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The Legal Intelligencer

March 18, 2003, Tuesday

Philadelphia Court Case Sent To Delaware Case-Suffered Injuries  with Electrical Conductor

BYLINE: By Jennifer Batchelor
Of the Legal Staff

For the second time in recent months, a Philadelphia Court of Common Pleas judge has sent a case to another state under the "public and private" factor test set forth in the Superior Court's 2002 decision in Humes v. Eckerd Corp.

In the latest decision, Morgan v. Conectiv Inc., Judge Mark I. Bernstein, relying on Humes, rejected the plaintiff's contention that the proper standard for Section 5322[e] forum non conveniens claims should be the "oppressive or vexatious" test the Pennsylvania Supreme Court announced in Cheeseman v. Lethal Exterminator. Bernstein then found that both private and public factors weighed in favor of trying the two plaintiffs' personal injury claims in Delaware rather than in Pennsylvania.

In mid-February, Common Pleas Judge Sandra Mazer Moss had similarly ruled that the public and private factor analysis should apply to Section 5322[e] requests. Mazer Moss wrote in Palumbo v. N.J. Transit Rail Operations Inc. that the Cheeseman court had not indicated that the oppressive or vexatious standard applied to Pa. R.C.P. 1006[d] transfers within counties should also be considered in Section 5322[e] dismissals.

Bernstein issued an opinion examining the correct standard for forum non conveniens after plaintiffs John Morgan and Jeannette French appealed the dismissal of their complaint against Delmarva Power & Light Co. The two employees of Comcast Inc. subcontractor Danella Construction Inc. sued Delmarva Power in Philadelphia, after Morgan allegedly suffered injuries when he came into contact with an electrical conductor.

According to Bernstein's opinion, in February 2002 Morgan was working on fiber optic communication lines owned by Comcast. The opinion states that while working on the lines, Morgan came in contact with a 14.4-kilowatt conductor owned by Delmarva Power, sustaining non-fatal injuries from the resulting shock.

Morgan claimed that the power company was negligent in its exercise of care regarding the conductor and thus was responsible for his injuries, Bernstein wrote. The second plaintiff witnessed the incident and said she incurred severe emotional and psychological injury and distress to her nervous system, the opinion states.

The parties originally filed their claims against Conectiv, Bernstein said, but later agreed to dismiss that defendant, leaving Delmarva Power, which was added as a defendant three months after the original complaint was filed.

Shortly after being named a defendant, Delmarva Power petitioned the court to dismiss the suit with leave to file in Delaware, on the basis of forum non conveniens. Bernstein granted the petition in October 2002.

The judge began his analysis by reviewing Section 5322[e], which provides that where a "tribunal finds that in the interest of substantial justice [a] matter should be heard in another forum, the tribunal may stay or dismiss the matter in whole or in part on any condition that may be just."

Bernstein then turned to Humes, in which the Superior Court held that the primary factors to consider when reviewing a Section 5322[e] dismissal are first, that a plaintiff's location of choice will not be disturbed except for weighty reasons and, second, that no action will be dismissed unless an alternative forum is available to the plaintiff.

"To determine the defendant's 'weighty reasons,'" the judge wrote, "the Superior Court recognizes the private-and-public factors balance test." According to the opinion, the factors are illustrated in the state high court's 1960 decision in Plum v. Tampax.

Bernstein said private factors to consider were listed there as follows:

The relative ease of access to sources of proof.

The availability of compulsory process and the cost for the attendance of unwilling witnesses.

The possibility of a view of the premises, if such view would be appropriate to the action.

All other considerations that make the trial of a case easy, expeditious and inexpensive.

Public factors, the judge said, are as follows:

The administrative difficulties for courts when litigation piles up in congested centers instead of being handled at points of origin.

Assigning jury duty in a matter that ought not to be imposed on the people of a community bearing no relation to the litigation.

Having the trial in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle the problems in conflict of laws.

Bernstein noted that a plaintiff's forum choice is weighed heavily by the court, with the burden of challenging that choice resting with the defendant.

According to the opinion, private factors dictating removal of Morgan and French's suit from the Philadelphia court system included the following:

The accident happened in Bear, Del.

Both plaintiffs reside in Delaware.

The electrical conductor is located in Delaware.

The Delaware State Police investigated the incident.

Most of the medical reports documenting Morgan's injuries are located in Delaware.

All witnesses likely to be called to trial are located in Delaware.

Bernstein said one public factor that weighed in favor of a Section 5322[e] dismissal was Delaware's substantially greater interest in the case, considering the locations of the parties and the incident. In addition, the law of Delaware applies to the matter, the judge wrote, and "a Philadelphia judge need not make determinations of Delaware law when a venue in Delaware is readily available to both plaintiff and defendant." Finally, the opinion states that it "would not serve the interest of the Philadelphia community to burden its dockets with a non-Pennsylvania matter."

"There appears no appropriate reason for plaintiffs to have established venue in the Commonwealth of Pennsylvania," Bernstein concluded. "Plaintiffs' only connections to Pennsylvania are plaintiffs' employer, Danella Line Services, and the temporary medical treatment Morgan received after the accident at Crozer Chester Medical Center in Chester, Pa. The connection these factors have to plaintiffs' suit is minimal at best."

The judge also said the plaintiffs would not be unfairly burdened by the dismissal.

[Copies of the six-page opinion in Morgan v. Conectiv Inc., PICS NO. 03-0349, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.]