J.A13044/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHRISTOPHER PASSODELIS, JR., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ERIE INSURANCE COMPANY, ERIE :
INSURANCE PROPERTY & CASUALTY :
COMPANY, ERIE INDEMNITY COMPANY, :
ERIE INSURANCE EXCHANGE ACTIVITIES :
ASSOCIATION, INC. D/B/A ERIE :
INSURANCE EXCHANGE, ERIE :
INSURANCE GROUP, ROBB LEONARD :
MULVIHILL, LLP, ARTHUR J. LEONARD, :
FINLEY CONSULTING & :
INVESTIGATIONS, INC., AND :
NICOLLETTE JENA :
: No. 2873 EDA 2013
Appeal from the Order Entered September 4, 2013
In the Court of Common Pleas of Philadelphia County
Civil No(s).: 04368 April Term, 2013
BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 16, 2014
Appellant, Christopher Passodelis, Jr., appeals from the order entered
in the Philadelphia Court of Common Pleas granting the motion of Appellees,
transfer venue of his negligent supervision and defamation action from
*
Former Justice specially assigned to the Superior Court.
J. A13044/14
Philadelphia County to Allegheny County.1 Appellant and RLM are residents
of and located in Allegheny County. Appellant contends the trial court
ider
the negative effects to his reputation and career, as well as his
embarrassment and emotional distress, by having the lawsuit resolved in
Allegheny County. We affirm.
We state the facts as set forth by the trial court.
This [instant] action involves a defamation claim arising
[In the underlying action, on] December 1, 2011,
[Appellant], a resident of Allegheny County, filed [a]
defamation claim against Emmanuel Lardas for publishing
flyers in Allegh[e]ny County that called [Appellant] a child
molester. [Erie] provided indemnity and defense to Mr.
policy. Erie hired [Robb Leonard Mulvihill, LLP], a law firm
with its [principal] office located in Allegheny County, and
[Mr.] Leonard, resident of Allegheny County, to defend Mr.
Lardas in the [underlying] action.
[In the underlying action, RLM] hired [Finley] as private
investigators to question people in Allegheny County about
the alleged defamatory statement. [Appellant] alleges
employees about whether or not [Appellant] was a child
1
Appellees Erie Insurance Company, Erie Insurance Property & Casualty
Company, Erie Indemnity Company, Erie Insurance Exchange Activities
Association, Inc., doing business as Erie Insurance Exchange, and Erie
separate motion to transfer venue. Appellees Finley Consulting &
inter alia,
Allegheny County was the proper venue. Erie notified this Court that it
would not file an appellate brief; Finley did not file an appellate brief.
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molester. [Appellant] alleges that the manner in which
Ms. Jena questioned the employee suggested that
[Appellant] is, in fact, a child molester. [Appellant] alleges
that he has suffered damage to his character and
reputation within his community of Allegheny County.
Trial Ct. Op., 10/17/13, at 1-2 (misspellings corrected).
Appellant subsequently filed the instant lawsuit in Philadelphia County,
which raised the following claims: (1) defamation against RLM, Finley, and
Erie; (2) negligent supervision against RLM; and (3) negligent supervision
-27.2 RLM filed
preliminary objections and a motion to transfer venue to Allegheny County
based on forum non conveniens
Appellant timely appealed; this interlocutory order is appealable as of
right. See Pa.R.A.P. 311(c). The court did not order Appellant to comply
with Pa.R.A.P. 1925(b), but filed a Pa.R.A.P. 1925(a) decision:
In the instant case, [Appellant, Mr. Leonard, and Ms.
Jena] are all residents of Allegheny County. RLM is a law
firm with its [principal] place of business in Allegheny
County. The alleged defamatory statements which serve
2
The tenor of the complaint implies that the alleged tortious conduct
occurred in Allegheny County. For example, Appellant extensively detailed
the alleged defamatory interview by Ms. Jena. See
19-21. Appellant, however, did not identify where the interview occurred.
Given the procedural posture, we accept as true that the claims could have
occurred outside of Allegheny County.
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Allegheny County.[3] The flyers containing the alleged
defamatory statements at issue in the underlying
defamation claim were published in Allegheny County.
[Appellant] claims he has suffered loss of reputation and
located in Allegheny County and the people needed to
substant
business relationships are all located in Allegheny County.
If the case were tried in Philadelphia County, [all of
Appellees] and other expected witnesses will be forced to
incur travel expenses coming to Philadelphia.
Trial Ct. Op. at 2-3 (misspellings corrected).
Appellant raises the following issues:
selecting Philadelphia as his venue, when the court was
obligated to give deference to that choice of forum?
