J-A21030-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HELEN ESBENSHADE, ESQUIRE IN THE SUPERIOR COURT OF
ADMINISTRATRIX AND PERSONAL PENNSYLVANIA
REPRESENTATIVE OF THE ESTATE OF
ADYLBEK MURATALIEV, DECEASED
Appellant
v.
ALPHA CONTRACTING III, LLC, KG
CONSTRUCTION, ALLEGHENY POWER,
ALLEGHENY ENERGY, WEST PENN
POWER COMPANY, FIRST ENERGY
CORPORATION, TRANZSPORTER, TIE
DOWN ENGINEERING, INC., FAITH
ALLIANCE CHURCH, AND THE WESTERN
PENNSYLVANIA DISTRICT OF THE
CHRISTIAN AND MISSIONARY ALLIANCE
Appellees No. NO. 447 EDA 2014
Appeal from the Order Dated January 27, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): September Term, 2013 No. 1552
BEFORE: BOWES, J., OTT, J., AND STRASSBURGER, J.*
CONCURRING MEMORANDUM BY BOWES, J.: FILED DECEMBER 02, 2014
While I agree with the majority’s resolution of the first and fourth
issues that it addresses, I respectfully disagree with the majority’s position
that Appellant waived her right to contest the propriety of the trial court’s
decision to transfer venue herein. Majority Memorandum at 12. The record
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A21030-14
in this matter establishes that Appellant filed answers and briefs in
opposition to each of the defendant’s preliminary objections seeking transfer
of venue based upon the doctrine of forum non conveniens. In those briefs,
she outlined appropriate argument, referenced applicable legal authority,
and maintained that Appellees failed to establish the requisites for transfer
of this matter to Indiana County. In her briefs, Appellant raised the
averments presented as issues three, four, and five in her brief filed on
appeal and addressed as issues B and C by the majority. Those questions
therefore are not waived under Pa.R.A.P. 302(a).
Nevertheless, based upon the location of the accident, its distance
from Philadelphia, and the number of witnesses located 300 miles away from
Appellant’s chosen forum, I conclude that the trial court did not abuse its
discretion in transferring this lawsuit to Indiana County. Bratic v.
Rubendall, 99 A.3d 1 (Pa. 2014). Hence, I also would affirm and concur in
the result reached by the majority.
Judge Strassburger joins this Concurring Memorandum.
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