OPINION BY MUNDY, J.:
Appellants, Alexander Bratic and Joseph Proko, appeal from the order entered July 9, 2009 granting Appellees' petition to transfer the case to Dauphin County on the grounds of forum non conveniens pursuant to Pa.R.C.P. 1006(d)(1). We reverse and remand for further proceedings.
The pertinent factual and procedural background, as gleaned from the certified record, follows. On February 23, 2009, in the Court of Common Pleas of Philadelphia County, Appellants filed a complaint against Appellees, Charles W. Rubendall, II, Esq. (Rubendall), Keefer, Wood, Allen & Rahal, LLP (the Keefer Firm), Residential Warranty Corporation of Pennsylvania (Residential), and Integrity Underwriters, Inc. (Integrity). Appellants' complaint alleged causes of action sounding in wrongful use of civil proceedings and abuse of process. On April 17, 2009, Appellees filed preliminary objections challenging venue in Philadelphia County as improper. Appellants filed an amended complaint on April 29, 2009, whereupon Appellees renewed their preliminary objections challenging venue in Philadelphia County. In addition, on May 20, 2009, Appellees alternatively filed a petition for transfer of venue on the grounds of forum non conveniens. On July 9, 2009, the trial court granted Appellees' alternative petition and
On January 14, 2011, a panel of this Court affirmed the trial court, with one member of the panel dissenting. In reaching this decision, the majority held the trial court did not abuse its discretion in determining that Appellees met their burden to show that Appellants' choice of venue was vexatious and oppressive. The dissent contended that the trial court abused its discretion in applying the law to the facts in this case and that Appellees failed to meet the heavy burden imposed on a party challenging venue on the basis of forum non conveniens. On January 28, 2011, Appellants filed an application for reargument en banc, which this Court granted on March 21, 2011.
On appeal, Appellants raise the following question for our review.
Appellants' Brief at 5.
In an appeal from an order transferring venue on the basis of forum non conveniens, our standard of review is "whether the trial court committed an abuse of discretion." Catagnus v. Allstate Ins. Co., 864 A.2d 1259, 1263 (Pa.Super. 2004).
Zappala v. Brandolini Property Management, 589 Pa. 516, 909 A.2d 1272, 1284 (2006) (citations omitted). "[A] trial court's failure to hold the defendant to the proper burden constitutes an abuse of discretion." Catagnus, supra at 1264.
Cheeseman v. Lethal Exterminator Inc., 549 Pa. 200, 701 A.2d 156, 162 (1997) (citations and footnotes omitted) (emphasis added); see also Walls v. Phoenix Ins. Co., 979 A.2d 847 (Pa.Super.2009); Hunter v. Shire US, Inc., 992 A.2d 891, 896-897 (Pa.Super.2010).
In the instant matter, the trial court found as follows.
Trial Court Opinion, 10/13/09, at 3-4.
Initially, we note that the trial court, while not indicating the weight it has given to the several factors enumerated above, has considered some factors we have previously
Walls, supra at 851-852.
The trial court also relied on the fact that "[t]he earlier claim, upon which the present Complaint is in regard to, took place in Dauphin County," and "[t]he sole connection with Philadelphia County is the fact that all [Appellees] occasionally conduct business in Philadelphia." Trial Court Opinion, 10/13/09, at 3-4.
Borger v. Murphy, 797 A.2d 309, 312 (Pa.Super.2002) (citations omitted; emphasis added), appeal denied, 570 Pa. 680, 808 A.2d 568 (2002). Further, it is a "salient point that the mere fact that the site of the precipitating event was outside of plaintiff's choice of forum is not dispositive." See Walls, supra at 852.
The remainder of the trial court's reasoning centers on Appellees' assertion that it has eight witnesses, all residing in Dauphin County, who would encounter hardships if they had to travel to Philadelphia to testify.
Id. at Exhibits E, F, H-K.
We note that four of the witnesses are officers or employees of the named corporate Appellees.
Walls, supra at 853.
In addition, as noted in Walls, such costs must be viewed in relation to litigation costs of attorneys employed in the initial forum. Here, Appellees' respective counsel of record all are based in Philadelphia.
