J-A06030-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LARRY A. LYTLE IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CONSOLIDATED RAIL CORPORATION
AND NORFOLK SOUTHERN RAILWAY
COMPANY
No. 1952 EDA 2014
Appeal from the Order Entered June 3, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): April Term, 2013 No. 04215
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED MARCH 24, 2015
Larry A. Lytle appeals from the order entered June 3, 2014, in the
Court of Common Pleas of Philadelphia County, transferring the action to
Blair County pursuant to forum non conveniens. In this timely appeal, Lytle
argues the trial court erred as a matter of law or manifestly abused its
discretion in determining his choice of venue was oppressive and vexatious
to Defendants Consolidated Rail Corporation and Norfolk Southern Railway
Company (collectively “Conrail”). After a thorough review of the submissions
by the parties, the relevant law, and the certified record, we affirm on the
basis of the sound reasoning of the trial judge, the Honorable Mark I.
Bernstein.
J-A06030-15
Briefly, Lytle worked for Conrail for more than 30 years, during which
time he claims he was exposed to dangerous chemicals and toxins, all or
some of which caused him to contract colorectal and liver cancer. At all
times relevant to this matter, Lytle worked in Blair County and never worked
in Philadelphia County. All known medical providers to Lytle are from Blair
County. Fact witnesses from Conrail are all from Blair County or adjoining
counties. Additionally, certain Conrail employees who are expected to testify
and attend the trial are subject to 24-hour-a-day call, which would be
impossible to maintain if the trial took place in Philadelphia.
Our standard of review is well-settled.
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.”
If there exists any proper basis for the trial court's decision to
transfer venue [pursuant to Pa.R.C.P. 1006(d)(1)], the decision
must stand. An abuse of discretion is not merely an error of
judgment, but occurs only where the law is 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 or the record.
Stoner v. Penn Kleen, Inc., 59 A.3d 612, 614 (Pa. Super. 2012) appeal
denied, 101 A.3d 787 (Pa. 2014) (citations omitted).
The standards for transferring a case based upon forum non
conveniens were announced in Cheeseman v. Lethal Exterminator, Inc.,
701 A.2d 156 (Pa. 1997). Relevantly, the party seeking change of venue
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must demonstrate with particularity, that plaintiff’s choice of forum is either
oppressive or vexatious.1 Id. at 162.
Application of the Cheeseman standard has recently been clarified by
our Supreme Court in Bratic v. Rubendall, 99 A.3d 1 (Pa. 2014). Bratic
emphasizes the fairness and practicality goals of forum non conveniens2 and
reiterates that the trial court decision must be reasonable in light of the
peculiar facts of the case.3 Bratic further recognizes that “interference with
one’s business and personal life caused by the participatory demands of a
distant trial is patent,” and requires no extra detail. Id. at 9. Essentially,
Bratic provides for a practical rather than formulaic approach to the
determination to transfer a case based upon inconvenient forum.
With the Cheeseman standard, as applied by Bratic, as our
touchstone, our review of the certified record demonstrates to us that the
trial court’s decision to transfer this matter to Blair County is supported by
the record.4 The trial court considered relevant matters and determined trial
____________________________________________
1
The oppressive or vexatious language was first used in Scola v. AC & S,
Inc., 657 A.2d 1234, 1241 (Pa. 1995), but Cheeseman formally adopted
oppressive or vexatious as the standard.
2
Bratic, 99 A.3d at 6.
3
Bratic, 99 A.3d at 7.
4
Factual determinations and conclusions found in the Pa.R.A.P. 1925(a)
opinion are supported by proper citations to the record.
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J-A06030-15
in Philadelphia County would prove unduly burdensome upon the defense
and their witnesses. The trial court determined said burden would be
substantially reduced by conducting the trial in Blair County. 5
Accordingly, the order transferring this matter to Blair County for trial
is affirmed. The parties are directed to attach a copy of the trial court’s July
9, 2013, Pa.R.A.P. 1925(a) opinion in the event of further proceedings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2015
____________________________________________
5
We note that in Bratic, the initial choice of venue was 100 miles distance
for the defense, which weighed heavily in favor of the trial court’s decision to
transfer the case. Instantly, the record reveals Philadelphia is 230 miles
from Blair County. Not only is this 2.3 times further than in Bratic, for
reference, we note it is more than twice the distance from Philadelphia to
New York, New York, and almost 100 miles further than Philadelphia to
Washington, D.C.
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IN TIlE COURT OF COMMON PLEAS
OF PHlLADELPHlA COUNTY
CIVIL TRIAL DIVISION
LARRYA. LYTLE APRIL TERM,201l
,\
Plaintiff.
v. NO. 04215
CONSOLIDATED RAIL CORPORATION,
and NORFOLK SOUTHERN RAIL WAY
COMPANY
Defendants.
OPINION
On April 29, 20 13 Larry A. Lytle filed a complaint against Consolidated Rail
Corporation and Norfolk Southern Railway Company pursuant to the Federal Employers'
LiabiJity Act, (FELA) Tide 4S U.S.C. §§SJ-60,' On May 7, 2014 defendants filed amotion to
uansfer venue to Blair County. Pennsylvania on the basis of Forum Non Conveniens pursuant to
PaR.c.p. JO06(d)(J). 2 On June J, 2014 that motion was granted? On June 18,2014 Plaintiff
filed a timely appeal. 4
Plaintiff. a resident of Blair Counti, was employed by defendant railroads and alleges
that he contracted illnesses while he was working as an employee of the defendants through his
exposure to various toxins. 6 Plaintiffalleges that this exposure lasted about 34 years. from the
beginning of his employment on or about June i, 1976 through September 3, 20]0. 7 Unlil
further discovery is completed it is impossible 10 know how many wilnesses will be needed.
