Phila. judge urges Pa. Superior Court to affirm ruling coordinating, transferring Penn State suit with insurance co. to Philly.

By Jon Campisi | Aug 16, 2012

A Philadelphia judge filed an opinion last week outlining why he believes a civil case

initiated by Penn State’s insurance carrier against the university should remain at the Philadelphia Court of Common Pleas rather than be transferred to Centre County, Pa.

The opinion, written by Philadelphia Common Pleas Court Judge Arnold L. New, has to do with a civil case that the Pennsylvania Manufacturers’ Association Insurance Company filed earlier this year against Penn State University and a man named only as John Doe A.

The civil action relates to the fallout from the Jerry Sandusky child sex-abuse case.

Sandusky, a former university assistant football coach, is expected to soon be spending the rest of his life in state prison following his conviction in June on 45 out of 48 counts of child molestation.

In late January, a couple months after Sandusky’s arrest following a grand jury probe, Pennsylvania Manufacturers’ Association Insurance Company filed for declaratory judgment against Penn State that the insurance carrier isn’t obligated to indemnify the university in the case of Doe A. v. The Second Mile et al.

Doe A, one of Sandusky’s victims, had already filed a civil suit against Penn State, Sandusky and The Second Mile, which is the charitable organization founded by Sandusky that is believed to have been the place where the former defensive coordinator groomed many of his victims.

On Feb. 15 of this year, Penn State filed an action for bad faith and breach of contract against PMA in Centre County to determine coverage for the Doe claims.

About a week later, PMA filed a motion to coordinate the two actions and transfer them to Philadelphia.

The university agreed that coordination of the two cases was appropriate but the school objected to having the litigation play out in the Philadelphia Court of Common Pleas.

On April 10, New, the trial court judge overseeing the matters, granted the motion to coordinate the cases in Philadelphia.

Penn State subsequently appealed New’s decision to the Pennsylvania Superior Court where it awaits review.

In his opinion urging the appellate court to affirm his ruling, New writes that coordination and transfer to Philadelphia was appropriate.

PMA’s action in Philadelphia was the first-filed action, New wrote, not to mention that the underlying action, the one initiated by John Doe A, was also filed in Philadelphia.

“These facts make Philadelphia a proper forum for the PMA/PSU lawsuits to be litigated,” New wrote. “Moreover, the Philadelphia Commerce Program, in which this action was filed, is a specialized program with the ability to handle this commercial coverage action efficiently.”

In response to Penn State’s argument that it would be oppressive and vexatious for the litigation to play out in Philadelphia because it would mean witnesses having to travel far from home, New wrote that that argument is misplaced because it is well established that the “oppressive and vexatious standard is inapplicable to coordination motions.”

Even if that wasn’t the case, New wrote, PSU’s witnesses are still professionals and/or employees of the university, “who can expect to be compensated for their time and inconvenience involved in travel to Philadelphia.”

New went as far as to say that since PSU’s counsel is from California and Illinois, travel to Philadelphia, which has a larger airport than that of Centre County, should prove to be more convenient for them.

New also mentioned that PMA’s counsel is located close to Philadelphia, and since the two competing forums are 200 miles apart, “some inconvenience is inevitable no matter where the cases are coordinated.”

New also shot down PSU’s argument that because the case filed in Centre County has more causes of action than the earlier filed case in Philadelphia the disputed case should be heard in Centre County.

“The claims in that action share common questions of law and fact with the claims at issue in the Philadelphia County action,” the opinion states. “As such, all such claims can be appropriately handled in Philadelphia.”

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