Rutter's, Inc. v. Ritchey, D.

J-A24002-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID RITCHEY AND HOLLY : IN THE SUPERIOR COURT OF
RITCHEY : PENNSYLVANIA
:
V. :
:
RUTTER'S INC., RUTTER'S HOLDING, :
INC, AND CHR CORPORATION AND :
GENERAL MOTORS COMPANY, :
SUPREME CORPORATION, JIFFY : No. 2219 EDA 2020
LUBE INTERNATIONAL, INC., :
KATHLEEN SWEIGART, AND KEITH :
MCNAUGHTON, JR. :
:
:
APPEAL OF: RUTTER'S INC.,
RUTTER'S HOLDING, INC, AND CHR
CORPORATION

Appeal from the Order Entered September 15, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 190801527

BEFORE: LAZARUS, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 29, 2022

Defendants, Rutter’s Inc, Rutter’s Holding, Inc., and CHR Corporation

(collectively, Rutter’s) appeal from the trial court’s order1 denying their motion

to transfer venue, from Philadelphia County to either Cumberland County or

York County, on the basis of forum non conveniens. See Pa.R.C.P.

1006(d)(1). After careful review, we affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 See infra at 6 (discussing our Court’s grant of Rutter’s petition for review of
interlocutory order denying change of venue).
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Plaintiffs, David and Holly Ritchey (h/w) (collectively, the Ritcheys),

reside in Mechanicsburg, Cumberland County. Rutter’s is a Pennsylvania

corporation that has its principal place of business in York, Pennsylvania, and

regularly conducts business in Philadelphia. On October 4, 2017, near the

intersection of Slate Hill Road and Appleton Street in Lower Allen Township,

Cumberland County, David Ritchey sustained personal injuries when a GMC2

truck, owned by Rutter’s and operated by a Rutter’s employee,3 stopped

quickly to make a left-hand turn.4 As a result of the truck’s abrupt stop, Mr.

Ritchey lost control of and was thrown from his motorcycle. Mr. Ritchey

sustained catastrophic and permanent injuries, including, but not limited to, a

traumatic brain injury, fractured bones and ribs, vision loss, severe

headaches, and cognition and memory loss.

Immediately after the accident, Mr. Ritchey was airlifted to Penn State

Health Milton S. Hershey Medical Center (Hershey), in Dauphin County, for

____________________________________________

2 On September 19, 2019, the parties stipulated that General Motors, LLC
(GM) “shall be substituted in as a defendant in this matter in place of General
Motors Company.” Stipulation, 9/19/19, at ¶ 1. GM is the manufacturer of
the Rutter’s truck.

3At the time of the accident, Zachary Houseknecht was driving the Rutter’s
vehicle in which Garrett Ebersole was a passenger.

4 The Rutter’s truck was three vehicles ahead of Mr. Ritchey’s motorcycle at
the time of the accident. The two vehicles between Mr. Ritchey’s motorcycle
and the Rutter’s truck were operated by additional Defendants, Kathleen
Sweigert and Keith McNaughton. See infra at 4.

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emergency medical care. After being released from Hershey, Mr. Ritchey

received post-accident medical care for approximately three months at

Jefferson University Hospital and Magee Rehabilitation Hospital (Magee), both

located in Philadelphia. In March and April 2018 and, again, in January and

February 2019, Mr. Ritchey received rehabilitative care at Messiah Lifeways,

which is located in Cumberland County.

On August 14, 2019, the Ritcheys filed a multi-count complaint against

Defendants5 in Philadelphia County. In their complaint, the Ritcheys raised

claims of negligence against Rutter’s, Jiffy Lube, GM and Supreme

Corporation6 (Supreme) (Counts I-III), strict products liability against GM and

Supreme (Count IV), and breach of express and implied warranties against

____________________________________________

5 Supreme allegedly installed the body of the Rutter’s truck, which included
the allegedly defective brake lights. Defendants Supreme and Jiffy Lube filed
preliminary objections to the Ritchey’s complaint. The Ritcheys alleged,
among other claims, that GM and Supreme had negligently designed,
manufactured, assembled, distributed, sold, or supplied the subject GM truck,
which could not be safely used as intended. Ritchey Complaint, 8/14/19, at
¶¶ 34-36. The Ritcheys also alleged that Jiffy Lube negligently performed
maintenance upon and or/inspected the subject truck, including failing to
ensure that the truck’s rear brake light was operable. Id. at ¶¶ 29-32. Finally,
the complaint alleged that Supreme and Jiffy Lube sold a dangerously
defective product.

