F.N.C. After Bratic? Cheeseman Lives! But Distance Matters

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1 F.N.C. After Bratic? Cheeseman Lives! But Distance Matters Dale Larrimore Many Philadelphia attorneys saw the Bratic v. Rubendall 1 decision as a case that would open the floodgates for cases being transferred out of Philadelphia to neighboring counties. Relax. Cheeseman v. Lethal Exterminator, Inc. 2 is still the gold standard for establishing the heavy burden placed on defendants before a court should grant a petition to transfer venue based on forum non conveniens. The litigation in Bratic originated out of a claim filed in Dauphin County. When the court there granted summary judgment to the defendants, those defendants then initiated a Dragonetti action in Philadelphia County against the parties and attorneys who had sued them. The defendants in the Dragonetti action filed a petition to transfer the case to Dauphin County under the doctrine of forum non conveniens, Pa.R.C.P. 1006(d)(1). The trial court granted the motion to transfer, but this was reversed in an en banc decision from the Superior Court that held that defendants had not met their burden of proving oppressiveness and vexatiousness as required by Cheeseman. The Supreme Court granted allowance of appeal and reversed the Superior Court. Significantly, however, the Supreme Court did not overrule Cheeseman and, in fact, it actually reaffirmed the Cheeseman standard. In Cheeseman, the Supreme Court held that, while Rule 1006(d)(1) allows transfer based on the convenience of the parties, convenience, or the lack thereof, is not the test our case law has established. To obtain a transfer based on forum non conveniens, the moving party must show, with detailed information on the record, that the plaintiff s chosen forum is either oppressive or vexatious. In Bratic, the court noted that Cheeseman and Rule 1006(d)(1) do not require any particular form of proof. The moving party must present a sufficient factual basis for the petition and the trial court retains discretion to determine whether the particular form of proof is sufficient. As between Philadelphia and adjoining Bucks County, the situation in Cheeseman, we speak of mere inconvenience; as between Philadelphia and counties 100 miles away, simple inconvenience fades in the mirror and we near oppressiveness with every milepost of the turnpike and the Schuylkill Expressway. 3 Did the Supreme Court in Bratic perhaps soften the defendant s burden for an FNC transfer? Many would say, yes, but the Supreme Court took pains to clarify that the standards remain the same. While reaffirming Cheeseman, the court held that the showing of oppressiveness needed for a judge to grant an FNC petition is not as severe as suggested by the Superior Court s post-cheeseman cases. Mere inconvenience is insufficient, but there is no burden to show near-draconian consequences. 4 So, where are we? We are left with two guiding principles that are still in place and sacrosanct. First, never forget that the Supreme Court has emphatically stated that the plaintiff s choice of forum is

2 entitled to weighty consideration. 5 Second, defendants must still demonstrate that the plaintiff s chosen forum is oppressive or vexatious to the defendant. On December 30, 2015, a panel of the Superior Court issued the most significant post-bratic appellate decision, in two consolidated cases, Fessler v. Watchtower Bible and Tract Society and Scott v. Menna & Wawa. 6 In a well written opinion by Judge Jenkins, the Superior Court held that the trial court in Philadelphia abused its discretion in both cases by granting defendants motions to transfer to York County (in Fessler) and Chester County (in Scott). Our Supreme Court has made clear that courts should not transfer venue on the basis of forum non conveniens unless the defendant demonstrates that trial in the plaintiff s chosen forum would be oppressive to the defendant. In both Fessler and Scott, trial in Philadelphia would be, at most, merely inconvenient to the defendants instead of oppressive. Each of these consolidated cases had facts that are worth noting. In Fessler, the defendants delayed filing their motion to transfer and supporting affidavits from four witnesses until the eve of trial, after the witnesses had appeared without objection for their depositions in Montgomery County, just 20 miles from Center City Philadelphia. 7 The Superior Court noted that the facts strongly suggested that the motion to transfer was the product of bad-faith collaboration between defendants and the witnesses from York County, and that this was a last minute gambit to delay trial. The facts in Scott v. Menna & Wawa, are more typical, and more useful to plaintiffs in attempting to fight a transfer based on forum non conveniens. This litigation arose out of a vehicular crash in Chester County, where Menna resided. Because Wawa regularly conducts business in Philadelphia, venue was proper here. After Wawa settled with Scott, it was dismissed from the case and Menna then filed a petition to transfer to Chester County. The Court noted the similarity to Zappala II 8 and noted that there was no evidence in the record that Wawa was joined for the sole or primary purpose of gaining venue in Philadelphia and harassing Menna. 9 The Superior Court held that it is not an excessive burden to ask a Chester County defendant to travel approximately 40 miles to downtown Philadelphia for trial. Travel from Chester County is merely inconvenient, instead of oppressive [and] in reality, traveling from Delaware, Bucks, Montgomery or Chester County to Philadelphia is not particularly onerous. 10 The concept that distance matters is reinforced by an earlier Superior Court decision in Lee v. Thrower 11, where another panel of the Superior Court affirmed a transfer of litigation from Philadelphia to Centre County based on forum non conveniens. Travel considerations for witnesses and transportation considerations for evidence are generally less of a concern when a Philadelphia trial court is faced with a motion to transfer venue to an adjacent suburban Philadelphia county. 12 The appellate court noted that travel to and from State College to Philadelphia could take three to four hours each way and that distance, combined with the number of witnesses in the case, most of whom were based in Centre County, would result in an oppressive situation for defendants.

