Alexander BRATIC and Joseph Proko, Appellants v. Charles W. RUBENDALL, II, and Keefer, Wood, Allen, & Rahal, LLP, and Residential Warranty Corp. of Pennsylvania, and Integrity Underwriters, Inc., Appellees.
Superior Court of Pennsylvania.
April 23, 2012
Argued October 12, 2011.
Jeffrey R. Lerman, Philadelphia, for Rubendall, appellee.
Lloyd G. Parry, Philadelphia, for Residential Warranty, appellee.
BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., MUSMANNO, BENDER, GANTMAN, PANELLA, ALLEN, LAZARUS, and MUNDY, JJ.
OPINION BY MUNDY, J.:
Appellants, Alexander Bratic and Joseph Proko, appeal from the order entered July 9, 2009 granting Appellees’ petition to transfer the case to Dauphin County on the grounds of forum non conveniens pursuant to
The pertinent factual and procedural background, as gleaned from the certified record, follows. On February 23, 2009, in the Court of Common Pleas of Philadelphia County, Appellants filed a complaint against Appellees, Charles W. Rubendall, II, Esq. (Rubendall), Keefer, Wood, Allen & Rahal, LLP (the Keefer Firm), Residential Warranty Corporation of Pennsylvania (Residential), and Integrity Underwriters, Inc. (Integrity). Appellants’ complaint alleged causes of action sounding in wrongful use of civil proceedings and abuse of process. On April 17, 2009, Appellees filed preliminary objections challenging venue in Philadelphia County as improper. Appellants filed an amended complaint on April 29, 2009, whereupon Appellees renewed their preliminary objections challenging venue in Philadelphia County. In addition, on May 20, 2009, Appellees alternatively filed a petition for transfer of venue on the grounds of forum non conveniens. On July 9, 2009, the trial court granted Appellees’ alternative petition and
On January 14, 2011, a panel of this Court affirmed the trial court, with one member of the panel dissenting. In reaching this decision, the majority held the trial court did not abuse its discretion in determining that Appellees met their burden to show that Appellants’ choice of venue was vexatious and oppressive. The dissent contended that the trial court abused its discretion in applying the law to the facts in this case and that Appellees failed to meet the heavy burden imposed on a party challenging venue on the basis of forum non conveniens. On January 28, 2011, Appellants filed an application for reargument en banc, which this Court granted on March 21, 2011.
On appeal, Appellants raise the following question for our review.
Did the trial court abuse its discretion and/or misapply the law when it transferred the instant matter from Philadelphia County to Dauphin County based on forum non conveniens, despite the fact that [Appellees‘] general, unspecified allegations of inconvenience for witnesses who probably will not testify at trial failed to meet the heavy burden of providing detailed information of record that [Appellants‘] choice of venue was oppressive or vexatious to [Appellees]?
Appellants’ Brief at 5.
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.” Catagnus v. Allstate Ins. Co., 864 A.2d 1259, 1263 (Pa.Super.2004).
If there exists any proper basis for the trial court‘s decision to transfer venue [pursuant to
Rule 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.
Zappala v. Brandolini Property Management, 589 Pa. 516, 909 A.2d 1272, 1284 (2006) (citations omitted). “[A] trial court‘s failure to hold the defendant to the proper burden constitutes an abuse of discretion.” Catagnus, supra at 1264.
[T]he plaintiff‘s choice of forum should rarely be disturbed by the grant of a
Rule 1006(d)(1) petition. We cannot overemphasize ...: a trial court, even if congested, must give deference to the plaintiff‘s choice of forum in ruling on a petition to transfer venue....
[A] petition to transfer venue should not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiff‘s chosen forum is oppressive or vexatious to the defendant.
Thus, ... the 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 premises involved in the dispute. But, we stress that the defendant must show more than that the chosen forum is merely inconvenient to him.
Cheeseman v. Lethal Exterminator Inc., 549 Pa. 200, 701 A.2d 156, 162 (1997) (citations and footnotes omitted) (emphasis added); see also Walls v. Phoenix Ins. Co., 979 A.2d 847 (Pa.Super.2009); Hunter v. Shire US, Inc., 992 A.2d 891, 896-897 (Pa.Super.2010).
In the instant matter, the trial court found as follows.
In the present case, the facts of the record establish that continuing this action in Philadelphia County is both vexatious and oppressive. The earlier claim, upon which the present Complaint is in regard to, took place in Dauphin County. All [Appellees] are from Dauphin County. None of the [Appellants] are from Philadelphia County. The main legal question the [trial court] is faced with is one of “probable cause” for which there are eight key witnesses. All eight of these witnesses are in Dauphin County. All eight of these witnesses are engaged in business activities which make their ability to appear at trial in Philadelphia County far more of a burden than a trial in Dauphin County. The sole connection with Philadelphia County is the fact that all [Appellees] occasionally conduct business in Philadelphia.
Trying this case in Dauphin County would provide better access to all potential witnesses and other sources of proof such as court documents from the prior Dauphin County action. Accordingly, the facts of record clearly establish that [Appellants‘] choice of forum is vexatious and oppressive to [Appellees] and venue must be changed.
Trial Court Opinion, 10/13/09, at 3-4.