The court granted, in part, Jiffy Lube’s preliminary objections striking, without
prejudice, any allegations the Ritcheys made regarding recklessness, reckless
conduct, and related claims for punitive damages. The court overruled the
remainder of Supreme’s and Jiffy Lube’s preliminary objections.

Jiffy Lube was ultimately dismissed, without prejudice, from the underlying
lawsuit on August 12, 2020.

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GM and Supreme (Count V).7 The Ritcheys alleged that the Rutter’s truck

“was equipped with an unreasonably dangerous and defectively designed rear

brake light apparatus that failed to effectively warn vehicles travelling behind

the truck of sudden stops.” Ritchey Complaint, 8/14/19, at ¶ 19. On

November 22, 2019, Rutter’s filed an answer and new matter, including cross-

claims. The Ritcheys filed a reply to Rutter’s new matter.

On December 27, 2019, Rutter’s and CHR Corporation moved to join, as

additional Defendants, Kathleen Sweigert and Keith McNaughton—the

individuals who allegedly operated the two other motor vehicles traveling

between Mr. Ritchey’s motorcycle and the Rutter’s truck when the incident in

question occurred. See Motion for Leave to File Joinder Complaint, 12/27/19,

at ¶ 5; see also Pa.R.C.P. 2253 (joinder of parties). On January 22, 2019,

the court granted the motion and permitted Rutter’s to file a joinder complaint

against Sweigert and McNaughton. Rutter’s filed its joinder complaint on

January 28, 2019, and, after being served, Sweigert and McNaughton were

joined in the case.8

____________________________________________

7Holly Ritchey, in her own right, filed a loss of consortium claim against all
Defendants. See Ritchey Complaint, 8/14/19, at ¶¶ 50-52.

8On March 12, 2020, additional Defendant Sweigert filed an answer and new
matter to the joinder complaint. Additional Defendant McNaughton filed his
answer and new matter and new matter cross-claim on October 20, 2020.

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On March 16, 2020, Rutter’s filed a motion to transfer venue, based

upon Rule 1006(d)(1); GM, Jiffy Lube, and Supreme joined in the motion to

transfer. In the motion, Rutter’s alleged that the case should be transferred

from Philadelphia County to either Cumberland County or York County for the

convenience of the parties and witnesses, where: the underlying accident

occurred in Cumberland County; none of the parties is domiciled or maintains

its principal places of business in Philadelphia County; and an overwhelming

number of witnesses are located in or adjacent to Cumberland County or York

County and “would suffer significant hardship and inconvenience if forced to

travel more than 100 miles (each way) to Philadelphia County for depositions

and trial.” Appellants’ Brief, at 7. To support its motion to transfer venue,

Rutter’s attached 20 witness affidavits wherein each affiant attested to the

fact that venue in Philadelphia County would be a “great hardship due to

personal, family, and employment responsibilities and would otherwise be

extremely inconvenient.”

The Ritcheys filed a motion opposing the motion to transfer; Rutter’s

filed a reply to the Ritcheys’ opposition motion. Between June and July of

2020, the parties conducted several remote depositions9 for purposes of the

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9 These depositions were held remotely via Zoom from the affiants’
Cumberland County and York County residences or places of business. Cf.
Hoose v. Jefferson Home Health Care, Inc., 754 A.2d 1 (Pa. Super. 2000)
(stating defendant’s consistent appearance in chosen forum for purposes
(Footnote Continued Next Page)

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transfer motion. In addition, the parties filed supplemental briefs on the issue.

On July 30, 2020, the trial court denied Rutter’s motion to transfer without

holding a hearing or issuing an opinion.

On September 15, 2020, Rutter’s filed a petition for permission to

amend the July 30, 2020 order to include language certifying the interlocutory

order for immediate appeal. See Pa.R.A.P. 312, 1311(b); 42 Pa.C.S. §

702(b). The trial court denied the motion.10 Although the trial judge did not

initially author a Rule 1925(a) opinion, in an order denying Rutter’s petition

for permission to appeal, the Honorable James Crumlish, III, “provided the

salient factors that [he] considered in exercising [hi]s discretion” to deny

Rutter’s petition to transfer venue, stating:

1. The [c]ourt took into consideration the location of potential witnesses,
their relationships to the parties and the availability of alternatives to
in[-]person discovery and in[-]court testimony to alleviate
____________________________________________

of pre-trial procedures and discovery is legitimate consideration weighing
against defendant’s claim of oppressive or vexatious forum).

