J-A24010-14
2014 PA Super 240
HYUN JUNG “JOANN” LEE IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
BOWER LEWIS THROWER, GILBANE
BUILDING COMPANY, PENNSYLVANIA
UNIVERSITY STATE UNIVERSITY,
SASAKI ASSOCIATES, AND GILBANE,
INC.
v.
JOHN M. ARMSTRONG, SCHWEPPE
LIGHTING DESIGN, INC., A/K/A D.
SCHWEPPE LIGHTING DESIGN, INC. AND
SWEETLAND ENGINEERING &
ASSOCIATES, INC.
No. 2421 EDA 2013
Appeal from the Order Entered August 9, 2013
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 121003863
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
OPINION BY GANTMAN, P.J.: FILED OCTOBER 22, 2014
Appellant, Hyun Jung “Joann” Lee, appeals from the order entered in
the Philadelphia County Court of Common Pleas, which granted the petition
of Appellees, Bower Lewis Thrower Architects (“Bower”), Gilbane Building
Company (“Gilbane”), Pennsylvania State University (“PSU”), Sasaki
Associates (“Sasaki”), Gilbane, Inc., John M. Armstrong, Schweppe Lighting
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-A24010-14
Design (“Schweppe”), and Sweetland Engineering & Associates, Inc.
(“Sweetland”) to transfer venue from the Philadelphia County Court of
Common Pleas to the Centre County Court of Common Pleas, based on
forum non conveniens.1 We affirm.
The trial court opinion sets forth the relevant facts of this case as
follows:
This action arises out of an automobile accident that
occurred on November 23, 2010, on the campus of Penn
State University in State College, PA. [Appellant] was
crossing Bigler Road on foot at night when she was struck
by a pickup truck driven by Penn State employee John
Armstrong, who was on his way home from work.
[Appellant] suffered a severe brain injury as a result of the
accident.
The location where [Appellant] was crossing Bigler Road
was next to Penn State’s East Parking Deck, a structure
that had been built as a part of a larger campus
improvement project. The project involved designing
various elements of infrastructure in and around the
parking deck, such as sidewalks, crosswalks, and lighting.
[Appellant] brought this action claiming that [Appellees],
among whom are the companies who designed and built
the area at issue, negligently designed the intersection by
failing to include proper lighting and warning signs.¹
¹ [Appellant] brought a separate lawsuit against
Armstrong in Centre County, PA. That matter was
settled. Armstrong was joined as an additional
defendant by [Appellee] Sakasi Associates.
(Trial Court Opinion, dated April 11, 2014, at 1-2).
____________________________________________
1
Pa.R.C.P. 1006(d)(1).
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Appellant filed a complaint on October 26, 2012, in the Philadelphia
County Court of Common Pleas against Appellees Bower, Gilbane, PSU,
Sasaki, and Gilbane, Inc. From January 3, 2013 through April 1, 2013,
Appellees and Appellant filed various pleadings, which resulted in the joinder
of John M. Armstrong, Schweppe, and Sweetland as additional defendants in
the action.
On April 15, 2013, Appellee Sweetland filed a petition to transfer
venue based on forum non conveniens. The other Appellees joined the
petition. Appellant opposed the petition to transfer on May 6, 2013. On
August 9, 2013, the trial court granted Appellees’ petition and transferred
the case to Centre County.
Appellant timely filed a notice of appeal on August 12, 2013. The
court did not order Appellant to file a concise statement of errors complained
of on appeal, pursuant to Pa.R.A.P. 1925(b), and Appellant filed none.
Appellant raises the following issue for our review:
DID THE [TRIAL] COURT ABUSE ITS DISCRETION AND
MISAPPLY THE LAW IN DISREGARD OF THE STRINGENT
BURDEN IMPOSED ON [APPELLEES] SEEKING TRANSFER
ON FORUM NON CONVENIENS GROUNDS WHEN IT
GRANTED THE PETITION TO TRANSFER VENUE IN THIS
CASE WHERE THERE EXISTED NO EVIDENCE THAT TRIAL
IN PHILADELPHIA COUNTY WOULD BE VEXATIOUS OR
OPPRESSIVE TO [APPELLEES]?
(Appellant’s Brief at vii).
Appellant argues the court failed to apply the stringent test set forth in
Cheeseman v. Lethal Exterminator, Inc., 549 Pa. 200, 701 A.2d 156
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(1997), when it simply conducted a balancing test between Philadelphia
County and Centre County and the relative inconvenience of a small number
of witnesses who might not be called to testify at trial. Moreover, Appellant
contends the affidavits of the witnesses were conclusory and vague.
Further, Appellant alleges the court lacked sufficient detailed information to
support Appellees’ contention that Appellant’s chosen forum was not merely
inconvenient but also oppressive or vexatious. Appellant submits the court
misapplied the law and abused its discretion by failing to use the more
stringent standard of vexatious or oppressive. Appellant concludes the court
erred when it transferred the case to Centre County, and the order must be
reversed. We disagree.
Review of an order regarding the transfer venue on forum non
conveniens grounds implicates these principles:
When ruling on a petition to transfer venue pursuant to
Rule 1006(d)(1), trial courts are vested with “considerable
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.”
