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Pa. High Court Urged To Save Venue Transfer Precedent

November 19, 2013

Law360
By Dan Packel

Two men suing a Harrisburg law firm for abuse of civil procedure asked the Pennsylvania Supreme Court on Tuesday to uphold a Superior Court decision keeping the lawsuit in Philadelphia, arguing that allowing the firm to move the suit would overturn a precedent imposing a high burden on defendants seeking venue transfers.

Joseph Podraza of Sprague & Sprague argued that if the high court allowed Keefer Wood Allen & Rahal LLP to move the lawsuit to Dauphin County, it would negate its earlier ruling in the 1997 case Cheeseman v. Lethal Exterminator Inc., which stated that defendants could use the grounds of forum non conveniens to move cases only in “vexatious or oppressive” circumstances.

“Counselor’s argument, which would wipe away 16 years of precedent, is to relax the test from ‘vexatious or oppressive’ to an inconvenience test,” Podraza said.

Attorney Charles Rubendall, who is now retired, and the law firm were sued in the Philadelphia Court of Common Pleas in 2009 Alexander Bratic and Joseph Proko. The pair accused the firm of wrongful use of civil proceedings and abuse of process and also named Residential Warranty Corp. of Pennsylvania and Integrity Underwriters Inc. as defendants.

The complaint followed an earlier suit in which the insurers, represented Keefer Wood, had unsuccessfully targeted Bratic and Proko for tortious interference.

The defendants filed for a venue transfer on the grounds of forum non conveniens, and the case was moved to Dauphin County, the home of all four defendants. Bratic and Proko then appealed to the Superior Court, and a three-judge panel affirmed the trial court’s decision to transfer the case, concluding that continuing it in Philadelphia would have been overly inconvenient for the defendants.

The defendants had contended that their eight key witnesses were all based in Dauphin County and would encounter significant hardships if they had to travel to Philadelphia – more than 100 miles away – to testify at a trial.

But upon reargument, a nine-judge en banc panel of the Superior Court reversed the ruling in a 6-3 decision, noting that the witnesses had filed affidavits that claimed their participation in Philadelphia would be “disruptive” but did not detail how or why.

“The en banc majority below essentially based its decision on the clear substitution of its own judgment for the trial court that the affidavits were insufficient to establish extreme obstruction,” Jeffrey Lerman of Montgomery McCracken Walker & Rhoads LLP told the justices.

Lerman noted that the dissent called the majority’s ruling “troubling,” adding that it would strip judges of the ability to make decisions based on trial management issues.

“The imposition of this draconian standard would make transfers impossible,” he said.

Podraza responded that the transfer was not justified in this occasion because the defendants had failed to meet their burden to demonstrate that it was more than just “inconvenient.”

But Justice J. Michael Eakin repeatedly hammered away at his cause, first insisting that since there were clearly costs associated with traveling from Dauphin County to Philadelphia, the burden fell on the plaintiffs to show that they were not vexatious or oppressive.

“If it costs money, didn’t you have the burden to show that it wasn’t?” he asked.

The justice later focused on the text of former Justice Ralph Cappy’s opinion in Cheeseman, noting that “oppressiveness” could be demonstrated showing “that trial in another county would provide easier access to witnesses or other sources of proof.”

After a standoff between Justice Eakin and Podraza on the issue, Justice Debra Todd then swung to the attorney’s defense.

“Aren’t you just saying it’s a matter of degree?” she asked.

“Yes, and it’s a matter for the defendant to prove that higher level,” Podraza said.