*1 A.2d RUBIN, Allen W. Administrator of the Estate of DiLeonardo, Deceased, Appellant, P. Steven LEHMAN, Lehman, DiLeonardo, Anthony Kenneth M. Eleanor Jr., Diegel, International, Inc., Richard Arnold McClarin, Upper Southampton Township Develop- Industrial Authority, Valley Development Authority, ment Delaware Inc., Center, Inc., Barry Properties, Davisville Davisville M. Co., Farms, Corp., Inc., & Schultz Gulf Oil Cumberland Mor- Gulf, Inc., Morton, Dreyer’s ton’s James J. William Lawn Corporation. Service and General Motors Superior Pennsylvania. Court of 28,
Argued Sept. 1994. May
Filed 1995.
Reargument July Denied 1995. *2 Wolf, Philadelphia, appellant. L. for Ronald Lehman, Schaible, for Philadelphia, appellee. A. Wayne ELLIOTT, McEWEN, TAMILIA, and FORD JJ. Before ELLIOTT, Judge: FORD order of the appeal January an from the
This is Philadelphia County granting Pleas of Court of Common Eleanor Lehman’s appellees Kenneth and reverse. County. to Bucks We venue an stems from automobile accident underlying lawsuit accident, an February involving 1990. The which occurred Lehman and an automobile driven Kenneth automobile DiLeonardo, Jr., along County occurred by Anthony driven Road, At the Montgomery Bucks and Counties. dividing Line was a the accident DiLeonardo’s brother Steven time of collision, both in his vehicle. As a result passenger from ejected DiLeonardo were Anthony and Steven oncoming struck an tow vehicle. Steven DiLeonardo was killed. truck and Rubin,
Allen W. Administrator of the Estate of Steven DiLeonardo, in Philadelphia County against filed suit Lehmans, Motors tow Corporation, compa- General truck driver, tow, ny and the owner of vehicle in and nine other corporate defendants who all had an interest in the ownership at the property intersection where the accident occurred. companion currently suit pending Philadelphia County, Anthony DiLeonardo likewise sued these same defendants.
In October appellees Kenneth and Eleanor Lehman petitioned to have the case transferred to the Court of Com- mon Pleas of non Bucks on the grounds conveniens. In the petition, appellees alleged that transfer proper was Appellees several reasons. pointed the facts that the accident occurred in County, that four of the individual defendants reside in Bucks County, that the causes *3 very action had little connection to Philadelphia County, overburdened, that the Philadelphia County courts are and that for the in witnesses this case it would be more testify convenient to Bucks County. Many allega- of the unsubstantiated; tions appellees’ petition were appellees failed to depositions take or secure affidavits to support allegations concerning the convenience of witnesses. Appel- lant to responded petition the by specifically denying several allegations the and offering testimonial affidavits to support court, position. his The trial on this record and without conducting a hearing, granted petition and transferred the case to County. Bucks us Appellant asks to review that decision. end, issues,
To that appellant raises three all concerning the propriety of the trial court’s decision to transfer venue.
I. Did the trial court adequately plaintiffs consider in granting
choice of forum the motion to transfer? II. Did improperly the trial court order transfer when
petitioning defendants did not through demonstrate record evidence is inconvenient for or any party plaintiff witness and established that this forum is convenient for and parties witnesses? 4 Did the court order when improperly
III. trial is an inconvenient forum County record shows witnesses? parties for together follow- All be addressed with the three issues will ing discussion. rule of law this Common
It is a well-established satisfy must seeking change that the venue party wealth of the claimed heavy record evidence pointing burden See by plaintiffs choice forum. Okkerse hardships imposed Howe, (1989); Pa. Scribner v. Mack Tracks, A.2d 435 strikingly are similar to underlying The facts this case Okkerse, Okkerse involved an intersectional supra. those in drivers, in which one Montgomery collision suit, in Okkerse, Philadel killed. Her husband filed Mrs. was vehicle, Ford other County against driver phia vehicle), (the manufacturer of Mrs. Okkerse’s Company Motor allegedly shrubs obscured property overgrown owners whose intersection, who agencies governmental vision at the various intersection, controlling had allegedly responsibility allegedly who owned twenty-two owners property defendants, all road intersection. Of leading Philadelphia County that Ford Motor only connection to was had offices Company Department Transportation and the petition filed a of the defendants Okkerse1 there. One on the oí non conveniens. grounds transfer venue court, eventually granted, was reversed *4 appealed supreme to the court. court, court, affirming the conclud- appeal, supreme
On support petition failure to the with moving party’s ed the that a the to transfer. petition denial of required record evidence Okkerse, McDermott, in for the writing Justice importance moving party’s development the the stressed separate petitions filed before actually two for 1. There were However, judges the intricacies of two trial court in Okkerse. different inconsequential our the court are discussion filings before trial presently.
