Scribner v. MacK Trucks

628 A.2d 435, 427 Pa. Super. 71, 1993 Pa. Super. LEXIS 2336
CourtSuperior Court of Pennsylvania
DecidedJuly 19, 1993
Docket04195
StatusPublished
Cited by12 cases

This text of 628 A.2d 435 (Scribner v. MacK Trucks) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scribner v. MacK Trucks, 628 A.2d 435, 427 Pa. Super. 71, 1993 Pa. Super. LEXIS 2336 (Pa. Ct. App. 1993).

Opinion

HESTER, Judge.

Marvin and Sandra Scribner appeal from the November 24, 1992 order entered by the Court of Common Pleas of Northampton County 1 which granted a petition requesting a change of venue from Northampton County to Lehigh County. Change of venue was requested by Mack Trucks, Inc. (“Mack Trucks”), appellee, in this personal injury action. Appellants argue that the trial court failed to adequately consider their choice of forum. They also contend the record fails to establish that their selection of forum was inconvenient for the other parties to this action. We affirm.

*74 The record reveals the following. Mr. Scribner was employed as a security guard with Protection Technology, Inc., which was under contract with appellee to provide security services at a garage owned and operated by appellee in Lehigh County. Scribner allegedly was injured seriously after he slipped and fell on an accumulation of oil which seeped from a storage tank located in the garage. Appellants instituted this action in Northampton County seeking recovery for damages that they sustained as a result of Mr. Scribner’s fall. They claimed Mack Truck was liable since it had notice of the condition but failed to correct it. Mack Trucks joined Protection Technology, Inc. as a third-party defendant.

On July 29, 1992, Mack Trucks petitioned to transfer this action to Lehigh County pursuant to Pa.R.C.P. 1006(d)(1), which provides: “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.” When appellants failed to contest the petition requesting the Northampton court to transfer venue, the court granted the petition and transferred venue.

Subsequently, appellants filed a petition to vacate the order on the basis that they did not receive proper notice. The notice appellants received stated only that appellee intended to file a petition requesting a change of venue; it did not indicate the petition was to be presented to the court. On that basis, the trial court vacated the order and rescheduled argument on the original petition to transfer venue. At the hearing, Mack Trucks argued that Northampton was an inconvenient forum for the parties and witnesses since they worked and resided elsewhere. It further contended that transferring venue to Lehigh County would be more convenient for all concerned since: (1) appellants are residents of Lehigh County; (2) the accident giving rise to the lawsuit occurred there; and (3) all witnesses to the accident reside and work in Lehigh County. Based on these factors, the Northampton Court entered an order transferring venue to Lehigh County as the most convenient forum for all parties. This appeal followed.

*75 Appellants contend that their original selection of forum should have been accorded the greatest weight by the common pleas court. In support, they rely upon Vogel v. National Rail Passenger Corp., 370 Pa.Super. 315, 536 A.2d 422 (1988); and Hosiery Corporation of America v. Rich, 327 Pa.Super. 472, 476 A.2d 50 (1984) (plaintiffs right to choose a forum will only be disturbed for weighty reasons). They further assert that Mack Trucks bears a heavy burden to show that the forum appellants selected is not convenient and that the alternate forum is more convenient for all parties. Korn v. Marvin Fives Food Equipment Corp., 362 Pa.Super. 559, 524 A.2d 1380 (1987); Petty v. Suburban General Hospital, 363 Pa.Super. 277, 525 A.2d 1230 (1987). Moreover, appellants note that to support a change of venue, appellee is required to establish such oppressiveness that: (1) the vexation to the moving party is out of all proportion to the non-moving party’s convenience, and (2) the forum chosen was inappropriate in light of the forum court’s administrative or legal concerns. Id. Appellants finally claim that the grounds asserted by appellee and set forth in the record do not support such a finding.

Our standard of review is clear. In Okkerse v. Howe, 521 Pa. 509, 517-18, 556 A.2d 827, 831-32 (1989) (emphasis in original), our Supreme Court stated:

Our Rules 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. Walker v. Ohio River Co., 416 Pa. 149, 152, 205 A.2d 43, 43 (1964). Nevertheless, a plaintiffs choice of forum is not unassailable and the availability of a forum non conveniens challenge is a necessary counterbalance to insure fairness and practicality. See Ernest v. Fox Pool Corp., 341 Pa.Super. 71, 491 A.2d 154 (1985). Because, however, of the weight accorded to the plaintiffs original choice courts have held that he or she should not be deprived of the advantages presumed to come from that choice
“unless the defendant clearly adduces facts that ‘either (1) establish such oppressiveness and vexation to a defen *76 dant as to be out of all proportion to plaintiffs 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 plaintiffs choice of forum should rarely be disturbed____”
Reyna v. Piper Aircraft, Co., 680 F.2d 149, 159 (3d Cir. 1980), citing Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947) and Gulf Oil v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); cited with approval in Korn v. Marvin Fives Food Equipment, 362 Pa.Super. 559, 563, 524 A.2d 1380, 1384 (1987).

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

The factors which a trial judge must consider before ordering a transfer of venue include:

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Bluebook (online)
628 A.2d 435, 427 Pa. Super. 71, 1993 Pa. Super. LEXIS 2336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scribner-v-mack-trucks-pasuperct-1993.