Initially, we note that the trial court, while not indicating the weight it has given to the several factors enumerated above, has considered some factors we have pre-
Thus, the law is clear that the burden, which is a significant one, is on the defendant to demonstrate “with detailed information” that the plaintiff chose her forum with designs to “harass the defendant,” and that a defendant cannot satisfy that burden by a showing of mere inconvenience. Moreover, since the burden is at all times on the defendant, the plaintiff‘s putative inconvenience is of minor relevance. Cheeseman, [supra] at 162 n. 6 (The fact that the plaintiff is not a resident of the chosen forum is irrelevant to a forum non conveniens determination); Catagnus, [supra at 1264] (“The location and convenience of the plaintiff‘s witnesses is generally immaterial to the central question of whether the forum is oppressive to the defendant.“). Walls, supra at 851-852.
The trial court also relied on the fact that “[t]he earlier claim, upon which the present Complaint is in regard to, took place in Dauphin County,” and “[t]he sole connection with Philadelphia County is the fact that all [Appellees] occasionally conduct business in Philadelphia.” Trial Court Opinion, 10/13/09, at 3-4.
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. There is a vast difference between a finding of inconvenience and one of oppressiveness.
Borger v. Murphy, 797 A.2d 309, 312 (Pa.Super.2002) (citations omitted; emphasis added), appeal denied, 570 Pa. 680, 808 A.2d 568 (2002). Further, it is a “salient point that the mere fact that the site of the precipitating event was outside of plaintiff‘s choice of forum is not dispositive.” See Walls, supra at 852.
The remainder of the trial court‘s reasoning centers on Appellees’ assertion that it has eight witnesses, all residing in Dauphin County, who would encounter hardships if they had to travel to Philadelphia to testify.4 In support of this contention, Appellees merely assert “each [witness] is located in Dauphin County, over 100 miles from any trial that would be conducted in Philadelphia County, and each of whom is actively engaged in business activities rendering their ability to appear at any trial in Philadelphia, far more of a burden, and far more uncertain, than for a trial in Harrisburg.” Defendants’ Petition to Transfer Venue on the Grounds of Forum
6. For such travel, I would have to incur substantial costs for fuel, tolls and, if traveling overnight, for lodging and meals.
7. For every day of deposition or trial in Philadelphia, I would be forced to take at least one full day away from my duties as [ (each respective position and employer inserted here) ].
8. Consequently, it would be both disruptive and a personal financial hardship if I should be called to testify at deposition or trial in Philadelphia County.
Id. at Exhibits E, F, H-K.5
We note that four of the witnesses are officers or employees of the named corporate Appellees.6 As such, their position is analogous to that considered in Walls. The defendant/petitioner in that case argued that hardship would result from the necessity of a defense witness (a professional claims adjuster) to travel from Monroe County to Philadelphia County to testify. The Walls defendant advanced the same factors mentioned in the instant affidavits. Therein, we held the following.
However, [the defense witness] is not a hapless citizen being hauled into court, but is a professional insurance claims adjuster who will surely be fully compensated by his client, in an amount that includes related expenses. True it is that this compensation will ultimately be borne by appellee, but such costs strikes this Court as a normal expense of a party to litigation.
In addition, as noted in Walls, such costs must be viewed in relation to litigation costs of attorneys employed in the initial forum. Here, Appellees’ respective counsel of record all are based in Philadelphia. Moreover, the reliance of appellee upon the incremental expense of an appearance of an adjuster at trial ignores the corollary effect that by transferring this case to Monroe County, appellee would actually be faced with the significantly greater defense expense of the compensation of Philadelphia defense counsel to travel to, and/or stay in, Monroe County for the duration of the trial. Thus, there is no basis upon which to find that appellant‘s choice of forum would constitute harassment, or prove vexatious or oppressive to the defendant.
Id.
The remaining four witnesses, with current or former connection to Appellees, are engaged in client-based professions.7
Moreover, although in the petition to transfer Nationwide stated that the claims adjusters’ duties and the operations of Nationwide will be affected if the litigation is held in Philadelphia, Nationwide failed to indicate precisely how the duties/operations will be affected. As such, Nationwide has failed to meet its burden of proving that litigation in Philadelphia County would be oppressive or vexatious. See [Hoose v. Jefferson Home Health Care, Inc., 754 A.2d 1 (Pa.Super.2000)] (holding that the defendant must provide detailed information on the record as to why the plaintiff‘s chosen forum is oppressive or vexatious). While this Court does not doubt that litigating this case in Philadelphia County will be inconvenient for Nationwide, mere inconvenience is insufficient to transfer venue from Cooper‘s chosen forum.
Id. at 166. As in Cooper, the affidavits here merely aver conclusory statements that participation in Philadelphia would be “disruptive” without explanation as to why that is the case.
Additionally, without elaboration, Appellees include the onus of the witnesses’ participation in possible depositions prior to trial as additional support for their claim that venue in Philadelphia is oppressive. Even had Appellees sustained their burden in this regard with adequate specificity, we note that the trial court has additional measures short of a change of venue to mitigate any such impact. See
Because the trial court relied on factors irrelevant to a consideration of forum non conveniens, and because our review of the entire record reveals that Appellees have not offered particularized averments sufficient to satisfy their burden as required by Cheeseman and its progeny, we conclude that the trial court erred in granting Appellees’ petition. Accordingly, we reverse the July 9, 2009 order granting Appellees’ petition for transfer of venue on the basis of forum non conveniens and remand for further proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
Judge GANTMAN files a Dissenting Opinion in which Judge BENDER and Judge ALLEN join.
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
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 plaintiff‘s 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
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 forum 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) (reversing order transferring case
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 plaintiff‘s 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
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 Borger, 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 conveniens 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
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 dispositive 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 Appellees’ 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 Appellees’ 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
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
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, barebones 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 plaintiff‘s 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
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
For all the foregoing reasons, I would affirm the order transferring this case to Dauphin County on forum non conveniens grounds. Accordingly, I dissent.