J-A30006-15, J-A30017-15
2015 PA Super 274
STEPHANIE FESSLER, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
WATCHTOWER BIBLE AND TRACT
SOCIETY OF NEW YORK, INC., AND
CHRISTIAN CONGREGATION OF
JEHOVAH’S WITNESSES, INC. AND
SPRING GROVE CONGREGATION OF
JEHOVAH’S WITNESSES, INC. AND
TERRY JEANNE MONHEIM,
Appellees No. 106 EDA 2015
Appeal from the Order November 17, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): SEPTEMBER TERM, 2013, NO. 01293
____________________________________________________________
COREY SCOTT, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RENEE MENNA & WAWA, INC. D/B/A
WAWA
Appellee No. 820 EDA 2015
Appeal from the Order March 5, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): DECEMBER TERM, 2013, NO. 02055
BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-A30006-15, J-A30017-15
OPINION BY JENKINS, J.: FILED DECEMBER 30, 2015
These consolidated appeals1 involve the same issue: whether the trial
court in these civil actions abused its discretion by ordering transfer of venue
from Philadelphia County to another county under the doctrine of forum non
conveniens.
We hold that the trial court abused its discretion in both Fessler and
Scott by granting the defendants’ motions to transfer venue to York County
and Chester County, respectively, on the basis of forum non conveniens.
Our Supreme Court has made clear that courts should not transfer venue on
the basis of forum non conveniens unless the defendant demonstrates that
trial in the plaintiff’s chosen forum would be oppressive to the defendant. In
both Fessler and Scott, trial in Philadelphia would be, at most, merely
inconvenient to the defendants instead of oppressive.
Fessler
Stephanie Fessler alleges that between ages 14-16, she was sexually
abused by Terry Monheim, a middle-aged woman that she met through the
Spring Grove Congregation of Jehovah’s Witnesses (“Spring Grove”). The
misconduct allegedly took place either in York County, where the Spring
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1
Pursuant to Pa.R.A.P. 503, we consolidate these appeals because they
involve the same issue. We refer to Fessler v. Watchtower, et al. as
“Fessler” and to Scott v. Menna as “Scott”.
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Grove Congregation is situated, or in Maryland, where Monheim lived, less
than a half hour from the York County courthouse.
On September 11, 2013, Fessler commenced a civil action via writ of
summons in the Court of Common Pleas of Philadelphia County against
Watchtower Bible And Tract Society of New York, Inc. (“Watchtower”),
Christian Congregation Of Jehovah’s Witnesses, Inc. (“CCJW”), Spring
Grove2 and Monheim. The writ of summons listed Watchtower’s and CCJW’s
address as Patterson, New York. On February 18, 2014, Fessler filed a
complaint alleging that venue was proper in Philadelphia County because
Watchtower and CCJW regularly conduct business in Philadelphia. The court
overruled the Congregations’ preliminary objections alleging improper venue
and scheduled trial in Philadelphia for December 1, 2014.
On October 9, 2014, following the close of discovery, the
Congregations filed a Rule 1006(d)(1) motion requesting a transfer of venue
to York County on the ground that trial in Philadelphia would be oppressive.
The Congregations presented evidence that Fessler and Fessler’s parents,
who all expected to testify at trial, reside in York County. The Congregations
did not, however, offer evidence that traveling to Philadelphia would be
oppressive to these witnesses. The Congregations also submitted affidavits
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2
We will refer to Watchtower, CCJW and Spring Grove collectively as “the
Congregations”.
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from four church representatives who averred that (1) they lived in York
County or Maryland, more than 100 miles from Philadelphia,3 (2) they gave
depositions and expected to testify during trial, (3) they would have to
attend one or more days of trial, and (4) they would miss at least one
workday for every day they spent in Philadelphia. Further, the
Congregations attached Internet records indicating that Fessler’s former
therapist, an expected witness, works in York County. Lastly, the
Congregations asserted, upon information and belief, that family members of
the alleged abuser, Monheim, were expected to testify, and that they lived in
Maryland, less than thirty minutes from the York County courthouse.
Fessler opposed the Congregations’ motion to transfer, claiming that
York County has the largest backlog of any county in Pennsylvania, so
transfer to York County would be oppressive to Fessler. Fessler also assailed
the Congregations for waiting until after completion of discovery before
moving for transfer of venue, because it deprived Fessler of the opportunity
to conduct discovery on the alleged oppressiveness to defense witnesses.
