Ernest v. Fox Pool Corp.
| Decision Date | 29 March 1985 |
| Citation | 341 Pa.Super. 71,491 A.2d 154 |
| Parties | Kevin J. ERNEST, Appellant, v. FOX POOL CORPORATION, Harry V. Rose, Individually; Lawrence S. Rose, Individually; Rose Swimming Pool Company; and Harry V. Rose and/or Lawrence S. Rose, doing business or trading as Rose Swimming Pool Company, Robert L. Goodall, Inc., Appellees. Kevin J. ERNEST, Appellant, v. FOX POOL CORPORATION, National Spa and Pool Institute, Williams Winters and Leanna Winters, his wife, Geisinger Medical Center; and Fred G. McMurry, M.D. v. ROBERT L. GOODALL, INC. v. Harry V. ROSE, Individually; Lawrence S. Rose, Individually; Rose Swimming Pool Company; and Harry V. Rose and/or Lawrence S. Rose, doing business or trading as Rose Swimming Pool Company, Appellees. |
| Court | Pennsylvania Superior Court |
Richard C. Angino, Harrisburg, for appellant.
Charles W. Rubendoll, III, Harrisburg, for appellees.
Before WIEAND, MONTEMURO and CERCONE, JJ.
Kevin J. Ernest was injured when he attempted to dive into an innertube in a private pool owned by William and Leanna Winters in Northumberland, Northumberland County. By a multi-count complaint filed in Dauphin County, Ernest alleged that Fox Pool Corporation had defectively designed the pool, that the private owners of the pool and National Spa and Pool Institute, an association of swimming pool manufacturers, had been guilty of negligence, and that Geisinger Medical Center and Dr. Fred G. McMurry had been guilty of medical malpractice in treating Ernest's injuries. Robert L. Goodall, Inc., the alleged distributor of the pool, was joined as an additional defendant. In a separate action, 1 Rose Swimming Pool, the alleged retailer and the principles of that business, Harry V. and Lawrence S. Rose, were also made party defendants. In response to a defense petition filed pursuant to Pa.R.C.P. 1006(d), 2 the court in Dauphin County transferred venue to Northumberland County. Ernest appealed.
Pa.R.C.P. 1006(d) was considered by this Court in Fox v. Pennsylvania Power & Light Co., 315 Pa.Super. 79, 461 A.2d 805 (1983). We there said:
A court is authorized by Pa.R.C.P. 1006(d) to transfer an action to the appropriate court of any other county where the original action could have been brought if it will serve the convenience of parties and witnesses. This rule vests considerable discretion in the trial judge to determine whether to grant a petition for a change of venue. On appeal from such an order, the only issue is whether the trial judge abused his discretion. Plum v. Tampax, Inc., 399 Pa. 553, 560, 160 A.2d 549, 553 (1960); Hamay v. County of Washington, 291 Pa.Super. 137, 141, 435 A.2d 606, 608 (1981); Daugherty v. Inland Tugs Company, 240 Pa.Super. 527, 531, 359 A.2d 465, 467 (1976); Tarasi v. Settino, 223 Pa.Super. 158, 161-162, 298 A.2d 903, 905 (1972).
Id. at 81, 461 A.2d at 806. The rule directs that a court's decision on a petition to change venue shall be made according to the convenience of the parties and witnesses. Important considerations, as this Court recited them in Daugherty v. Inland Tugs Co., 240 Pa.Super. 527, 359 A.2d 465 (1976), include:
the relative ease of access to the sources of proof; the availability of compulsory process for the attendance of unwilling witnesses; the cost of obtaining the attendance of willing witnesses; the possible need for a view of the premises, if such would be appropriate to the action; and all other practical problems that make trial of a case expeditious and inexpensive. The ends of justice are not served by allowing a suit to be litigated in a forum where, on balance, unnecessary hardship and inconvenience would be cast on one party without compensatingly fair convenience to the other parties and where suit might be more conveniently litigated in another forum available equally to both parties.
After reviewing the record in the instant case, it becomes abundantly clear that the court in Dauphin County did not abuse its discretion by transferring venue to Northumberland County. It was in Northumberland County that the plaintiff resided; and it was there that the accident occurred. It was also in Northumberland County that the pool was located, where its owners resided, and where all eyewitnesses to the accident resided. After the accident, it was Chief Michael DeFrank of the Northumberland Police Department who was summoned and arrived at the scene. The injured plaintiff was then removed to Geisinger Medical Center in nearby Danville, Montour County, where he was treated by a Northumberland County physician, Dr. Fred G. McMurry.
Conversely, Dauphin County had no connection with this litigation except that one defendant had an office there and several defendants included Dauphin County in the wider area in which they did business. The pool had been designed and manufactured in York County by Fox Pool Corporation, whose principal place of business was also in York County. National Spa and Pool Institute was an Illinois corporation, with its principal office in Washington, D.C.; and Rose Swimming Pools was a business located in Union County. Only the distributor, Robert L. Goodall, Inc., had an office in Dauphin County, but even this defendant's principal place of business was not in Dauphin County but in Cumberland County.
Appellant urges that we adopt an interpretation of Pa.R.C.P. 1006(d) which will remove discretion from the court and vest it in plaintiff's attorney. We reject such an interpretation; it would be contrary to the express language of the rule. Nevertheless, it must be conceded, as appellant argues, that the...
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Wills v. Kaschak
...forum non conveniens provision inserted into Pa.R.C.P. 1006(d) was intended as a necessary counterbalance. Ernest v. Fox Pool Corp., 341 Pa.Super. 71, 75, 491 A.2d 154, 156 (1985). The rule permits a court, in its sound discretion, to transfer venue "for the convenience of parties and In de......
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...of a forum non conveniens challenge is a necessary counterbalance to insure fairness and practicability. Ernest v. Fox Pool Corp., 341 Pa.Super. 71, 491 A.2d 154 (1985). In such cases, the standard of abuse of discretion applies, allowing the trial court considerable discretion. Purcell, su......
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...properly be laid.... The forum non conveniens provision in Pa.R.C.P. 1006(d) is a necessary counterbalance." Ernest v. Fox Pool Corp., 341 Pa.Super. 71, 75, 491 A.2d 154, 156 (1985), citing 1 Goodrich Amram 2d § 1006(d):1 Although depositions were not taken in support of Amtrak's petition f......
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Okkerse v. Howe
...of a forum non conveniens challenge is a necessary counterbalance to insure fairness and practicality. See Ernest v. Fox Pool Corp., 341 Pa.Super. 71, 491 A.2d 154 (1985). Because, however, of the weight accorded to the plaintiff's original choice courts have held that he or she should not ......