J-S34001-17

* Retired Senior Judge specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL ALESSIO IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

I-FLOW CORPORATION, A/K/A I-FLOW, 

LLC, KIMBERLY-CLARK, A/K/A 

KIMBERLY-CLARK CORPORATION, SETH 

R. KRUM, D.O., PENNSYLVANIA 

ORTHOPEDIC ASSOCIATES, INC., 

RICHARD STRULSON, M.D.

No. 1469 EDA 2016

Appeal from the Order Entered April 5, 2016

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 04202 March Term, 2015

BEFORE: BOWES, SOLANO, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 28, 2017

Michael Alessio appeals from the order entered in the Court of 

Common Pleas of Philadelphia County sustaining preliminary objections to 

venue and transferring the action to Montgomery County.1 We reverse and 

remand. 

This matter commenced on April 1, 2015, when Appellant filed a 

complaint against Appellees raising claims sounding in medical malpractice 

____________________________________________

1 Our exercise of jurisdiction over this appeal is predicated upon Pa.R.A.P. 

311(c), governing interlocutory appeals as of right. 
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and products liability. As is relevant herein, Appellant averred that he 

sought and received medical treatment for an injured right shoulder in 

Philadelphia County with Dr. Richard Strulson, M.D. Dr. Strulson referred 

Appellant to Dr. Seth Krum, D.O., in Montgomery County for additional 

treatment when the pain persisted. Dr. Krum treated Appellant in 

Montgomery County, and ultimately, performed a surgical procedure to 

remedy Appellant’s complaints. 

As part of this procedure, Dr. Krum implanted an I-FLOW On-Q 

infusion pain pump into Appellant’s right shoulder. This pump delivered pain 

medication directly into Appellant’s shoulder joint during his recovery from 

surgery. Appellant alleged that the injection of anesthetics into his shoulder 

joint caused permanent damage to his cartilage, referred to as chondrolysis, 

which is a progressive degeneration of that cartilage. As such, he raised 

numerous claims, including allegations of medical malpractice against both 

Dr. Strulson and Dr. Krum. 

On September 17, 2015, Dr. Krum filed preliminary objections 

contending, in part, that Appellant’s complaint implicated medical treatment 

provided in Montgomery County, and thus, venue properly lay in that 

county. By order entered April 5, 2016, the trial court sustained Dr. Krum’s 

preliminary objections and transferred the matter to Montgomery County. 

Appellant filed a timely notice of appeal to this Court. The trial court did not 

direct Appellant to file a Rule 1925(b) concise statement of errors 
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complained of on appeal. It did, however, author a Rule 1925(a) opinion, 

and this matter is now ready for our review. 

Appellant raises two questions for our consideration: 

I. Should the court’s order filed on December 16, 2016 [sic] 

sustaining Defendant Krum’s preliminary objections and 

transferring venue from Philadelphia to Montgomery 

County be vacated and this case remanded back to 

Philadelphia County? 

II. As a matter of law, should the lower court have sustained 

[Appellant’s] preliminary objections when same were filed 

well over three (3) months late? 

Appellant’s brief at 5 (unnecessary capitalization omitted).2 

Our review of the trial court’s decision to transfer venue is 

discretionary. Wentzel by Wentzel v. Cammarano, 2017 PA Super 233 

(Pa. 2017) (citation omitted) at *3. In Wentzel, we observed: 

A plaintiff’s choice of forum is to be given great weight, and the 

burden is on the party challenging the choice to show it was 

improper. However, a plaintiff’s choice of venue is not absolute 

or unassailable. Indeed, if there exists any proper basis for the 

trial court’s decision to grant a petition to transfer venue, the 

decision must stand.

____________________________________________

2

In his statement of the case, Appellant includes the assertion that the trial 

court’s decision to transfer this matter to Montgomery County is barred by 

the coordinate jurisdiction rule. As Appellant did not include this in his 

statement of questions presented, or develop his argument in the argument 

section of his brief, we find this issue waived. R.L.P. v. R.F.M., 110 A.3d 

201, 208-209 (Pa.Super. 2015) (finding arguments not properly developed 

are waived); Morgante v. Morgante, 119 A.3d 382, 396 (Pa.Super. 2015) 

(finding waiver where party failed to raise issue in statement of questions 

presented). 
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Id. (brackets and citation omitted). 

Venue in a medical malpractice case is governed by Pa.R.C.P. 1006, 

which embodies the provisions contained with the Medical Care Availability 

and Reduction of Error (“MCARE”) Act. See 42 Pa.C.S. § 5101.1. Rule 1006 

reads, in pertinent part, “a medical professional liability action may be 

brought against a health care provider for a medical professional liability 

claim only in a county in which the cause of action arose.” Pa.R.C.P. 

1006(a.1). Further, “[i]f the action to enforce a joint or joint and several 

liability against two or more defendants includes one or more medical 

professional liability claims, the action shall be brought in any county in 

which the venue may be laid against any defendant under subdivision (a.1).” 