Zappala v. Brandolini Property Management, Inc.,
589 Pa. 516, 535, 909 A.2d 1272, 1283 (2006) (citing
Cheeseman, supra at 213, 701 A.2d at 162).
Accordingly, appellate courts review a trial court’s ruling on
a motion to transfer for an abuse of discretion. Id. at 537,
909 A.2d at 1284 (citation omitted).
In this regard, the trial court’s ruling must be
reasonable in light of the peculiar facts. If there
exists any proper basis for the trial court’s decision
to transfer venue, the decision must stand. An
abuse of discretion is not merely an error of
judgment, but occurs only where the law is
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overridden or misapplied, or the judgment exercised
is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill will, as shown by the evidence
o[f] the record.
Id. (internal citations omitted).
Our case law once recognized forum non conveniens
transfers based on considerations affecting the court’s
interests, such as court congestion (as opposed to the
parties' interest in having the case resolved in a forum
with less backlog), or imposing jury duty and court costs
on the people of a community with no relation to the
litigation. See Scola v. AC & S, Inc., 540 Pa. 353, 657
A.2d 1234, 1241 (1995) (citation omitted); Okkerse v.
Howe, 521 Pa. 509, 556 A.2d 827, 832 (1989) (citations
omitted); Plum v. Tampax, Inc., 399 Pa. 553, 561-62,
160 A.2d 549, 553-54 (1960) (citations omitted). As
lower courts applied these principles on a case-by-case
basis, “a policy developed of according court congestion
great weight at the expense of the plaintiff losing his
chosen forum.” Cheeseman, supra at 209, 701 A.2d at
160; see generally Incollingo v. McCarron, 611 A.2d
287, 290–91 (Pa.Super. 1992) (holding defendant’s
assertions of witness convenience did not warrant transfer,
but transfer appropriate based on, inter alia, “substantial
backlog of civil cases” in Philadelphia courts (citations
omitted)).
Cheeseman 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
on the record, that the plaintiff’s chosen forum is
oppressive or vexatious to the defendant.” Cheeseman,
supra at 213, 701 A.2d at 162. So called “public interest”
factors affecting the court’s own concerns are not
controlling because Rule 1006(d)(1) speaks only in terms
of convenience to the parties and witnesses, not the
courts. Id. at 212, 701 A.2d at 161–62. By way of
example, Justice Cappy noted:
[T]he defendant may meet its burden of showing
that the plaintiff’s choice of forum is vexatious to him
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by establishing…the plaintiff’s choice of forum was
designed to 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 213, 701 A.2d at 162 (footnote and internal citation
omitted). Thus, Cheeseman was not intended to increase
the level of oppressiveness or vexaciousness a defendant
must show; rather, understood in its articulated context,
Cheeseman merely corrected the practice that developed
in the lower courts of giving excessive weight to “public
interest” 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) on its face allows transfer based on “the
convenience of the parties[,]” Pa.R.C.P. 1006(d)(1),
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 v. Rubendall, 2014 WL 4064028, at *3-*4 (Pa. August 18, 2014).
A moving party must support a petition to transfer venue with detailed
information on the record; however, “Cheeseman and Rule 1006(d) do not
require any particular form of proof.” Id. at *6. Rather, the moving party
must present “a sufficient factual basis for the petition, and the trial court
retains the discretion to determine whether the particular form of proof is
sufficient.” Id. (internal citations and brackets omitted). Further, while
mere inconvenience remains insufficient, “there is no burden to show near-
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draconian consequences.” Id. at *7. Bratic held the nearly identical
affidavits from the potential witnesses in that case were alone sufficient to
support transfer from Philadelphia to Dauphin County, based on factors such
as distance, burden of travel, time out of office, disruption to business
operations, difficulty in obtaining witnesses and access to proof generally.
Id. at *5-*6.
Instantly, the trial court reasoned as follows:
In this case, [Appellees] have met their burden in showing
through detailed evidence on the record that trial in
Philadelphia would be oppressive. [Appellees] have
submitted affidavits from seven witnesses to demonstrate
how trial in Philadelphia County would be oppressive.
Many of the witnesses note that they have family and
childcare commitments that would make a multi-day trial
in Philadelphia oppressive to them. Furthermore, some
potential witnesses have job responsibilities that would be
impossible to perform if they were required to spend
several days and nights away from Centre County. For
example, Steven Maruszewski, who oversees a staff of
1300 employees at the Office of the Physical Plant at Penn
State, would be required to miss multiple days of work.²
Several witnesses also detailed personal obligations, such
as childcare, that would make a multi-day trip burdensome
and disruptive.
² This [c]ourt is certainly aware that trial in Centre
County will not excuse these witnesses from
testifying at all. However, a witness who is on-call at
a trial less than ten minutes from his office can go to
work for at least some of the day. Should trial occur
in Philadelphia, this would not be possible, and due
to the unpredictable nature of trial scheduling, it is
likely that each witness would need to spend multiple
days in Philadelphia awaiting his or her turn to
testify.