Id.
The remaining four witnesses, with current or former connection to Appellees, are engaged in client-based professions.
Id. at 166. As in Cooper, the affidavits here merely aver conclusory statements that participation in Philadelphia would be "disruptive" without explanation as to why that is the case.
Additionally, without elaboration, Appellees include the onus of the witnesses' participation in possible depositions prior to trial as additional support for their claim that venue in Philadelphia is oppressive. Even had Appellees sustained their burden in this regard with adequate specificity, we note that the trial court has additional measures short of a change of venue to mitigate any such impact. See Pa.R.C.P. 4012 (authorizing the trial court, upon application, to impose conditions upon discovery including time and place).
Because the trial court relied on factors irrelevant to a consideration of forum non conveniens, and because our review of the entire record reveals that Appellees have not offered particularized averments sufficient to satisfy their burden as required by Cheeseman and its progeny, we conclude that the trial court erred in granting Appellees' petition. Accordingly, we reverse the July 9, 2009 order granting Appellees' petition for transfer of venue on the basis of forum non conveniens and remand for further proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
Judge GANTMAN files a Dissenting Opinion in which Judge BENDER and Judge ALLEN join.
DISSENTING OPINION BY GANTMAN, J.:
I respectfully disagree with the majority's disposition because I believe it creates an excessively high burden for defendants seeking to obtain a transfer on forum non conveniens grounds. The majority's decision to discount allegations of hardship when alleged by (1) employee-witnesses of a corporate defendant and (2) defense witnesses who are engaged in "client-based" professions has the effect of making a forum non conveniens transfer practically unattainable in many cases. Based on my
Preliminary, I stress our standard of review—abuse of discretion. Catagnus v. Allstate Ins. Co., 864 A.2d 1259, 1263 (Pa.Super.2004). An abuse of discretion occurs when the court overrides or misapplies the law, or exercises judgment in a manifestly unreasonable manner, or renders a decision based on partiality, prejudice, bias, or ill-will. Zappala v. Brandolini Property Management, Inc., 589 Pa. 516, 536, 909 A.2d 1272, 1284 (2006). If there is any basis for the trial court's decision, its ruling must stand. Id. A plaintiff's choice of forum is given great weight, but it is not absolute or unassailable. Jackson v. Laidlaw Transit Inc. & Laidlaw Transit PA, Inc., 822 A.2d 56, 57 (Pa.Super.2003).
I agree a party seeking a transfer pursuant to Rule 1006(d) has the burden of showing the plaintiff's chosen forum is oppressive or vexatious to the defendant. Cheeseman v. Lethal Exterminator, Inc., 549 Pa. 200, 213, 701 A.2d 156, 162 (1997) (emphasis added). A defendant may meet its burden by showing either: (1) the plaintiff's choice of forum was designed to harass the defendant; or (2) "trial in another county would provide easier access to witnesses or other sources of proof...." Id. Any proof of oppression or vexation must be supported by "detailed information on the record." Id. Cheeseman and Rule 1006(d) "do not require any particular form of proof. All that is required is that the moving party present a sufficient factual basis for the petition." Wood v. E.I. du Pont de Nemours and Co., 829 A.2d 707, 714 (Pa.Super.2003) (en banc), appeal denied, 580 Pa. 699, 860 A.2d 124 (2004).