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3
The four church representatives averred the following: Troy Ruhlman
averred that he lives 130 miles from downtown Philadelphia but only 20
miles from the York County courthouse. Neal Cluck averred that he lives
120 miles from downtown Philadelphia but less than 12 miles from the York
County courthouse. Eric Hoffman averred that he lives over 100 miles from
downtown Philadelphia but only ten miles from the York County courthouse.
Gary Neal averred that he lives over 100 miles from downtown Philadelphia
but only 21 miles from the York County courthouse.
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In addition, Fessler argued that the Congregations expected to call
four witnesses4 for whom Philadelphia was more convenient than York
County. Three of these witnesses, Fessler noted, live in Patterson, New
York, which is 156 miles from Philadelphia but 265 miles from York County.
The fourth witness, Hollingsworth, lived in Toms River, New Jersey, 61 miles
from Philadelphia but 164 miles from York County. The Congregations
responded that only two of these four witnesses are listed as witnesses in
the Congregations’ pretrial memorandum, and none of these witnesses
submitted affidavits averring that trial in York County would be inconvenient
for them.
On November 13, 2014, the Philadelphia court entered an order
transferring venue to York County. Fessler filed a timely appeal from this
order, and both Fessler and the Philadelphia court complied with Pa.R.A.P.
1925.
Scott
On December 16, 2013, Corey Scott, then a Chester County resident,
filed a complaint in the Court of Common Pleas of Philadelphia County
against Renee Menna, a Chester County resident, and Wawa, Inc. (“WaWa”)
for personal injuries allegedly sustained in an automobile accident in a Wawa
parking lot in Chester County. Scott filed his action in Philadelphia on the
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4
Richard Moake, Eric Sandoval, Thomas Jefferson, Jr., and Don
Hollingsworth.
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ground that Wawa has an agent for service of process in Philadelphia and
regularly conducts business in Philadelphia by operating five Wawa stores
(none of which were related to Scott’s accident). Neither Menna nor WaWa
filed preliminary objections alleging improper venue.
On April 23, 2015, Scott entered into a monetary settlement with
Wawa and discontinued his action against Wawa. On February 5, 2015,
Menna, the lone remaining defendant, filed a motion to transfer venue to
Chester County under the doctrine of forum non conveniens. Menna
asserted that trial in Philadelphia would be oppressive because she and Scott
resided in Chester County at the time of the accident, 5 the accident took
place in Chester County, Scott’s healthcare providers’ offices are in Chester
County, and Wawa, the only Philadelphia defendant, has been dismissed
from the case.
On March 2, 2015, the Philadelphia court entered an order transferring
venue to Chester County. Scott filed a timely appeal from this order, and
the Philadelphia court filed an opinion without requiring Scott to comply with
Pa.R.A.P. 1925.
Relevant Forum Non Conveniens Standards
Both of these interlocutory appeals involve the same issue: whether
the Philadelphia court properly exercised its discretion in granting a motion
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5
Scott moved to Philadelphia in November 2014.
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to transfer venue to another county under the doctrine of forum non
conveniens. We have jurisdiction over both appeals pursuant to Pa.R.A.P.
311(c), which permits an appeal as of right from an order in a civil action
changing venue.
Plaintiffs “have long been provided with the initial choice of the court
in which to bring an action, if that court has jurisdiction.” Bratic v.
Rubendall, 99 A.3d 1, 6 (Pa.2014). “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.” Id. “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.” Id.
In cases where venue is proper6 in the plaintiff’s chosen county,
Pa.R.Civ.P. 1006 provides a mechanism for seeking a transfer of venue to
another county on the basis of forum non conveniens. Rule 1006(d)(1)
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6
As stated above, the trial court in Fessler overruled the defendants’
objections to venue. The Rules of Appellate Procedure provide that when
the trial court sustains venue, an appeal may be taken as of right from this
order when (1) the plaintiff files an election to deem the order final within
ten days after the order, or (2) the court states in the order that a
“substantial” venue issue exists. Pa.R.A.P. 311(b). Otherwise, an objection
to venue “may be raised on any subsequent appeal in the matter from a
determination on the merits.” Pa.R.A.P. 311(g)(1)(i), (2).