3 A plethora of earlier Superior Court decisions had laid the groundwork for this analysis, where a distance, although not dispositive, has been seen as a primary factor in determining if an FNC petition should be granted. 13 It is not necessary to articulate to a jurist the inherently empirical concept that distance and expedience are inversely proportional. 14 Decisions subsequent to Bratic have followed this same pathway in a forum non conveniens analysis. 15 Two lower court decisions are worth noting, however, before we leave this analysis. In Fishnel v. Christian-Baker Company 16, the defendant filed a Petition to Transfer litigation from Philadelphia to Dauphin County based on forum non conveniens. Judge Massiah-Jackson denied the petition, leaving the litigation in Philadelphia. The facts in Fishnel involved a tragic accident in a stone quarry in Harrisburg. Litigation was filed in Philadelphia that resulted in a verdict and judgment for the plaintiffs. Plaintiffs were unable to collect the judgment through insurance proceeds and filed this litigation against an insurance carrier and insurance broker. Defendants filed a FNC petition to change venue under Rule 1006(d)(1), arguing that Philadelphia s courts were selected solely for the purpose of harassing defendants. Judge Massiah-Jackson noted that in defendants brief, the City Hall courthouse is derided and labeled oppressive and vexatious. The Court held that defendants failed to meet their burden of demonstrating that the chosen forum was, in fact, oppressive and vexatious, in an opinion that cited to the prompt trials that occur under Philadelphia s Case Management Protocol; noting that if there is need to view the quarry, then videos or photographs could be brought to the courtroom; and concluding that the record demonstrates mere inconvenience to two individuals. The second lower court decision worth reading is another well-reasoned and thoughtful opinion by Judge Nealon in Lackawanna County. In Horst v. Union Carbide Corporation, often does, provided a very thorough summary of the law before rendering his decision reviewing multiple factors that a trial court can review in determining a forum non conveniens petition. First, the trial court must give deference to the plaintiff s choice of forum. As stated by the Supreme Court in Bratic, the plaintiff s choice of forum is entitled to weighty consideration, and the party seeking a change of venue bears a heavy burden in justifying the request to transfer. As stated in Cheeseman, the plaintiff s choice of forum should rarely be disturbed under Rule 1006(d)(1). To meet this burden, defendant must show that plaintiff s chosen forum is oppressive or vexatious. Defendant can prove a forum is vexatious by establishing with facts on the record that plaintiff s choice of forum was designed to harass the defendant, even at some inconvenience to plaintiff. Alternatively, defendant can prove that a forum is oppressive by establishing on the record a series of factors. While mere inconvenience is insufficient, there is no burden to show near-draconian consequences. Judge Nealon then went through, seriatim, factors that a trial judge should review. First, the mere fact that the site of the precipitating event was outside plaintiff s choice of forum is not dispositive. 17 Judge Nealon, as he

