The Deciders On Pre-Emptive Strikes, DD 06/07

Defense Digest

The "Deciders" On Pre-Emptive Strikes

The Pennsylvania Supreme Court in Zappala v. Brandolini Property Management, Inc., 909 A.2d 1272 (Pa. 2006) ended any questions about when a challenge to venue is appropriate. The Court reiterated the rule that failure to raise improper venue in Preliminary Objections acts as a waiver.

In Pennsylvania, a cause of action can be filed in any county in which even one defendant has some relationship. Here, the plaintiff fell in Chester County, but some of the defendants had contacts in Philadelphia, so she chose to file there.

The Chester County defendants wished to have the case proceed outside of Philadelphia and had several options to challenge what they perceived to be improper venue. First, they could file Preliminary Objections raising improper venue. This is basically a motion challenging venue. Preliminary Objections must be filed within twenty days of service of the Complaint. The Chester County defendants decided not to do this because, as long as the Philadelphia County defendants were in the case, venue was proper in Philadelphia County. Second, the Chester County defendants could file a Petition for Change of Venue arguing that Philadelphia was an "oppressive or vexatious" forum (this is called forum non conveniens). They decided against this option as it is unusual to have a forum non conveniens petition granted given the proximity of Philadelphia and Chester Counties. Finally, the Chester County defendants also could file a Petition for Change of Venue if they had a basis for arguing that the Philadelphia court could not hold a fair an impartial trial.

The Chester County defendants decided to wait until the Philadelphia County defendants were dismissed from the case and then to file a Petition to Transfer Venue, claiming improper venue. The problem is that improper venue can only be raised in Preliminary Objections, not in a Petition. Furthermore, by not raising improper venue in Preliminary Objections, the Chester County defendants waived that argument.

The plaintiff opposed the Petition to Transfer Venue for these reasons, and the Chester County defendants argued that they could not have filed such a Petition until after the Philadelphia County defendants were dismissed. The Chester County defendants argued that it would have been "futile and frivolous" to make the improper venue preliminary objection before the Philadelphia County defendants were dismissed.

The Supreme Court said that it was not commenting on the propriety of the protective preliminary objection but hinted that it was not likely to be looked upon kindly. Instead, they reiterated that defendants unhappy with the forum in which they are litigating should be sure to file their improper venue preliminary objections and their Petitions to Transfer Venue.

The Supreme Court stated that a plaintiff's choice of forum is "entitled to weighty consideration and should not be disturbed lightly." There are reasons for making defendants raise improper venue right away: "These issues must be resolved at the very beginning of the case, before the court expends the time and energy to become deeply involved in the litigation. If the parties fail to bring these issues to the court's attention . . . it cannot later be argued that . . . the trial is taking place in an improper forum."

To defendants anxious to get out of a less-than-favorable jurisdiction, this decision allow plaintiffs to choose an advantageous venue and leave defendants with few options to do anything about it. It also seems to force defendants to file protective preliminary objections to improper venue. The Court did note, "We disapprove of forum shopping . . . a defendant aggrieved by such a strategy has recourse through either forum non conveniens . . . or through averment that absent a transfer there cannot be a fair and impartial trial."

So, the Supreme Court told the Chester County defendants to go back to Philadelphia and file a Petition to Transfer Venue based on forum non conveniens. The defendants have an uphill battle. They have to tell the Philadelphia court that it is too hard for them to travel to Philadelphia, despite the fact that they did it for seven years already.

So how can an unfavorable or inappropriate forum in Pennsylvania be avoided? First, defendants and claims representatives must forward the Complaint to defense counsel as soon as possible, before Preliminary Objections are time-barred. It is rare for plaintiffs to give defendants extensions of time to file Preliminary Objections. Second, if there is no real basis for Preliminary Objections based on improper venue, think long and hard about whether to file protective preliminary objections. If there are other reasons to file the preliminary objections, it may not hurt to throw in the improper venue argument; but it should rarely be done on its own. Third, if there is no basis or time to file improper venue preliminary objections, try to get a Petition to Transfer Venue filed as soon as possible, before subjecting the out-of-county defendant to depositions or court appearances, which belies the inconvenience of going to them.

* Michele is an associate in our Doylestown, Pennsylvania, office. She can be reached at (267) 880-2031 or mpfrisbie@mdwcg.com.