James, E. v. Wal-Mart Distribution Center

2024 Pa. Super. 17, 310 A.3d 316

• Court: Superior Court of Pennsylvania
• Decided: February 2, 2024
• Docket: 856 EDA 2023
• Status: Published

Opinion

J-A26012-23

2024 PA Super 17

ELAINE JAMES : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WAL-MART DISTRIBUTION CENTER, : BETHLEHEM COMMERCE CENTER, : LLC, WALMART, INC., WAL-MART : No. 856 EDA 2023 STORES EAST, L.P., JOHN CECCATO : AND JOHN DOE ELAINE JAMES : : : v. : : : WALMART, INC., WAL-MART STORES : EAST, L.P., JOHN CECCATO, ABM : INDUSTRY GROUPS, LLC, : WALMART.COM USA, LLC, JOHN DOE : AND JANE DOE : : : APPEAL OF: ELAINE JAMES :

Appeal from the Order Entered March 1, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 220602184, 220901304

ELAINE JAMES : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WAL-MART DISTRIBUTION CENTER, : BETHLEHEM COMMERCE CENTER, : LLC, WALMART, INC., WAL-MART : No. 857 EDA 2023 STORES EAST, L.P., JOHN CECCATO : AND JOHN DOE ELAINE JAMES : : J-A26012-23

: v. : : : WALMART, INC., WAL-MART STORES : EAST, L.P., JOHN CECCATO, ABM : INDUSTRY GROUPS, LLC, : WALMART.COM USA, LLC, JOHN DOE : AND JANE DOE : : : APPEAL OF: ELAINE JAMES :

Appeal from the Order Entered March 1, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 220602184, 220901304

BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.

OPINION BY DUBOW, J.: FILED FEBRUARY 2, 2024

Appellant Elaine James (“Ms. James”) seeks review of the order

transferring venue of this slip-and-fall case from Philadelphia County to Lehigh

County based on forum non conveniens, as provided in Pa.R.Civ.P. 1006(d).

After careful review, we are constrained to reverse.

On September 17, 2020, Ms. James, while working for a contractor at

the Walmart Distribution Center, slipped and fell on a slippery substance. As

a result, she sustained injuries to her back and neck that required surgery and

extensive medical care. The accident occurred in Bethlehem and she received

her medical care in Lehigh County.

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On June 23, 2022, and September 15, 2022, Ms. James filed negligence

actions in the Philadelphia Court of Common Pleas 1 against Appellees

Walmart, Inc., Walmart Stores East, Walmart.com USA, the Walmart

Distribution Center (collectively, “Walmart”) and Mr. John Ceccatto, the

Walmart area manager for the warehouse in Bethlehem.2

The defendants filed Answers. In particular, Appellees Walmart and

Ceccato alleged in their Answer and New Matter/Affirmative Defenses that

they “had no notice of the condition which allegedly caused plaintiff’s

damages” and that the “damages claimed were caused by the acts and/or

omission of third parties over which [Walmart] and [Appellee] Ceccato

exercised no control.”

On November 21, 2022, Appellees filed a Motion to Transfer Venue

based on forum non conveniens, arguing, inter alia, that Ms. James’ choice of

forum in Philadelphia was oppressive because the case had no connection to

Philadelphia County and litigating in Philadelphia would create a hardship for

Mr. Ceccato and others.

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1 The trial court granted Appellant’s Motion to Consolidate her two actions on

October 20, 2022.

2 Appellant also filed suit against the following defendants: ABM, a company

with which the Walmart Distribution Center contracts for its cleaning services; the Bethlehem Commerce Center, LLC; John Doe; and Jane Doe. These parties did not file a Motion for Change of Venue based on Forum Non Conveniens with the trial court, although ABM filed a brief in support of the Motion filed by Walmart and Mr. Ceccato. The non-filing parties are not participating in this appeal.

