Nicholas Malfitano Jul. 27, 2015, 2:19pm


HARRISBURG – Judges for the Superior Court of Pennsylvania affirmed a ruling on Thursday from the Philadelphia County Court of Common Pleas to transfer a legal malpractice case from its origin point in Philadelphia to the Schuylkill County Court of Common Pleas.

Ruling on the matter were President Judge Susan Peikes Gantman, President Judge Emeritus John T. Bender and Judge Paula Francisco Ott. Bender wrote the opinion released, July 22, concurring with the trial court’s transfer decision in the lawsuit between Beth Feger of Birdsboro and Kerry Feger of Chicago against Michael J. Fiorillo and Fiorillo Law Offices of Pottsville.

Fiorillo represented the Fegers’ deceased mother, Louise Feger, when State Auto Property and Casualty Insurance Company filed an insurance fraud lawsuit against her in the U.S. District Court for the Eastern District of Pennsylvania, located in Philadelphia County.

During the course of that lawsuit, State Auto filed a motion for summary judgment, and Fiorillo allegedly did not file a timely response on behalf of the decedent, Louise Feger. On Jan. 8, 2009, the district court granted State Auto’s motion for summary judgment against the decedent.

The Fegers initially filed suit in the Philadelphia County Court of Common Pleas in March 2014 in connection with that 2009 decision, alleging legal malpractice on the part of Fiorillo in not filing the response in the prior case in a timely manner.

After the Fegers filed their complaint, Fiorillo filed a preliminary objection, alleging Philadelphia County was an improper venue. Fiorillo’s opinion was since his alleged malpractice took place in his law office in Schuylkill County, that location was a more fitting venue.

A hearing was conducted on Aug. 18, and on Aug. 29, the court subsequently issued an order sustaining Fiorillo’s preliminary objection and ordering the case be transferred to the Schuylkill County Court of Common Pleas, where Fiorillo’s residence and law office are located.

“Fiorillo only appeared in the U.S. District Court located in Philadelphia County to defend [the decedent] because that is where she was sued. The mere fact of defending a client in the Eastern District of Pennsylvania when she is sued, without greater involvement in the County of Philadelphia, does not subject the attorney to venue in Philadelphia County Court of Common Pleas,” the trial court’s decision read.

The Fegers filed a timely appeal in September, questioning whether the trial court applied proper law in directing the case be transferred to Schuylkill County – and arguing since Fiorillo’s alleged legal malpractice occurred in a court located Philadelphia County, that hearing the subsequent case related to that malpractice in Philadelphia County was proper.

“The central thrust of the Fegers’ malpractice claims is that Fiorillo negligently failed to respond to an Aug. 20, 2008 motion by State Auto for leave to file for summary judgment..and, when that motion was granted as unopposed, Fiorillo also failed to respond to the summary judgment motion itself, which was also granted as unopposed,” the appellants asserted.

Fiorillo relied on the precedent from Deutschbauer v. Barakat to support his conclusion for the transfer to Schuylkill County, which reasoned in that action, “The appellees’ purported malpractice more likely than not occurred in the appellees’ office located in Chester County, or in the courthouse in Berks County.”

“This Court did not explicitly reject the trial court’s conclusion in Deutschbauer that the appellees’ purported malpractice occurred either in their office in Chester County, or in the courthouse in Berks County,” Bender said.

 “Consequently, our decision in Deutschbauer supports a conclusion that the legal malpractice cause of action against Fiorillo could have arisen in Schuylkill County, where Fiorillo’s law office is located. As such, the trial court had a proper basis for transferring this case to Schuylkill County, and that decision was not an abuse of discretion.”

The appellants were represented by Thomas Connelly of Elkind & Dimento, in Cherry Hill, N.J.

The appellees were represented by Paul C. Troy of Kane Pugh Knoell Troy & Kramer, in Norristown.

The Superior Court of Pennsylvania case 2888 EDA 14

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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