The plaintiff in Fessler did not file an election deeming the order final; nor
did the trial court state in its order that a substantial venue issue exists.
Therefore, the venue issue in Fessler is not before us in this appeal.
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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.”
The two seminal decisions on the subject of forum non conveniens are
Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156 (1997), and
Bratic, supra. Cheeseman involved consolidated appeals of two tort
actions (a motor vehicle accident case and a medical malpractice case) in
which the Court of Common Pleas of Philadelphia County ordered transfer of
venue to Bucks County on the basis of forum non conveniens. Our Supreme
Court held in Cheeseman that the plaintiff’s choice of forum deserves
“weighty consideration”, and therefore the party seeking a change of venue
bears the burden of “demonstrat[ing], with detailed information on the
record, that the plaintiff’s chosen forum is oppressive or vexatious to the
defendant.” Id. at 162. For example,
the 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.
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Id. In a footnote, the Court added: “A transfer petition should not be a tool
by which a defendant may forestall litigation in the underlying case by
generating litigation concerning the transfer petition.” Id. at 162 n. 8.
The Court held that the orders to transfer the actions to Bucks County
constituted an abuse of discretion, because the trial court
improperly focused its decision on the balance between the
convenience of the alternate forum for both of the parties, when
weighed against the court’s administrative interest in clearing its
backlog. The trial court failed to hold the defendants to their
proper burdens of establishing, through detailed information in
the record, that the plaintiffs’ choice of forum is oppressive or
vexatious to the defendant.
Id.
More recently, in Bratic, our Supreme Court granted allowance of
appeal to further “clarify the requirements for transfers based on forum non
conveniens as expressed in Cheeseman.” Bratic, 99 A.3d at 6. Bratic
“reaffirm[ed] the Cheeseman standard” but held that “the showing of
oppression needed for a judge to exercise discretion in favor of granting a
forum non conveniens motion is not as severe as suggested by the Superior
Court’s post-Cheeseman cases.” Bratic, at 10. While “mere inconvenience
remains insufficient,” Bratic said, “there is no burden to show near-
draconian consequences.” Id. at 10.
Bratic instructs that consideration of the totality of circumstances is
critical to the proper resolution of a forum non conveniens question. No
single factor is dispositive. For example, the distance between the plaintiff’s
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chosen forum and the defendant’s desired forum “alone is not dispositive,
but it is inherently part of the equation …” Id., 99 A.3d at 9. The
interference that trial in a distant forum will cause to the personal and
professional lives of parties, witnesses and counsel is also relevant, but not
determinative. Id. The possibility of oppressiveness grows, however, with
each passing mile that witnesses must travel to reach the courthouse: “As
between Philadelphia and adjoining Bucks County … 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 10. Another
factor, the plaintiff’s residency, is “peripheral to the issue and insufficient to
warrant transfer”; nevertheless, “it is not error” for a trial court “to reflect
upon” whether “residence is probative of oppressiveness … so long as it is
not the sole reason for the judge’s decision.” Id. at 8. In addition, “public
interest” factors affecting the court’s own concerns, such as docket
congestion, are “not controlling,” because Rule 1006(d)(1) “speaks only in
terms of convenience to the parties and witnesses, not the courts.” Id. at 7,
8. But while congestion is not by itself decisive, it can still be relevant to a
finding of oppressiveness:
This is not to say court congestion is never a consideration —
access to justice is certainly a significant concern of our judicial
system, which means not only the ability to get into court, but to
have the court expeditiously address the matter — but
congestion is not sufficient in itself to justify a change of venue.
Ergo, if efficient resolution is precluded by uniquely disruptive
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court volume, it cannot be impermissible for the court to so
note, but only insofar as it bears on the ultimate consideration of
venue as oppressive or vexatious. That is, if the congestion
contributes to the oppressiveness of the chosen venue, it may be
considered, though we reiterate it is not a factor sufficient by
itself to warrant transfer …
Id. at 8 (emphasis added).
When ruling on a Rule 1006(d)(1) motion, 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.” Bratic, 99 A.3d at 7. Accordingly,
appellate courts review a trial court’s ruling on a motion to transfer for an
abuse of discretion. Id. 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 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). We must affirm a decision to transfer “[i]f
there exists any proper basis for the trial court’s decision[.]” Id. at 8.
