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.

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