New Hampshire Insurance Company appeals from the certified amended order of the Court of Common Pleas of Allegheny County denying appellant’s preliminary objections on the basis of forum non conveniens. We affirm.
On July 18, 1992, Appellant New Hampshire Insurance Company (“New Hampshire”)
After the accident, New Hampshire authorized Avco Aviation (“Avco”) to repair the damaged aircraft.
On December 14, 1995, Aerospace filed a complaint in the Court of Common Pleas of Allegheny County alleging breach of contract, negligence and violation of Pennsylvania’s Bad Faith Act, 42 Pa.C.S.A. § 8871,
(1)In an action on an insurance policy, is dismissal based on forum non conveniens appropriate where the policy was solicited, brokered, and issued in England to two insureds which listed their address in England, and where the incident giving rise to coverage occurred in England and where the insurance claim was presented and adjusted in England and where repairs were undertaken in England?
(2) In an action on an insurance policy, is dismissal based on forum non conveniens appropriate where the only nexus between the defendant insurance company and Pennsylvania is the fact that the insurer changed its place of incorporation from a foreign state to Pennsylvania after the expiration of the policy at issue, and after the incident giving rise to coverage?
(3) In an action on an insurance policy, is the proximity of counsel and designated expert witnesses insufficient to make a chosen forum county appropriate, especially because no fact witnesses are located in the forum county?10
A trial judge has great discretion in reviewing petitions to change venue based upon forum non conveniens; on appeal the superior court must determine whether the trial judge abused that discretion. Shears v. Rigley,
As noted in this court’s decision in Page v. Ekbladh,
The doctrine of forum non conveniens was employed as “a necessary counterbalance to insure fairness and practicality.” Okkerse v. Howe,
[C]learly 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 a trial in the chosen forum inappropriate because of considerations affecting the court’s own administrative and legal problems.
Forman v. Rossman,
Due to this Commonwealth’s dearth of forum transfer cases in an international context, we are guided by our United States Supreme Court’s landmark decision, Piper Aircraft Co. v. Regno,
On appeal, the United States Court of Appeals for the Third Circuit reversed, holding that the District Court had abused its discretion in conducting the forum analysis and found that dismissal of an action is never appropriate where the law of the alternative forum is less favorable to the plaintiff. Certiorari was granted and the United States Supreme Court reversed the decision of the Third Circuit, holding: (1) plaintiffs may not defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the chosen forum, and (2) that the Federal District Court did not abuse its discretion by weighing the private and public interest factors and granting the defendants’ motion to dismiss. Piper,
Although Aerospace, like the plaintiff in Piper, has not chosen its home forum as the situs to commence the underlying action, we are not bound, like the Piper court, to assume that the forum of Pennsylvania is unreasonably inconvenient for the plaintiff. Any state in our United States would, most likely, be significantly more convenient for the American plaintiff than trying its case in the defendant’s preferred forum, a foreign country. Furthermore, in deciding to transfer the case to another forum, the Piper court found that fewer evidentiary problems would be posed if the trial were held in Scotland because a large portion of the relevant evidence was located in Great Britain. Piper,
New Hampshire asserts that it was improper for the trial court to determine that Pennsylvania is the more proper forum in which to litigate this action based upon the fact that none of plaintiffs fact witnesses are located in this Commonwealth. Specifically, New Hampshire claims that the proximity of counsel and expert witnesses to a given forum is not a sufficient reason to deny transferring this case to England. We note that our court has consistently held that the location of expert witnesses is not a factor to be given significant consideration when weighing the factors in a forum non conveniens analysis. See Norman v. Norfolk and Western Railway Co.,
Presently, the bulk of Aerospace’s witnesses which it claims reside in the United States (primarily Pennsylvania) are expert witnesses who will be used to testify regarding the pre/post-accident condition of the Jetstar and the general characteristics of such type of aircraft.
At two hearings which have been transcribed and made a part of the record for our review, New Hampshire adduced the following facts to support its forum non conve-niens challenge: (1) the policy was solicited, brokered, and issued in England to two insureds which listed their address in England; (2) the incident giving rise to coverage occurred in England; (3) the insurance claim was presented and adjusted in England; (4) the repairs to the Jetstar were undertaken in England; (5) witnesses who could testify regarding the repair work done on the Jetstar are located in England; and (6) the test flights conducted during and after the repairs and the witnesses to these test flights are located in England.
In addition to these contentions, New Hampshire asserts that a “parallel action [is] currently pending in England.” In his hearing testimony, Mr. Seakins testified that the complaint for the English action (filed on March 25, 1996 — three months after the filing of the Aerospace complaint in Allegheny
Viewing all of the evidence of record, we find that New Hampshire has a number of witnesses located in England who will witnesses will provide a large basis for New Hampshire’s defense to the negligence claim brought by Aerospace. We are just as cognizant of the fact, however, that our American discovery rules are far more liberal than those of our British counterpart; with regard to pre-trial discovery, our court would allow the use of foreign depositions of these English witnesses for a Pennsylvania trial. Aboujdid v. Gulf Aviation Co., Ltd.,
Based upon the evidence presented to the trial court at two hearings, as well as the facts contained in the record, we cannot conclude that the trial court abused its discretion, exercised a judgment that was manifestly unreasonable, or made a decision that was the result of partiality, prejudice, bias, or ill will by refusing to dismiss the case based on the doctrine of forum non conveniens. Shears, supra. The American interest in this ease is “sufficient to justify the enormous commitment of judicial time and resources that would inevitably be required if the case were to be tried here.” Piper,
Order affirmed.