“[S]tringent examination in isolation of each individual fact mentioned by the
trial court [is] inconsistent with the applicable standard of review.” Id.
Bratic’s application of these standards deserves close attention.
Rubendall, a Dauphin County attorney, represented two corporations in a
Dauphin County lawsuit against Bratic for tortious interference with contract.
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The trial court granted Bratic’s motion for summary judgment. Bratic then
sued Rubendall and the corporations (collectively “Rubendall”) in
Philadelphia County, alleging that the Dauphin County lawsuit constituted
wrongful use of civil proceedings and abuse of process. Rubendall filed
preliminary objections to Bratic’s amended complaint, and in a separate
motion, Rubendall moved to transfer the case to Dauphin County based on
forum non conveniens, arguing that the pertinent witnesses and evidence
were in Dauphin County, making depositions and trial in Philadelphia
oppressive for Rubendall and defense witnesses. Rubendall submitted
affidavits of seven witnesses, all of whom lived over 100 miles from
Philadelphia, stating that depositions and trial in Philadelphia “would be both
disruptive and a personal and financial hardship if [the witnesses] should be
called to testify,” because they “would have to incur substantial costs for
fuel, tolls and, if traveling overnight, for lodging and meals[, and for] every
day of deposition or trial in Philadelphia, [they] would be forced to take at
least one full day away from [work].” Bratic, 99 A.3d at 3-4.
The trial court granted Rubendall’s motion to transfer venue on the
ground of forum non conveniens.7 This Court, sitting en banc, reversed.
Our Supreme Court granted allocatur and held that the trial court acted
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7
Rubendall also filed preliminary objections claiming improper venue, but
the trial court did not explicitly rule on the preliminary objections. Bratic v.
Rubendall, 43 A.3d 497, 499 n. 1 (Pa.Super.2012) (en banc).
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within its discretion by granting Rubendall’s motion for transfer to Dauphin
County based on the totality of the evidence. Bratic, at 99 A.3d at 8. The
Supreme Court reasoned that “if we consider only [Rubendall’s] seven
affidavits, there exists a proper basis for the transfer.” Id. at 9 (citation
omitted). The Court explained:
The Superior Court noted six of the seven affidavits contained
identical language, which [Bratic] argue[s] were ‘plainly
inadequate’ because they failed to include ‘details of how the
affiant’s “duties” or business would be affected by trial in
Philadelphia, a[ ] claim that [Rubendall’s] businesses would be
seriously hampered or that the affiant’s job would be at stake, or
an[ ] averment that the affiant would not be reimbursed for
expenses he incurred in traveling to Philadelphia[.]’ … We are
unsure what extra detail must be enumerated — the interference
with one’s business and personal life caused by the participatory
demands of a distant lawsuit is patent. The witnesses need not
detail what clients or tasks will be postponed or opportunities
lost in order for the judge to exercise common sense in
evaluating their worth; indeed, no one can foretell such detail.
One hopes a judge may comprehend the existence of relevant
general disruption from the allegations in the affidavit,
sufficiently to rule on the issue.
Id. Although the distance between Philadelphia and Dauphin County alone
was not dispositive, it plainly was relevant, because
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 Superior Court speculated upon the eight witnesses, be they
employees or professionals, and the economic consequences as
to each is not of record, but it may be presumed without fear of
contradiction that to each of these people, time indeed is money,
and days of participating in trial in Philadelphia would impact
their ‘duties/operations[.]’
Id.
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Subsequent to Bratic, this Court has issued one published opinion
pertaining to forum non conveniens. See Lee v. Thrower, 102 A.3d 1018
(Pa.Super.2014). In Thrower, the plaintiff filed a personal injury action in
Philadelphia County based on a motor vehicle accident on the campus of
Penn State University in Centre County. Before the pleading stage
concluded, the defendants filed a motion to transfer venue to Centre County
on the basis of forum non conveniens. The trial court granted the
defendants’ motion to transfer, and this Court affirmed, reasoning:
[The defendants] 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. Several witnesses also detailed personal
obligations, such as childcare, that would make a multi-day trip
burdensome and disruptive.
