Horn v. Erie Insurance Exchange

540 A.2d 584, 373 Pa. Super. 186, 1988 Pa. Super. LEXIS 1345

• Court: Supreme Court of Pennsylvania
• Decided: April 18, 1988
• Docket: 1129
• Status: Published

Opinions

WIEAND, Judge:

The issue in this appeal is whether a trial court may act sua sponte to transfer to another forum an action whose venue has been properly laid.

An action for declaratory judgment was filed in Allegheny County by Howard R. Horn and Jill Horn, his former wife, to adjudicate whether Erie Insurance Exchange (Erie) was required by the terms of its homeowner’s policy to defend an action brought against the Horns in Washington County. That action, filed by Ronald and Pamela Kean, had charged the Horns with negligently and/or fraudulently selling their Washington County residence to the Keans without disclosing that the property was termite-infested and structurally damaged. On April 28, 1987, the court in Allegheny County granted partial judgment on the pleadings in the declaratory judgment action and directed Erie to provide a defense to the Horns in the Washington County action.¹ Erie thereafter undertook to provide the Horns with a defense in Washington County on the Keans’ cause of action for negligence, but it refused to defend the Horns against the claim which was based on intentional fraud. Both parties in the declaratory judgment action subsequently requested the court in Allegheny County to clarify its order. The trial court denied both motions and sua sponte transferred the declaratory judgment action to Washington County. The Horns appealed.² They contend that the trial court erred when it transferred venue sua sponte.³

It is undisputed that venue in the declaratory judgment proceeding was properly laid in Allegheny County. The forum was selected by the plaintiffs. Their choice is entitled to weighty consideration and should not lightly be disturbed. Fox v. Pennsylvania Power & Light Co., 315 Pa.Super. 79, 82, 461 A.2d 805, 806 (1983). See also: Ernest v. Fox Pool Corp., 341 Pa.Super. 71, 75, 491 A.2d 154, 156 (1985). Although Pa.R.C.P. 1006(d) authorizes a court to transfer an action to the appropriate court of any other county where the action could originally have been brought “for the convenience of parties and witnesses,” this rule is implicated only “upon petition of any party.” In this case, neither party requested a change of venue for the convenience of the parties and witnesses; and there is no basis apparent on this record that a transfer to Washington County would serve the stated purpose of the rule. Inasmuch as venue was properly laid in Allegheny County, therefore, the trial court abused its discretion by sua sponte transferring venue to another forum which, for reasons perceived by the transferring court, could more conveniently decide the case. See: Triffin v. Turner, 348 Pa.Super. 6, 9, 501 A.2d 271, 273 (1985).

Erie argues that a court may transfer venue on its own motion for reasons of “judicial economy,” to eliminate “inconsistent results,” and to avoid “prejudice.” However, Pa.R.C.P. 1006 “does not suggest that a forum non conveniens transfer may be based upon possible inconvenience to the transferring court if that court were required to try the case.” Ernest v. Fox Pool Corp., supra 341 Pa.Super. at 75-76, 491 A.2d at 156. A trial court may not utilize a transfer of venue merely to control its docket, to preserve judicial resources, or to avoid deciding cases which are properly before it. Neither the parties nor the trial court has demonstrated that it would be more convenient for the parties⁴ or the witnesses to litigate the declaratory judgment action in Washington County. The substantive issue involved in the action is primarily one of law, involving, as it does, a determination of Erie’s duty to defend a separate action. This can be determined in Allegheny County, the forum selected by the plaintiff, without inconvenience to witnesses and without prejudice to the parties.

The order transferring venue is reversed.

DEL SOLE, J., files a concurring opinion.

1 . The order refused a request for the summary entry of an order requiring Erie to indemnify the Horns for any liability determined by the Washington County action or to reimburse the Horns for their legal costs. The court's order was consistent with the rule of law which holds that an insurer is obligated to provide a defense until it is clear that the action does not involve a matter for which coverage has been provided. See: United Services Automobile Ass’n v. Elitzky, 358 Pa.Super. 362, 368, 517 A.2d 982, 985 (1986); Vale Chemical Co. v. Hartford Accident and Indemnity Co., 340 Pa.Super. 510, 518 n. 7, 490 A.2d 896, 900 n. 7 (1985).

2 . Pa.R.App.P. 311(c) permits an immediate appeal from an order in a civil proceeding changing venue and transferring a case to another court of coordinate jurisdiction.

3 . The Horns have also requested "definitive guidance on the scope of Erie’s duty to defend.” We decline to render the advisory opinion which they seek.

4 . Erie has offices in Allegheny County; Jill Horn resides in Pittsburgh; and Howard Horn presently resides in Michigan. All have retained Allegheny County attorneys.