5 upon to transfer based support petition a record doctrine of non conveniens.
Thus, change heavy a of venue bears a party seeking and it has been consistent- justifying request, burden that this burden includes the demonstration on the ly held record of the The Rules of Civil Proce- hardships. claimed whereby complaining party dure for a provide procedure record, can such a and this has been develop procedure recognized Superior and endorsed Court: 1006(d)(1) proper procedure necessarily under Rule answer set implicates requirements 209, through including taking forth Pa.R.C.P. 206 by deposition disputed evidence or otherwise on issues fact. Rich, 472, Pa.Super. America v.
Hosiery Corporation of
(1984).
50,
(emphasis
original).
at
Anthony County resided accident; are in Bucks proof the that all sources of located Counties; a more County and that Bucks is Montgomery parties. for all convenient forum ruled, petitioner the does As this court has previously “[i]f it, discovery not take 209 and the court does not order Rule must, 209, as true all responsive the court under Rule consider Burns v. in allegations petition.” of fact the answer to Ass’n., 635, 631, Pennsylvania 417 Pa.Super. Manufacturers (1992) See also 1379, in original). A.2d (emphasis 612 1381 v. 510, Bottling, Phil. Coca-Cola 366 531 Alford that A.2d 792 The lack of a record mandated as allegations responsive pleading accepted be appellant’s merely not rest on his re Additionally, appellant true. did provided but rather the trial sponsive pleading, appellant various parties with affidavits from court testimonial County be a Philadelphia stated that would witnesses who trial no court with Appellees presented convenient forum. Therefore, favor. we cannot weigh record evidence to that, upon weighing as the trial court based a conclude did factors, strongly in favor of the relevant balance was appellees.2 we that the trial court has broad discretion recognize
While
this,
a
must
in matters such as
before it can order
it
for both
to the
parties
“find that transfer
is more convenient
Fittin,
witnesses,”
133,
Nicolosi
Pa.
action or for the
(1969)
original).
As noted
(emphasis
A.2d
court,
has
Petty
trial court
not held
“[I]f the
clearly
weigh-
burden
has
erred in
proper
defendant to the
or
considered,
equivalent
an abuse of
ing the factors to be
example, appellant/administrator
For
himself stated in his affidavit
2.
that a trial
in Bucks
that he is a
resident and
Additionally,
parents,
resi-
would be
for him.
decedent’s
inconvenient
Florida,
Philadelphia County
that
dents
both stated
their affidavits
Although certainly
a
for them.
would be much more convenient forum
fact
dispositive
today,
decision
we are also troubled
not
of our
suit,
(the
Anthony
present
one of
defendants in the
DiLeonardo
himself,
has,
passenger),
in which decedent was
driver
vehicle
Philadelphia County. This
arising
from this
filed
lawsuit
accident
may
possibility
parties
very
raises the
that these
and witnesses
distinct
testify
separate
in two
counties.
required
now be
at two trials
*6
must be exer-
has
Discretion
discretion
been demonstrated.
Pa.Super.
Petty, 363
applicable
within the
standards.”
cised
1232-33,
v.
282,
Reyno
Piper
quoting
at
525 A.2d at
Aircraft
Cir.1980)
omitted).
