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Baylson v. Genetics & IVF Inst.

Superior Court of Pennsylvania

February 9, 2015

FRANCES R. B. BAYLSON AND MICHAEL M. BAYLSON, Appellants
v.
GENETICS & IVF INSTITUTE A/K/A FAIRFAX CRYOBANK AND MORRIS AND CLEMM, PC AND MARK CLEMM, Appellees

 Argued, October 29, 2014

Appeal from the Order Entered November 27, 2013, of the Court of Common Pleas of Philadelphia County, Civil Division, No(s): 130500893. Before MASSIAH-JACKSON, J.

Charles L. Becker, Philadelphia, for appellants.

John P. McShea, III, Philadelphia, for Genetics & IVF Institute, appellee.

Peter B. Rogers, Norristown, for Morris and Clemm, appellee.

BEFORE: LAZARUS, MUNDY, and PLATTPLATT, JJ.[*] PLATTPLATT, J. did not participate in the consideration or decision of this case. OPINION BY LAZARUS, J.

OPINION

LAZARUS, J.

Frances R.B. Baylson (Dr. Batzer) and her husband, Michael M. Baylson (collectively, Appellants) appeal from the orders of the Court of Common Pleas of Philadelphia County, transferring this matter to the Court of Common Pleas of Montgomery County. After careful review, we reverse and remand.

On May 10, 2013, Appellants commenced this action for wrongful use of civil proceedings (Dragonetti Act, 42 Pa.C.S. § § 8351-8354) by filing a praecipe for a writ of summons against Genetics & IVF Institute a/k/a Fairfax Cryobank (Genetics) and Morris and Clemm, PC (M& C) and Mark Clemm, Esquire (Clemm). In their complaint filed August 12, 2013, Appellants averred that their claim arose out of a lawsuit filed in the Court of Common Pleas of Montgomery County, Genetics & IVF Institute, et al. v. Pennsylvania Reproductive Associates, Inc., et al., No. 2011-27330 (the Montgomery County action), in which Genetics was represented by M& C and Clemm, and Dr. Batzer was named as an individual defendant. On May 16, 2012, the Montgomery County trial court dismissed that matter with prejudice,

Page 188

having determined that, pursuant to the contract at issue, jurisdiction was proper only in the courts of Virginia.[1]

In their Dragonetti Act complaint, Appellants aver the following: they are residents of Philadelphia; Genetics is a Virginia corporation that conducts business in Pennsylvania; at all relevant times, Genetics operated an office in Philadelphia; and Genetics' counsel, M& C and Clemm, practice law in Montgomery County. Complaint, ¶ ¶ 1-3.

Appellants assert that Genetics and its counsel knew that the corporate parties to the lease had been dissolved, and that Dr. Batzer was not personally involved in the affairs of the dissolved companies. Id. at ¶ 10. Furthermore, they allege that Genetics and its counsel knew that Genetics' claim could not be brought in any Pennsylvania court because the lease agreement limited jurisdiction to Virginia courts. Id. at ¶ 12.

Appellants further allege that Genetics knew the allegations that the corporate entities were a sham were " completely false and meritless." Id. at ΒΆ 31. They also allege that M& C and Clemm " ignored and breached their duty to investigate the facts concerning Dr. Batzer before filing the original complaint and before ...


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