10 In its order denying Rutter’s motion to amend the trial court’s July 30, 2020
interlocutory order, the court stated that the instant matter did not involve a
controlling question of law for which there was a substantial ground for
difference of opinion and that an immediate appeal from the interlocutory
order would not materially advance the ultimate termination of the matter,
noting that it had

fully consider[ed] the thorough briefing of the parties . . .
consider[ed] the pled [c]omplaint [and the] identity of the claimed
witnesses[,] and the failure of [Rutter’s] to disclose the lengthy
treatment that [Mr. Ritchey] received at medical facilities in
Philadelphia County relating to [Mr. Ritchey’s] claimed injuries[.]

Order, 9/15/20.

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inconvenience to witnesses, methods the [c]ourt itself has sought to
perfect during the emergence from [the pandemic] shutdown;

2. The [c]ourt further considered the extensive treatment that Plaintiff
David Ritchey received at medical facilities in Philadelphia, treatment
that was not disclosed in Defendants’ moving papers, and treatment
that provides more than an inconsequential or coincidental connection
to this jurisdiction;

3. The [c]ourt considered the nature of the injuries suffered by Plaintiff and
the substantial likelihood that both the liability and damages phases of
the case would require a significant number of experts, individuals for
whom neither Philadelphia nor York [n]or Cumberland County would be
a convenient forum;

4. The [c]ourt considered [] the (even if remote) possibility Defendants’
motivation or the transfer amounted to forum shopping to a jurisdiction
with a lower verdict potential; and

5. [T]he [c]ourt took into consideration these factors in addition to the
arguments of the parties and concluded that, in its discretion,
Defendants had not met their burden to show that Plaintiffs’ choice of
forum was vexatious, oppressive, or overly burdensome to Defendants.

Order, 11/4/20, at 1-2.

On November 13, 2020, Rutter’s filed a petition for review in this Court,

see 42 Pa.C.S.A. § 5571(d); Pa.R.A.P. 1311, and an application for stay, both

of which our Court granted on December 10, 2020. See Per Curiam Order,

12/10/20. In its appellate brief, Rutter’s raises the following issue for our

consideration:

Whether the [trial] court abused its discretion and/or committed
an error of law in failing to follow the legal standard for
transferring venue based on forum non conveniens established by
the Pennsylvania Supreme Court in Cheeseman v. Lethal
Exterminator, Inc., [] 701 A.2d 156 (Pa. 1997), and Bratic v.
Rubendall, [] 99 A.3d 1 ([Pa.] 2014), where the “totality of the
circumstances” overwhelmingly support transfer of venue.

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Appellants’ Brief, at 4.

On March 24, 2022, this panel remanded the matter to the trial court

“for the preparation of a complete Rule 1925(a) opinion, wherein it [was to

weigh[] all the relevant factors,[] including the averments in the twenty

detailed affidavits offered by the defense, appl[y] Bratic to the facts of this

case, and give[] due consideration to the significance of the distance between

the forum county and the transfer counties, Cumberland and York, in this

matter.” Ritchey v. Rutter’s Inc., No. 2219 EDA 2020, at *18 (Pa. Super.

filed March 24, 2022) (unpublished memorandum decision). On May 2, 2022,

the trial court filed an 11-page Rule 1925(a) opinion discussing its reasons for

denying Defendants’ motion to transfer. Specifically, the court found that the

20 affidavits represented a superficial[,] forced showing of inconvenience,”

and that “the witnesses[’] statements indicate that any interruption of their

daily activities to attend a trial anywhere represents a hardship, with the

additional distance enhancing the time required to participate[, and that

d]istance, alone, as an abstract factor[,] is an insufficient basis upon which to

transfer this matter.” Rule 1925(a) Opinion, 5/2/22, at 10-11. The court also

mentioned that using the “tools available to the court,” id. at 10, convenience

may be achieved without witnesses having to travel the long distance from

York or Cumberland County to Philadelphia. The parties submitted

supplemental briefs after the court issued its Rule 1925(a) opinion on remand.

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On August 23, 2022, this Court heard reargument on the transfer issue. The

matter is now ripe for disposition.

It is well established that “a plaintiff’s forum choice should be ‘rarely . .

