were more fitting venues for the case. Thus, Judge Moss opined that the Order that venue was oppressive in Philadelphia County should not be disturbed. Id.

In August of 2008, Philadelphia Court of Common Pleas Judge, William Manfredi, issued an opinion in the case of Whah v Morrissey, et al., September term 2007, No. 1985. In Whah, the plaintiff, a resident of Schuylkill County was involved in a motor vehicle accident in Northampton County, Pennsylvania. Defendant, Morrissey, Inc. (Morrissey) is a Philadelphia Corporation. Morrissey filed a petition to transfer venue to Northampton County on the grounds of forum non conveniens, which the court granted. 

What It Means to You

The precedent established in Cheeseman has been placed into practical application in the cases of Hartman, Kyra and Seidel and Whah. Recently, our firm argued the issues of forum non conveniens before the Honorable Howland Abramson in Philadelphia County. Judge Abramson entered an order in favor of the defendant ordering that the case be transferred to Schuylkill County where the plaintiff resided, received all of her medical treatment and where all the potential witnesses resided and were employed. Please contact a liability attorney at Cipriani & Werner to discuss your venue and forum non conveniens questions.


Rule 1006 and Rule 2179, Pennsylvania Rules of Civil Procedure