Somerlot v. Jung, 2025 Pa. Super. LEXIS 348 (July 30, 2025) Kunselman, J.
“When performance of a duty under a contract is due, any nonperformance is a breach.” Restatement (Second) of Contracts § 235(2). Pennsylvania contract law could not be more clear. See Camenisch v. Allen, 158 Pa. Super. 174, 44 A.2d 309, 310 (Pa. Super. 1945). In this personal-injury action, Plaintiff Saramari Somerlot contracted to sue Dr. Soon Jung, M.D.; S.E. PA Pain Management, Ltd, d/b/a SEPA Pain and Spine; and Pain Management Centers of America, LLC solely in Bucks County. Ms. Somerlot breached that contract by suing those Defendants in Philadelphia County. She and her husband, Ryan Dufresne, appeal from the orders of the Court of Common Pleas of Philadelphia County transferring this case to Bucks County. Under principles of contract law, parties are free to pre-select among all possible proper venues which venue will decide legal disputes that might arise between them. Thus, we affirm.
Ms. Somerlot and Mr. Dufresne commenced this action against Dr. Jung, Pain Management, and Boston Scientific in the Court of Common Pleas of Philadelphia County. They brought claims for medical malpractice, corporate negligence, product liability, and loss of consortium.
Boston Scientific agreed that venue was proper as to it on the product-liability claims, because it regularly conducted business in Philadelphia County. However, Dr. Jung and Pain Management preliminarily objected to venue in Philadelphia County based on the venue-selection clause in Ms. Somerlot’s Consent-to-Operate Contract. In Dr. Jung’s and Pain Management’s view, under the venue-selection clause, the only permissible venue was the Court of Common Pleas of Bucks County.
After briefing by the parties and the filing of stipulations, the trial court entered two, separate orders sustaining the preliminary objections of Dr. Jung and Pain Management and transferring the case to Bucks County. Ms. Somerlot and Mr. Dufresne timely filed a single notice of appeal, purporting to appeal both orders. This was procedural error under the Pennsylvania Rules of Appellate Procedure and may deprive this Court of appellate jurisdiction in whole or in part. We therefore begin our analysis by considering the appellate jurisdiction of this Court.
Where, as here, “the issues raised as to both [orders] are precisely the same; (2) neither defendant objected to the plaintiffs bringing but one appeal; and (3) if the appeal were quashed, the statutory period allowed for appeal will have already expired, precluding the institution of proper appeals . . . we shall consider the appeal from these two [orders] on the merits, but make special note of our disapproval of this procedure.” Id. Filing one notice of appeal for two appealable orders is a risky appellate practice that all appellants would do well to avoid in the future. Having determined that our appellate jurisdiction is sufficiently vested, we turn to the merits of the appeal.
Presumably, Ms. Somerlot and Mr. Dufresne refer to Boston Scientific, but they never explain where they get the standing to assert the rights of that corporation, especially when it elected not to participate in this appeal.
Nevertheless, Ms. Somerlot’s and Mr. Dufresne’s contention is illogical. Defendants have no right to select the venue under Rule 1006. Their only right is to object to the case being tried in an improper venue. Because Bucks County is where this cause of action arose, it is a proper venue to try Ms. Somerlot’s product-defect claims against Boston Scientific. See Pa.R.C.P. 2179(a)(3). Because Mr. Dufresne’s loss-of-consortium claim is derivative of his wife’s product-defect claims, Bucks County is also a proper venue for his claim against the corporation. Thus, enforcement of the contract between Ms. Somerlot and Dr. Jung and Pain Management infringes upon no right of Boston Scientific.
Therefore, Ms. Somerlot’s and Mr. Dufresne’s claim that Ms. Somerlot may breach her contract with Dr. Jung and Pain Management by trying this case in Philadelphia County, because Boston Scientific regularly does business there and agreed that venue was proper as to it in Philadelphia County is unavailing. We dismiss their first and second appellate issues as meritless.
If Ms. Somerlot did not want the venue-selection clause included in the Consent-to-Operate Contract, she could have simply crossed it out, signed the form, and handed it back to Pain Management. This would have rejected the offer from Dr. Jung and Pain Management to perform the surgery in exchange for all the terms in the original form and made the counteroffer to proceed without the venue-selection clause. Ms. Somerlot did not do this. Nor did she reject the offer entirely and leave the surgical facility without undergoing the procedure. Importantly, Ms. Somerlot makes no contention that her life was in danger prior to surgery nor that she was under duress when she signed the Consent-to-Operate Contract.
Ms. Somerlot and Mr. Dufresne suggest that the venue-selection clause is unconscionable. They contend that the clause is procedurally unconscionable, because Pain Management “buried” the clause “in paragraph 7 of a verbose consent form . . .” Furthermore, Ms. Somerlot and Mr. Dufresne claim that Ms. Somerlot lacked a meaningful choice when she signed the Consent-to-Operate Contract, because she received it immediately prior to her out-patient surgery.
Again, we reject Ms. Somerlot’s and Mr. Dufresne’s arguments. Orders transferring venue to the Court of Common Pleas of Bucks County affirmed. Case remanded for further proceedings.
