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08/22/97 KATHLEEN CHEESEMAN AND ROBERT CHEESEMAN v.

August 22, 1997

KATHLEEN CHEESEMAN AND ROBERT CHEESEMAN, HER HUSBAND, APPELLANTS,
v.
LETHAL EXTERMINATOR, INC., AND JOSEPH P. CLARE, APPELLEES. SHEILA J. FOREMAN, EXECUTRIX OF THE ESTATE OF MARK FOREMAN, DECEASED, AND SHEILA J. FOREMAN, IN HER OWN RIGHT, APPELLANTS V. MORRIS ROSSMAN, D.O., ANDREW C. FRIEDMAN, D.O., REGIONAL INTERNAL MEDICINE ASSOCIATES, LTD., LARRY COHEN, M.D., DELAWARE VALLEY MEDICAL CENTER, DELAWARE VALLEY RADIOLOGY, R. ZEIT, M.D., AND BENSALEM RESCUE SQUAD, INC., APPELLEES.



Appeal from the Order of the Superior Court entered March 21, 1996 at No. 3040 PHL 1995 affirming the July 12, 1995 Order of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 667 May Term 1994. JUDGE(S) BELOW: CCP - Honorable Russell M. Nigro / SUPERIOR - MCEWEN, PJ., TAMILIA, BROSKY, JJ.

Appeal from the Order of the Superior Court entered March 12, 1996 at No. 3101 PHL 1994 affirming the July 26, 1994 Order of the Common Pleas Court of Philadelphia County, Civil Division, at No. 3397 December Term 1993. Before: Flaherty, C.j., And Zappala, Cappy, Castille And Newman, JJ. Mr. Justice Nigro did not participate in the consideration or decision of this matter. Madame Justice Newman files a Dissenting opinion in which Mr. Chief Justice Flaherty joins.

The opinion of the court was delivered by: Cappy

OPINION OF THE COURT

JUSTICE CAPPY:

DECIDED: August 22, 1997

The question presented in these consolidated appeals is whether the trial court abused its discretion in transferring the instant civil litigation matters from Philadelphia County (Philadelphia) to Bucks County (Bucks), pursuant to Pennsylvania Rule of Civil Procedure (Pa.R.C.P.) 1006(d)(1). For the reasons which follow, we reverse the orders of the Superior Court which affirmed the trial court's transfer of these litigation matters.

In the first appeal before us, appellants Kathleen Cheeseman and her husband Robert Cheeseman (the Cheesemans), who are Bucks residents, commenced a personal injury action in Philadelphia against appellees Lethal Exterminator, Inc. (Lethal Exterminator) and Joseph P. Clare (Clare) in May of 1994. The Cheesemans' complaint alleged that Kathleen Cheeseman was seriously injured when her vehicle collided with a vehicle which was owned by Lethal Exterminator and operated by Lethal Exterminator's agent, Clare, in Bucks.

Appellees Lethal Exterminator and Clare filed a petition to change venue pursuant to Pa.R.C.P. 1006(d)(1) in May of 1995, seeking a transfer of the litigation to Bucks, where Lethal had its principal place of business. The appellees asserted, generally, that litigating in Bucks would be more convenient for the parties and their witnesses for the following reasons: all of the parties and fact witnesses resided in Bucks; all of Kathleen Cheeseman's treating physicians resided in Bucks; and no significant aspect of the case involved Philadelphia. In response, the Cheesemans asserted that Philadelphia was not an inconvenient forum because all of the witnesses lived or worked within a 45-minute drive from Center City Philadelphia.

