McCrory v. Abraham

JOHNSON, Judge,

dissenting:

Where facts alleged in the transfer petition were expressly denied in the Answer to the petition, I believe that the trial court abused its discretion in transferring this matter without benefit of deposition testimony or an evidentiary hearing on disputed issues of material fact. However, even if the taking of evidence was not required, I cannot agree that a change of venue is necessary for the convenience of the parties and witnesses. Accordingly, I must respectfully dissent.

A plaintiffs choice of forum is entitled to weighty consideration and should not be disturbed

*268“unless the defendant clearly adduces facts that ‘either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiffs convenience ... or (2) make trial in the chosen forum inappropriate because of considerations affecting the court’s own private and public interest factors’ [but] unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”

Okkerse v. Howe, 521 Pa. 509, 517-18, 556 A.2d 827, 832 (1989), quoting Reyno v. Piper Aircraft Co., 630 F.2d 149, 159 (3d Cir.1980).

When evaluating a motion for change of venue, a trial court should consider matters affecting the private interests of the litigants, including: the ease of access to sources of proof, availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining attendance of willing witnesses; the possibility of viewing the premises if appropriate to the action; and all other practical problems that make a trial easy, expeditious, and inexpensive. Incollingo v. McCarron, 416 Pa.Super. 419, 611 A.2d 287 (1992). In addition, the court must consider matters in which the public has an interest, including court congestion and the imposition of jury duty upon the people of a community with no relation to the litigation. Id.

Rule 1006(d) of the Pennsylvania Rules of Civil Procedure vests a trial judge with considerable discretion in determining whether to grant a petition for change of venue. Id. Absent an abuse of discretion, the trial court’s decision must stand. Id. However,

“if the trial court has not held the defendant to the proper burden or has clearly erred in weighing the factors to be considered, the equivalent of an abuse of discretion has been demonstrated. Discretion must be exercised within the applicable standards. The district court’s wide discretion may not serve the defendants as a burden shifting device on appeal from an order in their favor.”

*269Petty v. Suburban Gen. Hosp., 363 Pa.Super. 277, 282-83, 525 A.2d 1230, 1232-33 (1987), quoting Reyno, supra, 630 F.2d at 160.

The party seeking a change of venue bears the heavy burden of proving that the change is necessary. Petty, at 283, 525 A.2d at 1233. Pursuant to Hosiery Corp. of America, Inc. v. Rich, 327 Pa.Super. 472, 475, 476 A.2d 50, 51 (1984), “a proper procedure under Rule 1006(d) necessarily implicates the requirements for petition and answer set forth in Pa.R.Civ.P. Rules 206 through 209, including the taking of evidence by deposition or otherwise on disputed issues of fact.” Moreover, the trial court must find that the transfer is more convenient for both parties to the action or for the witnesses. Petty, supra, 363 Pa.Super. 277, 525 A.2d 1230.

Applying the above principles to the present case, I am constrained to conclude that the trial court abused its discretion in transferring this action to Monroe County.

In its petition for transfer, the Estate of Jack Wilson Abraham (the Estate) alleged, in pertinent part, that: Sylvester McCrory both worked and resided in Monroe County at the time of the alleged accident; Jack Wilson Abraham (decedent) resided in Monroe County at the time of the accident and prior to his death; the administration of decedent’s estate was opened in Monroe County; the accident and police investigation occurred in Monroe County; McCrory received emergency medical care in Monroe County; all fact witnesses reside in or near Monroe County; no potential witnesses reside in Philadelphia County; transfer of this action to Monroe County will be more convenient for all witnesses; unnecessary hardship and inconvenience will be cast on both defendant and witnesses if this action remains in Philadelphia; the jury will need to view the accident site located in Monroe County; and the facts demonstrate that the action should be transferred to Monroe County.

While McCrory, in his Answer to the Estate’s transfer petition, admitted certain facts, he denied that: he resided in Monroe County at the time of the accident; all fact witnesses resided in Monroe County; and no potential witnesses reside *270in Philadelphia County. He further denied all of the Estate’s allegations concerning the inconvenience and hardship cast on the defendant and witnesses. Finally, McCrory denied that a view of the accident site was needed and that the action should be transferred. McCrory also alleged that most of his witnesses live in Philadelphia County. As a result, I cannot agree with the Majority’s statement that the only disputed fact was McCrory’s residence at the time of the accident. See Majority op. at 264. Clearly, there are several disputed material facts.

