BRATIC v. Rubendall

DISSENTING OPINION BY

GANTMAN, J.:

I respectfully disagree with the majority’s disposition because I believe it creates an excessively high burden for defendants seeking to obtain a transfer on forum non conveniens grounds. The majority’s decision to discount allegations of hardship when alleged by (1) employee-witnesses of a corporate defendant and (2) defense witnesses who are engaged in “client-based” professions has the effect of making a forum non conveniens transfer practically unattainable in many cases. Based on my *504reading of this Court’s post-Cheeseman decisions, I conclude Appellees met their burden, with sufficiently detailed information, to show Philadelphia County was an oppressive forum, and therefore, affirm the trial court’s order transferring the case to Dauphin County on forum non conve-niens grounds.

Preliminary, I stress our standard of review — 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 court’s decision, its ruling must stand. Id. A plaintiffs 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).

I agree a party seeking a transfer pursuant to Rule 1006(d) has the burden of showing the plaintiffs chosen forum is oppressive or vexatious to the defendant. Cheeseman v. Lethal Exterminator, Inc., 549 Pa. 200, 213, 701 A.2d 156, 162 (1997) (emphasis added). A defendant may meet its burden by showing either: (1) the plaintiffs choice of forum was designed to harass the defendant; or (2) “trial in another county would provide easier access to witnesses or other sources of proof....” Id. Any proof of oppression or vexation must be supported by “detailed information on the record.” Id. Cheeseman and Rule 1006(d) “do not require any particular form of proof. A1 that is required is that the moving party present a sufficient factual basis for the petition.” Wood v. E.I. du Pont de Nemours and Co., 829 A.2d 707, 714 (Pa.Super.2003) (en banc), appeal denied, 580 Pa. 699, 860 A.2d 124 (2004).

The site of the precipitating event might not be dispositive, but it is relevant. Walls v. Phoenix Ins. Co., 979 A.2d 847, 852 (Pa.Super.2009). My review of this Court’s fonm non conveniens decisions reveals the relevance of this factor depends in part on the respective counties involved. Raymond v. Park Terrace Apartments, Inc., 882 A.2d 518, 521 (Pa.Super.2005), appeal denied, 585 Pa. 689, 887 A.2d 1241 (2005). When the case involves a transfer from Philadelphia to its adjacent or immediately surrounding counties, courts generally decline to place much weight on claims that all significant aspects of the case occurred outside the chosen forum. See Hunter v. Shire US, Inc., 992 A.2d 891, 897 (Pa.Super.2010) (affirming trial court’s order denying transfer from Philadelphia to Chester County because defendant had not met burden of oppressiveness and noting “Chester and Philadelphia Counties are adjacent to each other and are readily accessible in a short amount of travel time”); Zappala v. James Lewis Group, 982 A.2d 512 (Pa.Super.2009) (reversing transfer from Philadelphia to Chester County and rejecting defendant’s claim that travel from Chester County to Philadelphia is oppressive); Catagnus, supra at 1266 (holding decision to transfer case from Philadelphia to Bucks County was error, and observing travel between Philadelphia and Bucks County is not particularly burdensome); Johns v. First Union Corp., 777 A.2d 489, 491-92 (Pa.Super.2001) (concluding court improperly transferred case from Philadelphia to Bucks County and commenting on close distance between Philadelphia and Bucks County); Hoose v. Jefferson Home Health Care, Inc., 754 A.2d 1, 4 (Pa.Super.2000), appeal denied, 564 Pa. 734, 766 A.2d 1249 (2001) (revei’sing order transferring case *505from Philadelphia to Delaware County and recognizing ease of travel between Philadelphia and its suburban counties). These cases recognize the reality that travel “from Delaware, Bucks, Montgomery, or Chester County to Philadelphia is not particularly onerous,” and therefore, litigation in the plaintiffs chosen forum (Philadelphia) is minimally burdensome to the defendant. Raymond, supra at 521.