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Appellees annexed to their motion the affidavits of Appellee Ceccato and

David Sampson, the corporate representative of Walmart. The affidavits

asserted that the four-hour round-trip commute to Philadelphia from their

homes in Northampton County “is oppressive because it will severely affect

my personal life and my ability to perform my job.” See Ceccato Aff., ¶¶ 4,

9; Sampson Aff., ¶¶4, 9. Most notably, the affidavits did not identify

Appellees’ defense and the evidence that these two witnesses would provide

that was key to its defense.

The parties engaged in discovery that focused on the venue issue.

Messrs. Ceccato and Sampson provided deposition testimony.

Following the depositions, Ms. James filed a supplemental brief, to which

she annexed the transcripts from the depositions of Messrs. Ceccato and

Sampson.

The court held a hearing and on February 27, 2023, entered an order

granting the motion based on forum non conveniens and transferred the case

to Lehigh County.

Ms. James timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

Statement. The trial court filed a Rule 1925(a) Opinion.

Ms. James raises the following issues for our review:

1. Whether the lower court committed error of law and abuse of discretion when it granted Appellee’s Motion to Transfer from Philadelphia to Lehigh County for Forum Non Conveniens using the incorrect legal standards?

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2. Whether the lower court committed error of law and abuse of discretion in reaching a manifestly unreasonable outcome in granting Appellee’s Motion to Transfer for Forum Non Conveniens, where the two subject witnesses would experience, at most, inconvenience, if trial were to be held in Philadelphia County requiring them to slightly adjust their schedules and travel 64 miles each way?

Appellant’s Br. at 4.

A.

In her interrelated issues, which we address together, Ms. James argues

that Appellees failed to meet their “heavy burden to show that Philadelphia is

an oppressive or vexatious forum” and that the trial court, in transferring the

case based on forum non conveniens, misapplied the holdings in Cheeseman

v. Lethal Exterminator, Inc., 701 A.2d 156 (Pa. 1997), and Bratic v.

Rubendall, 99 A.3d 1 (Pa. 2014). Appellant’s Br. at 13-14.

We review a trial court’s decision granting a motion for a change of

venue based on forum non conveniens for an abuse of discretion. Walls v.

Phoenix Ins. Co., 979 A.2d 847, 850 n.3 (Pa. Super. 2009). “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 of record.” Ritchey v. Rutter’s Inc., 286 A.3d 248, 254 (Pa.

Super. 2022) (citation omitted), reargument denied (Dec. 30, 2022). Notably,

“the trial court’s failure to hold the defendant to the proper burden constitutes

an abuse of discretion.” Catagnus v. Allstate Ins. Co., 864 A.2d 1259, 1264

(Pa. Super. 2004). Along the same lines, the trial court, in considering a

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motion based on forum non conveniens, shall give the plaintiff’s choice of

forum great weight and deference. Powers v. Verizon Pa., LLC, 230 A.3d

492, 496 (Pa. Super. 2020).

Pa.R.Civ.P. 1006(d)(1) authorizes the trial court to decide a motion to

transfer venue based on forum non conveniens and provides that “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.” Courts have interpreted and

applied Rule 1006(d)(1) to require, as a threshold matter, that the defendant

identify its defense and provide a general statement that identifies the

witnesses who will be inconvenienced by traveling for trial to the plaintiff’s

chosen forum and the relevancy of those witnesses’ testimony to the

defendant’s defense. Tranter v. Z&D Tour, Inc., 303 A.3d 1070, 1075 (Pa.

Super. 2023).

This Court applied this principle in Petty v. Suburban Gen. Hosp., 525

A.2d 1230 (Pa. Super. 1987), where the plaintiff filed a malpractice complaint

in Philadelphia County. The defendant filed a motion to transfer venue based

solely on forum non conveniens, alleging that since the hospital was located

in Montgomery Court and the doctors worked there, the trial court should

transfer the case to Montgomery County. The only evidence that the

defendant provided to support its motion, however, was deposition testimony

from one witness that merely addressed the defendant’s business contacts

with Montgomery County. The defendants did not present any evidence

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identifying the allegedly inconvenienced witnesses and summarizing their

testimony. The trial court granted the motion and transferred the case to

Montgomery County.