The learned trial Judge appropriately concluded that venue in Philadelphia was proper because one of the joint defendants, Lethal Exterminator, is a corporation which regularly conducts business in Philadelphia, but that the action originally could have been filed in Bucks because the cause of action arose there. See Pa.R.C.P. 1006 (a), (b), (c); Pa.R.C.P. 2179. The trial Judge considered the private interests of the litigants, i.e., that the residences and locations of the parties and the prospective witnesses were in Bucks, and also considered the court's public interest, i.e., the court's own interest in administration of its cases and the backlog in the Philadelphia courts. The trial Judge weighed these considerations against the convenience of the plaintiff's chosen forum. The trial Judge reasoned that nothing would make trial in Bucks more expensive or time-consuming for the litigants than trial in Philadelphia. The trial Judge heavily weighted the fact that the Cheesemans were not Philadelphia residents and that their case was imposing an extra matter on Philadelphia's already burdened court system, and concluded that the balance of the litigants' private interests and the court's public interest required transfer of the Cheeseman action to Bucks.

The trial court, by an order issued July 12, 1995, directed venue transferred to Bucks. The Cheesemans' subsequent petition for reconsideration was denied by an order issued by the trial court on August 24, 1995.

Upon an appeal by the appellants, a panel of the Superior Court affirmed transfer of venue on the basis of the trial Judge's opinion, concluding that the trial court reasonably could have concluded that Philadelphia would be an inconvenient, vexatious, and oppressive forum for the defendants.

The second appeal before us involves a medical malpractice action commenced in Philadelphia in December of 1993 by appellant, Sheila J. Forman, Executrix of the Estate of Mark Forman, Deceased, and Sheila J. Forman in her own right (Forman), against a number of persons and entities who allegedly rendered negligent medical treatment and care to Forman's husband. Forman is a resident of Bucks, as was her deceased husband.

Delaware Valley Medical Center, one of the defendants in the Forman action, filed a petition seeking transfer of the litigation to Bucks pursuant to Pa.R.C.P. 1006(d)(1), asserting that all of the defendants regularly conducted business in Bucks and that the alleged medical malpractice occurred in Bucks. Delaware Valley Medical Center asserted, generally, "all of the parties and the vast majority of perspective [sic] trial witnesses and sources of proof are located in Bucks," and that litigating in Bucks would be more accessible and less disruptive to the health care defendants and their witnesses than litigating in Philadelphia. Delaware Valley Medical Center further pointed out that the courts in Philadelphia were congested, and that imposing jury duty service on citizens of Philadelphia for a case having no significant connection to Philadelphia would be unfair.

In her response to Delaware Valley Medical Center's petition, Forman admitted that all of the parties are located in Bucks, but asserted that some of the joint defendants also maintained offices in Philadelphia. Forman alleged that Philadelphia was an equally convenient forum and was convenient for her because she worked in Philadelphia. Moreover, Forman denied that the public interest would be best served by transfer of the litigation to Bucks, arguing that Philadelphia's court congestion, in itself, is an insufficient basis for transferring venue.

The learned trial Judge recognized that since some of the joint defendants regularly conduct business in Philadelphia, it was a proper venue, but that the Forman action originally could have been filed in Bucks, where the cause of action arose. See Pa.R.C.P. 1006(a),(b), and (c); Pa.R.C.P. 2179. As in Cheeseman, the trial Judge considered the private interests of the litigants, i.e., that the parties and a majority of the prospective witnesses were located in Bucks, and also considered the court's public interest, i.e., the court's own interest in docket management. The trial Judge weighed these factors against the convenience of the Plaintiff's chosen forum. The trial Judge emphasized that the Philadelphia courts were congested, that the Formans were not Philadelphia residents, and that the only connection the case had to Philadelphia was some of the defendants conducted business in Philadelphia. The trial Judge reasoned that nothing would make trial in Bucks more expensive or time-consuming than trial in Philadelphia, and that the balance of the parties' private interests and the public interest required transfer of venue to Bucks. The trial court, thus, by an order issued July 26, 1994, directed transfer of venue of the Forman litigation to Bucks.

Forman filed an appeal with the Superior Court, asserting that the trial court's decision was improper in light of this court's recent decision in Scola v. AC & ...


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