On the other hand, when the case involves a transfer from Philadelphia to a more distant county, the site of the precipitating event and the burdens imposed in traveling to the plaintiffs chosen forum become more significant to a court’s analysis. Wood supra at 709 (affirming transfer from Philadelphia to Bradford County; observing Bradford County Courthouse is two miles from accident whereas Philadelphia County court is one-hundred and ninety miles away); Borger v. Murphy, 797 A.2d 309, 313-14 (Pa.Super.2002), appeal denied, 570 Pa. 680, 808 A.2d 568 (2002) (holding court properly transferred case from Philadelphia to Lehigh County; “commute to Philadelphia County would take an hour and a half, compared to the twenty minutes for a trip to the courthouse in Lehigh County”); Dulaney v. Consolidated Rail Corp., 715 A.2d 1217 (Pa.Super.1998) (affirming transfer from Philadelphia to Allegheny County where all witnesses and relevant sources of proof were more conveniently located in Allegheny County and travel to Philadelphia would be significant burden to defense witnesses). In these cases, factors such as the burden of travel, time out of the office, disruption to business operations, and the greater difficulty involved in obtaining witnesses and sources of proof are more significant due to the greater distances between the precipitating event and the chosen forum. See Wood, supra. Nevertheless, there is no hard and fast geographical rule as to when transfer is appropriate; courts must consider the totality of the circumstances in determining whether to transfer a case pursuant to Rule 1006(d). See Walls, supra (reversing transfer of case from Philadelphia to Monroe County where defendant did not offer sufficient proof that trial in Philadelphia would be oppressive); Mateu v. Stout, 819 A.2d 563, 567 (Pa.Super.2003) (affirming transfer from Philadelphia to Delaware County where all facts showed trial in Delaware County would provide easier access to witnesses and sources of proof).

Here, it is undisputed that all facts giving rise to the current litigation occurred in Dauphin County, and all defense witnesses are located there. Relying on Bor-ger, the majority discounts this aspect of Appellees’ petition because “claims by a defendant that no significant aspect of a case involves the chosen forum, and that another forum would be more convenient, are not the type of record evidence that proves that litigating the case in the chosen forum is oppressive or vexatious.” (Maj. Op. at 501). Quite simply, Borger is not only inapposite to the majority’s conclusion, but also undermines it because the Borger court affirmed the trial court’s decision to grant defendant’s petition to transfer venue from Philadelphia County to Lehigh County on forum non conve-niens grounds. Borger, supra at 313-14 (holding court properly transferred case from Philadelphia to Lehigh County where defendant and all his witnesses were located in Lehigh County and defendant stated in his petition that trial in Philadelphia may force him to temporarily close his office; “commute to Philadelphia County would take an hour and a half, compared to the twenty minutes for a trip to the courthouse in Lehigh County”). Therefore, Borger merely recited the legal principle that there is a vast difference between inconvenience and oppression, but *506ultimately held the defendant had met his burden of showing oppressiveness. In so holding, the court primarily relied on the distance between the defendant’s residence/office (Lehigh County) and the plaintiffs chosen forum (Philadelphia County), and the hardship that would result to defendant and his witnesses in having to travel to Philadelphia.

In this case, Appellees have put forth sufficient facts to support a transfer. All events underlying the present litigation occurred in Dauphin County. While not dis-positive to Appellees’ petition to transfer, this fact is certainly relevant. Unlike the majority, I think this aspect of Appellees’ petition weighs in favor of a transfer because it supports the ultimate determination required to establish oppressiveness under Cheeseman — that trial in another county would provide easier access to witnesses or other sources of proof. Moreover, Dauphin County is not one of Philadelphia’s suburban counties, where the travel time to Philadelphia is measured in minutes. All Appellees live and work in Dauphin County. The approximate one way travel time and distance between the Dauphin County Courthouse and Philadelphia City Hall is 2 hours and 105 miles, respectively. See Wood, supra at 709 (stating defendants had brought forth evidence of hardship by showing Bradford County Courthouse is two miles from accident whereas Philadelphia County court is one-hundred and ninety miles away). As the trial court properly recognized, this is relevant evidence of hardship. Not only are all relevant defense witnesses and sources of proof located in Harrisburg, but the distance from there to Philadelphia, Appellants’ chosen forum, is also significant.

The majority dismisses the substantial travel burdens Appellees’ witnesses would face from a trial in Philadelphia by concluding the burdens to those witnesses are irrelevant because the witnesses are either: (1) employees of a corporate defendant or (2) engaged in client-based professions. For the “employees of a corporate defendant” proposition, the majority relies on Walls; the “client based professions” distinction is derived from Cooper v. Nationwide Mutual Insurance Company, 761 A.2d 162, 166 (Pa.Super.2000). Neither case is persuasive, in my opinion.

The majority relies on Walls to discount the potential burdens suffered by Appel-lees’ four witnesses1 as immaterial to any oppression corporate defendants RWC and Integrity might suffer from trial in Philadelphia. See Walls, supra at 853 (discounting hardship to single Phoenix Insurance claims adjuster/defense witness, Robert Moylan, because “Mr. Moylan is not a hapless citizen being hauled into court, but is a professional insurance adjuster who will surely be compensated by his client”). I believe Walls is factually inapposite to the present case. Significantly, the critical witness in Walls was an insurance claims adjuster. Appellees’ witnesses here occupy vastly different employment positions, as the President, Treasurer, Corporate Counsel, and Systems Manager at RWC and Integrity, respectively and their corporate responsibilities are not analogous to the one witness in Walls. As such, the majority’s reliance on Walls to reject the hardship to Appel-lees’ witnesses as inconsequential is tenuous and misplaced.