. disturbed[;]’ [it] is entitled to great weight, and must be given deference by

the trial court[, but it] is not absolute or unassailable.” Powers v. Verizon

Pa., LLC, 230 A.3d 492, 496 (Pa. Super. 2020) (quotation omitted). In ruling

on a petition to transfer venue pursuant to Rule 1006(d)(1), a trial court is

“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.

“Thus, the party seeking a change of venue bears a heavy burden in justifying

the request, and it has been consistently held that this burden includes the

demonstration on the record of the claimed hardships.” Okkerse v. Howe,

556 A.2d 827, 832 (Pa. 1989). The moving party must “present a sufficient

factual basis for the petition[, and t]he trial court retains the discretion to

determine whether the particular form of proof presented in support of the

petition is sufficient.” Wood v. E.I. du Pont de Nemours & Co., 829 A.2d

707, 714 (Pa. Super. 2003) (en banc).

On appeal, we will only reverse a trial court’s decision as to the transfer

of venue if the trial court abused its discretion. Cheeseman, supra at 159.

“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

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manifestly unreasonable, or the result of partiality, prejudice, bias[,] or ill will,

as shown by the evidence o[f] the record.” Bratic, supra at 7 (citation

omitted). “[W]here the record does not reflect an abuse of discretion by the

trial court, the Superior Court may not disturb a trial court’s discretionary

ruling by substituting its own judgment for that of the trial court.” Polett v.

v. Public Communs., Inc., 126 A.3d 895, 923 (Pa. 2015).

Pennsylvania Rule of Civil Procedure 1006(d)(1)11 provides:

For the convenience of the 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) (emphasis added). “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.’” Okkerse, supra at 832. However, a plaintiff’s choice of forum

is generally controlling and “should rarely be disturbed by the grant of a Rule

1006(d)(1) petition.” Moody v. Lehigh Valley Hosp.-Cedar Crest, 179

A.3d 496, 507 (Pa. Super. 2018). “Moreover, the term forum non conveniens

is actually a misnomer because inconvenience is not enough reason to transfer

venue. The plaintiff’s choice of forum must be either vexatious, i.e., intended

to harass, or so oppressive as to require transfer.” Id. (citation omitted).

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11In its reply brief, Rutter’s specifically notes that it has only ever challenged
venue based upon Rule 1006(d)(1). Appellee’s Reply Brief, at 9 (“Rutter’s
Defendants never challeng[ed] the propriety of venue in Philadelphia County
under Rule 1006(e) of the Pennsylvania Rules of Civil Procedure[.]”).

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Cheeseman, supra, is the seminal case in which our Supreme Court

set forth a defendant’s burden to successfully change venue of a case based

on the doctrine of forum non conveniens:

[T]he defendant may meet its burden of showing that the
plaintiff’s choice of forum is vexatious to him by establishing with
facts on the record that 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 on the record that 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 [the] 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 162 (citation omitted). Later, in Bratic, supra, our Supreme Court

clarified the level of “oppression” needed for a trial court to grant a change of

venue based on forum non conveniens. Specifically, the Bratic Court

reaffirmed Cheeseman’s holding that “[m]ere inconvenience remains

insufficient” to grant a venue change, but further stated that “there is no

burden to show near-draconian consequences.” Bratic, 99 A.3d at 21; id. at

7-8 (in seeking transfer under Rule 1006(d)(1), defendant must

“demonstrate[],with detailed information on the record,” that chosen forum is

oppressive or vexatious, not merely inconvenient). See Wood, supra at 712

(important considerations when measuring oppressiveness are: relative ease

of access to witnesses or other sources of proof; availability of compulsory

process for attendance of unwilling, and the cost of obtaining willing,

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witnesses; costs associated with witnesses’ attendance; and ability to conduct

view of premises involved in dispute).

Rutter’s insists that this case is controlled by Bratic. In Bratic, Plaintiffs

instituted a lawsuit in Philadelphia County for wrongful use of civil proceedings

and common-law abuse of process claims based on a previously-dismissed

tortious interference lawsuit that had been brought in Dauphin County. Id.

at 3. Defendants petitioned to transfer venue of the wrongful use/abuse of

process case to Dauphin County, pursuant to Rule 1006(d)(1), based on forum

non conveniens. Id. In their petition, Defendants alleged that the pertinent

witnesses and evidence were located in Dauphin County, that taking witness

depositions would be a hardship if they occurred in Philadelphia County, and

that trial in Philadelphia County would also prove to be a hardship as the venue

was more than 100 miles from Dauphin County. Id. at 4. To support their

petition, Defendants provided seven affidavits from potential witnesses, all of

whom lived more than 100 miles from Philadelphia. Id. Each witness stated

in his or her affidavit that having trial in Plaintiffs’ chosen forum

would be both disruptive and a personal and financial hardship if
[he or she] should be called to testify at deposition or trial’
because he or she ‘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, [he or she] would
be forced to take at least one full day away from [work].

