An Inconvenient Forum: GGM Secures Dismissal of Crashworthiness Case filed in Philadelphia County
Attorneys Jacqueline Campbell and Matthew McColgan secured the dismissal of a national truck rental company in product liability action filed in the Philadelphia County Court of Common Pleas. The plaintiff alleged that the truck rented by his employer was not crashworthy, because it lacked an airbag mounted on the steering wheel. Although GGM’s client is headquartered in Pennsylvania, the accident occurred outside of Pennsylvania and involved an out-of-state plaintiff with little connection to Pennsylvania.
Shortly after the pleadings closed, Campbell and McColgan moved to dismiss the case, arguing that Pennsylvania was an inconvenient forum. Pursuant to 42 Pa. C.S.A. § 5322(e), “[w]hen a tribunal finds that in the interest of substantial justice the matter should be heard in another forum, the tribunal may stay or dismiss the matter in whole or in part on any conditions that may be just.” Hovatter v. CSX Transportation, Inc., 193 A.3d 420, 424 (Pa. Super. 2018). In making this determination, the Court considers the weighty reasons to justify disturbing the plaintiff’s chosen forum, including an analysis of both public and private interest factors. The plaintiff tried to argue that the decisions related to the purchase of the truck occurred in Pennsylvania; however, the facts revealed during venue discovery did not support his theory. Ultimately, the Court agreed with our argument that a company’s marginally-related business activity in Pennsylvania was an insufficient basis to warrant continued venue in Philadelphia County when most of the relevant witnesses are located outside of Pennsylvania.
PA Supreme Court Rules Jurisdiction-by-Registration Statute Unconstitutional
Registering to do business in Pennsylvania no longer establishes general personal jurisdiction according to the Pennsylvania Supreme Court’s landmark decision in Mallory v. Norfolk Southern Railway Co., 3 EAP 2021, 2021 WL 6067172, —A.3d — (Pa. Dec. 22, 2021). Prior to this decision, foreign corporations were subject to general personal jurisdiction in Pennsylvania by registering to do business, which is mandatory under Pennsylvania law. With this ruling, a company can no longer be sued in Pennsylvania for out-of-state conduct simply because it registered to do business in Pennsylvania.
In Mallory, a Virginia resident filed an action in the Philadelphia County Court of Common Pleas against a Virginia railway corporation that has a principal place of business in Virginia. The plaintiff alleged exposure to carcinogens while working for the railway in Ohio and Virginia; he did not allege exposure in Pennsylvania. The railway filed a preliminary objection, asking the trial court to dismiss the case for lack of personal jurisdiction. The plaintiff argued that the railway consented to general jurisdiction by registering to do business in Pennsylvania. The trial court sustained the objection, finding Pennsylvania’s long-arm jurisdiction statute unconstitutional and insufficient ties to establish specific personal jurisdiction over the railway.
Pennsylvania’s long-arm jurisdiction statute provides that general personal jurisdiction can be established by “incorporation under or qualification as a foreign corporation under” Pennsylvania state law. 42 Pa.C.S. § 5301(a)(2)(i). Additionally, Pennsylvania’s Associations Code requires foreign corporations to register before doing business in the state. 15 Pa.C.S. § 411(a). Construing § 5301 and § 411 together, the trial court reasoned, would mean that foreign corporations are required to submit to general jurisdiction as a condition of doing business in Pennsylvania. Recognizing the federal limits placed on a state’s ability to regulate a foreign corporation’s actions, the trial court found that this “Hobson’s choice violates Defendant’s right to due process.” Also, the trial court found that registration was an involuntary act; therefore, foreign corporations did not voluntarily consent to jurisdiction when registering with the state.
