PHILADELPHIA – An attorney for Apple is arguing a lawsuit filed by a plaintiff whose iPhone 5 allegedly exploded in his pocket should be heard in the Schuylkill County Court of Common Pleas.
Kyler Mowery of Orwigsburg (legally represented by his mother Joni Mowery) filed suit on Jan. 19 in the Philadelphia County Court of Common Pleas, against Apple, Inc. of Los Angeles, Calif.
“On or about Feb. 22, 2016, plaintiff was injured when the subject phone exploded in his pocket due to a defective condition of the phone and/or its battery, thereby sustaining serious and permanent injuries more fully set forth herein,” the suit reads.
Mowery believes Apple failed to design the phone to operate properly or warn customers of the possible risk of the phone exploding, among a number of other allegations, and claims to have suffered severe burns, internal injuries, nervous system shock, aches, pains, mental anxiety and anguish, and other injuries in the accident.
In opposition, counsel for Apple believes the Mowerys’ lawsuit was filed in the wrong venue. Attorney Joseph H. Blum pointed to Pennsylvania Rule of Civil Procedure 2179(a), which lists five factors governing where a personal action against a corporation may be brought: “(1) The county where its registered office or principal place of business is located; (2) A county where it regularly conducts business; (3) The county where the cause of action arose; (4) A county where a transaction or occurrence took place out of which the cause of action arose, or (5) A county where the property or part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property.”
“As to the first factor establishing proper venue, plaintiff’s complaint concedes that defendant Apple’s principal place of business is in the State of California. As to the second factor, plaintiff’s complaint provides no specific factual averment that defendant Apple regularly conducts business in Philadelphia County. As to the third factor, plaintiff’s complaint does not state with specificity where the alleged accident took place,” Blum said in preliminary objections filed March 2.
“As to the third factor, plaintiff’s complaint does not state with specificity where the alleged accident took place. Upon information and belief, plaintiff’s accident took place at school, near his home in Orwigsburg, Pennsylvania. Orwigsburg is located in Schuylkill County, Pennsylvania. As to the fourth factor, plaintiff’s complaint makes no specific averment regarding any transactions giving rise to the cause of action. Upon information and belief, the subject iPhone was purchased by plaintiff’s father Chad Mowery online and was delivered directly to plaintiff’s home in Orwigsburg, Pennsylvania,” Blum continued.
Blum concluded the subject iPhone was evaluated for service at an Apple store n Lehigh Valley, located in Lehigh County, Pennsylvania – which makes the fifth and final factor “irrelevant to a determination of proper venue in the instant action.”
“As pled, plaintiff’s complaint fails to set forth the requisite basis to establish proper venue in Philadelphia County and, as such, plaintiff’s complaint should be dismissed with leave to file in the county where the alleged accident occurred, [Schuylkill County],” Blum stated.
For charges of negligence and strict liability, the plaintiff is seeking compensatory damages not in excess of $50,000, plus interest and costs of suit.
The plaintiff is represented by Harry J. Kane Jr. of Greenblatt Pierce Funt & Flores, in Philadelphia.
The defendant is represented by Blum of Shook Hardy & Bacon, also in Philadelphia.
Philadelphia County Court of Common Pleas case 170103755
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com