Tuesday, February 22, 2022

Commonwealth Court Rules, In Case First Impression, That a Private Sector Defendant Can Rely Upon Venue Statutory Argument Typically Reserved to PENNDOT


In the case of first impression of Kim v. Com. of Pa., Dept. of Transp., No. 7 CD 2020 (Pa. Cmwlth. Feb. 9, 2022 Wojcik, J., Cannon, J., and Ceisler, J.) (Op. by Wojcik, J.), the Commonwealth Court held that private sector Defendants in a personal injury suit may seek a new venue under a section of the Sovereign Immunity Act despite the State Agency Co-Defendant’s objections to the requested transfer of venue.

According to the Opinion, the Plaintiffs were injured in a single car accident that occurred in Delaware County. 

In addition to suing PennDOT, which maintained the area of the road in question, the Plaintiff also sued private contractors who worked on the construction of the road as well as the Delaware County resident who owned the property where the accident occurred. The Plaintiffs filed suit in Philadelphia.

According to the Opinion, the Pennsylvania Department of Transportation, as a Defendant in this case, had earlier waived its right to venue protections under the law as part of that Defendant’s settlement with the Plaintiffs. 

 As a result of that agreement, PennDOT even joined the Plaintiffs in arguing against the venue Preliminary Objections filed b by the Defendants and asserted that the private sector Defendants could not utilize §8523(a) of the Judicial Code in support of their argument.

According to the Opinion, §8523(a) of the Judicial Code establishes that state entities may only be sued in the county where either the incident at issue occurred or where that state agency entity is located.

The issue in this case was whether, in a suit against both state and private Defendants, the right to object to venue under that section only rested with the state entity.

In a decision of first impression, the Commonwealth Court ruled that, under the facts and circumstances of this case, a private sector Defendant could also rely upon §8523(a) of the Judicial Code to challenge the venue issue as well.

The court rejected the argument by the Plaintiffs and PennDOT that, under the Pennsylvania Rules of Civil Procedure 1006, which governs non-state venue objections, the private Defendants could not raise objections to venue. It was otherwise indicated in the Opinion that one of the Defendants later joined in the suit conducted business within Philadelphia County.

The Commonwealth Court noted that, although the private Defendants could not have raised objections to venue under Rule 1006, the court found that they could still raise objections under §8523(a).  The Commonwealth Court emphasized that there was no language under Section 8523(a) that place any limitations as to which party could raise such venue arguments.

The court remanded the case back to the trial court where the private Defendants would be permitted to argue for a change in venue.

Anyone wishing to review a copy of this decision may click this LINK.


Source: Article-“Appeals Court: Private-Sector Co-Defendants May Seek Venue Change Under State Protection Provision.” Pennsylvania Law Weekly (Feb. 10, 2022).

Source of Image:  Photo by Trev Adams from www.Pexels.com.

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