Id.

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Relying on Cheeseman, the trial court in Bratic granted Plaintiffs’

petition to transfer venue for the following reasons: (1) the prior lawsuit took

place in Dauphin County; (2) all Defendants were from Dauphin County; (3)

each of Defendants’ eight witnesses lived more than 100 miles from

Philadelphia County and was “engaged in business activities [that] make their

ability to appear at trial in Philadelphia County far more of a burden than a

trial in Dauphin County;” and (4) the only connection with Philadelphia County

was the fact that all Defendants occasionally conducted business there.

Bratic, 99 A.3d at 4. On appeal, a three-judge panel affirmed the trial court’s

order transferring the case to Dauphin County. See Bratic v. Rubendall,

No. 2413 EDA 2009 (Pa. Super. filed Jan. 14, 2011) (now-withdrawn

unpublished memorandum decision). A divided Court en banc reversed the

panel decision, finding that Defendants did not meet the burden of

demonstrating that trial in the Plaintiffs’ forum “would be oppressive or

vexatious,” noting that the trial court relied on irrelevant factors (Plaintiffs’

putative inconvenience; prior lawsuit having been brought in Dauphin County;

Defendants’ sole connection to Philadelphia County is occasional business; and

site of precipitating event occurred outside of Philadelphia County) and that

Defendants “ha[d] not offered particularized averments sufficient to satisfy

their burden as required by Cheeseman and its progeny.” Bratic, 99 A.3d

at 5.

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Our Supreme Court granted the Defendants’ petition for allowance of

appeal and ultimately concluded that the trial court, after considering the

totality of the evidence, had properly transferred the case. Id. at 8. The

Court pointed out that the trial court was correct in not considering court

congestion where it would not have borne on the ultimate consideration as to

whether the chosen venue was oppressive or vexatious. Id. Moreover, the

Supreme Court found that the affidavits presented by the defense did not lack

the requisite detail to illustrate how businesses would be affected by trial in

Philadelphia, where “the interference with one’s business and personal life

caused by the participatory demands of a distant lawsuit is patent,” id. at 9,

especially where the case involves a transfer from Philadelphia to a more

distant county, like Dauphin. While the Court noted that “distance alone is

not dispositive, . . . it is inherently a part of the equation.” Id. (“Dauphin

County . . . is not a neighbor of Philadelphia, and one needs no detailed

affidavit to understand the difference in logistics necessitated by a separation

of 100 miles.”); id. at 10 (affidavits demonstrating trial 100 miles away is

manifestly troublesome). Ultimately, the Supreme Court reaffirmed 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.” Id.

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Similar to the defendant in Bratic, Rutter’s argument is based on an

allegation that trial in Philadelphia County would be oppressive where

plaintiff’s chosen forum is more than 100 miles from York County and

Cumberland County. See Cheeseman, 701 A.2d at 162 (in addition to

proving vexatiousness, defendant may meet burden to transfer venue under

Rule 1006(d)(1), alternatively, by “establishing on the record that trial in the

chosen forum is oppressive to him”). Thus, in order to successfully transfer

the case, Rutter must demonstrate “with detailed information on the record,

that [the Ritcheys’] chosen form is oppressive or vexatious to [Rutter’s].” Id.

In their response to Rutter’s motion to transfer, the Ritcheys note that

“[n]othing contained in [Defendants’] affidavits comes close to ‘detailed

information’ that venue in Philadelphia is oppressive or vexatious” and that

“[Rutter’s argument] that the location of the alleged personal injury and a

majority (if not all) of the prospective witnesses work or reside in Cumberland

County . . . is unequivocally ‘not the type of record evidence that proves

litigating the case in the chosen forum is oppressive and vexatious.’”

