Tranter, M. v. Z&D Tour

2023 Pa. Super. 200, 303 A.3d 1070

• Court: Superior Court of Pennsylvania
• Decided: October 11, 2023
• Docket: 1746 EDA 2022
• Status: Published

Opinion

J-A14021-23

2023 PA Super 200

MICHAEL TRANTER, AS THE : IN THE SUPERIOR COURT OF ADMINISTRATOR OF THE ESTATE OF : PENNSYLVANIA J.V., A MINOR, AND ADMINISTRATOR : AD PROSEQUENDUM OF THE ESTATE : AND LUCERO VAZQUEZ, : INDIVIDUALLY, VEYSEL ERDAL : GULERTEKIN, AS THE : ADMINISTRATOR OF THE ESTATE OF : EILEEN ZELIS ARIA, HOLLY KEHLER, : No. 1746 EDA 2022 ON BEHALF OF THE BENEFICIARIES : OF THE ESTATE OF DENNIS L. : KEHLER, ANTHONY ELLIS, : QUWANJAY ELLIS, CHENG YING : LIAN, INDIVIDUALLY, AND AS : PARENT AND NATURAL GUARDIAN : OF I.O., A MINOR, JULIA KHAN, : JORGE MORETA, MELANIE MORETA, : EDILMA DEL ROCIO ESTUPINAN : CABRERA, DENNIS ANANE, : HOULEYE CAMARA, AS PARENT AND : NATURAL GUARDIAN OF M.F., A : MINOR, AMINATA FOFANA, : FATOUMATA TRAORE, AS PARENT : AND NATURAL GUARDIAN OF A.D., A : MINOR FATOUMATA TRAORE, AS : PARENT AND NATURAL GUARDIAN : OF A.A.D., A MINOR AND : FATOUMATA TRAORE, AS PARENT : AND NATURAL GUARDIAN OF C.D., A : MINOR : : Appellants : : : v. : : : Z&D TOUR, INC., OHIO COACH, INC. : D/B/A OHIOCOACH.COM, FED EX : GROUND PACKAGE SYSTEM, INC. AND SIOUX TRUCKING, INC. J-A14021-23

Appeal from the Order Entered June 3, 2022 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 211001768

TAYLOR TEETS : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : UNITED PARCEL SERVICE, INC. C/O : No. 2343 EDA 2022 CORPORATION SERVICE COMPANY, : UNITED PARCEL SERVICE, INC., : PENSKE TRUCK LEASING COMPANY, : L.P., PENSKE TRUCK LEASING : CORPORATION, PENSKE : AUTOMOTIVE GROUP, PENSKE : CORPORATION, Z&D TOURS, INC., : JAGUAR TICKET, INC. D/B/A : OHIOCOACH.COM, FEDEX GROUND : PACKAGE SYSTEM, INC., FEDEX : CORPORATION, RYDER TRUCK : RENTAL, INC., RYDER SYSTEM, INC., : SIOUX TRUCKING, INC., BRANDON : STOWERS :

Appeal from the Order Entered August 3, 2022 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 211201805

LUCERO VAZQUEZ, AMAD HUSSAIN, : IN THE SUPERIOR COURT OF JULIA KHAN, AS PARENT AND : PENNSYLVANIA NATURAL GUARDIAN OF A.A, A : MINOR, TAURELL FAVORS, AND : ALEXIS HUMBLE : : Appellants : : : No. 2421 EDA 2022 v. : : :

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Z&D TOUR, INC. OHIO COACH, INC. : D/B/A OHIOCOACH.COM, FED EX : GROUND PACKAGE SYSTEM, INC., : AND SIOUX TRUCKING, INC. :

Appeal from the Order Entered August 4, 2022 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 211200570