Moreover, I reject the majority’s use of Walls to consider the potential burden that would inure to defense counsel in the event *507of a transfer. Alleged hardship that defense counsel might suffer is irrelevant under Cheeseman and Rule 1006(b) because considering the hardship to defense attorneys presupposes this Court better understands Appellees’ preferences than Appellees themselves. The act of filing a motion to transfer based on forum non conveniens shows Appellees believe Dauphin County is a more convenient forum than Philadelphia County. For this Court to conclude to the contrary, based on the location of Appellees’ counsel, flies in the face of the motion to transfer. The majority’s reasoning also ignores the common practice of retaining local counsel and, in part, punishes Appellees for hiring lawyers based in the jurisdiction where Appellees were sued. In the event RWC and Integrity had hired Harrisburg-based counsel and included its attorneys as persons suffering hardship from trial in Philadelphia, those allegations would be properly rejected as irrelevant under Cheeseman. The converse is true as well. The proper consideration under Cheeseman is hardship to Appellees and their witnesses in litigating in Appellants’ chosen forum. To the extent the majority relies on the burdens to defense counsel in potentially traveling to a new forum, I think that analysis is flawed.

Walls is also unpersuasive because of the practical problems its reasoning creates. The majority reads Walls as standing for the proposition that hardship to employees of Appellees is irrelevant because a corporate defendant will likely compensate those witnesses, and as a result, Appellees’ witnesses will not suffer hardship. Like many defendants, RWC, Integrity, and Keefer Wood are business entities that can only act through agents or employees. When sued, the entities necessarily will send representatives to defend the company at a deposition or trial because the company itself is only a person in the legal sense. The majority’s interpretation of Walls is troubling as applied to Appellees like RWC, Integrity and Keefer Wood because the entities themselves are not traveling great distances to attend trial. Their employees, the persons who represent and act on behalf of their companies, however, will be burdened by such travel, but the hardship to those persons does not receive consideration in the majority’s approach because the witnesses might be compensated by their employer. There is no indication in the record that Appellees will be compensated for their time and expenses should they have to travel to Philadelphia for trial. Therefore, I disagree with the majority’s reasoning in this regard, in that it presupposes facts not in the record.2 Instead, I would limit Walls to its facts and decline to apply its reasoning beyond the specific scenario espoused in that case.

The majority’s use of Cooper is similarly unconvincing to me. In Cooper; this Court held oppression to the clients of the defense witnesses is not a pertinent consideration, because Cheeseman places its focus on hardship incurred by the witnesses themselves. Cooper, supra at 162. The majority largely misapplies Cooper by seeming to discount any alleged hardship that might exist for Appellees’ four witnesses, simply because those witnesses are engaged in client-based professions.3 *508None of the disputed witnesses in this case alleged hardship because of the effects on their clients. Entirely to the contrary, the affidavits provided by Appellees’ “client-based profession” witnesses outline the hardship the witnesses themselves would suffer, without any reference to their clients. Therefore, the factual record undermines the majority’s conclusion here, and Cooper cannot support the majority’s reasoning.

The remainder of the majority’s discussion centers on the alleged lack of detail in the affidavits submitted by Appellees’ witnesses. The majority employs an exacting standard with respect to the amount of facts necessary to sustain the “detailed averments” prong of Cheeseman and concludes Appellees failed to provide sufficiently particularized affidavits in support of their motion to transfer. Pennsylvania law, however, is not entirely clear on how much detail is necessary to meet burden of providing “detailed information on the record.” In a very general sense, bare-bones or conclusory factual allegations regarding hardship or oppression are inadequate. See Hunter, supra (rejecting claims of oppressiveness because defendant did not provide “detailed averments in its petition” as to why chosen forum was oppressive); Cooper, supra (noting defendant did not indicate precisely how duties and operations of its business would suffer if its employees were forced to testify at trial in Philadelphia); Hoose, supra at 4 (stating defendants’ failure to produce affidavits from witnesses attesting to fact that they would suffer hardship undermines their claims of oppressiveness). On the other end of the spectrum, allegations are likely to be deemed sufficiently detailed when they set forth the ways in which defense witnesses would be burdened by trial in plaintiffs chosen forum. See Wood, supra at 714 n. 5 (concluding proof offered by DuPont defendants was sufficiently detailed where DuPont stated its witness was plant manager at location that was staffed on “one person-one job” basis and witness’ absence would negatively affect plant production and safety); Borger, supra (stating defendant met his burden of producing sufficiently detailed information of oppressiveness where defendant provided: (1) information on lengthy travel time between his home and trial in Philadelphia County as compared to shorter travel between his home and Lehigh County court; (2) statements that trial in Philadelphia would require him to stay overnight and curtail his ability to operate his medical practice; and (3) averments that many of his office employees were potential witnesses, and presence of those employees at trial in Philadelphia would force him to close his office temporarily).