Notes
. According to New Hampshire's verified preliminary objections, on December 22, 1993, New Hampshire applied to change its state of incorporation from New Hampshire to the Commonwealth of Pennsylvania.
. New Hampshire issued the policy through The Institute of London Underwriters. New Hampshire, however, was considered the subscribing insurer that held 100% of the risk.
. Aerospace is a Delaware corporation with a place of business in London, England.
. Aerospace, in its complaint, claims that the decision to have Avco attempt to repair the Jets-tar was made against its wishes. Furthermore, Aerospace contends that Avco was neither FAA approved nor approved by Lockheed, the manufacturer of the aircraft.
. Chapter 42, Subchapter G of the Pennsylvania Consolidated Statutes Annotated denotes circumstances under which a party may recover special damages. Special damages are damages which "are the actual, but not the necessary, result of the injury complained of, and which in fact follow it as a natural and proximate consequence in the particular case, that is, by reason of special circumstances or conditions.” Black's Law Dictionary, 354 (5th ed. 1979). Section 8371 of this chapter states:
Actions on insurance policies
In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith towards the insured, the court may take all of the following actions:
(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.
(2) Award punitive damages against the insurer.
(3) Assess court costs and attorney fees against the insurer.
42 Pa.C.S.A. § 8371.
. The agreed upon value of the Lockheed Jetstar, under the parties' policy, was $3,250,000.00.
. Aerospace, in outlining the defects with the aircraft since the accident, alleged repairs, and initial test flights states that the only way the post-accident problems with the Jetstar can be resolved is if a final test flight could be conducted on the aircraft. It then asserts that because of the inoperability of the aircraft, these important tests cannot be conducted.
. In its brief, however, New Hampshire repeatedly states that it was not incorporated in Pennsylvania until thirteen months after the Jet-star accident. Prior to its incorporation in this Commonwealth, New Hampshire was incorporated in the state of New Hampshire.
. Pennsylvania Rule of Appellate Procedure 311(b)(2) states:
An appeal may be taken as of right from an order in a civil action or proceeding sustaining the venue of the matter or jurisdiction over the person or over real or personal property if:
(2) the court states in the order that a substantial issue of venue or jurisdiction is presented.
Pa.R.A.P. 311(b)(2). In the present case, the trial court amended its original order to include the language prescribed by Rule 311(b)(2). Compare Shears v. Rigley,
.Because a forum non conveniens analysis involves the "balance of private and public elements,” we have consolidated the analysis of appellant’s three issues in reviewing this appeal.
. Aerospace asserts that New Hampshire improperly filed preliminary objections, rather than a petition, to raise its forum non conveniens challenge. While we agree with Aerospace’s contention that a petition, not preliminary objections, is the proper vehicle in which to raise a forum non conveniens challenge, Aerospace has failed to file preliminary objections to New Hampshire's improper use of preliminary objections. See Pa.R.C.P. 1028. We, therefore, find this issue waived. See Preiser v. Rosenzweig,
. The action specifically contained counts for negligence and strict liability.
. At a hearing, co-counsel for Aerospace testified that it has listed as witnesses: a metallurgist from Carnegie Mellon, an airworthiness representative designated by the FAA, an expert pilot who has had extensive experience with piloting Jetstar aircrafts, the FAA Flight Standards District Office, various operators of other Jetstar aircrafts, USAir (now USAirways), Inc. who had been presented with a flight vision program that was installed on the damaged aircraft, and a professor on insurance law who will testify as to any issues arising out of the insurance policy.
. According to the insurance policy:
SECTION 1 — AIRCRAFT HULLS
1.1 COVERAGE
(a) The Company [New Hampshire] will at their option pay for, or repair, accidental physical loss of or damage to Aircraft described in the Declarations arising from the risks covered ... but not exceeding the agreed value as shown in item 7 of the Declarations subject to the amounts to be deducted shown below.
(b) If the Aircraft is insured hereunder for the risks of flight, the Company will, in addition, pay reasonable emergency expenses necessarily incurred by the Named Assured for the immediate protection against further loss of or damage to the Aircraft consequent upon damage or forced landing, up to ten percent (10%) of the agreed value specified in item 7 of the Declarations.
Furthermore, certain exclusions applicable to this section of the policy are listed, including:
1.2 EXCLUSIONS APPLICABLE TO THIS SECTION ONLY
The Company shall not be liable for
(d) loss of use or any residual depreciation in value (if any) after repairs have been made.
. The policy was written by AIG, an English agency, on behalf of New Hampshire.
. See Jones v. Searle Laboratories,