XUE-ZHEN CHEN, WEI-HUI HUANG, : IN THE SUPERIOR COURT OF GUI-YING REN, ZHEN FENG, ZI WEI : PENNSYLVANIA LI, SUKIE ZHENG AND SHENYUE : CAO : : : v. : : : No. 2426 EDA 2022 FEDEX GROUND PACKAGE SYSTEM, : INC., FEDEX CORPORATION, RYDER : TRUCK RENTAL, INC., RYDER : SYSTEM, INC., SIOUX TRUCKING, : INC., BRANDON STOWERS, UNITED : PARCEL SERVICE, INC., UNITED : PARCEL SERVICE, INC., PENSKE : TRUCK LEASING COMPANY, L.P., : PENSKE TRUCK LEASING : CORPORATION, PENSKE : AUTOMOTIVE GROUP, PENSKE : CORPORATION, Z&D TOUR, INC., : JAGUAR TICKET, INC. : : : APPEAL OF: XUE-ZHEN CHEN, WEI- : HUI HUANG, GUI-YING REN, ZHEN : FENG, ZI WEI LI, SUKIE ZHENG

Appeal from the Order Entered August 3, 2022 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 211201583

XUE-ZHEN CHEN, WEI-HUI HUANG, : IN THE SUPERIOR COURT OF GUI-YING REN, ZHEN FENG, ZI WEI : PENNSYLVANIA LI, SUKIE ZHENG AND SHENYUE : CAO :

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: : v. : : : No. 2427 EDA 2022 FEDEX GROUND PACKAGE SYSTEM, : INC., FEDEX CORPORATION, RYDER : TRUCK RENTAL, INC., RYDER : SYSTEM, INC., SIOUX TRUCKING, : INC., BRANDON STOWERS, UNITED : PARCEL SERVICE, INC., UNITED : PARCEL SERVICE, INC., PENSKE : TRUCK LEASING COMPANY, L.P., : PENSKE TRUCK LEASING : CORPORATION, PENSKE : AUTOMOTIVE GROUP, PENSKE : CORPORATION, Z&D TOUR, INC., : JAGUAR TICKET, INC. : : : APPEAL OF: XUE-ZHEN CHEN, WEI- : HUI HUANG, GUI-YING REN, ZHEN : FENG, ZI WEI LI, SUKIE ZHENG

Appeal from the Order Entered August 4, 2022 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 211201583

BEFORE: PANELLA, P.J., DUBOW, J., and SULLIVAN, J.

OPINION BY DUBOW, J.: FILED OCTOBER 11, 2023

In these consolidated appeals, Appellants, plaintiffs named in the

captions above, appeal from the Order entered on August 4, 2022, granting

the Petitions filed by United Parcel Service (“UPS”), Penske Truck entities,

FedEx Ground Package Systems, Inc (“FedEx”), Sioux Trucking, Inc., and

Brandon Sowers (collectively “Appellees”), and transferring these cases from

Philadelphia County to the Westmoreland County Court of Common Pleas

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based on forum non conveniens. After careful review, we conclude the trial

court abused its discretion in transferring the cases and, thus, we vacate the

Order.

A.

We briefly summarize the relevant underlying facts and procedural

history as follows. On January 5, 2020, at 3:30 AM, Mr. Shangquing Feng was

driving 59 passengers in a coach bus1 from New York City to Columbus, Ohio,

when he encountered difficulty navigating a curve on I-70 in Mount Pleasant,

Westmoreland County. Ultimately, the bus rolled over and came to rest on its

side across the westbound lanes. Shortly thereafter, a tractor trailer truck,

driven by Appellee Brandon Stowers on behalf of Appellees FedEx and Sioux

Trucking, crashed into the fallen bus. Within seconds thereafter, two UPS

tractor trailers crashed into the FedEx tractor trailer. As a result of the rollover

and the crashes, five people died, including Mr. Feng, two bus passengers,

and two UPS truck drivers. Multiple others suffered injuries, some severe.

