BRATIC v. Rubendall

43 A.3d 497, 2012 Pa. Super. 89, 2012 WL 1383056, 2012 Pa. Super. LEXIS 176

• Court: Superior Court of Pennsylvania
• Decided: April 23, 2012
• Docket: 2413 EDA 2009
• Status: Published

Opinions

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 Pa.R.C.P. 1006(d)(1). We reverse and remand for further proceedings.

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 conve-niens. On July 9, 2009, the trial court granted Appellees’ alternative petition and ordered venue transferred to Dauphin County on the basis of forum non conve-niens.1 Thereafter, Appellants filed a timely notice of appeal.² Pursuant to Pa. R.A.P. 1925(a), on October 13, 2009, the trial court filed an opinion in support of its order transferring venue to Dauphin County.³

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.

The issue of whether to transfer venue between counties within Pennsylvania on the ground of forum non conveniens is governed by Pa.R.Civ.P. 1006(d)(1), which states as follows. “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.Civ.P. 1006(d)(1). Our Supreme Court has carefully outlined the relative burdens and the relevant considerations to be weighed by a trial court when entertaining a petition under Rule 1006(d)(1).

[T]he plaintiffs 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 plaintiffs chosen forum is oppressive or vexatious to the defendant.

Thus, ... the defendant may meet its burden of showing that the plaintiffs choice of forum is vexatious to him by establishing with facts on the record that the plaintiffs 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 c]ourt 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 previously held were of little or no relevance to a moving party’s burden in a petition based on forum non conveniens under Rule 1006(d)(1). Specifically, the trial court articulated concern that “none of the [Appellants] are from Philadelphia County.” Id. This Court has made clear that this consideration is irrelevant to a claim of forum non conveniens.

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 plaintiffs 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 plaintiffs 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 plaintiffs 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 Non Conveniens, 5/20/09, at Z-i, ¶ 8; Certified Record (C.R.) at 9. To support this conclusion, Appellees provided affidavits from seven of the witnesses. Six of the affidavits contain identical language relative to the burden a trial in Philadelphia would have on the affiant/witness.

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.

Walls, supra at 853.

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 With respect to the impact upon the practices of client-based professions, we have held the relevant inquiry is what impact participation imposes upon the witness, not his or her clients. Cooper v. Nationwide Mutual Insurance Company, 761 A.2d 162 (Pa.Super.2000). Finally, with respect to the purported impact that the participation of the witnesses will have on the operations of their own businesses or on the Appellee employers, the lack of specificity as to how the "witnesses’ participation will affect such business and what that effect will be fails to satisfy Appellees’ burden in this case. The averments and affidavits supplied by Appellees are similar to those we reviewed in Cooper, supra, wherein we held the following.

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 plaintiffs 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 conelusory statements that participation in Philadelphia would be “disruptive” without explanation as to why that is the case.

Additionally, without elaboration, Appel-lees 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 Pa.R.C.P. 4012 (authorizing the trial court, upon application, to impose conditions upon discovery including time and place).

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 Ap-pellees’ 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.

1 .The trial court did not explicitly rule on Appellees’ preliminary objections challenging the factual and legal basis of Philadelphia County as the venue site for this litigation. See Wilson v. Levine, 963 A.2d 479, 483-485 (Pa.Super.2008) (discussing the substantive and procedural distinctions between a challenge to venue as improper under Pa. R.C.P. 1006(e) and a challenge to venue based upon forum non conveniens under Pa. R.C.P. 1006(d)(1)). However, by considering Appellees' alternate petition for change of venue on the basis of forum non conveniens, the trial court implicitly recognized that there is a factual and legal basis to conclude Philadelphia is a proper venue. See id. at 484 (stating, "if the case is not transferred pursuant to a Rule 1006(e) preliminary objection successfully challenging the propriety of venue, it is presumptively proper' théreafter. Nevertheless, a transfer via forum non conveniens is still available”).

2 . The appeal is proper under Pa.R.A.P. 311(c), which provides, "[a]n appeal may be taken as of right from an order in a civil action or proceeding changing venue ... on the basis of forum non conveniens."

3 . The trial court did not order Appellants to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

4 . The parties devoted much of their argument before the trial court and on appeal to the issue of whether testimony from proffered witnesses was necessary and admissible. See Wilson v. Levine, supra at 488 (holding trial court record was not sufficient to show, inter alia, that defendant’s listed witnesses, who resided at a distance from the plaintiff's selected forum, were relevant to the core issue in the case and consequently defendant did not sustain her burden to show the selected forum was oppressive). Instantly, the trial court did not explain the basis for its characterization of all of Appellees’ witnesses as "key” to the issue of probable cause. See Trial Court Opinion, 10/13/09, at 3-4. However, because we hold Appellees have not met their burden to show that Appellants' choice of venue was oppressive or vexatious to them, even if all eight witnesses are in fact “key,” we need not address this issue and will assume arguendo that the witnesses' testimony is admissible, relevant, noncumulative, and necessary.

5 . The remaining affidavit of Appellee Ruben-dall included the same general averments as the other affidavits and additionally noted the need for him to attend the trial for the whole of its probable duration. The affidavit posited that a trial in Dauphin County would allow him to conduct business before and after the hours he would be required to be in court. Defendants' Petition to Transfer Venue on the Grounds of Forum Non Conveniens, 5/20/09, at Exhibit G.

6 . The witnesses are Richard Swartz, Corporate counsel for Residential; Robert Yesela-vage, Treasurer and Operations Manager for Integrity; George Parmer, President of Residential and Integrity; and William Gregory, Jr., Systems Manager for Integrity.

7 .The witnesses are Charles Rubendall, II, an attorney and a named Appellee; Ronald Katz-man, Esquire, an Harrisburg attorney and counsel for William Gregory; Ronald Stra-timis, owner and operator of RJS Consulting; and Charles E. Talmadge, Marketing Representative for Millers Capital Insurance Co.