Wills v. Kaschak

• Decision Date: 07 December 1992
• Citation: 617 A.2d 37,420 Pa.Super. 540
• Parties: Catherine E. WILLS and William W. Wills, h/w, Appellants, v. Carl J. KASCHAK, D.D.S., Leonard Limongelli, D.O., Mark Radbill, D.O., Lawrence Schmitzer, D.O., Richboro Medical Association and Louis S. Pearlstein, D.O., Appellees.
• Court: Pennsylvania Superior Court

Page 37

617 A.2d 37

420 Pa.Super. 540

Catherine E. WILLS and William W. Wills, h/w, Appellants, v. Carl J. KASCHAK, D.D.S., Leonard Limongelli, D.O., Mark Radbill, D.O., Lawrence Schmitzer, D.O., Richboro Medical Association and Louis S Pearlstein, D.O., Appellees.

Superior Court of Pennsylvania.

Argued May 14, 1992.

Filed Dec. 7, 1992.

Laura Feldman, Philadelphia, for appellants.

Bert C. Tuttle, Norristown, for Limongellio, Radbill, Schmitzer and Richboro Medical Ass'n, appellees.

Before WIEAND, OLSZEWSKI and KELLY, JJ.

WIEAND, Judge:

This is an appeal from an order transferring a civil action from Philadelphia County to Bucks County for the convenience of parties and witnesses pursuant to Pa.R.C.P. 1006(d).

The action was commenced in September, 1988, by Catherine and William Wills against Carl J. Kaschak, D.D.S., Leonard Limongelli, D.O., Mark Radbill, D.O., Lawrence Schmitzer, D.O., Louis S. Pearlstein, D.O. and the Richboro Medical Association. According to the averments of plaintiffs' complaint, Catherine Wills sustained personal injuries as a result of medical care negligently provided by the defendants. On June 12, 1991, defendants Limongelli, Radbill, Schmitzer, and Richboro Medical Association (appellees) filed a petition to transfer venue based on the doctrine of forum non conveniens. After considering the defendants' petition to transfer and the plaintiffs' response thereto, the trial court entered an order granting the petition and ordering the case to be transferred from Philadelphia County to Bucks County. Plaintiffs appealed.

In reviewing orders granting a change of venue on the basis of forum non conveniens, we are guided by the following principles:

Pa.R.C.P. 1006(d) "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." Fox v. Pennsylvania Power & Light Co., 315 Pa.Super. 79, 81, 461 A.2d 805, 806 (1983), citing Plum v. Tampax, Inc., 399 Pa. 553, 560, 160 A.2d 549, 553 (1960).

An abuse of discretion is not merely an error of judgment, but if 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, as shown by the evidence or the record, discretion is abused.

In re Women's Homoeopathic Hospital of Philadelphia, 393 Pa. 313, 316, 142 A.2d 292, 294 (1958), quoting Echon v. Pennsylvania R.R. Co., 365 Pa. 529, 534, 76 A.2d 175, 178 (1950). The supreme court has described the heavy burden facing the appellant from a discretionary trial court determination: "[I]t is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power." Mackarus's Estate, 431 Pa. 585, 596, 246 A.2d 661, 666-67 (1968), quoting Garrett's Estate, 335 Pa. 287, 292-93, 6 A.2d 858, 860 (1939). If there is any basis for the trial court's decision, the decision must stand. Id.

Brown v. Delaware Valley Transplant Program, 371 Pa.Super. 583, 586, 538 A.2d 889, 891 (1988).

When considering a motion for change of venue, a trial court should weigh the hardships and conveniences inherent in trying the action. Alter v. Pennsylvania Gas and Water Co., 110 Pa.Commw. 349, 355, 532 A.2d 913, 916 (1987), allocatur denied, 521 Pa. 623, 557 A.2d 726 (1989). Although the choice of forum by a plaintiff is entitled to weighty consideration, the right of a plaintiff to choose a forum is not absolute. The 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 witnesses."

In determining whether Bucks County is a more convenient forum than Philadelphia County for the parties and witnesses, the trial court was required to weigh three categories of factors. "First, the plaintiff's choice of forum should be given significant weight. Second, the interests of the parties should be considered, including relative ease of access to sources of proof, availability of compulsory process for the attendance of unwilling witnesses, cost of obtaining attendance of willing witnesses, possibility of a view of premises, if appropriate, enforceability of a judgment, and any other problem which affects the ease, celerity or expense of the litigation. The third category is the public interest; litigation should not be piled up in congested centers rather than being handled at its origin; jury duty should not be imposed on the people of a community which has no relation to the litigation." Brown v. Delaware Valley Transplant Program, supra 371 Pa.Super. at 586-587, 538 A.2d at 891, citing Plum v. Tampax, Inc., 399 Pa. 553, 560, 160 A.2d 549, 553 (1960). See also: Okkerse v. Howe, 521 Pa. 509, 519, 556 A.2d 827, 832 (1989); In re Paoli R.R. Yard PCB Litigation, 137 Pa.Commw. 220, 224, 585 A.2d 608, 611 (1991).