Id., 102 A.3d at 1023. We observed that although “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,” it is also true that
travel beyond these counties … can be onerous … [T]ravel 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 [the defendants].
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Id. (emphasis in original).
Discussion
Guided by these decisions, we first address the trial court’s decision in
Fessler to grant the defendants’ motion to transfer venue from Philadelphia
to York County. The Congregations submitted affidavits from four defense
witnesses from York County asserting that trial in Philadelphia would be
oppressive for them, because they live more than 100 miles from downtown
Philadelphia, would miss at least one day of work if they had to testify in
Philadelphia, and would miss more worktime if they had to stay overnight in
Philadelphia before testifying. At first glance, this strategy seems identical
to the strategy that the defendants in Bratic and Thrower used
successfully. Upon closer inspection, however, the present case differs from
Bratic and Thrower in several important respects, and the trial court failed
to give appropriate weight to these distinctions.
The defendants in Bratic and Thrower filed motions to transfer
venue, supported by affidavits, during the pleadings stage of the case,
before commencement of depositions. The prompt filing of the defense
witnesses’ affidavits bolstered the credibility of their claims that trial in
Philadelphia would be oppressive. Further, the plaintiffs in Bratic and
Thrower failed to counter the defendants’ motions with evidence that trial
outside of Philadelphia would be more oppressive than trial in Philadelphia.
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Here, in contrast, the Congregations delayed filing their motion to
transfer and supporting affidavits from four witnesses until the eve of trial --
after the witnesses had appeared without objection for their depositions in
Montgomery County, just twenty miles from Center City Philadelphia.
Moreover, the Congregations asked the trial court to transfer venue to York
County, which, as the plaintiff pointed out, has the largest civil case backlog
in Pennsylvania. Transfer to York County could significantly delay trial, a
troubling possibility given that trial was scheduled to begin in Philadelphia
just two weeks after the court granted the Congregations’ motion for
transfer. Finally, the plaintiff showed that trial in York County would be
more oppressive to defense witnesses from New Jersey who lived
approximately 100 miles further from York County than from Philadelphia.8
Although the trial court determined that trial would be more convenient for
witnesses in York County than in Philadelphia, Trial Court Opinion at 2, 3, it
failed to take into account the greater inconvenience that York County poses
for the New Jersey defense witnesses.
The facts strongly suggest that the motion to transfer venue was the
product of bad-faith collaboration between the Congregations and the four
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8
The Congregations contend that there is no proof that its New Jersey
witnesses will suffer oppression because they did not submit affidavits
alleging oppression. It stands to reason, however, that these witnesses will
suffer oppression, because the distance to York County from their New
Jersey residences is about 100 miles more than to Philadelphia.
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York County witnesses. The willingness of the York County witnesses to
testify in Montgomery County shows that they will not suffer oppression by
traveling twenty additional miles to Philadelphia for trial. The Congregations’
motion for transfer was not to avoid oppression - indeed, trial in York County
will oppress their own New Jersey witnesses - but was a last-minute gambit
to delay trial.
In the final analysis, the Congregations have used their transfer
petition as “a tool [to] forestall litigation in the underlying case by
generating litigation concerning the transfer petition,” the abusive tactic
warned against in Cheeseman. Id. at 162 n. 8. We conclude that the trial
court abused its discretion by transferring venue from Philadelphia to York
County.
We turn to Scott, which, as detailed above, is a personal injury action
arising out of a motor vehicle accident in Chester County. The plaintiff and
defendant Menna resided in Chester County at the time of the accident. The
other defendant, WaWa, regularly conducts business and accepts service of
process in Philadelphia, but WaWa was dismissed from the case via
settlement. Following this settlement, the trial court granted Menna’s
motion to transfer the case to Chester County on the basis of forum non
conveniens.
These facts are similar to the evidence in Zappala v. James Lewis
Group (“Zappala II”), 982 A.2d 512 (Pa.Super.2009). There, the plaintiff,
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a Delaware County resident, filed a personal injury action in Philadelphia
following an accident at a Chester County construction site. The plaintiff
named multiple Chester County and Philadelphia parties as defendants. The
trial court granted summary judgment to the Philadelphia parties on the
ground that they had no ownership interest or other responsibility in the
land where the accident occurred. The Chester County defendants moved
for transfer of venue to Chester County under Rule 1006(d)(1), and the trial
court granted their motion.