This Court reversed, finding that mere allegations of party and witness

inconvenience are insufficient to support the transfer of venue. Id. at 1234.

Rather, the defendant must identify the allegedly inconvenienced witnesses

as key to its defense and provide a general statement of their testimony:

The party seeking the transfer must clearly specify the key witnesses to be called and must make a general statement of what their testimony will cover. The emphasis must be on this showing rather than on numbers. One key witness may outweigh a great number of less important witnesses. If a party has merely made a general allegation that witnesses will be necessary, without identifying them and indicating what their testimony will be[,] the application for transfer will be denied.[]

Id. (quoting from Reyno v. Piper Aircraft Co., 630 F.2d 149, 160-61 (3rd

Cir. 1980) (emphasis added). See also Bochetto v. Dimeling, Schreiber

& Park, 151 A.3d 1072, 1085-86 (Pa. Super. 2016) (requiring detailed

evidence of the relevance of identified witness testimony to the defense in

order to transfer venue based on forum non conveniens claim); Ehmer v.

Maxim Crane Works, L.P., 296 A.3d 1202, 1208 (Pa. Super. 2023) (“Only

after the defendant has placed detailed information on the record establishing

that the witness possesses information relevant to its defense should the trial

court proceed to consider the alleged hardship posed to the witness.”)

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In this case, after noting that the incident and Ms. James’ medical

treatment occurred in Lehigh County, the trial court found that “the defense

credibly argued and presented supporting facts through affidavit and

deposition that the hardship to Defendant Ceccato’s family and work life was

‘no mere inconvenience.’” Trial Ct. Op., 6/22/23, at 2 n.3, and 4. The trial

court, however, made its hardship analysis without even knowing Appellees’

defense and whether Mr. Ceccato and Mr. Sampson would testify at trial. The

record reflects that Appellees failed to provide a general statement identifying

their defense and thus, establishing that either witness “possesses testimony

that is relevant and necessary to the defense.” Trantor, 303 A.3d at 1075

(citation omitted). Without any information about the witness’ testimony, the

trial court cannot weigh the hardship factors and find that the defendant met

its burden of establishing a hardship. Id.

We note that, although Appellees allege in their Answer and Affirmative

Defenses that someone else caused the spill and that they lacked notice of the

spill, these are mere allegations, and the affidavits and depositions do not

address the manner in which the testimony of these witnesses supports the

defense. Rather, Appellees’ affidavits merely address the hardship that they

would allegedly suffer if they had to travel to testify in Philadelphia. Without

information about the importance of the trial testimony of Mr. Sampson and

Mr. Ceccato to Appellees’ defense, the trial court erred in assuming that they

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were key witnesses and evaluating the hardship that they would suffer if they

had to testify in Philadelphia.3

Since the record does not indicate that Appellees satisfied the

requirement that they identify their defenses and the witnesses who support

the defenses, the trial court abused its discretion in failing to hold Appellees

“to the proper burden.” Catagnus, 864 A.2d at 1264. Consequently, the

court erred in overriding the deference which it was obligated to provide to

Ms. James’s choice of forum. Cheeseman, 701 A.2d at 162.

Accordingly, we reverse the order transferring venue based on forum

non conveniens.

Order reversed.

Date: 2/2/2024

3 We note that we have found no legal authority for the proposition that Mr.

Ceccato’s status as a named defendant alone is sufficient to grant a motion for forum non conveniens. If the case law supported this proposition, then a defendant who lives in a county other than the one in which the plaintiff filed the complaint could in all cases successfully have the case transferred to the defendant’s home county and the plaintiff’s chosen forum would be meaningless.

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