Response in Opposition to Plaintiffs’ Motion to Transfer, 5/5/20, at 11-12

(emphasis in original). Cf. Powers v. Verizon Pa., L.L.C., 230 A.3d 492,

500 (Pa. Super. 2020) (where plaintiff failed to dispute, with particularity,

defendant’s averments in petition to transfer, defendant “effectively admitted

those averments”).

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Instantly, Rutter’s supported its motion to transfer with twenty affidavits

from potential witnesses, many of whom aver that trial in Philadelphia would

be oppressive and a “great hardship.” See Bratic, supra. The Ritcheys

countered Rutter’s motion with additional deposition testimony from two

potential witnesses stating that trial in Philadelphia would not be oppressive.

See Fessler v. Watchtower Bible & Tract Soc’y of N.Y. Inc., 131 A.3d

44, 52 (Pa. Super. 2015). However, at least two other witnesses testified

during their depositions that travel would be oppressive and more than

burdensome, citing the COVID-19 pandemic,12 civil unrest, increased work

obligations, and childcare needs as reasons for the now-apparent burden. See

Bratic, supra at 9 (holding “when the case involves a transfer from

Philadelphia to a more distant county, factors such as the burden of travel,

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12 Although not precedential, we note that the COVID-19 pandemic came into
play in the context of forum non conveniens in Favire v. CONRAIL, 2021 Pa.
Super. Unpub. LEXIS 2554, *17 (No. 1757 EDA 2020) (Pa. Super. filed Sept.
21, 2021) (unpublished memorandum decision), where our Court stated:

In that same vein, the court considered the administrative
difficulties associated with maintaining this action in Philadelphia
concurrent with the COVID-19 pandemic, maintaining that
COVID-19 has “strained the Philadelphia court system,” which is
the largest trial court system in the Commonwealth and that the
“[i]ntroduction of unnecessary cases or parties needlessly upsets
the delicate balance between public safety and the public interests
protected by court staff.”

Id. at *16 (stating further that “public interest is not served having a
Philadelphia jury risk exposure for a case that has only fleeting
connections to this jurisdiction”).

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time out of the office, disruption to business operations, and the greater

difficulty involved in obtaining witnesses and sources of proof are more

significant”).13

Using a totality of the circumstances approach for its transfer analysis,

which it must, the trial court looked to other “salient factors” in addition to the

20 defense affidavits to determine whether the case should be tried in York or

Cumberland Counties. See Catagnus v. Allstate Ins. Co., 864 A.2d 1259

(Pa. Super. 2004) (balancing test of relative convenience of plaintiff’s chosen

forum against defendant’s proposed alternative forum is misapplication of

forum non conveniens law). While acknowledging that several of Mr. Ritchey’s

post-accident acute care and rehabilitation providers were located in Dauphin

County, Cumberland County, and York County—each more than 100 miles

from Philadelphia County—the trial court found compelling the fact that two

of Mr. Ritchey’s treating physicians are from Magee in Philadelphia, that Mr.

Ritchey received medical treatment at Jefferson University Hospital, also

located in Philadelphia, and that Mr. Ritchey indicated that the Magee

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13 The evidence gathered for the venue motion occurred at the beginning of
the COVID lock-down period, when many courthouses, businesses, and cities
were shutting down operations and transitioning to remote work. Notably,
during the remote depositions counsel for the parties indicated that it would
be difficult to estimate a trial date in the matter since trials had been halted
in Philadelphia and the future landscape of jury trials amidst a pandemic was
uncertain.

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physicians would have been retained as expert witnesses in the case.14 See

Bratic, supra (trial court’s mere mention of facts that none of plaintiffs was

from Philadelphia and cost of counsel travelling to Dauphin County “does not

constitute an abuse of discretion or misapplication of the law” where those

factors were not sole reasons for judge’s decision). Notably, unlike in Bratic

where there was no connection to Philadelphia other than the fact that

“[defendants] occasionally conduct[ed] business [there],” id. at 4, here, Mr.

Ritchey received three months of post-accident medical care in Philadelphia

and two of his treating physicians, who have been retained as expert

witnesses in the case, are from Philadelphia.

