Scola v. AC & S, INC.

657 A.2d 1234, 540 Pa. 353, 1995 Pa. LEXIS 283

• Court: Supreme Court of Pennsylvania
• Decided: May 2, 1995
• Status: Published

Opinion

OPINION

NIX, Chief Justice.

We granted allowance of appeal and consolidated these twenty-five asbestos-related personal injury cases in order to review the rulings of the Court of Common Pleas of Philadelphia County which transferred these eases to neighboring counties based on the doctrine oí forum non conveniens. In 1991, the trial court, faced with an extremely congested backlog of asbestos cases, announced that it would conduct status conferences to determine whether any such cases filed between 1986 and 1991 were subject to transfer based on venue. The asbestos bar was notified that an omnibus motion to transfer venue on cases filed during 1986 and 1987 would be heard. Prior to this motion hearing, the trial court ordered Appellants to submit information sheets summarizing the residence and location of asbestos exposure for each plaintiff.

At the omnibus motion hearing, Appellees orally petitioned 1 to transfer the cases which are the subject of this appeal. The trial court considered the information contained in the summaries provided by Appellants as well as the arguments put forth by the respective parties. Several months thereafter, the court issued several orders transferring the cases at issue to other counties based upon the doctrine of forum non conveniens. The court issued an opinion which set forth the basis upon which the decision to transfer each case was made. Caldwell v. Raymark, No. 8710-4324 (C.P. Philadelphia County Oct. 6, 1992).

Appellants filed timely appeals in the Superior Court which affirmed the trial court’s transfer of the instant cases based on forum non conveniens. The Superior Court issued two separate opinions, each addressing the claims of a specific appellant. McGarvey v. Raymark Industries, Inc., No. 314 Philadelphia 1992 (Pa.Super. Dec. 29,1993); Fitzgerald v. AC & S, Inc., No. 602 Philadelphia 1992 (Pa.Super. Dec. 16, 1993). Although the merits of the remaining cases were not addressed, the court affirmed the orders transferring these eases, indicating only that the transfers were proper. McGarvey at 8; Fitzgerald at 12.

On appeal before this Court, Appellants raise several allegations of error concerning the procedures used by the trial court in transferring their cases. Appellants first claim that the omnibus motion utilized by the court had the effect of placing on them the burden of justifying Philadelphia as their choice of forum based on residence or location of asbestos exposure. They further argue that there was no showing that trial in Philadelphia would be oppressive or vexatious to Appellees, or that there were insufficient contacts with Philadelphia to justify a transfer under the Pennsylvania Rules of Civil Procedure.

A change of venue based on forum non conveniens is addressed in Rule 1006(d)(1) of the Pennsylvania Rules of Civil Procedure: “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.” Appellants contend that the trial court’s omnibus motion procedure limited the relevant factors to be considered in transferring a case based on forum non conveniens. They further claim that Appellees failed to present evidence concerning the location of witnesses or documentary evidence which would demonstrate that Philadelphia was an inconvenient forum.

While we are not persuaded by Appellants’ assertion that they were prejudiced by the oral petitioning process at the omnibus motion hearing, we do find merit to the claim that the trial court failed to accord sufficient deference to Appellants’ choice of forum. In Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989), we stated that

[o]ur Hules of Civil Procedure provide a plaintiff with options as to where to bring suit, and this Court has emphatically stated that the choice of forum by a plaintiff is entitled to weighty consideration____ [A plaintiff] should not be deprived of the advantages presumed to come from [his or her original] choice

“unless the defendant clearly adduces facts that ‘either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff’s convenience ... or (2) make trial in the chosen forum inappropriate because of considerations affecting the court’s own private and public interest factors’ [but] unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”

Thus, the party seeking a change of venue bears a heavy burden in justifying the request, and it has been consistently held that this burden includes the demonstration on the record of the claimed hardships.

Id. at 517-18, 556 A.2d at 831-32 (citations and footnote omitted).

Our review of the record fails to disclose any evidence offered by Appellees that trial in Philadelphia County would prove oppressive or vexatious. In addition to the large backlog of asbestos cases, it appears that the only factors consid ered by the trial court were the Appellees’ residences and locations of asbestos exposure when it ordered the cases transferred to other counties. Although these factors are relevant to a change of venue determination, Okkerse clearly requires a showing by a defendant that he or she would be unduly burdened if the trial were to take place in the plaintiffs original choice of forum. The record is devoid of any evidence that Appellants would suffer such a hardship.

While a court must consider the public interest of avoiding court congestion in its decision to transfer a case, it must also give due deference to the plaintiffs choice of forum. We recognize the substantial progress that the Court of Common Pleas of Philadelphia County has made in clearing the backlog of asbestos cases from the docket. However, we are constrained to conclude in this instance that the court has abused its discretion in ordering transfers where there has been no showing on the record by Appellees as to how trial in Philadelphia County would prove oppressive or vexatious. In its opinion accompanying the transfer orders, the trial court stated: “We thoroughly reviewed each plaintiffs’ [sic] residency, employment and exposure. These factors weighed heavily in our reasoning and addressed the parties’ interests, convenience, witness location and sources of proof.” Caldwell v. Raymark, No. 8710-4324, slip op. at 9 (C.P. Philadelphia County Oct. 6, 1992) (footnote omitted). This analysis fails to articulate a specific basis upon which we may conclude that Appellees have demonstrated that trial in another county would provide easier access to witnesses or other sources of proof. Additionally, we are unable to find any evidence in the record that would allow us to independently reach this conclusion.

Accordingly, the Orders of the Superior Court are reversed and the cases remanded to the Court of Common Pleas for further proceedings consistent with this opinion.

MONTEMURO, J., who is sitting by designation, did not participate in the consideration or decision of this case.

1 . In order to cope with the overwhelming number of asbestos-related cases that have been filed in the county, the Court of Common Pleas of Philadelphia County has adopted special procedural rules which dispense with many of the formalities of motion practice. The new procedures are as follows:

1. Motions will be presented orally after the Call of the List every Monday before Judge Sandra Mazer Moss.

2. The motion should be in letter format rather than motion package format. The facts, issues and pertinent case law should be briefly outlined.

3. There is no longer any formal filing with Motion Court. The moving party must present the original letter motion to the Protfiono-tary for time stamping. The appropriate fee must be paid for ail motions.

4. The stamped original including a proposed order should be sent or delivered to Susan Jaffa Samer, Law Clerk to Judge Moss, 1266 Wanamaker Building, 100 Penn Square East, 19107 at the latest, one week prior to the Call of the List when argument is desired.

5. The opponent and all oilier parties must also receive a copy at least one week before argument.

6. The respondent must answer in letter format by the Thursday preceding argument day at 4:30 P.M. The answer should be sent or delivered directly to Ms. Samer, 1266 Wanamaker Building. No fee need be paid for a response.

7. The opponent and all interested parties must also receive a copy of the answer.

8. On Motion Day, parties will be allotted a reasonable time for oral arguments after which Judge Moss will rule from the Bench. The moving party will receive a copy of the signed Order and the Court will docket the original.

9. The winner must promptly serve copies of the signed Order to all parties.

10. In complex matters, upon petition and answer, the Court will allow the formal motion procedure.

Caldwell v. Raymark, No. 8710-4324, Exhibit A (C.P. Philadelphia County Oct. 6, 1992).