Cooper v. Nationwide Mut. Ins. Co.

• Decision Date: 13 October 2000
• Parties: Seymore COOPER, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee.
• Court: Pennsylvania Superior Court

761 A.2d 162

Seymore COOPER, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee.

Superior Court of Pennsylvania.

Argued June 13, 2000.

Filed October 13, 2000.

Frank S. Pollock, Philadelphia, for appellant.

Jonathan F. Ball, Philadelphia, for appellee.

BEFORE: HUDOCK, STEVENS, JJ., and CIRILLO, President Judge Emeritus

STEVENS, J.:

¶ 1 This is an appeal from the order entered in the Court of Common Pleas of Philadelphia County granting Nationwide Mutual Insurance Company's (Nationwide) petition to transfer venue of the underlying bad faith action from Philadelphia County to Pike County on the basis of forum non conveniens. We reverse and remand for proceedings consistent with this decision.

¶ 2 The relevant facts and procedural history are as follows: Seymour Cooper purchased an automobile insurance policy from Nationwide, which provided for two hundred fifty thousand dollars ($250,000.00) in uninsured/underinsured motorist benefits and income loss benefits of one thousand dollars ($1,00.00) per month, with a cap of five thousand dollars ($5,000.00). While covered under the policy, on July 22, 1988, Seymour Cooper was involved in a motor vehicle accident, as a result of which he suffered serious and permanent injury. Cooper sued the other driver involved in the accident and, with Nationwide's consent, Cooper ultimately settled the action in February of 1992 for fifteen thousand dollars ($15,000.00), the policy limits of the other driver's applicable insurance coverage.

¶ 3 Maintaining that he sustained injuries not adequately compensated by his recovery under the other driver's policy, Cooper sought to recover underinsured motorist benefits under his automobile insurance policy with Nationwide. Nationwide denied the request, and, after contesting the forum for arbitration, the matter proceeded to arbitration in Pike County, the county in which Cooper resided when he purchased the policy at issue from Nationwide. The Board of Arbitrators awarded Cooper one hundred forty-five thousand dollars ($145,000.00), but then reduced the award by fifteen thousand dollars ($15,000.00), the amount Cooper had recovered from the other driver's insurance company. Nationwide then tendered a draft in the amount of one hundred thirty thousand dollars ($130,000.00), the net arbitration award; however, Cooper refused to execute a release of his underinsured motorist benefits in exchange for the payment. Since Nationwide would not give Cooper the $130,000.00 unless he executed a release, Cooper filed the underlying bad faith claim in the Court of Common Pleas of Philadelphia County on May 12, 1998.

¶ 4 On June 2, 1998, Nationwide filed preliminary objections, which were granted in part and denied in part, and, on November 3, 1998, Nationwide filed an answer and new matter.¹ On July 7, 1999, Nationwide filed a petition to transfer the action from Philadelphia County to Luzerne County under the doctrine of forum non conveniens, and Cooper filed a reply opposing the transfer. Oral argument was held on September 15, 1999, following which the trial court ordered that the matter be transferred from Philadelphia County to Pike County.² Cooper filed this timely appeal alleging that the Court of Common Pleas of Philadelphia County erred in transferring the case to Pike County.³

A trial judge has great discretion in reviewing petitions to change venue based upon forum non conveniens; on appeal, the [S]uperior [C]ourt must determine whether the trial judge abused that discretion. In order to demonstrate that the trial court has abused its discretion, `an appellant must show that in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will.'

In Cheeseman v. Lethal Exterminator, Inc., 549 Pa. 200, 701 A.2d 156 (1997), [the] [S]upreme [C]ourt clarified the appropriate standard that a defendant must meet to successfully transfer venue of a case. In sum, `a petition to transfer venue should not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiff's chosen forum is oppressive or vexatious to the defendant.' Thus:

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 trial in the chosen forum is oppressive to him; for instance, that trial in another county wold 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 v. Jefferson Home Health Care, Inc., 754 A.2d 1, 3 (Pa.Super.2000) (citations and quotations omitted).

¶ 5 In its petition to transfer venue, Nationwide alleged that the case should be transferred from Philadelphia County for the following reasons:⁴ (1) With the exception of Cooper's counsel residing in Philadelphia County, none of the parties, witnesses, activities, events, or transactions occurred/reside in Philadelphia County; (2) Trial of the matter in another county would provide easier access to Nationwide's employees/claims attorneys who handled the claim at issue in Wilkes-Barre, Pennsylvania;⁵ (3) The claim at issue was denied by Nationwide's Wilkes-Barre, Pennsylvania office; and (4) Nationwide's claims attorneys all reside in or near Wilkes-Barre, which is approximately a three hour drive from Philadelphia County, but is only approximately forty-five minutes from Pike County.

¶ 6 During oral argument on the matter, and in his reply in opposition to Nationwide's petition to transfer, Cooper alleged the following: (1) The underlying bad faith claim at issue is based, in part, on Nationwide subjecting Cooper to two days of depositions in New Jersey, which is near Philadelphia County; (2) Cooper's attorneys all reside in or near Philadelphia County; (3) The medical witnesses, who Cooper intends to call during trial, all reside in or near Philadelphia County; (4) Cooper's vocational expert, who intends to testify concerning Cooper's lost wages, resides/works in Philadelphia County and would not travel to Pike County for the arbitration hearing; and (5) Cooper's medical treatment, relating to the underlying automobile accident, occurred in Philadelphia County, and the accident occurred in Pennsauken, New Jersey.

¶ 7 Based on all of the aforementioned, the trial court concluded that trial in Philadelphia County would be vexatious and oppressive to Nationwide, and, therefore, transferred the matter to Pike County, which the trial court believed would provide easier access to witnesses and other sources of proof.⁶ We conclude that Nationwide did not meet its burden of proving that Philadelphia County was "oppressive and vexatious," and, therefore, we find that the trial court abused its...