J-A14009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PAUL SINCLAIR AND KELLY WELLS IN THE SUPERIOR COURT OF
SINCLAIR, PENNSYLVANIA
Appellants
v.
FIRST GLOBAL EXPRESS, INC. AND
YAKOV R. MELNIK,
Appellees No. 2860 EDA 2016
Appeal from the Order Entered August 18, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 160100231
BEFORE: BENDER, P.J.E., BOWES, J., and SHOGAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 28, 2017
Appellants, Paul Sinclair (“Mr. Sinclair”) and Kelly Wells Sinclair (“Mrs.
Sinclair”) (referred to jointly as “the Sinclairs”), appeal from the August 18,
2016 order granting Appellees’, First Global Express, Inc. (“First Global”) and
Yakov R. Melnik (“Mr. Melnik”), Motion to Transfer Venue for Forum Non
Conveniens. After careful review, we affirm.
The trial court summarized the relevant facts and procedural history of
this case in its Pa.R.A.P. 1925(a) opinion:
This matter arises from a motor vehicle accident that
occurred on the Pennsylvania Turnpike at milepost 226.9 in
Cumberland County, Pennsylvania on January 14, 2014. [The
Sinclairs] reside in Haw River, North Carolina. [First Global] is
incorporated in Illinois with a business address in Rockford,
Illinois. [Mr. Melnik] is an adult individual residing in Erie,
Pennsylvania. [The Sinclairs] filed suit in Philadelphia County on
January 5, 2016.
J-A14009-17
The facts of the case as presented in the Amended
Complaint are as follows. At all relevant times[,] Mr. Melnik was
acting as an agent of [First Global]. On the date of the accident,
… Mr. Sinclair was working as a long[-]haul truck driver. [He]
was sleeping in his parked tractor trailer in an area specifically
designated for parking such vehicles on the Pennsylvania
Turnpike. While driving a commercial truck, Mr. Melnik drove
into the designated area and collided with the parked vehicle in
which [Mr. Sinclair] was sleeping, causing injury to [Mr.
Sinclair].
Pursuant to Pa.R.C.P. 1006(d)(1), Appellees filed a Motion
to Transfer based upon the doctrine of Forum Non Conveniens
requesting the matter be transferred to Erie County[.]1[] The
parties were given approximately two months to engage in
discovery relevant to [Appellees’] Motion, after which an
argument and evidentiary proceeding was held. … [T]his [c]ourt
granted [Appellees’] Motion and transferred this matter to the
Cumberland County Court of Common Pleas[.]2[]
1
Pursuant to Pa.R.C.P. 1028(a)(1), [Appellees] initially
filed Preliminary Objections challenging venue. [Appellees]
subsequently withdrew their Preliminary Objections.
2
[Appellees] requested this matter be transferred to Erie
County. However, this [c]ourt noted venue was
appropriate in either Cumberland County or Erie County.
Trial Court Opinion (“TCO”), 12/30/16, at 1-2 (citations to record omitted).
The Sinclairs filed a timely notice of appeal on August 22, 2016,
followed by a timely court-ordered Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. The Sinclairs now present the following
issue for our review:
Did the trial court abuse its discretion when, based on the
affidavit of a defendant who works as a long-haul tractor-trailer
driver that it would be “extremely oppressive and inconvenient”
and “extremely difficult” for him to have to travel to Philadelphia
to defend this lawsuit, it transferred venue of this law suit under
the doctrine of forum non conveniens from the easily reachable
transportation hub of Philadelphia County to Cumberland
-2-
J-A14009-17
County, a location equally if not more inconvenient for the
parties and for all or all but one of the potential witnesses?
The Sinclairs’ Brief at 6.
Before addressing the merits of the Sinclairs’ claim, we note our
standard of review:
In an appeal from an order transferring venue on the basis of
forum non conveniens, our standard of review is “whether the
trial court committed an abuse of discretion.”
If there exists any proper basis for the trial court’s decision
to transfer venue [pursuant to Pa.R.C.P. 1006(d)(1)], the
decision must stand. An abuse of discretion is not merely
an error of judgment, but occurs only where the law is
overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality,
prejudice, bias or ill will, as shown by the evidence or the
record.
Stoner v. Penn Kleen, Inc., 59 A.3d 612, 614 (Pa. Super. 2012) (quoting
Bratic v. Rubendall, 43 A.3d 497, 499 (Pa. Super. 2012), reversed on
other grounds, 99 A.3d 1 (Pa. 2014) (internal citations omitted)).
Pennsylvania Rule of Civil Procedure 1006(d)(1) 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.” Pa.R.C.P. 1006(d)(1). “In
applying Rule 1006(d), the trial court must give deference to the plaintiff’s
choice of forum in ruling on a petition to transfer venue.” Stoner, 59 A.3d
at 614 (internal citation and quotation marks omitted). “While a plaintiff
need not provide reasons for selecting one venue over another, the doctrine
of forum non conveniens ‘is a necessary counterbalance to insure [sic]
-3-
J-A14009-17
fairness and practicality.’” Bratic v. Rubendall, 99 A.3d 1, 6 (Pa. 2014)
(quoting Okkerse v. Howe, … 556 A.2d 827, 832 ([Pa.] 1989)). The party
seeking a transfer of venue bears a heavy burden. Id. at 7.
