Will It Be Easier for Defendants To Change Venue In Pennsylvania?

By Thomas J. O’Malley, Esq.*

On August 18, 2014, the Pennsylvania Supreme Court rendered the decision of Bratic v. Rubendall, 2014 Pa. LEXIS 2093 (Pa. August 18, 2014). This important decision clarifies the standard for intra-state venue transfers based on forum non conveniens.

It is established practice in the Commonwealth of Pennsylvania that plaintiffs have the initial choice of the court in which to bring an action, provided that court has jurisdiction. The Bratic decision points out that this plaintiff-friendly practice comes from the notion that plaintiffs will choose a forum that is convenient for them. It is not a practice designed for plaintiffs to choose a more “plaintiff-friendly” forum to seek higher verdicts. Although the court gives deference to plaintiffs’ initial choice of forum, that choice is not unassailable. The original potential of “tipping of the scales” in favor of the plaintiff is counterbalanced by the defendant’s option to file a petition for forum non conveniens to ensure fairness and practicality for all parties.

Consequently, it is significant to determine if another county could be an appropriate jurisdiction for a case when first receiving a complaint in Pennsylvania. Rule of Civil Procedure 1006.1(d) provides guidance on the defendants’ ability to seek a transfer of venue. Interestingly, while the Rule itself specifically speaks of convenience to the parties and witnesses, convenience is a mere afterthought in the analysis.

Seventeen years ago, in Cheeseman v. Exterminator, Inc., 701 A.2d 156 (Pa. 1997), the Pennsylvania Supreme Court clarified the facts which a trial court must consider when ruling on a forum non conveniens motion. Cheeseman held that such a motion should only be granted if the defendant “demonstrate[s], with detailed information on the record, that the plaintiff’s chosen forum is oppressive or vexatious to the defendant.” The Bratic court pointed out that the Cheeseman opinion was not intended to heighten the level of oppressiveness or vexatiousness that a defendant must show; rather, Cheeseman merely corrected the practice of the lower courts, which gave greater weight to “public interest” factors when ruling on a petition for forum non conveniens. The Bratic court stated that public interest factors are not determinative, but may only be considered insofar as they bear directly on the ultimate test. In a point of clarification, the Bratic court emphasized that Rule 1006(d)(1), on its face, allows transfers based on the convenience of the parties and witnesses. In practice, convenience, or the lack thereof, is not the test that the Pennsylvania case law has established. Instead, the moving party must show that the chosen forum is either oppressive or vexatious.

The Bratic decision provides some additional arguments for defendants to raise in a forum non conveniens transfer. Some of the salient points that the Bratic court made on this issue are as follows:

• Affidavits in support of forum non conveniens motions need not be exhaustively detailed, but need only provide enough information to allow a trial judge to assess oppressiveness.
• A plaintiff’s choice is given deference because it is presumably more convenient for the plaintiff and not because juries will return larger verdicts in a particular court.
• “Public interest factors” are certainly relevant to the court’s consideration of forum non conveniens motions.
• The time and distance/mileage factors are “inherently part of the equation” for trial courts to consider, and they don’t have to be specifically articulated in an Affidavit. (“The Trial Judge need not be told like a child how the distance in and of itself makes things more disagreeable and disruptive to the persons obliged to travel . . . As between Philadelphia and adjoining Bucks County, the situation in Cheeseman, we speak of mere inconvenience; as between Philadelphia and counties 100 miles away, simple inconvenience fades in the mirror as we near oppressiveness with every mile post of the turnpike and Schuylkill Expressway.”)
• Payment of a witness by his or her employer to attend trial reduces the hardship for the witness, but does not eliminate oppressiveness.

Significantly, the Bratic opinion now provides trial courts with wide discretion for determining whether the Cheeseman standard of “vexatiousness and oppressiveness” is met. Trial judges had previously seemed more reluctant to grant a petition forum non conveniens motions because their decisions were being reversed on appeal. The Bratic decision should provide confidence to the trial courts as they now consider what will likely be an uptick in the filing of these motions in Pennsylvania. The Supreme Court’s guidance in Bratic empowers the trial judge to indeed level the playing field for all parties as he or she considers whether to transfer venue within the boundaries of the Commonwealth of Pennsylvania.

*Tom is a shareholder in our Philadelphia, Pennsylvania office. He can be reached at 215.575.2657 or tjomalley@mdwcg.com.

Defense Digest, Vol. 20, No. 4, December 2014

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.