The site of the precipitating event might not be dispositive, but it is relevant. Walls v. Phoenix Ins. Co., 979 A.2d 847, 852 (Pa.Super.2009). My review of this Court's forum non conveniens decisions reveals the relevance of this factor depends in part on the respective counties involved. Raymond v. Park Terrace Apartments, Inc., 882 A.2d 518, 521 (Pa.Super.2005), appeal denied, 585 Pa. 689, 887 A.2d 1241 (2005). When the case involves a transfer from Philadelphia to its adjacent or immediately surrounding counties, courts generally decline to place much weight on claims that all significant aspects of the case occurred outside the chosen forum. See Hunter v. Shire US, Inc., 992 A.2d 891, 897 (Pa.Super.2010) (affirming trial court's order denying transfer from Philadelphia to Chester County because defendant had not met burden of oppressiveness and noting "Chester and Philadelphia Counties are adjacent to each other and are readily accessible in a short amount of travel time"); Zappala v. James Lewis Group, 982 A.2d 512 (Pa.Super.2009) (reversing transfer from Philadelphia to Chester County and rejecting defendant's claim that travel from Chester County to Philadelphia is oppressive); Catagnus, supra at 1266 (holding decision to transfer case from Philadelphia to Bucks County was error, and observing travel between Philadelphia and Bucks County is not particularly burdensome); Johns v. First Union Corp., 777 A.2d 489, 491-92 (Pa.Super.2001) (concluding court improperly transferred case from Philadelphia to Bucks County and commenting on close distance between Philadelphia and Bucks County); Hoose v. Jefferson Home Health Care, Inc., 754 A.2d 1, 4 (Pa.Super.2000), appeal denied, 564 Pa. 734, 766 A.2d 1249 (2001) (reversing order transferring case
On the other hand, when the case involves a transfer from Philadelphia to a more distant county, the site of the precipitating event and the burdens imposed in traveling to the plaintiff's chosen forum become more significant to a court's analysis. Wood, supra at 709 (affirming transfer from Philadelphia to Bradford County; observing Bradford County Courthouse is two miles from accident whereas Philadelphia County court is one-hundred and ninety miles away); Borger v. Murphy, 797 A.2d 309, 313-14 (Pa.Super.2002), appeal denied, 570 Pa. 680, 808 A.2d 568 (2002) (holding court properly transferred case from Philadelphia to Lehigh County; "commute to Philadelphia County would take an hour and a half, compared to the twenty minutes for a trip to the courthouse in Lehigh County"); Dulaney v. Consolidated Rail Corp., 715 A.2d 1217 (Pa.Super.1998) (affirming transfer from Philadelphia to Allegheny County where all witnesses and relevant sources of proof were more conveniently located in Allegheny County and travel to Philadelphia would be significant burden to defense witnesses). In these cases, factors such as the burden of travel, time out of the office, disruption to business operations, and the greater difficulty involved in obtaining witnesses and sources of proof are more significant due to the greater distances between the precipitating event and the chosen forum. See Wood, supra. Nevertheless, there is no hard and fast geographical rule as to when transfer is appropriate; courts must consider the totality of the circumstances in determining whether to transfer a case pursuant to Rule 1006(d). See Walls, supra (reversing transfer of case from Philadelphia to Monroe County where defendant did not offer sufficient proof that trial in Philadelphia would be oppressive); Mateu v. Stout, 819 A.2d 563, 567 (Pa.Super.2003) (affirming transfer from Philadelphia to Delaware County where all facts showed trial in Delaware County would provide easier access to witnesses and sources of proof).
Here, it is undisputed that all facts giving rise to the current litigation occurred in Dauphin County, and all defense witnesses are located there. Relying on Borger, the majority discounts this aspect of Appellees' petition because "claims by a defendant that no significant aspect of a case involves the chosen forum, and that another forum would be more convenient, are not the type of record evidence that proves that litigating the case in the chosen forum is oppressive or vexatious." (Maj. Op. at 501). Quite simply, Borger is not only inapposite to the majority's conclusion, but also undermines it because the Borger court affirmed the trial court's decision to grant defendant's petition to transfer venue from Philadelphia County to Lehigh County on forum non conveniens grounds. Borger, supra at 313-14 (holding court properly transferred case from Philadelphia to Lehigh County where defendant and all his witnesses were located in Lehigh County and defendant stated in his petition that trial in Philadelphia may force him to temporarily close his office; "commute to Philadelphia County would take an hour and a half, compared to the twenty minutes for a trip to the courthouse in Lehigh County"). Therefore, Borger merely recited the legal principle that there is a vast difference between inconvenience and oppression, but
In this case, Appellees have put forth sufficient facts to support a transfer. All events underlying the present litigation occurred in Dauphin County. While not dispositive to Appellees' petition to transfer, this fact is certainly relevant. Unlike the majority, I think this aspect of Appellees' petition weighs in favor of a transfer because it supports the ultimate determination required to establish oppressiveness under Cheeseman—that trial in another county would provide easier access to witnesses or other sources of proof. Moreover, Dauphin County is not one of Philadelphia's suburban counties, where the travel time to Philadelphia is measured in minutes. All Appellees live and work in Dauphin County. The approximate one way travel time and distance between the Dauphin County Courthouse and Philadelphia City Hall is 2 hours and 105 miles, respectively. See Wood, supra at 709 (stating defendants had brought forth evidence of hardship by showing Bradford County Courthouse is two miles from accident whereas Philadelphia County court is one-hundred and ninety miles away). As the trial court properly recognized, this is relevant evidence of hardship. Not only are all relevant defense witnesses and sources of proof located in Harrisburg, but the distance from there to Philadelphia, Appellants' chosen forum, is also significant.