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.
Id. (quoting Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156, 162
(Pa. 1997)).
Here, the Sinclairs argue that the trial court’s transfer of venue from
Philadelphia County to Cumberland County made the trial of this case
“considerably more inconvenient for [them], [their] fact and expert
witnesses, and even for [First Global] – given how many more non-stop
flights exist between Chicago and Philadelphia than between Chicago and
Harrisburg.” The Sinclairs’ Brief at 13. Moreover, the Sinclairs claim that
the trial court’s reliance on the single paragraph in Mr. Melnik’s affidavit,
claiming “difficulty, inconvenience, and oppressiveness,” in granting the
transfer of venue, constitutes an abuse of discretion. Id. at 13-14.
However, after careful review of the record, we discern no abuse of
discretion by the trial court.
-4-
J-A14009-17
The trial court found the Bratic case, which involves a matter
transferred from Philadelphia County to Dauphin County, similarly, on the
basis of forum non conveniens, to be instructive here. See TCO at 4-5
(citing Bratic, 99 A.3d at 1). In Bratic, the Supreme Court emphasized
the importance of considering the totality of the evidence in determining
whether a forum is oppressive and vexatious, and noted that factors to be
considered may include distance and the disruption of a witness’ personal or
professional life. Bratic, 99 A.3d at 8.
Moreover, the trial court noted that the affidavits in Bratic were
essentially identical in nature to the affidavits in the instant case, stating
that trial in Philadelphia would be a personal and financial hardship due to
the associated costs, travel and time away from work. See TCO at 5 (citing
Bratic, 99 A.3d at 4 n.3). In discussing the sufficiency of the affidavits, the
Bratic Court stated:
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.
…
A petition to transfer venue must be supported by detailed
information on the record, but Cheeseman and Rule 1006(d) do
not require any particular form of proof. All that is required is
that the moving party present a sufficient factual basis for the
petition, and the trial court retains the discretion to determine
whether the particular form of proof is sufficient.
Bratic, 99 A.3d at 9.
-5-
J-A14009-17
In support of its decision to grant the transfer of venue in the instant
case, the trial court opined:
Here, Mr. Melnik submitted an affidavit with the submission of
his Motion. The affidavit stated [he] was a resident of Erie
County, Pennsylvania; it would be extremely difficult for him to
travel to Philadelphia for the trial; trial in Philadelphia would be
extremely oppressive and inconvenient. In addition to Mr.
Melnik’s affidavit, at the evidentiary hearing[,] [Appellees]
submitted to the [c]ourt an affidavit of Corporal John
Rosenberger of the Pennsylvania State Police. It was
represented to the [c]ourt that Corporal Rosenberger was the
appropriate supervisor of the responding trooper to address the
trooper’s concerns. Accordingly, Corporal Rosenberger
submitted an affidavit on behalf of Trooper Duncan, the
responding officer. The affidavit stated Trooper Duncan was
assigned to the Cumberland County area; approximately three
hours away from Philadelphia. As such, it would be oppressive
and vexatious for Trooper Duncan to come to Philadelphia to
testify.
…
Based upon Mr. Melnik’s residence, Philadelphia’s City Hall is
nearly a seven-hour drive of over 400 miles. This is not a mere
ride from a neighboring county into Philadelphia. Participating at
a trial in Philadelphia over 400 miles and nearly seven hours of
traveling time from home will certainly impact a defendant far
beyond mere inconvenience. The scenario presented here is not
one of a long, possibly inconvenient drive to and from
Philadelphia each day of trial. Instead, allowing this case to
remain in Philadelphia would cause [Mr. Melnik] to be uprooted
from his daily life. Attending trial over 400 miles away from
home leaves little possibility of meeting any professional or
personal obligations a defendant may have.
TCO at 5-6 (citations to the record omitted).
In response to the Sinclairs’ argument that the fact that Mr. Melnik is
employed as a long-haul truck driver negates his ability to claim the chosen
forum was oppressive, the trial court stated: “[T]his [c]ourt sees a stark
-6-
J-A14009-17
contrast between being forced to travel over 400 miles away as a litigant,
and traveling as a long[-]haul truck driver.” Id. at 7. The trial court
further noted that the Sinclairs’ reliance “upon the accessibility of the airport
and the ease of traveling into Philadelphia International Airport from [the
Sinclairs’] home state of North Carolina; the willingness of [the Sinclairs’]
out-of-state treating physicians to fly into Philadelphia and the presumed
ease for the [Appellees] to fly into Philadelphia … are little more than fleeting
presumptions.” Id. at 7-8.
In sum, we conclude that the trial court properly considered the
totality of the circumstances and that the record adequately supports its
decision to grant the transfer of venue.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2017
-7-