Pa.R.C.P. 1006(c)(2). A medical professional liability claim is defined as 

“[a]ny claim seeking recovery of damages or loss from a health care 

provider arising out of any tort or breach of contract causing injury or death 

resulting from the furnishing of health care services which were or should 

have been provided.” 42 Pa.C.S. § 5101.1. Hence, a medical professional 

liability action may be brought against a health care provider only in a 

county in which health care services were furnished. 

As noted above, Appellant raised claims against both Dr. Strulson and 

Dr. Krum. There is no dispute that Dr. Krum “furnished health care 

services” in Montgomery County to support the transfer of venue in 

Montgomery County pursuant to Rule 1006. However, Appellant argues that 
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venue was also proper in Philadelphia County under Pa.R.C.P. 1006(c)(2), as 

he avers that Dr. Strulson furnished health care services there. Appellees 

dispute that Appellant’s claims against Dr. Strulson actually implicate venue 

in Philadelphia County, where Appellant originally brought this action. 

With regard to the medical treatment provided by Dr. Strulson, 

Appellant alleged the following. Dr. Strulson provided the initial medical 

treatment of his shoulder in Philadelphia County and referred Appellant to 

Dr. Krum for additional treatment. Dr. Krum and Dr. Strulson regularly 

communicated with each other regarding this treatment, including the use of 

an I-FLOW pain pump following surgery. These facts supplied the basis for 

Appellant’s complaint as follows: 

72. The negligence of [Dr. Strulson] consisted of the following: 

a. failing to properly perform appropriate and precise 

routine monitoring of [Appellant].

b. failing to properly advise and inform [Appellant] of the 

inherent risks, dangerous symptoms and side effects of 

the On-Q pain pump being place [sic] into the shoulder 

joint.

 

c. failing to properly advise and inform [Appellant] of the 

inherent risks, dangerous symptoms and side effects of 

the On-Q pain pump being place [sic] into the shoulder 

joint that could severely effect [sic] his health. 

d. failing to provide necessary, adequate, and appropriate 

information to [Appellant] of the inherent risks, 

dangerous symptoms and side effects of the On-Q pain 

pump being place [sic] into the shoulder joint. 
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e. failing to properly supervise, monitor, and guide 

[Appellant] of the inherent risks, dangerous symptoms 

and side effects of the On-Q pain pump being place 

[sic] into the shoulder joint. 

f. failing to exercise reasonable care in the determination 

of [Appellant’s] medical condition and potential of 

problems by the continuous injection of anesthetics 

directly into any joint and that same can cause serious 

and permanent damage to the cartilage contained 

therein.

 

g. failing to exercise reasonable care in the determination 

that the anesthetic administered in such a fashion by 

the On-Q pain pump that kills the chondrocytes 

(cartilage cells) and causes cartilage to degenerate 

progressively (chondrolysis). 

h. failing to recognize the availability of proper and 

adequate standards, protocol, and guidelines for the 

pain medication administration to [Appellant]. 

i. failing to properly instruct, educate, and inform 

[Appellant] that anesthetic administered in such a 

fashion will kill the chondrocytes (cartilage cells) and 

causes cartilage to degenerate progressively 

(chondrolysis). 

j. in failing to refer [Appellant] to an appropriate 

orthopedic surgeon that would not perform surgery with 

non FDA approved equipment known to cause the death 

of chondrocytes (cartilage cells) and which causes 

cartilage to degenerate progressively (chondrolysis)

k. in failing to recognize that [Appellant] [sic] health was 

at risk and in failing to warn [Appellant] and his family 

of same; 

l. in failing to recognize the need for special pain 

management treatment and care for [Appellant] versus 

the On-Q pain pump; 
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m. allowing [Appellant’s] medication usage to remain 

unmonitored and allowing the pain pump to be used 

intra articularly causing cartilage to degenerate 

progressively (chondrolysis) when other medications for 

pain were available and more suitable; 

n. in that [Dr. Strulson] was not sufficiently qualified by 

experience, research, or educational background (when 

he should have been so) to adequately determine the 

compatibility of the On-Q pain pump usage in view of 

the potential risks and side effects of same. 

q. in that [Dr. Strulson] permitted [Appellant] to undergo 

pain management in the manner he did causing 

cartilage to degenerate progressively (chondrolysis);3

r. failing to advise [Appellant] of the strong risk of 

chondrolysis; 

s. failing to recognize, appreciate and advise [Appellant] 

of the risk of chondrolysis, and of simply advising him 

of more common pain medication for use. 

73. As a direct and proximate result of [Dr. Strulson’s] 

negligence, and [Dr. Strulson’s] deviation from acceptable 

standards of care in the community, [Appellant] has 

sustained severe and permanent injuries, wage losses, 

medical expenses, loss of life’s intangibles, emotional distress 

and mental anguish and other losses as more fully set forth 

hereinafter. 

 

Complaint, 4/1/15, at ¶¶ 72-73. 