Did the trial court err in transferring venue where [RLM]
failed to meet its burden of proving vexation or oppression
with detailed information on the record?
for both of his issues. Appellant
alleges he is a well-known attorney in Pittsburgh and thus filed suit in
Philadelphia County to minimize potential adverse publicity. Appellant
ate
the case in Allegheny County, or (2) forego litigation. The trial court,
Appellant suggests, failed to identify anything vexatious or oppressive about
Philadelphia County. To the extent conducting discovery would be
3
As noted above, Appellant implied, but did not aver, that the interview
occurred in Allegheny County.
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oppressive, Appellant hypothesizes any inconvenience could be remedied
through case management orders. We note Appellant does not assert trial
would not be inconvenient in Philadelphia County. We hold Appellant did not
establish entitlement to relief.
The standard of review is abuse of discretion. Bratic v. Rubendall,
21 EAP 2013, 2014 WL 4064028, at *3 (Pa. Aug. 18, 2014). 4 In Bratic, our
Supreme Court set forth the background for a motion to transfer based on
forum non conveniens:
Plaintiffs have long been provided with the initial choice
of the court in which to bring an action, if that court has
jurisdiction. See Plum v. Tampax, Inc., 399 Pa. 553,
160 A.2d 549, 552
ordinarily controls choice of the forum, a court does not
exercise jurisdiction if it is a seriously inappropriate forum
for the trial of the action so long as an appropriate forum
(Second) of Conflict of Laws § 117e (Tentative Draft No. 4,
1957))). This practice derives from the notion of
convenience to the plaintiff, not from the desire to pursue
verdicts in counties perceived to be more plaintiff-friendly.
While a plaintiff need not provide reasons for selecting one
venue over another, the doctrine of forum non conveniens
is a necessary counterbalance to [e]nsure fairness and
practicality. This Court has emphatically stated that the
consideration; thus, the party seeking a change of venue
bears a heavy burden in justifying the request, and it has
been consistently held that this burden includes the
demonstration on the record of the claimed hardships.
When ruling on a petition to transfer venue pursuant to
Rule 1006(d)(1), trial courts are vested with considerable
4
The Bratic decision was issued after the trial court rendered its ruling and
the parties submitted their appellate briefs.
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discretion . . . to balance the arguments of the parties,
consider the level of prior court involvement, and consider
whether the forum was designed to harass the defendant.
* * *
[Cheeseman v. Lethal Exterminator, Inc., 701 A.2d
156 (Pa. 1997),] clarified the factors on which a trial court
may rely when ruling on a forum non conveniens motion,
holding a petition to transfer venue should be granted only
if the defendant demonstrat[es], with detailed information
orum is
oppressive or vexatious to the defendant. So called
are not controlling because Rule 1006(d)(1) speaks only in
terms of convenience to the parties and witnesses, not the
courts. By way of example, Justice Cappy noted:
[T]he defendant may meet its burden of
vexatious to him by establishing . . . the
harass the defendant, even at some
inconvenience to the plaintiff himself.
Alternatively, the defendant may meet his
burden by establishing . . . trial in the chosen
forum is oppressive to him; for instance, that
trial in another county would provide easier
access to witnesses or other sources of proof, or
to the ability to conduct a view of premises
involved in the dispute. But, we stress that the
defendant must show more than that the
chosen forum is merely inconvenient to him.
Id., at 162 (footnote and internal citation omitted). Thus,
Cheeseman was not intended to increase the level of
oppressiveness or vexa[t]iousness a defendant must show;
rather, understood in its articulated context, Cheeseman
merely corrected the practice that developed in the lower
factors when ruling on a forum non conveniens motion.
Whatever public interest factors exist, they are not
determinative; they are only a factor insofar as they bear
directly on the ultimate test. And while Rule 1006(d)(1)
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on its face allows transfer based on the convenience of the
parties, convenience or the lack thereof is not the test our
case law has established: the moving party must show the
chosen forum is either oppressive or vexatious.
Bratic, 2014 WL 4064028, at *3-*4 (some punctuation and citations
omitted). We may also affirm on any basis. Donnelly v. Bauer, 720 A.2d
447, 454 (Pa. 1998).
Having clarified the law, the Bratic Court reviewed the en banc
Philadelphia County to Dauphin County. Bratic, 2014 WL 4064028, at *2.
The trial court in Bratic had reasoned as follows:
(1) the earlier claim took place in Dauphin County; (2) all
[of the defendants] are from Dauphin County and none of
[the plaintiffs] are from Philadelphia County; (3) each of
Philadelphia County and is engaged in business activities
which make their ability to appear at trial in Philadelphia
County far more of a burden than a trial in Dauphin
County; and (4) the sole connection with Philadelphia
County is the fact that all [defendants] occasionally
conduct business in Philadelphia.