Appellants filed civil complaints in the Philadelphia County Court of

Common Pleas against numerous defendants, including Appellees, seeking

damages and compensation. Appellants reside in New Jersey, Pennsylvania,

____________________________________________

1 The bus was owned/leased and operated by Z&D Tour, Inc. and Ohio Coach.

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Ohio, New York City, and China. Appellee Brendan Sowers and the Appellee

corporate entities conduct business throughout the country.2

Appellees FedEx and Brandon Stowers filed preliminary objections to the

Complaint filed by Appellant Trantor, et al. on January 3, 2022, seeking, inter

alia, dismissal or consolidation with a similar case pending in Allegheny

County. Appellants objected. In response, the Philadelphia Court of Common

Pleas directed the parties to conduct discovery limited only to the issue of

venue and forum non conveniens.3, 4

Following discovery, Appellees FedEx, Sioux Trucking, Inc., Brandon

Stowers, Penske, and UPS each filed, and/or joined, Motions to Transfer the

2 FedEx Ground Package Systems, Inc (“FedEx”) is a Delaware Corporation with its principal place of business located at 1000 Fed Ex Drive, Moon Township, Allegheny County, Pennsylvania. Appellee Sioux Trucking, Inc. is a California corporation with its principal place of business located in Moorpark, California. Appellee Brandon L. Stowers, a long-haul truck driver, resides in Hemet, California. Appellee UPS is an Ohio corporation with its principal place of business in Atlanta, Georgia. Appellee Penske Truck Leasing, Co., LP, is a Pennsylvania limited partnership with its principal place of business in Reading, Berks County, Pennsylvania. Appellee Penske Truck Leasing Corporation is a Delaware corporation with a principal place of business located in Reading, Pennsylvania. Appellee Penske Automotive Group, Inc., is a Delaware corporation with a principal place of business located in Michigan. Appellee Penske Corporation is a Delaware corporation with a principal place of business in Michigan. For purposes of this Opinion only, we refer to the Penske entities collectively as “Penske.”

3 Order, entered 1/28/22.

4 On January 28, 2022, the court overruled the preliminary objection seeking

dismissal or consolidation with the Allegheny County Case. See Order, 1/28/22.

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litigation to Westmoreland County based on forum non conveniens.5 Annexed

to the motions were eleven affidavits from first responders and others who

lived and worked in and around Westmoreland County. The parties conducted

depositions of the affiants.

On August 2, 2022, and August 3, 2022, the court granted the Motions

to Transfer based on forum non conveniens, concluding that because the

potential witnesses would have to travel over 200 miles if called to testify at

trial, Appellees had established that Philadelphia County is an “oppressive and

vexatious venue.” Tr. Ct. Op, 12/12/22, at 2-3. Referring to the eleven

affidavits submitted by Appellees, the court summarily concluded that

Appellees specified “the key witnesses to be called” and made “a general

statement on what their testimony will cover[.]” Id. at 4 (citation omitted).

Id.

Appellants timely appealed. This Court granted Appellees’ uncontested

motion to consolidate these appeals. Appellants and the trial court complied

with Pa.R.A.P. 1925.

In their brief, Appellants raise the following issue for our review:

Whether the Trial Court erred as a matter of law, and thereby abused its discretion[,] in holding [that Appellees] Fed Ex Ground Package systems, Inc., Sioux [T]rucking, Inc., [UPS], and Brandon Stowers have produced sufficient evidence of record to meet their heavy burden of demonstrating that litigation of this ____________________________________________

5 FedEx and Sioux Trucking filed their Motion to Transfer pursuant to Pa.R.C.P.

1006(d)(1) on March 23, 2022, which UPS joined on March 29, 2022. Penske filed its Motion to Transfer pursuant to Pa.R.C.P. 1006(d)(1) on May 4, 2022, which FedEx, Sioux Trucking, and Mr. Stowers joined on May 12, 2022.

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Action in Philadelphia County would be oppressive and vexatious warranting transfer to Westmoreland County on forum non conveniens grounds?

