Borger v. Murphy
| Decision Date | 03 April 2002 |
| Citation | 797 A.2d 309 |
| Parties | Lillie BORGER, Individually and as Executrix of the Estate of Morris Borger v. George F. MURPHY, M.D., Theodore Matulewicz, M.D., Harvey Passman, M.D., and John Farrell, M.D. Appeal of: Lillie Borger |
| Court | Pennsylvania Superior Court |
Richard P. Abraham, Philadelphia, for appellant.
Gregory S. Nesbitt, Philadelphia, Allentown, for Farrell, appellee.
Terence Pitt, Blue Bell, for Passman, appellee.
Before: HUDOCK, KLEIN and BECK, JJ.
¶ 1 This is an appeal from an interlocutory order appealable as of right transferring venue from Philadelphia County to Lehigh County. See Pa.R.A.P. 311(c) (changes of venue). We affirm.
¶ 2 Morris Borger went to the office of John Farrell, M.D., and Harvey Passman, D.O., on September 1, 1995, for treatment of a mole on his back. Dr. Passman removed some, but not all, of the tissue and sent it to Theodore Matulewicz, M.D., for analysis. Dr. Matulewicz was uncertain of the diagnosis and sent the tissue to George Murphy, M.D. Dr. Murphy recommended the complete removal of the affected area. However, his recommendation was not followed by Drs. Farrell and Passman.
¶ 3 On September 10, 1996, Mr. Borger returned to the medical office of Drs. Farrell and Passman. At that time, Dr. Farrell allegedly removed a sebaceous cyst from the same area of Mr. Borger's back where the mole had been removed. Dr. Farrell discarded the cyst without pathological examination. On March 12, 1997, Mr. Borger returned to the same medical office to have two more cysts removed. The tissue was sent to Dr. Matulewicz, who diagnosed malignant metastic melanoma. Mr. Borger later received treatment from a melanoma specialist in Philadelphia County, David Berd, M.D.
¶ 4 Mr. Borger and Lillie Borger, his wife, commenced a medical malpractice action against Drs. George Murphy, Theodore Matulewicz, Harvey Passman, and John Farrell (Appellees) by filing a writ of summons in Philadelphia County on March 5, 1999. Venue in Philadelphia County was based on the fact that Drs. Murphy and Matulewicz were residents of Philadelphia County at the time the suit was commenced. No allegations of medical malpractice were made against Dr. Berd, but he was listed as a potential trial witness by the Borgers. On July 9, 1999, Mr. Borger died from metastasis of the malignant melanoma to his brain. Lillie Borger, Appellant, now maintains this suit individually and as executrix of the estate of her husband.
¶ 5 On February 26, 2001, Dr. Farrell filed a petition to transfer venue. Dr. Farrell based his venue challenge on the contention that venue in Philadelphia County was inconvenient under Rule 1006(d)(1), in that it was oppressive and vexatious. Dr. Farrell did not argue that Philadelphia County was an improper forum in which to bring the case.
¶ 6 The trial court granted an uncontested motion for summary judgment in favor of Dr. Murphy on March 6, 2001. Dr. Matulewicz subsequently was dismissed from the suit by stipulation of all the parties. On April 9, 2001, the trial court granted Dr. Farrell's motion to transfer venue from Philadelphia County to Lehigh County. Appellant filed a timely notice of appeal on May 4, 2001.
¶ 7 Appellant raises the following issues for our review:
Appellant's Brief at 4. Appellant argues that under Pennsylvania Rule of Civil Procedure 1106(e), Appellees had to assert a challenge to improper venue by preliminary objections and failed to do so, thereby waiving the claim. However, Appellees did not seek a transfer of venue on the basis that venue was improper in Philadelphia County, but rather that it was inconvenient, pursuant to Pennsylvania Rule of Civil Procedure 1006(d). The applicable Rule allows parties to raise the issue of inconvenient venue by petition. Pa.R.C.P. 1006(d). The trial court transferred venue for reasons of forum non conveniens pursuant to Rule 1006(d), not because Philadelphia County was an improper forum.
¶ 8 A trial court's ruling on venue will not be disturbed if the decision is reasonable in light of the facts. Mathues v. Tim-Bar Corp., 438 Pa.Super. 231, 652 A.2d 349, 351 (1994). A decision to transfer venue will not be reversed unless the trial court abused its discretion. Id. A plaintiff's choice of forum is given great weight, and the burden is on the party challenging that choice to show it is improper. Masel v. Glassman, 456 Pa.Super. 41, 689 A.2d 314, 316 (1997). "For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought." Pa.R.C.P. 1006(d)(1). A petition to transfer venue on this basis should not be granted unless the party seeking to transfer venue meets its burden of showing that venue in the chosen forum is oppressive or vexatious. Hoose v. Jefferson Home Health Care, Inc., 754 A.2d 1 (Pa.Super.2000), appeal denied, 564 Pa. 734, 766 A.2d 1249 (2001); see also Cheeseman v. Lethal Exterminator, Inc., 549 Pa. 200, 213, 701 A.2d 156, 162 (1997)
(). As this Court stated in Hoose:
The defendant may meet its burden of showing that the plaintiff's choice of forum is vexatious to him by establishing with facts on the record that the plaintiff's choice of forum was designed to harass the defendant, even at some inconvenience to the plaintiff himself. Alternatively, the defendant may meet his burden by establishing on the record that the chosen forum is oppressive to him; for instance, that trial in another county would provide easier access to witnesses or other sources of proof, or the ability to conduct a view of premises involved in the dispute. But, we stress that the defendant must show more than that the chosen forum is merely inconvenient to him.
Hoose, 754 A.2d at 3 (emphasis omitted). Claims by a defendant that no significant aspect of a case involves the chosen forum, and that another forum would be more convenient, are not the type of record evidence that proves that litigating the case in the chosen forum is oppressive or vexatious. Id., 754 A.2d at 4. There is a vast difference between a finding of inconvenience and one of oppressiveness. Id., 754 A.2d at 5.
¶ 9 Appellant argues that Dr. Farrell did not sustain his burden of proving that trial in Philadelphia County would be oppressive or vexatious. In support of his petition to transfer venue, Dr. Farrell relied on the deposition testimony of Appellant, who stated that all of the witnesses who could testify as to damages were located in Lehigh County. Dr. Farrell also indicated in a sworn affidavit that trial in Philadelphia County would burden his...
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