The Pennsylvania Supreme Court affirmed the order of the trial court. General jurisdiction under the Due Process Clause of the Fourteenth Amendment is only permissible over a corporation where it is regarded as at home, such as its place of incorporation or principal place of business. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) General jurisdiction is also proper where a corporation’s affiliations with a forum state, when compared to a corporation’s activities in their entirety, are so continuous and systemic it is essentially “at home” in the forum state. Daimler AG v. Bauman, 571 U.S. 117 (2014). Importantly, a corporation is not “at home” merely because it does business in a state. Id. at 139 n.20.
Applying Goodyear and Daimler, the Pennsylvania Supreme Court found, “to conclude that registering as a foreign corporation invokes all-purpose general jurisdiction” violates federal Due Process. Registration is a prerequisite to a foreign corporation merely conducting business in Pennsylvania and operation within Pennsylvania cannot be the basis of general jurisdiction alone. Also, the Court found that Pennsylvania’s statutory scheme of submission to general jurisdiction as a condition of doing business in states violates the principles of federalism. Pennsylvania has no legitimate interest in adjudicating a controversy with no connection to the state filed by a non-resident against a foreign corporation.
Finally, the Pennsylvania Supreme Court found that, because registration in Pennsylvania is mandatory, it cannot constitute voluntary consent. Additionally, the government may not grant a privilege predicated upon the surrender of a constitutional right. See, Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 604 (2013). For these reasons, Pennsylvania’s statutory scheme cannot support a constitutional waiver of general jurisdiction of consent by registration. As a result, the Court overturned the decision in Webb-Benjamin, LLC v. Int’l Rug Grp., LLC, 192 A.3d 1133 (Pa. Super. 2018) (holding that registration was insufficient to establish general jurisdiction but consent by registration remained possible in Pennsylvania).
Pennsylvania courts may still exercise general personal jurisdiction over companies deemed “at home” in Pennsylvania, or specific personal jurisdiction over foreign companies based on conduct within the state. However, foreign companies no longer surrender the constitutional right to due process merely by registering to do business in Pennsylvania.
The Pennsylvania Supreme Court’s opinion can be found here.
GGM is proud to welcome Fran Bovio to our Litigation Team!
Francis “Fran” Bovio joined our GGM team on Monday, December 13 as an Associate. Fran comes to us from a civil litigation firm where he defended parties in a wide range of matters, including premises liability, nursing home liability, and asbestos litigation matters.
His prior experience includes working at a plaintiff’s litigation firm. Fran also interned for the Honorable Michael A. Shipp and was a Legal Intern for the Philadelphia DA’s office and the US Department of Justice.
Yana Shapiro presents at 2021 WCI Annual Conference
Yana recently had the pleasure of presenting at the 2021 Workers’ Compensation Institute (WCI) Annual Conference in Orlando in the Mediation and Trial Series. The presentation was titled “ Behind the Curtain – See How the Litigation Process Really Works”
GGM is proud to welcome Dinora Smith to our Litigation Team!
Dinora Smith, (Maria D. Smith) joins German, Gallagher & Murtagh as an associate assisting the products and casualty groups in the Philadelphia office. Dinora has successfully represented hundreds of clients in employment litigation matters in Manhattan and its surrounding counties. She has handled claims of discrimination, harassment, and wrongful termination before federal courts and various government agencies.
Dinora received her Master of Arts from the University of St. Andrews in Scotland and her JD from The Benjamin N. Cardozo School of Law in NY.
Andre J. Webb presents at ALFA International’s 2021 Hospitality & Retail Seminar and is appointed to serve on the ALFA International Marketing Committee.
Andre recently had the pleasure of presenting at ALFA International’s 2021 Hospitality & Retail Seminar in Charleston, SC. The presentation was titled, “R-E-S-P-E-C-T Find Out What It Means To Me:” The Importance of Respecting The Pre-Litigation Progress of Any Premises Liability Claim.
German Gallagher & Murtagh is also excited to announce that Andre J. Webb has been appointed to serve on the ALFA International Marketing Committee.
ALFA International is the premier global network of independent law firms. As a forming member of ALFA International, GGM clients benefit from a geographically comprehensive network of exceptional law firms and accomplished trial and business counsel.