Id. at *1 (punctuation and citation omitted).
sound:
proper consideration of the totality of the evidence justified
the order to transfer the case.
* * *
was based on other enumerated factors, not the
residences of [the plaintiffs] or counsel, nor on congestion
of the courts. As with other factors not sufficient for
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transfer themselves, if residence is probative of
oppressiveness, it is not error to reflect upon it, so long as
Cheeseman itself, Justice Cappy pointed out that access
to witnesses or other sources of proof was an entirely
legitimate factor when determining oppressiveness . . .
and the plaintiffs are certainly sources of proof.
* * *
It cannot be said the trial court misapplied the law or failed
to hold [the defendants] to their proper burden to
establish oppression. While typically the fact that the site
of the precipitating event was out
of forum is not dispositive, it is axiomatic that when the
case involves a transfer from Philadelphia to a more
distant county, 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.
As with other factors insufficient on their own, distance
alone is not dispositive, but it is inherently part of
the equation. The Cheeseman decision actually
involved two cases, both filed in Philadelphia County and
transferred to neighboring Bucks County because of court
congestion in the former. Dauphin County, however, is not
a neighbor of Philadelphia, and one needs no detailed
affidavit to understand the difference in logistics
necessitated by a separation of 100 miles. It is not
necessary to articulate to a jurist the inherently empirical
concept that distance and expedience are inversely
proportional.
* * *
The trial judge need not be told like a child how the
distance in and of itself makes things more disagreeable
and disruptive to the persons obliged to travel. Nor is it a
secret requiring iteration that trial in Dauphin County
would provide easier access to local [defendants] and their
local witnesses, as well as the relevant court documents on
which the very case is based.
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* * *
As between Philadelphia and adjoining Bucks County, the
situation in Cheeseman, we speak of mere inconvenience;
as between Philadelphia and counties 100 miles away,
simple inconvenience fades in the mirror and we near
oppressiveness with every milepost of the turnpike and
Schuylkill Expressway.
Id. at *4-*7 (emphasis added and punctuation, footnotes, and citations
omitted). Our Supreme Court thus reversed the en banc Superior Court and
County to Dauphin County. Id. at *7.
Instantly, as noted above, Appellant claims RLM failed to identify
anything vexatious or oppressive about Philadelphia County.5 The trial
court, however, proffered reasons almost identical to the trial court in
Bratic: (1) the alleged claims occurred in Allegheny County; (2) all parties,
including Appellees, are from Allegheny County and none of the parties,
including Appellant, are from Philadelphia County; (3) the sole connection
with Philadelphia County is that some of Appellees conduct business in
Philadelphia; (4) the underlying defamation claim involved statements in
Allegheny County; and (5) many sources of proof are in Allegheny County.
See Trial Ct. Op. at 2-3; cf. Bratic, 2014 WL 4064028, at *1.
5
Appellant cu
two options: pursue litigation with the theoretical potential for publicity that
at 9. Speculating that the order could result in a parade of horribles, we
observe, does not necessarily establish an abuse of discretion.
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Similar to the trial court in Bratic, the instant trial court did not err by
transfer. See Bratic
enumerated factors, not the residences of app
[Appell See id. at *4.
from Philadelphia to a more distant county, [such as Allegheny County,]
factors such as the burden of travel, time out of the office, disruption to
business operations, and the greater difficulty involved in obtaining
Id. at *4-*5. We take
judicial notice that Allegheny County is further away from Philadelphia
County than Dauphin County. See also Bratic, 2014 WL 4064028 at *6
gheny] County would provide
easier access to local [Appellant and Appellees] and their local witnesses, as
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case are based. Id. at *6. We again paraphrase the Bratic
between Philadelphia and adjoining Bucks County, . . . we speak of mere
inconvenience; as between Philadelphia and counties 100[s of] miles away[,
such as Allegheny County,] simple inconvenience fades in the mirror and we
near oppressiveness with every milep Id. at *7.
sources of proof, site of the precipitating event, and distance from
Philadelphia County in ascertaining oppressiveness. See id. at *4-*7. After
examining the entire record, including the allegations in the pleadings, the
similarities with the facts in Bratic
court did not abuse its discretion. See id. at *7. Accordingly, we affirm the
order below. See id.
Order affirmed.
Judge Allen joins the memorandum.
Judge Mundy concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2014
- 11 -
Passodelis, C. v. Erie Ins. Co.
Combined Opinion