Pa. Supreme Court Eyes Forum Issue in Legal Mal Case

, The Legal Intelligencer

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The Capitol Building in Harrisburg
The Capitol Building in Harrisburg

Moving a legal malpractice case from Philadelphia to Dauphin County would require the state Supreme Court to relax the standards of forum non conveniens to such a degree that case transfers would become the norm throughout the state, the plaintiffs counsel in Bratic v. Rubendall argued before the high court Tuesday.

The justices heard arguments in the case during the court's oral argument session Tuesday in Harrisburg, Pa. The case focuses on whether a case against Harrisburg law firm Keefer Wood Allen & Rahal and other defendants should be moved from Philadelphia to Dauphin County, where eight key witnesses in the case are located.

Attorney Joseph R. Podraza Jr. of Sprague & Sprague in Philadelphia, who represented the plaintiffs in the case, argued that reversing the Superior Court's en banc majority decision to keep the trial in Philadelphia County would relax the standard requiring the defendants to show that the plaintiff's choice of venue is "vexatious and oppressive" pursuant to the state Supreme Court's 1997 ruling in Cheeseman v. Lethal Exterminator.

"The defense is arguing to relax the test for vexatious and oppressive and to make it a test of inconvenience," he said. "What are the consequences? This will go from being rare to the norm."

Podraza further claimed that any defendant, specifically corporations with employees scattered across a region, would be able to have a venue changed under forum non conveniens without showing any "particularity or specificity," if the court overturned the Superior Court's ruling.

However, according to Jeffrey R. Lerman of Montgomery McCracken Walker & Rhoads, who represented the defendants, upholding the Superior Court's ruling would impose an oppressive standard. Not only would defendants be required to prove that witnesses are gainfully employed and live a significant distance from the chosen venue, but also that they would suffer harsh consequences, such as being fired or causing a company to lose profits, due to the chosen venue.

"The draconian standard would make forum non conveniens practically unattainable," Lerman said.

He further called the Superior Court's ruling "troubling," and argued that the court overstepped its duties as an appellate court by using its own review of the facts to reverse the lower court's holding.

It was "a clear substitution of its judgment over the [trial] court's [judgment]," Lerman said.

According to court documents, the plaintiffs in the case filed suit in the Philadelphia Court of Common Pleas in February 2009 against defendants Charles W. Rubendall II, his firm, Keefer Wood, Residential Warranty Corp. of Pennsylvania and Integrity Underwriters Inc., alleging wrongful use of civil proceedings and abuse of process, according to the Superior Court.

The defendants argued that the venue was improper because eight witnesses were based in Dauphin County, and petitioned to transfer on the ground of forum non conveniens.

The trial court found that the defendants' only connection to Philadelphia was that all of them occasionally do business in Philadelphia, and granted the petition.

The Superior Court upheld the decision, finding that the trial court had not abused its discretion in determining that the defendants had met their burden to prove that the plaintiff's selected venue was "vexatious and oppressive."

However, on reargument before the Superior Court, the plaintiff contended that the defense had relied on unspecified allegations about witnesses who were not likely to testify at trial.

In April 2012, a split en banc Superior Court panel reversed the trial court's holding. The panel ruled 6-3. The majority opinion said the defendants failed to show why litigating in Philadelphia would be inconvenient, and the trial court relied on "irrelevant" factors, specifically the trial court's concern that none of the appellants are from Philadelphia.

In its one-page per curium order, the high court had asked the arguments to focus on the applicability of the forum non conveniens test outlined in Cheeseman.

During arguments before the high court, Podraza traced the usage of "vexatious and oppressive" to the U.S. Supreme Court's 1947 decision in Gulf Oil v. Gilbert. He said that the terminology was adopted in Pennsylvania in the mid-1960s, and the usage followed into the Cheeseman case.

Cheeseman, Podraza argued, established that the burden to prove that the forum was oppressive and vexatious fell solely on the defendant. He said that ruling required defendants to show that the allegedly oppressed witnesses would not be compensated for their time and travel, among other things.

He defined "oppressive" under Cheeseman as being "cruel and unjust hardship," and then asked whether paying a toll and driving 100 miles could constitute "cruel and unjust hardship."

However, in determining whether a court should use the distances witnesses have to travel as a major factor in determining "oppressiveness" under Cheeseman, Justice J. Michael Eakin noted that the Cheeseman opinion specifically listed access to witnesses as a factor of a venue being "oppressive."

"I have a hard time reading that to say that oppressiveness can't be based on ease of access to witnesses," Eakin said.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI. •

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