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Bratic v. Rubendall

Supreme Court of Pennsylvania

August 18, 2014


Argued November 19, 2013

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Appeal from the Judgment of Superior Court entered on April 23, 2012 at No. 2413 EDA 2009, reversing and remanding the Order entered on July 9, 2009 in the Court of Common Pleas, Civil Division of Philadelphia County at No. 003418 February Term 2009. Trial Court Judge: Mark I. Bernstein, Judge. Intermediate Court Judges: Correale F. Stevens, President Judge, Kate Ford Elliott, President Judge, John T. Bender, Susan Pelkes Gantman, Jack A. Panella, Cheryl Lynn Allen, Anne E. Lazarus, Sallie Mundy, Judges.

For Charles W. Rubendall II, APPELLANT: Jeffrey R. Lerman, Esq., Montgomery, McCracken, Walker & Rhoads, L.L.P., Glenn F. Rosenblum, Esq.

For Residential Warranty Corp. of PA, et al., APPELLANT: Lloyd G. Parry, Esq., Davis, Parry & Tyler, P.C.

For Bratic, Alexander and Proko, Joseph APPELLEE: Joseph R. Podraza, Esq., Richard A. Sprague, Esq., Sprague & Sprague.

For Pennsylvania Association for Justice, APPELLEE AMICUS CURIAE: Joseph Z. Traub, Esq., Raynes McCarty.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. MR. JUSTICE EAKIN. Mr. Justice Stevens did not participate in the consideration or decision of this case. Mr. Chief Justice Castille, Mr. Justice Baer, Madame Justice Todd and Mr. Justice McCaffery join the opinion. Mr. Justice Saylor concurs in the result.


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This is an appeal from the Superior Court's reversal of the trial court's order granting appellants' motion to transfer venue based on forum non conveniens. This matter has its roots in a lawsuit filed against appellees in Dauphin County by appellants Residential Warranty Corporation and Integrity Underwriters; appellants Rubendall and the Keefer firm represented Residential and Integrity, respectively, in that lawsuit, which alleged tortious interference with a contractual relationship. The case ended when the trial court granted appellees' motion for summary judgment.

Appellees then initiated the instant action in Philadelphia County, asserting wrongful use of civil proceedings and common-law abuse-of-process claims based on the earlier dismissed suit. Pursuant to Pa.R.C.P. 1006(d)(1),[1] appellants petitioned to transfer the case to Dauphin County based on forum non conveniens, alleging the pertinent " witnesses and evidence are located in Dauphin County such that depositions

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and trial in Philadelphia County will be a hardship to the [appellants] and the witnesses upon whom [appellants] must rely." Petition to Transfer Venue, 5/20/09, at 3. Appellants presented affidavits of seven witnesses,[2] all of whom live over 100 miles from Philadelphia, each stating that holding the trial there " would be both disruptive and a personal and financial hardship if [the witnesses] should be called to testify at deposition or trial" because they " would have to incur substantial costs for fuel, tolls and, if traveling overnight, for lodging and meals[, and for] every day of deposition or trial in Philadelphia, [they] would be forced to take at least one full day away from [work]." [3]

Relying on this Court's decision in Cheeseman v. Lethal Exterminator, Inc., 549 Pa. 200, 701 A.2d 156 (Pa. 1997), the trial court granted the motion to transfer, reasoning: (1) the earlier claim took place in Dauphin County; (2) all appellants are from Dauphin County and none of appellees are from Philadelphia County; (3) each of appellants' eight witnesses lives over 100 miles from Philadelphia County and is " engaged in business activities which make their ability to appear at trial in Philadelphia County far more of a burden than a trial in Dauphin County" ; and (4) " [t]he sole connection with Philadelphia County is the fact that all [appellants] occasionally conduct business in Philadelphia." Trial Court Opinion, 10/09/09, at 3-4. Although not assigning particular weight to each factor, the court held the " record clearly establish[ed] that [appellees'] choice of forum is vexatious and oppressive" and " [t]rying this case in Dauphin County would provide better access to all potential witnesses and other sources of proof such as court documents from the prior L action." Id., at 4.

On interlocutory appeal, a divided Superior Court panel affirmed. Bratic v. Rubendall, No. 2413 EDA 2009, unpublished memorandum at 1 (Pa. Super. filed January 14, 2011) (withdrawn). Upon reargument en banc, a divided court reversed, holding appellants did not carry their burden of demonstrating trial in Philadelphia would be oppressive or vexatious. The en banc court first determined the trial court relied on factors irrelevant to a forum non conveniens analysis. Bratic v. Rubendall, 2012 PA Super. 89, 43 A.3d 497, 501 (Pa. Super. 2012) (en banc) (citation omitted). Specifically, the court noted it was error for the trial court to consider that none of appellees are from Philadelphia, " 'since the burden [to transfer venue] is at all times on the defendant, the plaintiff's putative inconvenience is of minor relevance.'" Id. (quoting Walls v. Phoenix Insurance Company, 2009 PA Super. 93, 979 A.2d 847, 851 (Pa. Super. 2009)). Moreover, the court found little probative value that the earlier claim was filed in Dauphin County or that appellants' sole connection to Philadelphia County is occasional business. See id. (" 'Claims by a defendant that no significant aspect of a case involves the chosen forum L are not the type of record evidence that proves that litigating the case in the ...

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