Wednesday, March 24, 2010

Conflicting Decisions Out of Philadelphia County on Issue of Proper Venue in Post-Koken Cases

I recently was made aware of two conflicting decisions out of Philadelphia County in post-Koken cases on the issue of proper venue. These cases were distinguishable from the previous post-Koken cases reported on the venue issue in that, in these two new cases, the UIM carrier's policy did not have a forum selection clause delineating where the lawsuit should be filed. The carrier in both cases was State Farm.

To review my recent article in the Pennsylvania Law Weekly analyzing those prior cases that involved the separate venue issue in the context of UIM policies containing a forum selection clause, go to the "JDSupra" box down on the right hand column of this blog and click on the title "Tracking 'Hurricane Koken.'"

In the absence of any agreed upon forum selection between the parties, Rule 1006 governs and generally provides that proper venue is where the accident occurred or where a defendant resides or regularly conducts business.

In the case of Sehl v. Neff and State Farm, May Term 2009 No. 2487 (Phila. Co. Oct. 22, 2009 Allen, J.) both the accident and the residence of the third party tortfeasor were situated in Montgomery County. Nevertheless, the plaintiff filed suit in Philadelphia under an argument that the UIM carrier, State Farm, regularly conducted business in that county.

The Sehl court accepted the tortfeasor defendant's argument that, since the tortfeasor defendant and the UIM carrier were not joint tortfeasors, or were not jointly or severally liable to the plaintiff, then the plaintiff could not compel the tortfeasor defendant to litigate the case in any county where the UIM carrier allegedly could be sued.

Judge granted the tortfeasor defendant's preliminary objections based upon improper venue and ordered the case transferred to Montgomery County.

Plaintiff's counsel has filed an appeal on this issue to the Superior Court and the parties await the Rule 1925 Opinion from the trial court.

In the other Philadelphia County case of Campbell v. Kelly and State Farm, December Term 2009 No. 208 (Phila. Co. March 12, 2010), the similar scenario of involved a Bucks County car accident and a Bucks County resident third party tortfeasor. The plaintiff in that matter also filed the suit in Philadelphia County under the same argument that venue was proper there given that the UIM carrier, State Farm, regularly conducted business in that county.

In this case, the trial court reached an opposite decision and denied the tortfeasor defendant's preliminary objection based upon improper venue. The tortfeasor defendant has filed a motion for reconsideration and has provided the Campbell court with a copy of the Sehl decision to review. Also filed by the defense was a motion seeking permission to file an interlocutory appeal on the issue.

Of course, there may be other venue decisions out there that I am not aware of and the hope is that the attorneys involved in these types of cases will publicize the decisions in order that a consistent common law be created.

Anyone desiring a copy of the above Orders may contact me at

I thank defense counsel John McGrath, Esquire of the law firm of Palmer & Barr, P.C. in Philadelphia for bringing these cases to my attention.

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