(3d
(citations
In-
Co.,
149,
F.2d
160
630
concerning
decision to transfer
this court’s doubt
the
stantly,
evi-
any
in
failure to
record
appellees’
present
is grounded
the
is more
support
in
of their assertion that
dence
for
the witnesses.
parties
convenient
both
court
Additionally,
this
that a trial
recognizes
while
court
as a
for transfer
public
can consider matters of
interest
basis
record,
any
regarding
a
the lack of
record
supporting
without
negate any meaningful bal-
clearly
factors
serves to
private
weigh
to
they
determine if
public
private
ance of
factors
warrant
strongly
moving party
so
in favor of the
as to
court
the
choice of forum. While this
is
disturbing
plaintiffs
judicial
burden
on the
placed
sensitive to the tremendous
extremely heavy
in
because of an
system Philadelphia County
docket,3
adhere to the decisions of this
required
we are
exercise
made clear that trial courts must
court which have
upon
utilize
vigilance and not
venue transfers based
controlling
non
as a means of
doctrine
conveniens
forum
dockets.
doctrine,
only dis-
judge, acting
A trial
under that
should
has
a
plaintiff
clearly inappro-
miss the action if the
selected
Compa-
Rini v.
York Central Railroad
priate forum.
New
(1968)
],
Although
Pa.
372
Id.
we
ny
A.2d
[429
placed upon
burdens
our
certainly recognize
tremendous
limitations,
funding
and unreasonable
inadequate
courts
for
provide
such circumstances do not
the basis
non
forum
another,
county
transfer of a case from one
conveniens
in
Horn
county.
venue
laid
the first
See
properly
when
is
Opinion
noted that
author of the instant
also
3.
It should be
S, Inc.,
Pa.Super.
this
German v. AC &
court's decision in
authored
German,
court,
recognizing
this
Greenfeig
Springs
Pa.Super.
v. Seven
585-86,
767,
(1992);
611 A.2d
770
Horn v. Erie Insurance
(1988).
186,
Accordingly, reversed, is County hereby tion to transfer venue to Bucks proceedings. for further Jurisdic- and the case is remanded tion is relinquished.
TAMILIA, J., Dissenting Opinion. files a
9 TAMILIA, dissenting: Judge, P. Rubin, of of Steven Allen administrator the estate W. DiLeonardo, 31, Order January grant- from the 1994 appeals to survival petition plaintiffs defendants’ ing moving County action to and death from wrongful non The reverses on the basis of conveniens. court, I following for the reasons the Order of the trial and vigorously dissent. court its discretion
Appellants argue
trial
abused
Philadelphia County, the choice
this matter from
transferring
underlying products
plaintiff,
County.
to Bucks
an
from automobile
liability
personal injury
action stems
Bucks,
1990,
very
near
February,
collision in
County.1
Montgomery
its border with
weighty
choice of forum is entitled
Although plaintiffs
Trucks,
consideration,
absolute,
Mack
it is not
Scribner v.
(1993),
the trial court
and because
grant
determining
discretion in
whether
has considerable
venue,
review the
our standard of
change
for a
discretion,
Purcell v.
is one of an abuse
court’s decision
A.2d
Hospital,
Mawr
525 Pa.
Bryn
have the
change
for a
venue
burden
petitioning
Defendants
public
elements which
clearly adducing both private
as
be
oppressiveness
vexation so
either establish such
or make trial
plaintiffs’
of all
convenience
proportion
out
*8
affecting
due to considerations
inappropriate
the chosen forum
Rigley,
problems.
own administrative
Shears
court’s
(1993).
