Grace Community Inc. v. KPMG Peat Marwick

60 Pa. D. & C.4th 513, 2002 Pa. Dist. & Cnty. Dec. LEXIS 181
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedApril 8, 2002
Docketno. 0478
StatusPublished

This text of 60 Pa. D. & C.4th 513 (Grace Community Inc. v. KPMG Peat Marwick) 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
Grace Community Inc. v. KPMG Peat Marwick, 60 Pa. D. & C.4th 513, 2002 Pa. Dist. & Cnty. Dec. LEXIS 181 (Pa. Super. Ct. 2002).

Opinion

SHEPPARD, J.,

Before this court are petitions to transfer venue based on forum non conveniens filed by both Horst Construction Company and [515]*515Clyde W. Horst and KPMG Peat Marwick. For the reasons discussed, the petitions to transfer will be granted.

BACKGROUND

Grace Community Inc. operated a continuing care retirement community, comprised of an independent living, an assisted living and a skilled nursing center in Lebanon County. The Grace facility was built by Horst during the years 1989 through 1991 in several phases and financed by several financial bonds.

From its inception until 1997, KPMG was Grace’s auditor and financial advisor. Specifically, KPMG performed several audits, feasibility studies, and advised Grace on certain financial and managerial matters.

This case arises from allegations of improper accounting work by KPMG, allegedly substandard construction of the Grace facility by Horst, and alleged unseemly conduct by Grace’s pre-1997 board members. On February 23, 2001, Grace commenced this action alleging breach of contract, negligence, and breach of fiduciary duty against KPMG, Horst, and former Grace board members.

On September 24, 2001, Horst filed this petition to transfer to Lebanon County. KPMG has joined in this petition.

DISCUSSION

In evaluating a petition to transfer venue on the grounds of forum non conveniens, “[a] plaintiff’s choice of forum is given great weight and a defendant has the burden in asserting a challenge to the plaintiff’s choice of venue.” Shears v. Rigley, 424 Pa. Super. 559, 564, 623 [516]*516A.2d 821, 824 (1993). See also, Goodman by Goodman v. Pizzutillo, 452 Pa. Super. 436, 445, 682 A.2d 363, 367 (1996) (stating that a “party seeking a change of venue bears a heavy burden of justifying the request...”). Further, a petitioner must show that the proceedings in the chosen forum would be vexatious or oppressive:

“[T]he defendant may meet its burden of showing that the plaintiff’s choice of forum is vexatious to him by establishing with facts on the record that the plaintiff’s choice of forum was designed to harass the defendant, even at some inconvenience to the plaintiff himself. . . Alternatively, the defendant may meet his burden by establishing on the record that trial in the chosen forum is oppressive to him; for instance, that trial in another county would provide easier access to witnesses or other sources of proof, or to the ability to conduct a view of premises involved in the dispute. But, we stress that the defendant must show more than that the chosen forum is merely inconvenient to him.” Cheeseman v. Lethal Exterminator Inc., 549 Pa. 200, 213, 701 A.2d 156, 162 (1997).1 [517]*517(citations and footnote omitted) Finally, the defendant’s burden requires a demonstration of claimed hardships on the record, Jones v. Borden Inc., 455 Pa. Super. 110, 115, 687 A.2d 392, 394 (1996), although there is no necessity for an evidentiary hearing on a petition. Cheeseman, 549 Pa. at 213 n.8, 701 A.2d at 162 n.8.

To demonstrate vexatiousness or oppressiveness, a petitioner must provide a court with the names of witnesses who are to be called, a general statement of what their testimony will cover and what hardships the witnesses would suffer. Johnson v. Henkels & McCoy Inc., 707 A.2d 237, 240 (Pa. Super. 1997). See also, Petty v. Suburban General Hospital, 363 Pa. Super. 277, 285, 525 A.2d 1230, 1234 (1987) (stating that “[i]f a party has merely made a general allegation that witnesses will be necessary, without identifying them and indicating what their testimony will be the application for transfer will be denied”) (footnote omitted); Hoose v. Jefferson Home Health Care Inc., 754 A.2d 1, 5 (Pa. Super. 2000) (stressing that “there is a vast difference between a finding of inconvenience and one of oppressiveness”). Furthermore, a defendant’s claims “that no significant aspect of the case involves the chosen forum, and that litigating in another forum would be more convenient ... do not amount to a showing that the chosen forum is oppressive or vexatious.” Cheeseman, 549 Pa. at 214, 701 A. 2d at 162.