 Appellant contends that the trial court erred in transferring this matter 

to Montgomery County since his cause of action against Dr. Strulson arose in 

Philadelphia County. He asserts that, pursuant to Peters v. Sidorov, 855 

____________________________________________

3 We note that Appellant erroneously omitted an averment under the 

heading “o”. 
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A.2d 894 (Pa.Super. 2004), a “cause of action” refers to the “negligent act 

or omission, as opposed to the injury which flows from the tortious 

conduct[.]” Id. at 896. In this vein, he maintains that, since Dr. Strulson’s 

negligence occurred in Philadelphia, Appellant may continue this action 

there, regardless of whether tortious conduct also occurred in Montgomery 

County. 

Further, Appellant distinguishes this matter from Olshan v. Tenet 

Health Care System City Avenue, LLC, 849 A.2d 1214 (Pa.Super. 2004), 

which the trial court relied upon in rendering its decision. Appellant argues 

that in Olshan, venue was found to be proper in Montgomery County 

because all of the medical treatment in question was furnished there. He 

continues that, since this matter involves negligent medical care in both 

Philadelphia and Montgomery counties, his action should remain in 

Philadelphia County, where he chose to proceed.

The trial court found that venue was present only in Montgomery 

County in that Appellant “was unable to establish that the medical treatment 

at the core of his case occurred in Philadelphia County.” Trial Court Opinion, 

12/16/16, at 2. The trial court characterized the basis of Appellant’s 

complaint against Dr. Strulson as negligent referral. It relied on Olshan, 

supra, for the proposition that “a medical malpractice action must be 

brought in a county where [Appellant] received medical treatment.” Id. at 

3. It observed that the I-FLOW pain pump and all follow-up care occurred in 
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Montgomery County, and stated that “[t]he mere fact that [Appellant] 

consulted a family physician in Philadelphia County and his theory of 

negligent referral did not play a significant role in this matter.” Id. In 

support of this finding, the trial court relied on a decision by this Court, 

wherein we found that medical care was not “furnished” to a plaintiff where 

the defendant “[a]t most . . . negligently made a referral[.]” Id. (citing 

Cohen v. Furin, 946 A.2d 125, 129 (Pa.Super. 2008)). 

We find that the trial court abused its discretion in sustaining Dr. 

Krum’s preliminary objections and transferring this matter to Montgomery 

County. Herein, Appellant alleged not only that Dr. Strulson negligently 

referred him to Dr. Krum for ongoing treatment of his right shoulder injury, 

but that Dr. Krum informed Dr. Strulson as to Appellant’s prognosis and 

participated in the planned course of treatment. In addition, Appellant 

claims that Dr. Strulson failed to warn Appellant of the dangers of the IFLOW pain pump and to properly monitor or supervise his ongoing condition. 

These claims allege acts of professional negligence ocurring in Philadelphia 

County.4 

____________________________________________

4 Appellees argue that venue is not proper since only a treating medical 

practitioner has a duty to warn. They contend that Dr. Krum alone owed 

Appellant a duty to warn regarding the dangers of the I-FLOW pain pump. 

Even assuming this position is accurate, we may not rely on such a 

consideration when determining whether Appellant has pled a cause of 

(Footnote Continued Next Page)
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Further, this matter is distinguishable from Olshan, supra, and 

Peters, supra. In Peters, we held that venue was not proper in the county 

where the plaintiff had ingested a prescription drug and suffered an allergic 

reaction, rather than in the county where she was prescribed the 

medication. In Olshan, we found that venue was not proper in Philadelphia 

County since the corporate defendants located in that county were sued 

under agency and corporate liability theories, whereas the medical care in 

question was furnished entirely in Montgomery County. Thus, in both cases, 

the medical care was furnished in only one county. Instantly, Appellant’s 

complaint supports a cause of action for the negligent furnishing of medical 

services based on conduct occuring in both Philadelphia and Montgomery 

County. Hence, venue is proper in either locale. Pa.R.C.P. 1006(a.1) and 

(c)(2). 

In summary, we find that Appellees did not sustain their burden of 

proving that Philadelphia County was an improper venue. Wentzel, supra. 

The trial court erred in determining that Appellant’s complaint raised only a 

cause of action for negligent referral. Moreover, there is no basis in the 

rules of civil procedure or the relevant case law for the trial court’s 

determination that venue was proper where the “core” of Appellant’s 

(Footnote Continued) _______________________

action pursuant to Rule 1006. In any case, Appellees did not similarly 

contest Appellant’s averments as to negligent supervision and monitoring. 
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malpractice claim resided. Rather, the clear language of Rule 1006 

contemplates venue lying in “any county in which the venue may be laid 

against any defendant,” without consideration of the extent of liability as to 

each defendant. Pa.R.C.P. 1006(c)(2). Thus, the trial court abused its 

discretion in sustaining Dr. Krum’s preliminary objections and transferring 

this matter to Montgomery County. As a result of our disposition with 

regard to Appellant’s first issue, we need not reach his second claimed error. 

Order reversed. Case remanded. Jurisdiction relinquished. 

Judge Solano joins the memorandum.

Judge Platt files a Dissenting Statement.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/28/2017