Monday, February 22, 2016

Judge Nealon Explains Difference Between Preliminary Objections for Improper Venue and Petition for Transfer Under Doctrine of Forum Non Conveniens Where Venue is Proper

In the case of Baltzley v. Bronson, No. 14-CV-5500 (C.P. Lacka. Co. Feb. 4, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Defendant's Preliminary Objections to a Complaint pursuant to Pa. R.C.P. 1028(a)(1) and 1006(e) asserting improper venue in Lackawanna County in a motor vehicle accident case.   Judge Nealon’s Opinion emphasizes the difference between asserting improper venue, which can be raised only by Preliminary Objections, and inconvenient forum challenges, which acknowledged proper venue and can only be raised by petition.   

According to the Opinion, the subject motor vehicle accident occurred in Montrose, Susquehanna County, Pennsylvania.  

The Plaintiff commenced the action by filing a Writ of Summons and serving that initial process upon the Defendant through the Sheriff’s Department of Susquehanna County at the Defendant’s Susquehanna County residence.  

Thereafter, the Plaintiff filed a Complaint in which he identified the Defendant’s residence being in Susquehanna County.  

The Defendant filed timely Preliminary Objections to the Complaint pursuant to 1028(a)(1), asserting that venue was proper only in Susquehanna County since the Defendant resided in Susquehanna County and was served with original process in that county and given that the accident occurred in that county.   In his supporting Brief, the Defendant noted that Rule 1006 states that venue was proper either in the county where a Defendant may be served or in the county where the cause of action arose.  The Defendant also asserted that because no Defendant resided in Lackawanna County and given that the accident did not take place in Lackawanna County, “this action must be transferred to Susquehanna County.”  

The Plaintiff responded to the Preliminary Objections by admitting that the subject accident occurred in Susquehanna County and that the Defendant was served with original process in that county.  However, the Plaintiff contended that the Defendant’s Preliminary Objections should be denied since the Defendant “has failed to show that venue in Lackawanna County would be inconvenient” under Pa. R.C.P. 1006(d)(1).   The Plaintiff further argued that the Defendant has not provided any evidence to the court that Lackawanna County was an inconvenient forum for the parties or witnesses or that the travel to and expenses of litigating in Lackawanna County would be overly burdensome for any party.   For these reasons, the Plaintiff requested that Defendant’s Preliminary Objections be overruled.  

Judge Terrence R. Nealon
Lackawanna County
In his Opinion, Judge Nealon noted that venue for civil actions brought against individuals is controlled by Pa. R.C.P. 1006.   Judge Nealon also explained that, based upon Pennsylvania Supreme Court precedent, “Rule 1006 not only articulates where the plaintiff may bring the action, but also provides three (3) distinct bases upon which a defendant may challenge the plaintiff’s chosen forum:  improper venue by Preliminary Objections, forum non conveniens, and inability to hold a fair and impartial trial.”   See Baltzley at p. 3 [citation omitted].  

Judge Nealon also stated that, pursuant to Pa. R.C.P. 1006(e), improper venue must be raised by Preliminary Objection and, if not so raised, shall be considered to be waived.  

Judge Nealon went on to note that, where venue is proper in a given county, a defendant may, in the alternative, seek a change of venue either on a forum non conveniens grounds or due to the inability to obtain a fair and impartial trial in that particular county.   In such case, under Rule 1006(d)(1), a party may file a petition with the court to transfer the action to another county for the convenience of parties and witnesses.  

The court also explained that a defendant may otherwise request a transfer of venue from a county where the venue is properly laid by establishing to the court that the defendant is unable to receive a fair and impartial jury trial in that forum.   Such a petition can be filed under Rule 1006(d)(2).  

The court emphasized that, in this matter, the Defendant filed Preliminary Objections challenging improper venue, and not a petition asserting forum non conveniens or an inability obtain a fair and impartial trial in Lackawanna County.   As such, the judge noted that issues pertaining to the convenience or expenses to the parties of litigating in Lackawanna County were not relevant.  

The court ruled that the Plaintiff’s admissions in the pleadings confirmed that the Defendant was served in Susquehanna County and that the accident occurred in Susquehanna County.   There was no contention by the Plaintiff that the Defendant could have been served in Lackawanna County or that the accident occurred in Lackawanna County.   Since there is no basis in fact or law for proper venue in Lackawanna County under Rule 1006(a)(1), the court sustained the Defendant’s Preliminary Objection asserting improper venue in Lackawanna County.

Judge Nealon went on to note that under Pa. R.C.P. 1006(e) if a Preliminary Objections to venue is sustained and there is another county of proper venue within Pennsylvania, the action should be transferred to that other county.   Accordingly, Judge Nealon transferred the case to the Court of Common Pleas of Susquehanna County and required, as mandated by Rule 1006(e) that “[t]he costs and fees for transfer and removal of the record shall be paid by the plaintiff.”  

Anyone wishing to review this decision by Judge Nealon in the Baltzley case may click this LINK.

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