GGM Welcomes Jacqueline E. Campbell
Jacqueline Campbell joins German, Gallagher & Murtagh as a Partner in the Philadelphia office, where she started her defense litigation career. She continues to focus her practice on commercial vehicle, construction accident, premises liability, product liability, and professional liability cases. Jacqueline is a hands-on trial attorney involved in all aspects of a case, from initial accident response and investigation through trial and appeal. She is sensitive to the business objectives and core values of her clients and works closely with them to develop the best defense strategy for each case. Jacqueline has successfully tried several complex injury cases to verdict in Philadelphia and its surrounding counties.
Jacqueline is a proud graduate of the University of Delaware and Drexel University Thomas R. Kline School of Law. As a board member of the HenLaw Society, she is actively engaged in mentoring students interested in pursuing a career in law.
With 40 years of service to clients, German, Gallagher & Murtagh is an AV® Peer Review rated firm of dedicated trial attorneys. Since it’s founding in 1980, the firm’s litigators have regularly represented insurance carriers, employers, Fortune 500 companies, product manufacturers, healthcare providers, municipalities, retailers and transportation companies in state and federal courts, and before administrative agencies. Over the years, our firm has earned a reputation for excellence, integrity, and innovation in civil litigation.
GGM is a full-service law firm headquartered in Philadelphia with an office in Cherry Hill, New Jersey to support its significant New Jersey practice. The firm’s experienced litigators have robust trial experience that enables them to effective resolve cases out of court. The ability to litigate matters swiftly, economically, and successfully has been a trademark of the firm since its inception. As a founding member of ALFA International, GGM brings the added value of immediate access to a global network of 150 independent law firms around the world. ALFA’s mission is to provide clients with high-quality, cost-efficient legal services worldwide. GGM is able to draw on the ALFA network to provide clients with representation in all litigation matters nationwide.
GGM Update on Resumption of In-Person Civil Jury Trials in Philadelphia
On July 7, 2021, the Court of Common Pleas of Philadelphia County provided an update on its plan to resume in-person proceedings in Philadelphia. The most significant changes are:
- All arbitrations will be in person starting August 2; new notices will be issued.
- All case management and pre-trial conferences will be in person starting September 1.
- Discovery hearings, settlement conferences, and rule hearings will continue via Zoom.
Below is an overview of the Court’s plan for hearings and conferences, an update on jury trials held since March 2021, and the plan for jury trials going forward. Of the 210 in-person jury trials that were scheduled from March 2021 through June 2021, 51 juries were selected and 42 cases went to verdict.
Case Management Conferences: Starting September 1, 2021, conferences will be conducted in person in City Hall.
Discovery Court: Hearings will continue via Zoom until further notice. The Protocol for Discovery Motions filed after March 15, 2021, can be found here.
Hearings on Motions, Petitions, and Rules to Show Cause: Hearings will continue via Zoom unless otherwise ordered by the presiding judge.
Arbitrations: Arbitrations will continue via Zoom until July 30, 2021. After August 2, 2021, all hearings will be in person at the Arbitration Center. New notices will be issued for those cases on or after August 2, 2021. The Protocol for the Compulsory Arbitration Program can be found here.
Settlement Conferences: Conferences will continue via Zoom unless otherwise ordered by the presiding judge. Mandatory conferences will trial judges have been successful at resolving complex track cases. Those conferences will continue for cases scheduled for trial in 2021 but phased out thereafter so that judges can focus on jury trials.
Pre-trial Conferences: Starting September 1, 2021, conferences will be conducted in person in City Hall.
Non-Jury Trials: Non-jury trials will continue to be conducted via Zoom until there are enough courtrooms available for an in-person trial, which may happen in September 2021.
