J-S10037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MELVIN G. KEEFER IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CONSOLIDATED RAIL CORPORATION
AND NORFOLK SOUTHERN RAILWAY
COMPANY
Appellee No. 1955 EDA 2014
Appeal from the Order Entered June 8, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): August Term, 2013 No. 000168
BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 04, 2015
Appellant, Melvin G. Keefer, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which granted the motion of
Appellees, Consolidated Rail Corporation (“Conrail”) and Norfolk Southern
Railway Company, to transfer venue in this work-related personal injury
action under the Federal Employers’ Liability Act and the Locomotive
Inspection Act, from Philadelphia County to Cumberland County on the
ground of forum non conveniens. We affirm.
The trial court opinion sets forth the relevant facts and procedural
history of this case as follows:
On September [4], 2013, [Appellant] filed a complaint
against [Conrail] and Norfolk Southern Railway Company
_________________________
*Retired Senior Judge assigned to the Superior Court.
J-S10037-15
pursuant to the Federal Employers’ Liability Act, (FELA)
Title 45 U.S.C. §§ 51-60 and the Locomotive Inspection
Act, [49] U.S.C. § 20701 et seq. On May 1, 2014,
[Appellees] filed a motion to transfer venue to either
Cumberland County or Dauphin County on the basis of
Forum Non Conveniens pursuant to Pa.R.C.P. 1006(d)(1).
On June [8], 2014, that motion was granted and the action
was transferred to Cumberland County. On June 18, 2014
[Appellant] filed a timely appeal.
(Trial Court Opinion, filed July 11, 2014, at 1) (internal citations omitted).
The court did not order a concise statement of errors complained of on
appeal per Pa.R.A.P. 1925(b), and Appellant filed none.
Appellant now raises one issue for our review:
IN A MOTION TO TRANSFER VENUE BASED ON FORUM
NON CONVENIENS BY APPELLEES WAS THE TRIAL
COURT’S ORDER TRANSFERRING THE ABOVE ACTION TO
CUMBERLAND COUNTY AN ERROR OF LAW AND A
MANIFEST ABUSE OF DISCRETION WHEN APPELLEES
PRESENTED NO EVIDENCE OF ANY WITNESSES WHO WILL
BE VEXED OR OPPRESSED WITH THE TRIAL IN
PHILADELPHIA COUNTY AS OPPOSED TO CUMBERLAND
COUNTY?
(Appellant’s Brief at 3).
We review an order transferring an action on the basis of forum non
conveniens for an 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
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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).
Appellant argues Appellees failed to specify particular witnesses who
will appear at trial and whether trial in Philadelphia County would be
vexatious and oppressive to these witnesses. Appellant complains the trial
court did not apply the stringent test for transfer where the record lacks
evidence of hardship, vexation and oppression for Appellees. Appellant
states Congress gave him the right to sue Appellees anywhere they do
business. Appellant concludes the trial court erred when it transferred
Appellant’s case to Cumberland County on the ground of forum non
conveniens, and we should reverse the court’s transfer order and remand for
trial in Philadelphia County. We disagree.
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 v. Lethal Exterminator,
Inc., 549 Pa. 200, 209, 701 A.2d 156, 160 (1997)]; see
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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
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 vexatiousness 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
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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, ___ Pa. ___, 99 A.3d 1, 6-7 (2014). This Court
recently explained:
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 9. 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-draconian
consequences.” Id. at 10. 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 8-9.
Lee v. Thrower, 102 A.3d 1018, 1022-23 (Pa.Super. 2014).
Pennsylvania Rule of Civil Procedure 1006(d)(1) governs transfers on
the basis of forum non conveniens and provides: “for the convenience of
parties and witnesses, the court upon petition of any party may transfer an
action to the appropriate court of any other county where the action could
originally have been brought.” Pa.R.C.P. 1006(d)(1). “[A] petition to
transfer venue should not be granted, unless the defendant meets its burden
of demonstrating, with detailed information on the record, that the plaintiff’s
chosen forum is oppressive or vexatious to the defendant.” Cheeseman
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supra at 213, 701 A.2d at 162 (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) “that trial in another county would provide
easier access to witnesses or other sources of proof….” Id.
Instantly, the trial court reasoned:
[Appellant], a resident of Dauphin County, was employed
by [Appellee] railroads and alleges that he sustained
injuries while he was working as an employee of the
defendants due to unsafe and inadequate working
conditions. [Appellant] further alleges that [Appellees]
were engaged in interstate commerce as a common carrier
railroad. When [Appellant] was employed by [Appellees]
he worked exclusively in Enola, Pennsylvania, which is
located in Cumberland County. [Appellant] has never
worked for [Appellees] in Philadelphia County,
Pennsylvania.
Michael Weirich is a supervisor of [Appellant] and will be
used as a witness to testify, “as to Mr. Keefer’s job duties,
job requirements and safety training,” as well as to his
personal knowledge of [Appellant’s] work habits and
attitudes. Weirich resides and works in Cumberland
County, 112 miles from the Philadelphia Court of Common
Pleas. Weirich testified that it would take him
approximately two hours to commute to Philadelphia. Due
to this commute, Weirich would be required to miss
multiple days of work to testify. Weirich testified that his
employer would incur substantial expense and hardship
due to his travel expenses and absence from work.
None of the known supervisors that [Appellant] had
throughout his railroad career reside in Philadelphia
County, Pennsylvania. [Appellant’s] co-workers and
supervisors who are expected to testify are located in and
around Cumberland County. If these employees are
required to spend an extended amount of time in
Philadelphia, their absences would be unduly burdensome
to their employer. Rodney Tatum, Manager of
Occupational Claims for Norfolk Southern Corporation,
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testified that the disruption to the employee-witnesses’
employers would be reduced considerably by conducting
the trial in Cumberland County, Pennsylvania. Tatum
additionally testified that [Appellant’s] known primary
medical providers, including those who provided treatment
to [Appellant] regarding the instant alleged injuries, are
located in and around Cumberland, Pennsylvania.
A personal action against a corporation or similar entity
may be brought in the County where the cause of action
arose. Therefore, Cumberland County is a proper venue.
* * *
Cumberland County is where the [Appellant] worked for
[Appellees] and where the alleged injuries occurred.
[Appellant] resides in Dauphin County, adjacent to
Cumberland County. In the present case [Appellees] have
shown through evidence on the record that trial in
Philadelphia County would be unduly burdensome to their
witnesses and their witnesses’ employers. [Appellees]
have also shown through evidence on the record that trial
in Cumberland County would substantially reduce the
burden placed upon their witnesses and their witnesses’
employers. This evidence provides a sufficient factual
basis for the petition to transfer the case to Cumberland
County on the basis of Forum Non Conveniens pursuant to
Pa.R.C.P. 1006(d)(1). For the reasons set forth above the
judgment should be affirmed.
(Trial Court Opinion at 1-4) (internal citations omitted). We accept the
court’s analysis. Further, we recognize that the court said “no known
supervisors” of Appellant are from the Philadelphia area. The court did not
say “no witnesses” are from the Philadelphia area. Moreover, the court
accounted for the two-hour, one-hundred-twelve-mile distance between
Philadelphia and Cumberland County. Given the totality of the
circumstances, as well as the evidence and affidavits of record, Appellees
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showed the consequences of trial in Philadelphia would be vexatious and
oppressive enough to warrant transfer. We see no reason to disturb the
court’s decision to transfer this case to Cumberland County. See Bratic,
supra; Lee, supra. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/2015
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