Contrary to the rule set forth in Hosiery Corp., supra, 327 Pa.Super. 472, 476 A.2d 50, the trial court granted the transfer without taking evidence, by deposition or otherwise, on disputed issues of fact. I cannot sanction the transfer of this matter based on the Estate’s mere allegation that it will promote the convenience of parties and witnesses where that allegation was specifically denied by McCrory. The trial court had no evidence that this transfer would promote the convenience of the parties or witnesses.

I find further guidance from the Reyno Court which stated: The party seeking the transfer must clearly specify the key witnesses to be called and must make a general statement of what their testimony will cover. The emphasis must be on this showing rather than on numbers. One key witness may outweigh a great number of less important witnesses. If a party has merely made a general allegation that witnesses will be necessary, without identifying them and indicating what their testimony will be[,] the application for transfer will be denied.

Petty, supra, 363 Pa.Super. at 285, 525 A.2d at 1234, quoting Reyno, supra, 630 F.2d at 160-61. Here, the trial judge, without any discussion of such a showing, granted the Estate’s motion to transfer solely on the basis of the pleadings and the various memoranda of law in support of and opposed to the transfer.

The Estate presented no evidence that a transfer of this action would best serve the convenience of the parties or witnesses. I cannot agree with the Majority that the undisputed facts provide a sufficient and reliable basis for the trial *271court’s decision. See Majority op. at 265. Rather, as stated above, I find that the trial judge had no reliable information to use in weighing the convenience of the parties and witnesses. As a result, I would conclude that the trial court abused its discretion by granting the transfer motion. I would reverse the order granting the petition to transfer venue. Petty v. Suburban Gen. Hosp., supra, 363 Pa.Super. 286, 525 A.2d 1234.

Even if we assume that the taking of evidence was not required in this case, after weighing the elements affecting the private and public interests, I am still unable to conclude that the balance strongly favored transferring this action to Monroe County. Therefore, I cannot agree that a change of venue is necessary for the convenience of the parties and witnesses.

With regard to the private interest factors, the trial court determined that all of the crucial events underlying this cause of action occurred in Monroe County. Trial Court Opinion, filed May 26, 1994, at 4. The court based this determination upon the following: the accident occurred in Monroe County; McCrory resided in Monroe County at the time of the accident; decedent resided in Monroe County at the time of the accident and until his death; the police investigation occurred in Monroe County; most potential witnesses reside in or near Monroe County; and McCrory received emergency medical care in Monroe County. Id

However, I am unable to agree that all “crucial” contacts focus upon Monroe County. First, McCrory resided in Philadelphia County when the Estate filed the petition to transfer. Moreover, there is no evidence of record to support the court’s conclusion that McCrory resided in Monroe County at the time of the accident. Next, I find it absurd that the trial court would place weight upon decedent’s residence when balancing the convenience of the chosen forum for the parties or the witnesses. I cannot believe that trial of this case in Philadelphia County will inconvenience decedent! Finally, while some potential witnesses may reside in or near Monroe County, I find that perhaps the two most important witnesses, McCrory and the only other surviving victim of the accident, reside in Philadelphia County. In addition, McCrory’s damage wit*272nesses, including his subsequent medical care providers, are located in Philadelphia County. As a result, when I weigh the competing private interest factors, I am unable to find that the balance strongly favors Monroe County.

Next, the trial court addressed the public interest factors, finding that Philadelphia County’s interest in the suit was minimal. Opinion, supra, at 4-5. I recognize that jury duty should not be imposed upon members of a community having no relation to the litigation. Incollingo, supra. However, as noted above, not only does McCrory reside in Philadelphia County, but the only other surviving victim of the accident resides there as well. Once again, I believe that they are perhaps the two most important witnesses in this case. Therefore, I cannot agree with the trial court that Philadelphia County’s interest in this suit is minimal or that the public interest factors favor Monroe County.

Based upon my review, I conclude that the trial court abused its discretion in determining that the balance was tipped strongly in favor transferring this action to Monroe County and that the transfer was necessary for the convenience of the parties and witnesses. Accordingly, I dissent. I would reverse the order granting the Estate’s petition to transfer this matter to Monroe County.