1 .Plaintiff's
Complaint 111-4.
1 Motion [() Transfer. May 7. 2014
1 Ordu: Filed. June 6. 20 14.
• Notice of Appeal: June 18.2014. .
j Plaintiff's Complaint 11. Cambria County is adjacent 10 Blair County and is over four hours aWilY from
Philadelphia County.
, Pliint;ffs Complaint 116- 12.
7 PlalntJlrs Complaint UO.
1
II
COPIES SENT PURSUANT TO Pa.R.C.P. 236{b) T. TAYLOR 07/11/2014
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(':
Plaintiff alleges that such exposure caused him to develop colorectal cancer and liver cancer.'
Plaintiff further aUeges that defendants were engaged in interstate commerce as a common
carrier railroad. 9 When plaintiff was employed by defendants he worked exclusively in Blair
County. Pennsylvania. 10 Plaintiff has never worked for defendants in Phil~elphia County.
Pennsylvania."
Jon Freas is a former supervisor of plaintiff and will be used as a witness to "testify as to
the job duties and requirements of electricians and regarding thejob and safety training received
by electricians... 12 Freas resides iii Blair County, 230 mil es from the Philadelphia Court of
Common Pleas. I) Freas testified that it would take him four hours to conunute to Philadelphia
and that his 'employer would incur substantial expense and hardship due to his travel expenses
and absenee from work. I. Freas testified that a trial conducted in Blair County would reduce this
burden considerably. IS
None oftbe known supervisors that plaintiffhad throughout his railroad career reside in
1oS
Philadelphia County. PeMsylvania. Plaintiff's co-workers and supervisors who are expected to
testify are aJllocated in and around Blair County.17 If these employees are required to spend an
extended amount of time in Philadelphia as witnesses, their absences would be UJ)duty
G
11
burdensome to their employer. Peets. assistant manager of claims for Nonolk Southern
Corporati?n, testified that this bUrden and disruption 10 employers would be reduced
I Plaintiff's Complainl1! I.
I Plainlirrs Complaint 15.
III Plaintifrs Responses to Defendant's request for Admissions ,,1-3. May 7, 20 14.
II Plamtiff's Responses to Defendant's request for Admissions at 11.
II Affidavit of Jon Freas t14-5.
IJ Affidavit of}OfI Freas 16.
I. Affidavit ofJon Freas 17.
IJ Affidavit of Jon Freas 18.
I' Affidavit of Jacqueline Peets '14.
17 Affidavit of Jacquelme Peets 14.
I' Affidavit of JaCflueJine Peets 15.
2
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considerably by conducting the trial in Blair County.19 Peets also testified that Plaintitrs known
medical providers, including those persons who provided treatment to Plaintiff regarding the
instant alleged injury, are located in Blair County, Pennsylvania 20
A personal actio~ against a corporation or similar entity may be brought in the county
where the cause of action arose. 2 ! Therefore, Blair County is a proper venue. ''The right of a
plaintiff to choose a forum is not absolute.'.n The Court, f~r the convenience of parties and
witnesst:s may transfer an action to the appropriate court of any other county where the action
could originally have been brought, upon petition of any party.21 The trial court is vested with
discretion in detennining whethe~ or not to grant a petition to transfer venue Wlder Pa.R.C.P.
IOO6(d)."
In Cheeseman v. Lethal Exterminator. Inc. 25 tbe Pennsylvania Supreme Court staled that
a petition to transfer venue pursuant to Rule l006(d)(I) should not be granted unless the
d~fendant meets his burden of demonstrating, with detailed information on the record. that the
plaintiff's chosen forum is oppressive or vexatious to the defeodanl.2b If the defendant can show,
through detailed infonnation on the record, that the plaintiffs' choice of forum is oppressive or
vexatious, the case should be moved.
"Claims by the defendant in its petition that no significant aspect of the case involves the
chosen forum, and that litigating in another forum would be more convenient. .. do not amolUltto
a showing that the chosen forom is oppressive or vexarious.'027 However, the defendant ''may
.9 Affidavi! of Jacqueline Peets 'fi 1·6.
10 Affidavit of Jacquehne Peets 17.
11 Pa.R.G.P. 2179(a)(3).
21 Wi!ls V' Kaschak. 420 Pa.Supu. 5110 (1992).
l:t Pa.R.C.P. 10000dXI).
N See. Hosiery Corp. of Amerjca. Inc. y. Rich. 327 P.a..Suptr. 472 (J 984).
11 549 Pa. 200, 2J 4 (1997)
26 549 Pa.. 200,113 (1997).
2J 549 Pa. 2M, 214 (1997)
3
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..'.' .
meet this burden by establishing on the record that trial in the chosen forum is oppressive to him;
for instance, rhat trial in another county would provide easier access to witnesses and other
sources of proof.,,21 There is DO talismanic form of proof required. "All that is required is that
the moving party present a sufficient factual basis for tbe petition.,,29
g,!
Blair County is where the plaintiff worked for the defendants and where the alleged
exposure occurred for over thirty years. Plaintiff resides in Blair County. In the present ~e
defendants have shown through evidence on the record that .trial in Philadelphia County would
be unduly burdensome to their witnesses and their witnesses' employers. Defendams have also
shown thrpugh evidence on the record that trial in Blair 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 Blair County on the basis of Forum
NOH CQnveniens purstlant to Pa.R.C.P. IOOS(d)(l). For Jhe reasons set fortb above the judgment
should be affirmed.
Q
BY THE COURT.
'. )
1'M.
:If Wood v. BJ du Pont de Nemours and Co., 829 A.2d 707, 714 (pa. Super. 2(03).
4
()
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