559,
evaluating
Id., 363 Pa.Su- Petty Hospital, v. Suburban General quoting 281-282, The court must per. an public also consider those elements which the has interest and those include: jury
problems creating congestion imposing court community of a which has no relation to duty upon people the action tried litigation; appropriateness having in a forum where the court is familiar with the law that case, a court in some govern having must rather than other into a of conflict of laws step quick-sand law. problems foreign procedure
Id. rule of at issue states: The (d)(1) convenience of and witnesses the parties For the transfer an action to any party may court upon petition where the action any county court of other appropriate originally brought. could have been 1006(d)(1). Pa.R.C.P. of Bucks and Mont-
The accident occurred near the border decedent, County a resident of Bucks gomery Counties. was a Navy, passenger on leave from the United States brother, by car owned and his New York resident operated vehicle, registered The DiLeonardo Anthony DiLeonardo. York, was struck a car owned and the state of New residents, County Bucks defendants Kenneth and operated Lehman, from a side they highway Eleanor as entered the caused the DiLeonardo brothers to be street. The collision car, directly the decedent forcibly ejected throwing from the tow-truck, by defendant path on-coming into the of an owned International, Inc., by a Bucks County operated resident, Richard The car in which Diegal. defendant Voorhees, is now New riding impounded the decedent was Jersey. defendants, to the aforementioned individual addition defendants,
appellant brought against eight corporate suit *9 International, Inc., political two and including County Bucks ownership parties’ subdivisions, on basis of the solely obstructed landscaping allegedly which maintenance and/or views, Five of fatal accident. contributing the drivers’ located within defendants are corporate and business Montgomery Coun- and one other is located County Bucks defendants, Cumberland corporate two ty. remaining Inc., Farms, Corpora- and Gulf Oil corporation, a Delaware tion, business Pennsylvania corporation, regularly a conduct in- throughout political The two subdivisions Pennsylvania. defendants, Township Industri- Upper Southampton as cluded Authority Valley and Industrial Development al Delaware County. also in Bucks Development Authority, are situated Motors, included corporation, a Delaware Defendant General to the liability unrelated negligence products theories on obstruction, Pennsyl- throughout business shrubbery conducts vania and the United States. evidence, Police County potential
As to witnesses and accident, emergency to the as did Bucks responded transported was personnel. Plaintiffs decedent rescue Hospital, County, located Bucks where Warminster General pronounced postmortem later dead. The he was treated and Coroner, E. by Montgomery County Halbert was conducted Jr., Thallmyer, eyewitness an who was Fillinger, M.D. John tow-truck, but lives in passenger in the stated he Bucks, thereby making Philadelphia an inconvenient works Jersey, in New impounded And the car is although forum. necessary products of the any testimony resolution case, designing, “evidence liability including facet could supplying automobile” testing, manufacturing, parts of the United admittedly would come from “distant 10.) Lastly, should a view p. brief at (Appellants’ States.” be probability may as in it required, scene be all the accident consequence defendants included as light at the intersection landscaping care or lack thereof jury proxi- more convenient have it would be question, scene. mate the accident
From my review of the record it is judge evident the trial carefully considered all of the testimony and evidence before him and thoughtfully weighed public private the interests of all parties concerned.before granting appellees’ petition for a change Although of venue. appellant presented for our consideration the affidavits of five potential fact witnesses who forum,2 stated Philadelphia would not be an inconvenient none of these individuals averred would be inconven- ient. These witnesses would include the parents victim’s who Florida, now in live Anthony DiLeonardo who now lives in California, two individuals who saw the accident scene shortly coroner, after the collision and previously the identified. Con- houses, sidering proximity of the court county none being other, located more than 35 to 40 miles from the an allegation gross anyone inconvenience to is questionable. The fact the appellant, who volunteered for job of administrator of the estate, decedent’s lives in Philadelphia County is not determi- native. Clearly, by concerned, the costs incurred all wit- nesses, alike, attorneys and court systems greatly are reduced by moving the County. matter to Bucks Only plaintiffs counsel and the hand-selected administrator can be truly identified with Philadelphia, and we have frequently held that persons categories these are not to be considered as effecting the balancing required by the court. Lastly, decision, rendering its properly the court was mindful of the enormous case load backlogged the Philadelphia Court of Common Pleas. majority
The places almost total reliance for reversal of the Howe, trial court’s Order on Okkerse v. 521 Pa. (1989), which held that the record did support not
petition to transfer. What the majority ignores is that Ok-
kerse was a decision
by divided court which
majority
Supreme
of the
agreed
Court
to remand for findings because
there was “a procedural morass” in which conflicting Orders
from different trial
judges resulted
incorrect interpretations
question
phraseology
2. One must
used in the witnesses’ affidavit.
forum,”
phrase
being
Does the
by
"not
an inconvenient
virtue of the use
negative,
of a double
render
a convenient
forum?
for reconsid-
requiring
thus
remand
judge
second trial
to the first
pursuant
of venue
rather than transfer
eration
agreed.
full
The
finding, the
Court
To this
judge’s Order.
survey
on a
evaluation was based
majority’s
remainder
(McDer-
author
by the
law
conclusions
gratuitous
J.)
in the case.
mott,
for the decision
required
which were not
there
Larsen,
concluded that
Papadakos
Zappala
Justices
its merits as was
on
considering
was no error in
Zappala stated:
Superior Court.