Appellants’ Brief, at 6-7.

B.

We review the 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).

A plaintiff’s choice of forum “is entitled to great weight, and must be

given deference by the trial court.” Powers v. Verizon Pa., LLC, 230 A.3d

492, 496 (Pa. Super. 2020). As a result of that deference, the plaintiff’s choice

of forum “should rarely be disturbed[.]” Cheeseman v. Lethal

Exterminator, Inc., 701 A.2d 156, 162 (Pa. 1997).

A plaintiff’s choice of forum is not, however, unassailable. A court may

override the plaintiff’s prerogative and order a venue transfer on the basis of

forum non conveniens where the defendant proves, “with detailed information

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on the record,” that the plaintiff’s chosen forum is oppressive.6 Wood v. E.I.

du Pont de Nemours and Co., 829 A.2d 707, 711-12 (Pa. Super. 2003) (en

banc) (citation omitted). See also Pa.R.C.P. 1006(d)(1).7

“[I]mportant considerations when measuring oppressiveness are:

relative ease of access to witnesses or other sources of proof; availability of

compulsory process for attendance of unwilling, and cost of obtaining willing,

witnesses; costs associated with witnesses’ attendance; and ability to conduct

[a] view of premises involved in dispute.” Ritchey, 286 A.3d at 255 (citation

omitted). There is “a vast difference between a finding of inconvenience and

one of oppressiveness” and, thus, we reiterate that “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 254, 259 (emphasis added, citations

omitted). See also Bratic v. Rubendall, 99 A.3d 1, 7-8 (Pa. 2014) (same).

6 A defendant may also secure transfer of venue on the basis of forum non

conveniens where it proves that the plaintiff’s choice of forum was vexatious, i.e., “designed to harass the defendant[.]” Wood, 829 A.2d at 712. Although Appellees and the trial court use the phrase “vexatious and oppressive,” none of the Appellees allege that Appellants elected to file their lawsuits in Philadelphia to harass them.

7 “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.C.P. 1006(d)(1). “[W]hile Rule 1006(d)(1) on its face allows transfer based on ‘the convenience of the parties,’ convenience or the lack thereof is not the test our case law has established: the moving party must show the chosen forum is either oppressive or vexatious.” Bratic v. Rubendall, 99 A.3d 1, 8 (Pa. 2014) (citation omitted).

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When the transfer request is based on allegations of witness hardship,

the defendant must not only identify the allegedly encumbered witness but

must also make a general statement of what testimony that witness will

provide. Ehmer v. Maxim Crane Works, L.P., 296 A.3d 1202, 1207 (Pa.

Super. 2023). Significantly, the general statement must establish that the

potential witness is “key” to the defense. Petty v. Suburban Gen. Hosp.,

525 A.2d 1230, 1234 (Pa. Super. 1987). In other words, “the general

statement must establish that the witness possesses testimony that is

relevant and necessary to the defense.” Ehmer, 296 A.3d at 1207-08. “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.” Id. at

1208. “The weight that the trial court places on the hardship should be in

direct proportion to the degree of relevance or necessity of that witness’[s]

testimony to the defense.” Id. at n.6.

C.

Appellants argue that the trial court abused its discretion and erred as

a matter of law by failing to consider the entire record and misapplying binding

legal precedent. Appellants’ Br. at 10, 17. They emphasize that the witness

affidavits submitted by Appellees in support of their motions are “almost

identical” and “plac[e] too much emphasis on the witnesses’ nearly identical

claims of oppressiveness,” which Appellants characterize as assertions of

“mere inconvenience.” Id. at 3, 10 (case citation omitted). Appellants

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emphasize that “nowhere in the [t]rial [c]ourts[’] opinions in support of its

Orders transferring the cases did it find that these witnesses have any[]

personal knowledge of the facts and circumstances regarding this case, or

what their testimony will entail.” Id. at 27 (emphasis in original). They note

that none of the individuals who submitted the statements relied on by

Appellees “contributed to the ‘liability’ of the crash” and none of them can be

“considered ‘core’ witnesses who possessed ‘firsthand knowledge’ relevant to

the case.” Id. at 29 (case citation omitted).