Here, both KPMG and Horst have met their burden of demonstrating why litigating this matter in Philadelphia [518]*518County is oppressive.2 To begin with, both parties point to the fact that, of all the named parties, only KPMG has offices in Philadelphia County. Horst supp. mem. of law at 7-8. Specifically, the plaintiffs are not located in Philadelphia County in that Grace’s corporate designee is in Bucks County. The elderly residents of the Grace facility are all in Lebanon County. KPMG’s supp. mem. of law at 7. Further, of the named defendants, four are in Lebanon County, three in Berks County, two in Lancaster County, one in Dauphin County. KPMG is located in both Dauphin and Philadelphia County. Complaint ¶¶1-12.3 Finally, both KPMG and Horst argue that none of the events giving rise to this lawsuit — namely the alleged substandard construction of the Grace facility, and the work done by KPMG on Grace’s account — occurred in Philadelphia County, but rather occurred in or in close proximity to Lebanon County.4

Admittedly, the claims that no significant aspect of the case involves Philadelphia County, and that litigat[519]*519ing in Lebanon County would be more convenient, in and of themselves, do not amount to a showing of oppressiveness.

However, in addition to the location of the parties and significant events factors, KPMG has established on the record that trial in Philadelphia County would be oppressive not only to it, but its employees in Dauphin County. Grace’s causes of action with respect to KPMG, all arise from KPMG’s work for and with Grace done outside of Philadelphia County. KPMG has presented deposition testimony from Norriene Koozer, KPMG’s corporate designee, stating that the “entire period of engagement from 1988 through 1997, occurred in either the Harrisburg office of KPMG or in the client’s facilities, located in Myerstown, Lebanon County.” KPMG’s supp. mem. of law at 4-5 (relying on Koozer dep. tr. at 13). Thus, Ms. Koozer testified that the 1988,1994,1995 audits were done in either Harrisburg or Lebanon County. Id. at 5. Further, the 1990, 1992, and 1996 feasibility studies and the 1995,1996 nonaudit work, which Grace specifically complains of, were performed by KPMG employees in their Harrisburg office. Id. Ms. Koozer identified the following KPMG employees who worked on Grace’s account during the relevant period as having done so from the Harrisburg office: Roy Byers, Doug Berry, Crystal Hackett, Clint Fegan, Jim Chiado, Tim Myers, Alisa Coviello (listed as Alisa Corillo and Alisa Miller), Jennifer Schnook, Regina T. Bass, Cyndi A.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cheeseman v. Lethal Exterminator, Inc.
701 A.2d 156 (Supreme Court of Pennsylvania, 1997)
Hoose v. Jefferson Home Health Care, Inc.
754 A.2d 1 (Superior Court of Pennsylvania, 2000)
Shears v. Rigley
623 A.2d 821 (Superior Court of Pennsylvania, 1993)
Okkerse v. Howe
556 A.2d 827 (Supreme Court of Pennsylvania, 1989)
Johnson v. Henkels & McCoy, Inc.
707 A.2d 237 (Superior Court of Pennsylvania, 1997)
GOODMAN BY GOODMAN v. Pizzutillo
682 A.2d 363 (Superior Court of Pennsylvania, 1996)
Petty v. Suburban General Hospital
525 A.2d 1230 (Supreme Court of Pennsylvania, 1987)
Jones v. BORDEN, INC., IND.
687 A.2d 392 (Superior Court of Pennsylvania, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
60 Pa. D. & C.4th 513, 2002 Pa. Dist. & Cnty. Dec. LEXIS 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grace-community-inc-v-kpmg-peat-marwick-pactcomplphilad-2002.