Justice
done
White’s
improperly analyzes
Judge
whether
was
This occurs because
supportable.
order
*11
1006(d)(1)
requirement
on
a
majority
to Pa.R.C.P.
engrafts
non conveniens must
determining
in
judge
that a
a
on which
develop
a
in order to
record
to
hearing
conduct
does not
language
his
of the rule
plain
order. The
base
1006(d)(1)
Furthermore, Pa.R.C.P.
is
such a result.
require
1006(d)(2)
a
requires
from
which
distinguishable
Pa.R.C.P.
al-
seeking
charge of venue have
hearing
parties
when
a
county.
not
why
reasons
a fair trial can
occur
leged
serves to
contrasting language
these subsections
The
develop
not
a record
hearing
required
confirm that a
is
case sub judice.
indicates, however, there was an
Review of the record
have made
Judge
for
White to
his
adequate factual basis
fact,
Judge
information before
White was
decision.
Judge
virtually indistinguishable
presented
from that
DiBona,
finally
by Superior
was later used
Court to
which
County.
to Montgomery
determine not to transfer the action
Furthermore,
to Superior
contrast
Court’s determination
and an-
there
information
that
was limited
swer,
of those docu-
review of the record reveals
both
of law.
accompanied by
were
extensive memoranda
ments
supplied
parties addressed
This detailed information
inter-
affecting important
of the
considerations
each
Co.,
Light
Power and
Pennsylvania
See Fox v.
ests.
(ease
(1983)
of access
ery hearings to determine what already was on the record by means of pleadings affidavits. As explained by the Okkerse, justices in dissenting the trial court had before it sufficient facts to decide the issue of conformance and the trial judge’s disposition was based on a careful consideration of all rate, relevant factors. At any the Okkerse did not against change rule in venue but remanded to the trial court to rule on the confused ruling Orders and make a on the petitions. consolidated
A review of pleadings, affidavits of witnesses and briefs parties in this case compels finding that the trial court properly weighed all the factors involved in a decision to transfer venue and guilty was not of an abuse of discretion which warrants reversal. The court private considered the interests and public interests. In making analysis his *12 record, clearly supported by the trial court stated: Here, plaintiff injured was not in Philadelphia County. Plaintiff was not a of Philadelphia County. resident The cause of County action arose on the Bucks and Montgomery County line. There are numerous witnesses who may be called to testify of whom have been identified as a —none resident of Philadelphia. The of these witnesses Montgomery County, hail or counties other than Philadel- phia. only connection that this case has with Philadel- phia County Rubin, is the of presence plaintiff, Allen W. DiLeonardo, administrator of of Stephen the Estate [sic] presence and the of the corporate defendants. 7.) Cohen, J., 1/31/94,
(Slip Op., p. briefs, In corporate defendants concur court’s decision of changing venue that their true contacts incidentally only are in Bucks this case with say: went to The court on Philadelphia. witnesses, all and the various the venue of light in their respondent both movants presented by
factors Coun- that the Bucks this Court concludes respective filings, attendance costly will make the forum will be less ty con- simply insufficient easier. There are willing witnesses oblige here to this court Philadelphia presented with tacts case in Philadelphia. maintain this 8.) (Slip Op. at consider, which court must also
As to the interest public the court stated: cases backlog a civil presently exists substantial
There As noted Philadelphia system. in the Common Pleas Court Associates, al., 22 Orthopedic court in v. et by the Dallas (1991): Phila. 286 in time is point fact at this
Perhaps compelling the most a that have to be considered when public interests contacts with having case is transferred for insufficient types If were to these actions jurisdiction. we allow courts Philadelphia’s already congested brought be originated, it will being they instead of handled where Also, system. compound already legal an overwhelmed imposed people that not on jury duty ought is a burden be the litigation, which has community relationship of a no (citations omitted). ignore It is the over impossible presently Philadelphia burden that exists in the whelming 45,000 civil approximately of Common Pleas with Court al., Co., Ins. et pending. Cty. cases v. Chester Mut. Boyle McCarron, 416 (1990); [Incollingo also 21 Phila. see (1992) 419, 427, ]. A.2d backlog Transfer alone will not alleviate case Pleas, but Common now exists Courts that must be taken. step it is 8.) Op. at (Slip *13 rules by the majority required dismisses this concern