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The Superior Court, in affirming a Philadelphia trial court’s
transfer to Bradford County, PA,³ noted the value of this
kind of evidence. The Superior Court in Wood v. E.I. du
Pont de Nemours & Co., 829 A.2d 707 (Pa.Super. 2003),
appeal denied, 580 Pa. 699, 860 A.2d 124 (2004),
affirmed the trial court’s decision, which was, in part,
based on “detailed information on the record establishing
that many of its critical witnesses were plant employees
who would be forced to travel over 190 miles to attend
trial in Philadelphia.” Wood at 713. That evidence in
Wood was presented via affidavit. The same evidence
exists here: multiple [witnesses] will be required to travel
nearly 200 miles to testify about a case involving
allegations of a physical defect on Penn State’s campus.
³ Bradford County and Centre County are
approximately the same distance from Philadelphia,
albeit in different directions.
Travel considerations for witnesses and transportation
considerations for evidence are generally less of a concern
when a Philadelphia trial court is faced with a motion to
transfer venue to an adjacent suburban Philadelphia
county. Raymond v. Park Terrace Apartment, Inc.,
882 A.2d 518, 521 (Pa.Super. 2005), appeal denied, 585
Pa. 689, 887 A.2d 1241 (2005) (observing that “in reality,
traveling from Delaware, Bucks, Montgomery or Chester
County to Philadelphia is not particularly onerous.”) This
observation reinforces the idea that travel beyond these
counties, therefore, can be onerous. It is undisputed that
travel to and from State College, Pennsylvania, could take
three or four hours each way. This distance, combined
with the number of witnesses in this case (there being
multiple defendants, most of whom are based in Centre
County), would result in an oppressive situation for
[Appellees].
[Appellant] note[s] that because some of the witnesses in
this case work for companies that also have offices in
Philadelphia, a Philadelphia forum could not be
inconvenient. Absent any connection between this fact
and a showing of inconvenience to the specific witnesses
[Appellees] plan to call, this fact is not dispositive. An
employee who works for a company that happens to have
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a branch in a particular city does not necessarily mean that
such an employee would not be inconvenienced by travel
to that city. That employee could do his or her job without
need for travel to every branch of his company’s offices.
In fact, this is the case here: even through it appears
undisputed that [Gilbane] has a Philadelphia office, it also
appears undisputed that Jarir Abu-Shaheen does not travel
to this office to do his work.⁴ This argument, therefore, is
speculative at best.
⁴ [Appellant], in her “analysis” response to chunks of
cited “affidavit language,” asks: “Again, are we really
to believe that such an important executive working
for a Philadelphia based construction company that is
among the largest of its kind in the work [sic], never
travels to Philadelphia?” [The trial court] notes that
Abu-Shaheen is the Project Executive for projects
based in Centre County only.
To the end of curing the prejudice of bringing over half a
dozen witnesses from Centre County for trial, [Appellant]
proposes a solution and indicates that “[Appellant’s]
counsel are agreeable to deposing all witnesses where they
live or work and reasonable utilization of modern methods
for presenting testimony such as video depositions and live
video connections.” [Appellant’s] Brief In Opposition to
Petition to Transfer Venue for Forum Non Conveniences
[sic] Pursuant to Pa.R.C.P. 1006(d)(1).
Although our Supreme Court has not evaluated the rapidly
increasing role of video technology in trials as it relates to
forum non conveniens analysis, it strikes this [c]ourt that
[Appellant’s] proposal will also result in oppression to
[Appellees]. The likely result of this solution would be a
trial where the jury sees a live Plaintiff, sitting mere feet
from the jury box, explaining her injuries, while most or all
defense witnesses are presented via pre-recorded videos.⁵
This is not an acceptable choice to offer [Appellees] in
order to try to cure the oppressiveness that they have
established will result should venue remain in Philadelphia.
⁵ This [c]ourt is aware that it is routine for parties to
present the testimony of medical experts via video.
However, this would not be a case with one expert
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on each side presenting testimony via video. It
would involve most or all of the defense case
consisting of presenting hours of video to a jury.
Finally, [Appellant] argues that it would be inconvenient
for other witnesses and for defense counsel to attend trial
in Centre County. Whether…this is true, the only detailed
evidence on the record relating to witnesses at this point is
the set of affidavits presented by [Appellees].6 This
argument is speculative at best. [The trial court] would
also note that it is not uncommon for large entities like
Penn State University to use attorneys all over the
Commonwealth and to simply use counsel local to Centre
County in the event of a transfer, thus rendering the cost
of transporting Philadelphia attorneys to State College
unnecessary.
6
Although [Appellees] certainly have the burden to
show that a forum is oppressive, this does not mean
that [Appellees] must present [the trial court] with
affidavits from every witness who might not be
inconvenienced by trial in Philadelphia. The record,
as it stands now, is sufficient for [Appellees] to meet
their burden.
(Trial Court Opinion at 3-6). In effect, the court considered the detailed
information of record before it granted Appellees’ motion to transfer venue.
See Bratic, supra. The court found the seven witnesses’ affidavits were
sufficient to establish the necessary factual basis for transfer. See id.
Therefore, we see no reason to disturb the court’s decision to transfer the
case to Centre County. Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2014
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