Deutschbauer v. Barakat

57 Pa. D. & C.4th 276, 2002 Pa. Dist. & Cnty. Dec. LEXIS 130
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedMarch 13, 2002
Docketno. 08340
StatusPublished

This text of 57 Pa. D. & C.4th 276 (Deutschbauer v. Barakat) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Deutschbauer v. Barakat, 57 Pa. D. & C.4th 276, 2002 Pa. Dist. & Cnty. Dec. LEXIS 130 (Pa. Super. Ct. 2002).

Opinion

QUIÑONES ALEJANDRO, J.,

INTRODUCTION

This may be a case of first impression on the issue of the appropriateness of venue in a legal malpractice action. Paul Deutschbauer (plaintiff) argues on appeal that the preliminary objections filed by attorneys Fred Barakat and Denise R. Bradley (defendants) from Chester County, which challenged the appropriateness of venue in Philadelphia County and requested the transfer of this matter to Berks County, were erroneously sustained. This motion judge disagrees.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

Briefly, the factual history, as defined by the pleadings, exhibits, and memoranda submitted in support of the preliminary objections and response, is as follows:

[278]*278Plaintiff is an adult who resides at 278 Ridgeway Plaza, Philadelphia County, Pennsylvania.

On May 11, 2001, plaintiff commenced a legal malpractice action in Philadelphia County against Fred Barakat, Esquire, and Denise Bradley, Esquire. At all times relevant hereto, defendants were attorneys licensed in the Commonwealth of Pennsylvania with an office at the Chadds Ford Professional Center, 100 Dickerson Drive, Building 100, Suite 101, Chadds Ford, Chester County, Pennsylvania.

From the complaint, it appears that the basis of the legal malpractice action is as follows:

On July 3, 1994, plaintiff was involved in a motor vehicle accident in Crawford County allegedly caused by an individual name Brian Flamed. Thereafter, plaintiff retained defendants to represent him in this personal injury action. On July 1,1996, defendants filed a writ of summons on behalf of plaintiff and against Mr. Flamed in Berks County.1 The Honorable Albert A. Stallone was the assigned judge.

A review of the Berks County Civil Docket summary report reveals that the court on May 4, 1998, issued a termination notice, with proof of publication filed thereto on June 12, 1998. On November 27, 1998, Attorney Barakat filed a petition to open termination of case pursuant to the provisions of Rule 1901.2 On December 1, [279]*2791998, the court issued a rule hearing regarding said petition. On October 25, 2000, the court issued another termination notice and the matter was ultimately terminated on December 26,2000, in accordance with Berks County Local Rule of Civil Procedure 1901.

Plaintiff further contends that his case against Mr. Hamed was terminated due to defendants’ failure to communicate with him and/or return his telephone calls, and their failure to follow the advice of Albert L. Deutsch, Esquire,3 an attorney plaintiff consulted.

Plaintiff claims that Attorney Deutsch contacted defendants in 1999, and discussed with defendants how to proceed with the personal injury case and obtain substituted service against Mr. Hamed. Allegedly, Attorney Deutsch spoke with Judge Stallone’s law clerk and later shared with defendants the following information:

(a) that the petition for service by publication was dismissed without prejudice since the petition to reinstate was still open;

(b) that if the petition to reinstate were granted, defendants could then refile their motion for service by publication;

[280]*280(c) that the judge had ordered depositions to be completed in 60 days if there was a factual matter in controversy;

(d) that since there had been no answer to the petition to reinstate, the petition should then be granted and it was the duty of counsel (defendants) to bring this to the judge’s attention;

(e) that defendants should get their reinstatement order in place immediately for the judge to act on; and

(f) that defendants should take certain action in order to present a more cogent petition for service by publication.4

Allegedly, Attorney Deutsch advised defendants that if defendants did not take measures to obtain substituted service, that Attorney Deutsch would have no other alternative but to bring a professional malpractice action against defendants. In sum, plaintiff argues that because of defendants’ inactions, plaintiff’s first-party benefits with State Farm Insurance Company were never enforced, that he lost valuable rights against Mr. Hamed, and was left without recourse to recover lost wages and medical expenses.

As to the venue issue in the present action, procedurally, on May 22,2001, deputized service of the instant complaint by a sheriff of Delaware County was attempted but neither defendants were found. On October 2,2001, plaintiff filed a petition for alternate service and by order dated October 4,2001, said petition was granted for service to be effectuated upon defendants by legal publication.

On November 9,2001, counsel entered an appearance on behalf of defendants.

[281]*281On November 13, 2001, defendants filed preliminary objections to plaintiff’s complaint challenging venue. Plaintiff filed a response on November 20, 2001. These pleadings were assigned to this motion judge on December 17, 2001, and by order dated December 19, 2001, the preliminary objections were sustained and the matter was transferred to Berks County.

Dissatisfied with this ruling, plaintiff on January 10, 2002, filed a notice of appeal to the Commonwealth Court, according to the docket.

ISSUE

In response to an order issued in accordance with Pa.R.A.P. 1925(b), plaintiff on February 6, 2002, filed on record a statement of matters complained of on appeal and argued that this motion judge erred in transferring this matter to Berks County in that:

“(a) Plaintiff resides and is being treated for his physical ailments in Philadelphia County with defendants hiding their whereabouts and being served by substituted service; and

“(b) the underlying legal malpractice involves a motor vehicle accident that occurred in Crawford County with the underlying legal action being mistakenly brought in Berks County although Berks County had no connection to the underlying action in that the tort did not occur in Berks County and neither plaintiff nor defendant, in the original action, reside in Berks County.”

LAW AND DISCUSSION

Undisputedly, the proper way to challenge venue is by the filing of preliminary objections. Pa.R.C.P. 1006(e) [282]*282and 1028(a)(1); Kubik v. Route 252 Inc., 762 A.2d 1119 (Pa. Super. 2000). Questions of venue must be raised at the first reasonable opportunity, otherwise, they are deemed waived. Id. A trial/motion judge has the discretion to sustain or overrule preliminary objections that challenge venue. Mathues v. Tim-Bar Corp., 438 Pa. Super. 231, 234, 652 A.2d 349, 351 (1994). A court’s ruling will depend on the facts of the particular case and will not be disturbed if the decision is reasonable in light of the facts. Sunderland v. R.A. Barlow Homebuilders, 2002 WL 93139 (Pa. Super.); Masel v. Glassman, 456 Pa. Super. 41, 45, 689 A.2d 314, 316 (1997).

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Bluebook (online)
57 Pa. D. & C.4th 276, 2002 Pa. Dist. & Cnty. Dec. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deutschbauer-v-barakat-pactcomplphilad-2002.