Upon review of the record in the present case, in light of the relevant case law, I am convinced Appellees did present sufficiently detailed information in their motion to transfer. Appellees’ affidavits state each witness: (1) resides more than 100 miles from Philadelphia; (2) would be required to incur substantial costs for either fuel or lodging; (3) would be forced to take time out of the office for trial in Philadelphia; (4) would be forced to take time away from their positions at either RWC, Integrity, or Keefer Wood; and (5) would suffer greater hardship from trial in Philadelphia than one in Harrisburg. (See Motion to Transfer, Exhibits E, F, G, H, I, J, K; R.R. at 1646a-1668a). The ways the duties or operations of RWC, Integrity, or Keefer Wood would be affected by the witnesses’ absence and the resulting hardship is self-evident, given the senior management positions each witness occupies within their respective companies or law firm. Without the President, Treasurer, Operations Manager, and Systems Manager, Integrity’s ability to run its business *509will necessarily be substantially impaired. Appellees’ witnesses are employed in “one person-one job” type positions and are not so easily replaceable. As a result, the hardship Appellees will suffer from the witnesses’ absence is readily apparent even without precise details on how or why their business operations might suffer in their absence. Moreover, Appellees’ witnesses are not employed in positions where their daily activities are predictable. Instead, the nature of their positions means their duties are myriad and far reaching, such that it is not possible for these purposes to forecast how their businesses might suffer from their absence on any given day. Based on this evidence, I conclude Appellees set forth sufficient detail in their affidavits to satisfy Cheese-man.

Essentially, my view of this case shows the trial court considered one improper factor — Appellants’ location.4 This single misstep, however, did not lead to an abuse of discretion. There is no indication in the court’s opinion that it gave this one factor undue weight or based its decision to transfer the case solely on the location of Appellants’ home and offices. Importantly, the court held Appellees to the proper burden. Cf. Catagnus, supra at 1265 (holding trial court abused its discretion when court explicitly balanced convenience of defendants’ preferred forum against plaintiffs’ chosen forum, rather than limiting its examination to whether defendants had established plaintiffs’ forum was oppressive or vexatious). Here, the court considered the totality of the circumstances, which largely comprised of evidence regarding Appellees’ location, Appellees’ travel time and distance from Philadelphia, Appellees’ witnesses, and the hardship to those witnesses if trial were held in Philadelphia. The record shows the trial court correctly set out the pertinent law under Cheeseman and Rule 1006(d) and, with one minor exception, applied the law to the facts in a sensible and well-reasoned manner. Appellants might take issue with the respective weight the trial court gave certain factors, but our role at the appellate level is not to assess the trial court’s discretionary ruling as if we were deciding the motion to transfer in the first instance. See Zappala, supra at 536, 909 A.2d at 1284 (providing trial court decision must stand if there is “any basis” supporting court’s decision).

For all the foregoing reasons, I would affirm the order transferring this case to Dauphin County on forum non conveniens grounds. Accordingly, I dissent.

. The witnesses are Richard Schwartz, corporate counsel for RWC; Robert Yeselavage, Treasurer and Operations Manager for Integrity; George Parmer, President of RWC and Integrity; and William Gregory, Jr., Systems Manager for Integrity.

. Walls makes similar suppositions, without record support, which only serve to weaken its holding.

. The witnesses are Charles Rubendall, II, an attorney and a named Appellee; Ronald Katz-man, Esquire, a Harrisburg attorney and counsel for William Gregory; Ronald Stra-timis, owner and operator of RJS Consulting; and Charles E. Talmadge, Marketing Representative for Millers Capital Insurance Co.

. The trial court's comment on Appellants’ location was cursory, in that court merely stated: "None of [Appellants is] from Philadelphia County.” This lone remark is the only instance in which the court mentioned Appellants' location. A reading of the entirety of the trial court opinion in its proper context reveals the court's decision to transfer the case to Dauphin County was based on its conclusion that all defense witnesses and relevant sources of proof were located in Dauphin County.