Based on our review of the record and the relevant case law, we agree

that the trial court erred as a matter of law in granting the petitions to transfer

venue to Westmoreland County based on forum non conveniens. Although

the trial court opined that “Appellees have specifically demonstrated that [first

responders and] other named witnesses would provide relevant evidence,” the

court did not find that Appellees had demonstrated that this “relevant

evidence” was critical to their defenses. Moreover, none of the Appellees

asserted in their motions to transfer that the witnesses who signed the

affidavits were “key witnesses” for the defense.

Specifically, in its motion to transfer venue pursuant to Pa.R.C.P.

1006(d)(1), Appellee Penske asserted that “Philadelphia County is an

inconvenient forum. All the investigators, emergency responders, and medical

providers with knowledge in this matter are located in Western Pennsylvania,

and the parties will be unable to compel those witnesses to attend any trial of

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this matter in Philadelphia County, Pennsylvania.” Penske Defendants’ Motion

to Transfer Venue, filed 5/4/22, at 4-5.

In their joint Petition to Transfer Venue based on Rule 1006(d)(1),

FedEx and Sioux Trucking averred “[m]uch of the critical trial testimony

regarding the events surrounding the Accident will come from third-party

witnesses who work and reside in Westmoreland County and its adjacent

counties. These witnesses include state troopers, emergency responders,

medical personnel, and eyewitnesses.” Petition to Transfer Venue, dated May

12, 2022, at 5. These Appellees also stated that “many of the witnesses to

the circumstances surrounding the Accident and corresponding investigation

are located approximately 300 miles from the Court of Common Pleas of

Philadelphia” and these “witnesses will be required to bear substantial

personal and professional hardship, inconvenience, and expense should they

be required to attend a deposition or trial in Philadelphia County.” Id. In

their brief supporting the transfer motion, FedEx and Sioux Trucking asserted

that “[t]here are upward of sixty-six (66) potential witnesses who responded

to the Accident who work and reside no less than two-hundred and forty (240)

miles from Philadelphia County.” Brief in Support of Petition to Transfer, filed

5/12/22, at 7.

Finally, Appellee UPS argued in its brief in support of the Penske’s,

FedEx’s and Sioux Trucking’s motions to transfer based on forum non

conveniens, that “Plaintiffs’ choice of venue in Philadelphia is ‘manifestly

burdensome’ as a matter of law to no less than seven witnesses, if not many

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more. One-way travel of no less than 240 miles crosses the line from mere

inconvenience into oppressiveness for these witnesses.” UPS Brief in Support,

filed 5/23/22, at (unpaginated) 9.

Significantly, none of Appellees indicated in their various filings how

these witnesses would be relevant or necessary to their defense.8 Rather,

Appellees merely focused on the hardship element while failing to address the

threshold issue of the importance of the witnesses to its defense.

Contrary to the trial court’s conclusion, the eleven affidavits and thirty-

two unnotarized statements submitted in support of Appellees’ motions fail to

indicate how the individuals are “key witnesses” for the defense.9 These

affidavits are from ambulance drivers, fire fighters, paramedics, and the

Westmoreland County Deputy Coroner. Appellees also submitted affidavits

from a Fed Ex corporate employee, and an insurance claims investigator

employed by FedEx Ground to gather the non-notarized statements from 32

8 FedEx and Sioux Trucking argued that Philadelphia is an “oppressive and vexatious venue for FedEx Ground corporate witnesses” because FedEx Ground is headquartered in Allegheny County and “[m]any corporate witnesses that may testify on behalf of FedEx Ground work at its principal place of business.” FedEx Br. in Support of Petition to Transfer Venue, filed 5/12/22, at 9. They did not provide affidavits from these unnamed individuals. Although FedEx and Sioux Trucking provided a list of what the state police, investigators, medical providers and first responders may offer as “relevant testimony on many topics,” they failed to indicate how their testimony on these “many topics” would be relevant and necessary to Appellees’ defense. Id. at 17.