This Court reversed. Citing Zappala I and Cheeseman, we
distinguished between “proper” forum shopping, in which the plaintiff seeks
a certain forum because it is “closer to the office of plaintiff’s attorney, or
closer to a transportation center,” and “improper” forum shopping, which
occurs “when a plaintiff manufactures venue by naming and serving parties
who are not proper defendants to the action for the purpose of manipulating
the venue rules to create venue where it does not properly exist.” Zappala
II, 982 A.2d at 521. When the plaintiff engages in improper forum
shopping, “the trial court may interfere with the plaintiff’s choice of forum on
forum non conveniens grounds.” Id. We held:
[W]e read Zappala I, in light of Cheeseman, to require that
when, as here, the defendants that provided the basis for
plaintiff’s choice of forum are subsequently dismissed from the
case, the remaining defendants who seek transfer pursuant to
Pa.R.C.P. 1006(d)(1) have the burden of proving that the
plaintiff’s inclusion of the dismissed defendants in the case was
designed to harass the remaining defendants.
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This burden is in keeping with the standard established by
Cheeseman: ‘[T]he defendant may meet its burden of showing
that the plaintiff’s choice of forum is vexatious to him by
establishing with facts of record that the plaintiff’s choice of
forum was designed to harass the defendants, even at some
inconvenience to the plaintiff himself.’ Cheeseman [], 701 A.2d
at 162. Zappala I likewise held that a plaintiff whose strategy
was to name inappropriate defendants for the purpose of
establishing venue in a chosen forum are open to a challenge to
the forum pursuant to 1006(d)(1): ‘... We disapprove of
[improper] forum shopping and explain in detail that a defendant
aggrieved by such strategy has recourse through ... forum non
conveniens in accord with Rule 1006(d)(1)....’ Zappala I, [] 909
A.2d at 1286 n. 14 (emphasis added).
Id. (emphasis in original). “The mere fact that the Philadelphia County
Defendants were dismissed by unopposed summary judgment motions does
not establish that [the plaintiff] engaged in improper forum shopping,” we
reasoned, for “[i]f dismissal by stipulation or unopposed summary judgment
motions of the forum establishing defendants was the sole requirement for
establishing improper forum shopping, the Cheeseman requirement of
proof that the plaintiff chose a forum ‘designed to harass’ the defendant
would be obliterated.” Id. at 524. We concluded: “Given the total lack of
an evidentiary record in this case (as required by Cheeseman), we are
unable to review, let alone affirm, the trial court’s finding that [the plaintiff]
engaged in improper forum shopping by her inclusion of the Philadelphia
County Defendants in her lawsuit.” Id. at 525.
Here, as in Zappala II, there is no evidence of record that Scott
joined the Philadelphia-based defendant, WaWa, for the sole or primary
purpose of harassing Menna. To the contrary, the fact that WaWa paid Scott
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a monetary settlement indicates that Scott had a good faith basis for suing
WaWa and thus had a legitimate reason for selecting Philadelphia as the
forum for litigation.
Moreover, it will not be an excessive burden for Menna to drive to
Philadelphia for trial. Chester County is approximately 40 miles from
downtown Philadelphia, only about one-third of the distance that the York
County witnesses must travel in Fessler. Travel from Chester County is
“mere[ly] inconvenien[t]” instead of oppressive. Bratic, 99 A.3d at 10; see
also Raymond v. Park Terrace Apartments, Inc., 882 A.2d 518, 521
(Pa.Super.2005) (“since the Cheeseman decision was filed, this Court has
been reluctant to transfer cases from Philadelphia to the surrounding
counties based on forum non conveniens …. in reality, traveling from
Delaware, Bucks, Montgomery or Chester County to Philadelphia is not
particularly onerous”). Thus, as in Fessler, the record in Scott does not
justify transfer of venue out of Philadelphia.
Order at 106 EDA 2015 reversed and remanded for further
proceedings. Order at 820 EDA 2015 reversed and case remanded for
further proceedings. Jurisdiction relinquished in both cases.
Judge Mundy joins in the Opinion.
Justice Fitzgerald concurs in the result.
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J-A30006-15, J-A30017-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2015
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