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POWERS v. PLANNED PARENTHOOD6/6/1996
port the expected action when it is brought. Cf. 4 James W. Moore et al., Moore's Federal Practice 27.03 (2d ed. 1994) (discussing F.R.Civ.P. 27). If the court in which the petition is filed would have jurisdiction over the anticipated action, that court also has jurisdiction to entertain the petition. A medical malpractice action is cognizable in the Superior Court, a statewide court of general jurisdiction. The Superior Court had jurisdiction to entertain Powers's petition.
Although Powers's filing of her petition in Franklin County does not create a jurisdictional defect, it does present a venue problem. On appeal, Planned Parenthood cites 14 M.R.S.A. § 501 (1980), that provides in relevant part: "Improper venue may be raised by the defendant by motion or by answer, and if it is established that the action was brought in the wrong county, it shall be dismissed and the defendant allowed double costs." Planned Parenthood argues that this statutory provision required the Superior Court to dismiss the petition.
Improper venue is an objection that can be waived. M.R.Civ.P. 12(h). Improper venue is considered waived unless it is brought to the court's attention in a motion or a responsive pleading. Id. Planned Parenthood failed to raise improper venue in its motion to dismiss. Indeed, in that document Planned Parenthood characterized the issue of Powers's improper filing as one of subject matter jurisdiction, not venue, and never cited 14 M.R.S.A. § 501. Accordingly, Planned Parenthood waived any venue objection based on that statutory provision.
The purpose of the verification requirement generally, and in particular in petitions to perpetuate testimony, is to ensure the averring party's good faith. See, e.g., United States ex rel. Echevarria v. Silberglitt, 441 F.2d 225, 226-27 (2d Cir. 1971); Sheeley v. City of Santa Clara, 215 Cal.App.2d 83, 30 Cal.Rptr. 121, 123 (1963); 4 James W. Moore et al., Moore's Federal Practice 27.15 (2d ed. 1994); 71 C.J.S. Pleadings § 359 at 762 (1951 & Supp. 1995). The verification requirement is generally construed liberally. 71 C.J.S. Pleadings § 359 at 762.
Although Rule 27 requires that a petition to perpetuate testimony be verified, it does not specify the manner of verification or who may properly verify a petition. M.R.Civ.P. 27(a)(1). According to Dumas's affidavit, the petition submitted by him was based on conversations he had with Powers and her doctor. Planned Parenthood contends that because Dumas's conversations with his client and her oncologist are hearsay, they cannot be the source of personal knowledge for the purposes of verification.
Planned Parenthood presumably argues by analogy from the rule, applicable to motions for a summary judgment, that affidavits in support of such motions must be based on personal knowledge and may contain only admissible evidence. M.R.Civ.P. 56(e). We do not find this argument persuasive. The purpose of verification in the context of Rule 27 and the purpose of affidavits in the context of a summary judgment motion are completely different. As noted, the purpose of verification pursuant to Rule 27 is to ensure the good faith of the petitioner. The affidavit in support of a dispositive motion for a summary judgment serves an evidentiary purpose. The fact that hearsay statements are inappropriate in the context of a motion for a summary judgment has no bearing on the requirement for verification of Rule 27 petitions.
It is clear from the record that Dumas had sufficient personal knowledge to attest to the facts set forth in the petition. In the affidavit he submitted with the petition, Dumas states that his knowledge of Powers's medical condition is based on a bedside
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