9 See RR 1860-1896, 2121a-2129 (affidavits); RR 2136-2787 (statements).

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potential witnesses. Each of the affidavits and statements describe in nearly

identical terms the hardships that travelling to Philadelphia to testify would

present to the individual, or to unnamed individuals in their employ.10 None

of the affidavits contain information indicating how these potential witnesses’

testimonies would be relevant or necessary to Appellees’ respective defenses.

With respect to the two individuals cited by the trial court in support of

its decision to transfer, Jason Beener and Joshua Zappone, we note that they

did not indicate in their affidavits or during their depositions how their

testimony would benefit the defense. In fact, Jason Beener, a paramedic for

Somerset Area Ambulance, specifically testified via Zoom that there was

nothing about his presence at the accident scene that would make him “an

important witness for the defense.” Beener Dep., 3/18/22, at 11. Joshua

Zappone, the Westmoreland County deputy coroner, testified that he arrived

at the scene hours after the crash to assess the fatalities, but he did not

indicate how his assessment would benefit the defense. See Zappone Dep.,

3/18/22, at 11, 15. Rather, regarding his affidavit, Zappone testified, “I would

have signed anything to stay out of Philadelphia.” Id. at 32.11 ____________________________________________

10 These hardships included loss of personal family and work time, inability to

care for dependents and farm animals, and inability to run businesses in the event any number of potential witnesses were called to testified.

11 Other first-responder affiants testified at their depositions that they never

saw the accident scene. See Miller Dep. , 3/25/22, at 15 (“There’s no information I can offer. All I did was drive an ambulance”), 24 (“I did not communicate with anybody. I did not look at the scene.”); Stempora Depo., (Footnote Continued Next Page)

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None of the evidence submitted in support of Appellees’ motions to

transfer indicate the content of the witness’s testimony or its relevance to

Appellees’ defense. While Appellees generally identify these people as being

on the scene or designate their corporate status, without any indication that

these individuals are “key witnesses” to the defense, Appellees have failed to

meet their burden to overcome the plaintiffs’ choice of forum.

Moreover, as in Ehmer, the court made no finding that these witnesses

possess testimony relevant to Appellees’ defenses. See Ehmer, 296 A.3d at

1208. Nor could the court make such a finding because Appellees failed to

provide the court with any statement of what testimony these witnesses,

many of whom did not even see the crash site, would provide. We, therefore,

conclude that the trial court abused its discretion in transferring these cases

from Philadelphia to Westmoreland County. Accordingly, we vacate the

transfer order.

3/25/22, at 10 (“I never even actually saw the actual crash site from where— where we were parked.”); Vanbremen Dep. , 3/25/22, at 9 (“I was the provider in the back of the ambulance with my patients but I didn’t—I didn’t see the accident at all.”); Wegman Dep. , 3/25/22, at 10 (testifying he drove an ambulance and stating “I didn’t really get to see the scene that well”). See also Garino Dep. , 3/23/22, at 11 (testifying as director of operations for Mutual Aid Ambulance, that he had no firsthand knowledge of what the crash scene looked like or anything pertaining to treatment of the patients because he was not employed by Mutual Aid Ambulance on January 5, 2020). In addition, David Gass, the Human Resources director for Fed Ex services testified Philadelphia would be an inconvenient forum for corporate safety employees and others but he was not able to provide names of these hypothetical potential witnesses or their locations. Gass Dep. , 3/23/22, at 20.

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Order vacated. Jurisdiction relinquished.

President Judge Panella joins the opinion.

Judge Sullivan concurs in result.

Date: October 11, 2023

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