Update on July Trials in 2021: Since March 2021, 210 in-person jury trials were scheduled (61 were major jury cases) and 51 juries were selected. Of those cases, there were 27 verdicts for the plaintiff, 15 defense verdicts, and 9 cases that settled. Currently, 44 jury trials (15 major jury) are scheduled for July 2021 and 62 jury trials (21 major jury) are scheduled for August 2021. The Court will remain at its current rate of six (6) jury trials per week through August 2021. The Court continues to monitor the COVID-19 data and will consider increasing to eight (8) jury trials per week starting in September 2021.
Plan for Future Jury Trials: Cases will be placed in two separate tracks. The first track will contain cases filed on or after January 1, 2021. Those cases will proceed as they did pre-pandemic, i.e., expedited cases will have a pre-trial conference within 12 months and be listed for trial the following month. The Court is focused on keeping cases in this track on schedule. Case Management Orders will be timely issued and motions to extend deadlines will be routinely denied absent extraordinary circumstances.
The second track will contain all pre-2021 cases disrupted by the pandemic. Cases with projected pre-trial conferences in 2020 will have a pre-trial conference by the end of August 2021 and either placed in a trial pool or scheduled for a trial date at the conference. The trial pool cases will be scheduled to start trial in the fourth quarter of 2021. Cases with a trial date certain will be scheduled to occur sometime between October 2021 and March 2022.
Cases with projected pre-trial conferences in January 2021 through July 2021 will be scheduled for pre-trial conferences starting in September 2021. The trial pool cases will be scheduled to start trial sometime between October 2021 and March 2022. Cases with a trial date certain will have trial scheduled to start sometime between January 2022 and June 2022. Note that the projected pre-trial conference date on the docket is a placeholder for determining the priority of scheduling the actual conference. It is too early for the Court to determine when a case with a projected pretrial conference on or after July 2021 will be scheduled for trial. The Court urges parties to have all discovery completed and expert reports exchanged before the conference.
The Court’s Protocols and Guidelines for Conducting In-Person Civil Jury Trials can be found here
Jacob Lehman co-chairs ALFA Professional Liability and Insurance Group Virtual Seminar
Jacob Lehman co-chairs ALFA Professional Liability and Insurance Group Virtual Seminar Together with Houston ALFA Member Firm Partner, David Prasifka, Mr. Lehman organized and hosted a combined presentation of the ALFA Professional Liability and Insurance Groups. The seminar, entitled “Professional Liability and Insurance Practice Challenges – Confronting the New Normal” covered topics ranging from emerging trends in bad faith litigation and COVID-19 related insurance claims to social inflation and large jury verdicts in the post-COVID environment and was followed by a virtual social event.
The Legal Intelligencer Names Andre J. Webb a Lawyer on the Fast Track
German Gallagher & Murtagh is pleased to announce that Andre J. Webb has been named one of Pennsylvania Legal Awards 2021 Lawyers on the Fast Track. Each year, The Legal Intelligencer recognizes young lawyers across Pennsylvania who have worked tirelessly in their professional, personal and civic lives to improve the legal landscape and the future of others.
The Intelligencer notes that Mr. Webb has been a faithful servant of the bar since the inception of his career. Currently, he is the chair of the Young Lawyers Division of the Philadelphia Bar Association (after serving three years on the executive committee), and he also is a member of the Board of Governors of the Philadelphia Bar Association. In addition, he has been on the Executive Committee of the Philadelphia Association of Defense Counsel for several years and serves as a Zone 1 Delegate for the Pennsylvania Bar Association.
Mr. Webb is a committed servant of the Philadelphia legal community. He has given many years, and many more hours, to building a better legal community in Philadelphia. His commitment to facilitating success for other young attorneys is evident in his agenda as chair of the Young Lawyers Division. As chair, Mr. Webb has chosen to focus on professional development for young lawyers. By crafting a year’s worth of events focused on: networking and creating meaningful connections through innovation; professional development in honing intangible and transferable skills; and fostering local relationships in the community to assist in effectuating lasting change.
The winners of this year’s Pennsylvania Legal Awards were recently honored at a dinner and reception.
See The Legal Intelligencer’s full article highlighting Mr. Webb’s award here.