The
develop-
by turning
the
long history
precedents
and a
case
ment of
on
the law
non conveniens on its head and
forum
on
despite
placed
through pleadings
matters
the record
affidavits, requires
proof
hardship,
ignoring
record
of claimed
the time honored role of the trial court
in making that
determination rather
than
trial
accepting
lawyer’s allega-
the
tion that it
majority gives greater
was not made.3 The
weight
and effect to the
selection of
forum
plaintiffs
and reduces
the trial court’s discretion to decide if fairness
requires
change of venue to a
role. To
contrary,
minor
while a
plaintiffs selection of a forum is entitled to weighty consider-
ations, it is not unassailable and the availability of a forum
non
challenge
necessary
conveniens
is a
counterbalance to
insure fairness and practicability. Ernest v. Fox Pool Corp.,
cases,
341 Pa.Super.
1282. majority recognize
The failure of the this balance is best illustrated its statement:
If this court is to be faithful to the notion that a plaintiffs consideration, choice of forum is entitled to weighty then at least, we be very enforcing requirement should that the party seeking change that venue fulfill its heavy proof burden with record of the claimed hardships. thereof, it appears absence that the non conveniens transfer has become more than a nothing docket-clearing device. 8.)
(Majority at majority clearly The has created an imbalance in the pro- despite overwhelming cess that of record evidence that Phila- delphia relationship has no interest or to the cause of action in case, except way, the most incidental the defendant it prove hardship must is a severe to travel to Philadelphia hardship when such is clear from facts as determined by the sustained, judge. ruling by trial if majority, means henceforth, plaintiffs choice of a forum is unassailable proof 3. I am not certain how record is to be established to the satisfaction if the record as it exists at the time of the change venue is not to be considered.
17 are to establish hearings unless and held expensive involved in an is ascertainable hardship that which proof beyond of trial competent the record expeditious manner from Plaintiffs the rules and case law. in accordance with judge venue, will be and and trial courts jurisdiction will determine of fairness and implement to the doctrine powerless rendered litigants balance, the court and burdening without further require would hearings discovery with and which meantime, the standard hardship. In the it renders prove to aside, of a shall not be set absent an ruling judge trial discretion, control of meaningless, thereby placing abuse of primarily decisions as to venue within the court’s docket and This is no idle exercise as plaintiff. the control of that the assumption is to rendered on the justice where be Philadelphia has of venue. regardless result will be same in all of the arising hole into which cases been a black states) (and point drawn to the counties have been contingent fact has Philadelphia system. This of breakdown January 30, recently as as the recognition received national Report story in its cover 1995 issue of U.S. News and World devastating In a attack Lawyers titled Abuse the Law. How led practiced country, law is which has to a way on practices, the article strong movement curb certain political the sub- problem as a area. Under pinpointed Philadelphia the article “Epidemic injustice,” states: heading, fell, rates the number of From 1980 to as accident miles driven per claims million property-damage brought safer, bodily-injury fell 12 cars rates percent. getting With Instead, the rate of should have even faster. dropped In some hotbeds bodily-injury percent. claims rose bodily- tort there were 75 litigation, Philadelphia, such as damage to every claims 100 claims injury filed for These per Pittsburgh. 100 in same cars—versus mere against rates munici- places high tend to have of claims filed generous more of this has do with the palities. Some areas, inner-city but a lot juries found in low-income often more than a concentration law- nothing has do with yers. Fischer, How
Stephen Budiansky with Ted Gest David Law, Report, Abuse the U.S. News World Jan. Lawyers added). 30,1995, Philadel- judges The trial p. (emphasis if to determine selection of phia position are the best fairness, as the forum meets the test of proper unjustified Philadelphia judiciary and it is an criticism of the they petitions clearing to infer use venue as a docket mecha- of case judicial supervision monitoring nism. Without *15 full filings, facing coupled the crisis the courts with the scale legal attacks will result the disman- against profession tling practice of law as we now know it.
I Judge would affirm the Order of Cohen.
Own GUPTA, M.D., M.D., Gupta, Renga Mahesh C. Santosh Rajan, M.D., De and Maria Los Santos Health Center.
Superior Pennsylvania. Court May
Submitted 1995. 29, 1995. Filed June