In the instant case, the trial court concluded that a change of venue was necessary for the convenience of the parties and witnesses. The court found that: 1) the Bucks County venue allowed easier access to the sources of proof because the offices of the defendants were located there; ¹ 2) the plaintiffs also resided in Bucks County; 3) the attendance of witnesses would be easier in Bucks County because fact witnesses were either employed or resided there; 4) the alleged acts giving rise to the plaintiffs' cause of action arose in Bucks County; 5) the case had substantially more contacts with Bucks County than Philadelphia County. The trial court also appropriately took into consideration the strong public interest of avoiding court congestion of cases that do not belong in our Commonwealth's large urban centers. In this respect, the trial court observed:

If we were to allow these type of actions to be brought in Philadelphia's already congested courts instead of being handled where they originated, it will compound an already overwhelmed legal system. Also, jury duty is a burden that ought not be imposed on people of a community which has no relationship to the litigation. (citations omitted). It is impossible to ignore the overwhelming burden that presently exists in the Philadelphia Court of Common Pleas with approximately 45,000 civil cases pending. Boyle v. Chester Cty. Mut. Ins. Co., et al., 21 Phila. 1 (1990). (quoting Dallas v. Orthopedic Associates, 22 Phila. 286 (1991)).

Transfer of this case alone will not alleviate the backlog that now exists in the Philadelphia Court of Common Pleas, but it is a step that must be taken. It is clear that the Philadelphia Court of Common Pleas has no connection with this litigation, except that co-defendant Pearlstein maintains an office in Philadelphia.

Tr.Ct.Op. of 11/13/91 at 5.

Under these circumstances, we conclude that the trial court acted within its discretion by transferring the action to Bucks County. Bucks County is where the treating doctors' offices are located, where the relevant witnesses are employed, where the relevant evidence is located and where the alleged negligent conduct occurred. ² Furthermore, plaintiffs do not reside in Philadelphia County but are also residents of Bucks County. The defendants maintain their medical offices in Bucks County except for Dr. Pearlstein who has an office in Philadelphia, but he, too, treated Catherine Wills in Bucks County. Finally, the public interest weighs heavily on the side of transfer, as jury duty and the attendant costs of litigation should not be imposed on the people of Philadelphia County who have no relation to this litigation. See: Incollingo v. McCarron, 416 Pa.Super. 419, 611 A.2d 287 (1992) (trial court properly recognized substantial backlog of Philadelphia trial courts in determining transfer petition under Rule 1006(d)). Therefore, under the standard of review set forth above, we conclude that the trial court did not abuse its discretion by transferring the case to Bucks County.

Order affirmed.

KELLY, J., files a dissenting opinion.

KELLY, Judge, dissenting:

I am compelled to note the following and, therefore, respectfully dissent. The appellants, Catherine and William Wills, commenced this action by filing a complaint in September, 1988. All of the defendants filed answers raising new matters, preliminary objections and served interrogatories upon appellants at various times following the filing of the complaint. In general, discovery proceeded for thirty-three months before, on June 12, 1991, several of the defendants, the appellees, filed a petition to transfer venue based upon the doctrine of forum non conveniens. In their petition to transfer venue, the appellees contended that venue should be transferred to Bucks County for the following reasons: 1) the appellants resided in Bucks County; 2) the moving defendants had their offices in Bucks County; 3) all of the treatments complained about occurred in Bucks County; 4) a Bucks County trial would be more convenient for all parties because of the parties' ties to that county; and, 5) transfer of the lawsuit to Bucks County would result in its faster disposition because, unlike Philadelphia County, the Bucks County civil docket is not overcrowded.

The appellants, in their answer to the appellees' petition to transfer venue, averred that one of the non-moving defendants, Louis S. Pearlstein, D.O. maintains his residence and a separate office where he provides services to patients on a routine and continuous basis in Philadelphia County; thus, all of the defendants would not be unduly burdened by a trial in Philadelphia County. The appellants also averred in their answer that Ms. Wills'...