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HOWARD R. HORN v. ERIE INSURANCE EXCHANGE (04/18/88)

filed: April 18, 1988.

HOWARD R. HORN, AN INDIVIDUAL AND JILL A. HORN, AN INDIVIDUAL, APPELLANTS,
v.
ERIE INSURANCE EXCHANGE, RONALD M. KEAN AND PAMELA KEAN, HIS WIFE, APPELLEES



Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. G.D. 86-20430.

COUNSEL

Robert W. Deer, Pittsburgh, for appellants.

Richard Levine, Pittsburgh, for appellees.

Brosky, Wieand and Del Sole, JJ. Del Sole, J., files a concurring opinion.

Author: Wieand

[ 373 Pa. Super. Page 188]

The issue in this appeal is whether a trial court may act sua sponte to transfer to another forum an action whose venue has been properly laid.

An action for declaratory judgment was filed in Allegheny County by Howard R. Horn and Jill Horn, his former wife, to adjudicate whether Erie Insurance Exchange (Erie) was required by the terms of its homeowner's policy to defend an action brought against the Horns in Washington County. That action, filed by Ronald and Pamela Kean, had charged the Horns with negligently and/or fraudulently selling their Washington County residence to the Keans without disclosing that the property was termite-infested and structurally damaged. On April 28, 1987, the court in Allegheny County granted partial judgment on the pleadings in the declaratory judgment action and directed Erie to provide a defense to the Horns in the Washington County action.*fn1 Erie thereafter undertook to provide the Horns with a defense in Washington County on the Keans' cause of action for negligence, but it refused to defend the Horns against the claim which was based on intentional fraud. Both parties in the declaratory judgment action subsequently requested the court in Allegheny County to clarify its order. The trial court denied both motions and sua sponte transferred the declaratory judgment action

[ 373 Pa. Super. Page 189]

    to Washington County. The Horns appealed.*fn2 They contend that the trial court erred when it transferred venue sua sponte.*fn3

It is undisputed that venue in the declaratory judgment proceeding was properly laid in Allegheny County. The forum was selected by the plaintiffs. Their choice is entitled to weighty consideration and should not lightly be disturbed. Fox v. Pennsylvania Power & Light Co., 315 Pa. Super. 79, 82, 461 A.2d 805, 806 (1983). See also: Ernest v. Fox Pool Corp., 341 Pa. Super. 71, 75, 491 A.2d 154, 156 (1985). Although Pa.R.C.P. 1006(d) authorizes a court to transfer an action to the appropriate court of any other county where the action could originally have been brought "for the convenience of parties and witnesses," this rule is implicated only "upon petition of any party." In this case, neither party requested a change of venue for the convenience of the parties and witnesses; and there is no basis apparent on this record that a transfer to Washington County would serve the stated purpose of the rule. Inasmuch as venue was properly laid in Allegheny County, therefore, the trial court abused its discretion by sua sponte transferring venue to another forum which, for reasons perceived by the transferring court, could more conveniently decide the case. See: Triffin v. Turner, 348 Pa. Super. 6, 9, 501 A.2d 271, 273 (1985).

Erie argues that a court may transfer venue on its own motion for reasons of "judicial economy," to eliminate "inconsistent results," and to avoid "prejudice." However, Pa.R.C.P. 1006 "does not suggest that a forum non conveniens transfer may be based upon possible inconvenience to the transferring court if that court were required to try the case." Ernest v. Fox Pool Corp., supra 341 Pa. Super. at 75-76, 491 A.2d at 156. A trial court may not utilize a

[ 373 Pa. Super. Page 190]

    transfer of venue merely to control its docket, to preserve judicial resources, or to avoid deciding cases which are properly before it. Neither the parties nor the trial court has demonstrated that it would be more convenient for the parties*fn4 or the witnesses to litigate the declaratory judgment action in Washington County. The substantive issue involved in the action is primarily one of law, involving, as it does, a determination of Erie's duty to defend a separate action. This can be ...


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