President Judge Joseph A. Del Sole and Judge Maureen Lally-Green said in the majority opinion that St. Joseph failed to meet the standard for requesting a venue change delineated in Cheeseman v. Lethal Exterminator, PICS Case No. 97-1846 (Pa. Aug. 22, 1997) Cappy, J.; Newman, J.& Flaherty, JJ., dissenting (20 pages), a 1997 Pennsylvania Supreme Court decision. Cheeseman requires that the defendant demonstrate “with detailed information on the record” that the plaintiff’s chosen forum is oppressive or vexatious to the defendant.
“The Supreme Court in Cheeseman set a stringent standard,” said Del Sole.
“For example, the record may include the affidavits of witnesses or the deposition testimony of witnesses.” But St. Joseph did not provide any of that, he said.
“The record includes the plaintiffs’ complaint, [St. Joseph's] petition to transfer venue with a supporting affidavit of Mary Reyes, R. ., director of risk management for St. Joseph Medical Center, and the briefs in support or opposition to the petition to transfer,” Del Sole said.
“The record presented to the trial court did not include any other evidence, such as affidavits from individual witnesses who would suffer hardship, or deposition testimony regarding the same,” he said.
“Indeed, the Mary Reyes affidavit contained no identification of witnesses.”
St. Joseph claimed that its witnesses would have to travel 64 miles each way to attend a trial in Philadelphia County, but the record never said what distance the witnesses would have to travel were the trial in Berks County, Del Sole said.
According to the opinion, St. Joseph also claimed that a work-schedule disruption would result if the trial were in Philadelphia County. Again, Del Sole said St. Joseph did not establish or assert “how much more the work schedule would be interrupted” with a trial in Philadelphia County vs. the interruption of a Berks County trial.
“Despite the conclusory allegations made by [St. Joseph], they have not established on the record that trial in Philadelphia County would prove oppressive and vexatious. Thus … venue should not have been transferred to Berks County on the basis of forum non conveniens,” Del Sole said.
Dissent
Judge J. Michael Eakin conceded the panel’s decision was legally correct, but he agreed with little more than that.
“The rules allow venue, it is true; however, that does not make the manifest lack of nexus between Philadelphia and the facts to be tried irrelevant to the question,” Eakin wrote. “The more attenuated the nexus between venue and relevant happenings, the more inherent the vexatiousness. The connection between Philadelphia and the facts at issue is attenuated indeed.”
Eakin also said that St. Joseph’s assertion about traveling distance was persuasive, even without additional support in the record.
“Driving 64 miles, including the Schuylkill Expressway at rush hour twice each day, is more than an inconvenience. Such an undertaking is an accepted necessity for some commuters – [but] in my judgment, that does not make it less than oppressive and vexatious,” Eakin said.
“I cannot find the decision of the learned trial court was ‘manifestly unreasonable’ or the result of bias, prejudice, or ill will. Neither can I find the court held [St. Joseph] to an improper burden,” Eakin said.
“[But] there seems to be a greater distance between the court’s conclusion and ‘manifestly unreasonable’ than there is distance between Reading and Philadelphia. Accordingly, I must dissent.”