The majority dismisses the substantial travel burdens Appellees' witnesses would face from a trial in Philadelphia by concluding the burdens to those witnesses are irrelevant because the witnesses are either: (1) employees of a corporate defendant or (2) engaged in client-based professions. For the "employees of a corporate defendant" proposition, the majority relies on Walls; the "client based professions" distinction is derived from Cooper v. Nationwide Mutual Insurance Company, 761 A.2d 162, 166 (Pa.Super.2000). Neither case is persuasive, in my opinion.
The majority relies on Walls to discount the potential burdens suffered by Appellees' four witnesses
Moreover, I reject the majority's use of Walls to consider the potential burden that would inure to defense counsel in the event
Walls is also unpersuasive because of the practical problems its reasoning creates. The majority reads Walls as standing for the proposition that hardship to employees of Appellees is irrelevant because a corporate defendant will likely compensate those witnesses, and as a result, Appellees' witnesses will not suffer hardship. Like many defendants, RWC, Integrity, and Keefer Wood are business entities that can only act through agents or employees. When sued, the entities necessarily will send representatives to defend the company at a deposition or trial because the company itself is only a person in the legal sense. The majority's interpretation of Walls is troubling as applied to Appellees like RWC, Integrity and Keefer Wood because the entities themselves are not traveling great distances to attend trial. Their employees, the persons who represent and act on behalf of their companies, however, will be burdened by such travel, but the hardship to those persons does not receive consideration in the majority's approach because the witnesses
The majority's use of Cooper is similarly unconvincing to me. In Cooper, this Court held oppression to the clients of the defense witnesses is not a pertinent consideration, because Cheeseman places its focus on hardship incurred by the witnesses themselves. Cooper, supra at 162. The majority largely misapplies Cooper by seeming to discount any alleged hardship that might exist for Appellees' four witnesses, simply because those witnesses are engaged in client-based professions.
The remainder of the majority's discussion centers on the alleged lack of detail in the affidavits submitted by Appellees' witnesses. The majority employs an exacting standard with respect to the amount of facts necessary to sustain the "detailed averments" prong of Cheeseman and concludes Appellees failed to provide sufficiently particularized affidavits in support of their motion to transfer. Pennsylvania law, however, is not entirely clear on
Upon review of the record in the present case, in light of the relevant case law, I am convinced Appellees did present sufficiently detailed information in their motion to transfer. Appellees' affidavits state each witness: (1) resides more than 100 miles from Philadelphia; (2) would be required to incur substantial costs for either fuel or lodging; (3) would be forced to take time out of the office for trial in Philadelphia; (4) would be forced to take time away from their positions at either RWC, Integrity, or Keefer Wood; and (5) would suffer greater hardship from trial in Philadelphia than one in Harrisburg. (See Motion to Transfer, Exhibits E, F, G, H, I, J, K; R.R. at 1646a-1668a). The ways the duties or operations of RWC, Integrity, or Keefer Wood would be affected by the witnesses' absence and the resulting hardship is self-evident, given the senior management positions each witness occupies within their respective companies or law firm. Without the President, Treasurer, Operations Manager, and Systems Manager, Integrity's ability to run its business
Essentially, my view of this case shows the trial court considered one improper factor—Appellants' location.
For all the foregoing reasons, I would affirm the order transferring this case to Dauphin County on forum non conveniens grounds. Accordingly, I dissent.