In addition, when a case involves a transfer from Philadelphia to a more

distant county, like Cumberland County or York County, “factors such as the

burden of travel, time out of the office, disruption to business operation, and

the greater difficulty in obtaining witnesses and sources of proof are more

significant.” Bratic, supra at 564 (citation omitted). Here, Rutter’s

presented twenty affidavits from potential witnesses averring that trial in

Philadelphia would be oppressive and a great hardship due to personal, family,

and employment responsibilities. See Bratic, supra at 563 (“the interference

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14 See Plaintiffs’ Response in Opposition to Motion to Transfer, 4/17/20, at 2
n.2 (“Both Dr. Fried and Dr. Kucer have been retained by Plaintiffs as expert
witnesses in this case and will author reports on Mr. Ritchey’s injuries,
treatment[,] and prognosis. Both Dr. Fried and Dr. Kucer work in
Philadelphia County and live in the Philadelphia area.”) (emphasis in
original).

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with one’s business and personal life caused by the participatory demands of

a distant lawsuit is patent”). However, the trial court ultimately concluded

that “neither Philadelphia nor York nor Cumberland County would be a

convenient forum [for the] significant number of experts necessary for the

liability and damages phases of the case.” Order, 11/4/20, at 2.

Although a majority of the Rutter’s affiants stated that travel to

Philadelphia would be a “great hardship due to personal, family, and

employment responsibilities” and that such a commute would be “oppressive

and very inconvenient,” the court found the affidavits fell short of fulfilling the

defense’s burden.15 Specifically, the trial court determined that, based upon

the record evidence, defendants did not “support [the petition] with detailed

information” that rose to the level of “a sufficient factual basis” for granting

the request to transfer the case. Bratic, supra at 9. See Wilson v. Levine,

963 A.2d 479 (Pa. Super. 2008) (defendant did not sustain burden of proving

trial in plaintiff’s forum oppressive where record insufficient to show

defendant’s named witnesses, who alleged hardship, were relevant to core

issue in case). Moreover, the court found the affiants’ statements “indicate[d]

that any interruption of their daily activities to attend a trial anywhere

____________________________________________

15 Cumberland County is roughly 137 miles from Philadelphia and York County
is roughly 106 miles from Philadelphia. See Cubano v. Sheehan, 146 A.3d
791 n.5 (Pa. Super. 2016) (court may take judicial notice of geographical
facts).

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represents a hardship, with the additional distance enhancing the time

required to participate” and that “[d]istance alone, as an abstract factor[,] is

an insufficient basis upon which to transfer th[e] matter.” Trial Court Opinion,

4/13/22, at 11 (emphasis added).

After a comprehensive review of the record, we conclude that the trial

court did not abuse its discretion in denying Rutter’s motion to transfer venue

on the basis of forum non conveniens. Walker, supra. Where the trial court

“retains the discretion to determine whether the particular form of proof is

sufficient [to transfer a case],” id. at 9, we find no abuse of discretion in the

court’s ultimate decision, where the court found: (1) “as information gathers

after the fact,” new witnesses may need to be called to testify and that

witnesses originally identified may offer “cumulative” testimony or not even

be necessary; (2) the use of technology to conduct remote depositions and

garner witness statements has substantially increased since the onset of the

COVID-19 pandemic and has become a vital component of pre-trial discovery

in civil trials; (3) two key eyewitnesses to the accident, Carol Vinck 16 and

additional Defendant McNaughton, included sworn testimony of their

“willingness to travel to Philadelphia County for their depositions or for trial,

and that it would not be oppressive or inconvenient for them to do so;” (4)

____________________________________________

16 Vinck was operating the vehicle behind Mr. Ritchey’s motorcycle at the time
of the accident.

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the Rutter’s affidavits contain averments amounting to nothing more than “a

superficial forced showing of inconvenience;” (5) Mr. Ritchey received three

months of medical care at a Philadelphia hospital and rehabilitation center;

(6) two of Mr. Ritchey’s treating physicians, who have been retained as expert

witnesses, are located in Philadelphia; and (7) the likelihood that a substantial

number of expert witnesses will be involved in the liability and damage phases

of trial, for whom neither Philadelphia nor York or Cumberland Counties would

be convenient forums. Order, 11/4/20, at 1-2; Trial Court Opinion, 4/13/22,

at 7-10.

Here, the maxim that “there is a vast difference between a finding of

inconvenience and one of oppressiveness,” Hoose, supra at 5, rings true.

Although admittedly a close case, one in which we may have reached a

conclusion different than the trial court, we are mindful that we may not

substitute our judgment for that of the trial court. Polett, supra. Thus,

where the court’s decision did not rise to the level of overriding or misapplying

the law, nor was it manifestly unreasonable or the result of prejudice, bias,

partiality, or ill will, we must affirm. Bratic, supra.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2022

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