INTRODUCTION
In Pennsylvania litigation, location matters. Studies of jury verdicts have shown that the likelihood that a jury will rule in favor of a plaintiff in a personal injury matter, and the amount of monetary compensation that a jury will award when a plaintiff prevails, varies significantly among Pennsylvania counties. Likewise, in commercial disputes, studies show that a jury in the “home county” of a litigant is likely to view a particular party more favorably unless that party has a negative local reputation. Also, the cost of litigation can vary substantially depending upon the court involved, especially if a party is required to arrange for witnesses to appear in a county that is far from home. It is the job of every attorney to consider the facts and parties involved in each case and then work to try to have the matter decided in the county that is the best fit for the client. Frequently, first important battle in a litigated matter is the issue of “venue” or where the case will be heard by a jury.[i]
Although a plaintiff always gets the first choice of venue when the summons or complaint is initially filed, a defendant can challenge that choice, but only if they do so by filing preliminary objections. If a defendant fails to promptly seek to move the action to a different county, in Pennsylvania, the issue is generally “waived” and can’t be raised later in the litigation.
Two recent Philadelphia Court of Common Please decisions have. provided important guidance on the issue of venue.
DISCUSSION AND PRACTICE TIPS
Waiver of Venue by One Defendant Does Not Prevent Another Defendant From Seeking to Move the Case to Another County.
In the first matter, a personal injury action was filed against multiple defendants in Philadelphia County, although the accident occurred in Bucks County. The first defendant served by Plaintiff filed an answer to the complaint and did not seek to move the case from Philadelphia. Devine Timoney Law Group was retained to represent a second defendant and promptly filed Preliminary Objections on the basis that the matter arose in Bucks County and none of the defendants had any connection to Philadelphia County. In response, Plaintiff argued that the Preliminary Objections should be dismissed, because another defendant had already waived the issued by failing to timely file an objection to venue.
The Philadelphia Court accepted the position of Devine Timoney Law Group, that the decisions of the Pennsylvania Superior Court in Panzano v. Lower Bucks Hospital, 577 A.2d 644, 645 (Pa. Super. 1990) and Schultz v. MMI Products, Inc. et al, 30 A.3d 1224 (2011) applied and that waiver of improper venue by one defendant does not prevent another defendant from raising the issue. Further, the Court agreed that Philadelphia County was not a proper venue for the case and transferred the matter to Bucks County.
Important Practice Tips:
- Do not assume that another defendant’s failure to object to venue means that the case cannot be transferred. If an action is brought in a county where the incident did not occur, it’s important to determine whether the case can be legally moved to a more favorable county, for the client.
- It’s possible to have a situation where new facts are discovered after an Answer is filed on behalf of your client that indicate that the action could be moved to a different county. For example, a client may pass on erroneous information that they maintain a business location in Philadelphia, only to discover later that the “Philadelphia office” is actually located in another county. If this happens, it’s important to act quickly to determine whether there are any other defendants in the case who have not filed an Answer and may still be able to seek to move the case and, if so, immediately reach out to that party’s attorney to make them aware that venue can still be challenged.
A Plaintiff Who Files In an Improper Venue, Does Not Get a “Second Choice”
In the second matter, the plaintiff, an estate, initiated a wrongful death and survival action against multiple defendants in Philadelphia County, relating to an incident occurring at a business located in Lancaster County. On behalf of one of the defendants involved, Devine Timoney Law Group filed Preliminary Objections seeking to move the case to Lancaster County. Because there was a dispute about whether some of the named defendants regularly conducted business in Philadelphia, the Court permitted the parties to take discovery limited to this venue issue. After exchanging affidavits and completing depositions, it was established that none of the defendants engaged in any business in Philadelphia County, although one defendant had a corporate franchise that advertised in Philadelphia County. It was also established that at least one defendant had business in Delaware County, a neighboring county to Philadelphia.
During the briefing of this issue, Plaintiff’s counsel argued that although he considered Philadelphia County to be a proper venue, if the court disagreed, he would prefer the matter be transferred to Delaware County, instead of Lancaster County. It was noted that Plaintiff could have filed the matter in Delaware County. In response, on behalf of a defendant, Devine Timoney Law Group requested that the matter be transferred to Lancaster County, arguing that there were no facts showing any significant connection between any of the defendants and Philadelphia County, and that all of the operative facts relating to the case were centered in Lancaster County.
The Philadelphia Court of Common Pleas granted the Defendants’ Preliminary Objections and transferred this matter to Lancaster County. The court noted that the “law in Pennsylvania is clear that mere advertisement, no matter how much in quantity, does not qualify as essential to business goals under a quality analysis.” Wyszynski v. Greenwood Gaming & Entertainment, Inc. d/b/a Parx Casino & Racing, 160 A.3d 198, 200-201 (Pa. Super. 2017).
Regarding Plaintiff’s second choice of venue, Delaware County, the court held: “(w)hen deciding between proper and improper venue, Plaintiff’s choice of forum or – especially second-choice of forum – is not given any extra weight on the scale.” The Court further determined that defendants had demonstrated that the venue to which they requested a transfer, Lancaster County, was proper and ruled that the matter should be transferred to Lancaster County.
Important Practice Tips:
- When conducting discovery and taking depositions relating to venue, it’s important for a defendant’s attorney to establish both facts that show that none of the defendants have a significant connection to the county where the action was filed as well as facts that show why the defendant’s choice of venue is the most appropriate County to decide the case.
- In any new action, it’s important for a defendant’s attorney to thoroughly interview the client and understand the full scope of their business activities to determine whether a challenge to the location where the action was filed is likely to be successful.
- When deciding whether to challenge venue, it’s important to consider where the case is likely to be transferred if the challenge to venue is successful and what facts need to be established on the record to support moving the case to a particular alternative county that is preferred by the client or insured.
[i] For a more detailed review of the leading Pennsylvania cases on the issue of venue, contact any Devine Timoney Law Group Attorney to request a copy of the Firm’s White Paper on Venue in Pennsylvania.