4 Second, while plaintiff s residency is peripheral to the issue and insufficient to warrant transfer to another county, it is not error for a trial court to reflect upon it if residence is probative of oppressiveness as long as it is not the sole reason for the judge s decision. In the Horst case, Judge Nealon noted that the defendant was located in Lancaster County and he recognized that litigating a claim in the home county of a corporate employer certainly presents legitimate concerns for a plaintiff. Next, if court congestion and the volume of litigation in the chosen forum contributes to the oppressiveness of the chosen venue, it may be considered, but the court in Bratic reiterated that it is not a factor sufficient by itself to warrant transfer. The possibility of a jury view under Rule 219 is a pertinent consideration only if a site visit is truly warranted by the facts of the case, but an affidavit indicating that a jury view may be necessary is insufficient since such a mere guess about this possible future step is not the type of detailed information on the record that the Supreme Court mandates be presented by the moving party. Judge Nealon noted that parties seeking a change of venue typically submit supporting affidavits from prospective witnesses. These can certainly be important for the trial judge to consider, but he also emphasized that references to potential or unnamed witnesses who may possess relevant information do not satisfy the moving party s burden of proof. In the Horst case, Judge Nealon noted that the expert witnesses who routinely testify in asbestos litigation reside outside of Pennsylvania. Those non-resident forensic witnesses will be equally inconvenienced by a trial in any county in this Commonwealth. Finally, while distance alone is not dispositive, it is inherently part of the equation. Judge Nealon examined the detailed information presented in the record in Horst v. Union Carbide and held that the defendants did not meet their burden of proving that the chosen forum was oppressive or vexatious to them. As a result, Judge Nealon denied the Motion to Transfer Venue based on forum non conveniens. So what is the takeaway from all of these cases? In spite of an initial panic by plaintiffs counsel when Bratic v. Rubendall was decided, the rules remain much the same. Cheeseman v. Lethal Exterminator is still the law of the land in Pennsylvania. The plaintiff has a right to select the forum for litigation and the trial court must give deference to the plaintiff s choice. A defendant seeking to transfer venue based on Rule 1006(d)(1) bears a heavy burden requiring proof that the plaintiff s chosen forum would be oppressive or vexatious. A trial court must consider a number of factors, with no single factor being dispositive to the petition to transfer. And, yes, distance matters. Attorneys in Philadelphia should be able to successfully resist a petition to transfer to Bucks, Chester, Delaware or Montgomery Counties, but we should think long and hard before attempting to sue in Philadelphia on a cause of action that occurred hundreds of miles away. 1 Bratic v. Rubendall, 626 Pa. 550, 99 A.3d 1 (2014).

5 2 Cheeseman v. Lethal Exterminator, Inc., 549 Pa. 200, 701 A.2d 156 (1997) (where the court held that two cases filed in Philadelphia County should not have been transferred to Bucks County, because it would not be oppressive or vexatious for defendants in Bucks County to have to litigate the claims in Philadelphia). 3 Bratic supra, 626 Pa. at 566, 99 A.3d at Id. 5 Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827, 832 (1989), cited with approval in Bratic, 99 A.3d at 6. 6 Fessler v. Watchtown Bible and Tract Society of New York, Inc., et al. and Scott v. Menna & Wawa, Inc., 2015 PA Super 274, 2015 WL Fessler, supra., at page 7 of opinion. 8 Zappala v. James Lewis Group, 982 A.2d 512 (Pa.Super. 2009). 9 Counsel are urged to read the discussion in Zappala II concerning forum shopping, noting the distinction drawn between legitimate forum shopping, which is appropriate and approved, and improper forum shopping, which is not permitted. 10 Fessler, supra, at page 9 of opinion. 11 Jung Lee v. Thrower, 102 A.3d 1018 (Pa.Super. 2014). 12 Jung Lee v. Thrower, supra., 102 A.3d at See, e.g., Hoose v. Jefferson Home Health Care, Inc., 754 A.2d 1 (Pa.Super. 2000) (reversing transfer from Philadelphia to Delaware County); Johns v. First Union Corporation, 777 A.2d 489 (Pa.Super. 2001) (reversing transfer from Philadelphia to Bucks County); Catagnus v. Allstate Insurance Company, 864 A.2d 1259, 1266 (Pa.Super. 2004) (reversing transfer from Philadelphia to Bucks County); Wood v. E.I. DuPont de Nemours & Co., 829 A.2d 707 (Pa.Super. 2003) (affirming a transfer from Philadelphia to Bradford County); Raymond v. Park Terrace Apartments, 882 A.2d 518 (Pa.Super. 2005) (order transferring litigation from Philadelphia to Delaware County reversed); Zappala v. James Lewis Group, 982 A.2d 512 (Pa.Super.2009) (reversing transfer from Philadelphia to Chester County); and Hunter v. Shire US, Inc., 992 A.2d 891, 897 (Pa.Super.2010) (affirming denial of transfer from Philadelphia to Chester County because they are adjacent to each other and are readily accessible in a short amount of travel time ). 14 Bratic, supra, 626 Pa. at 564, 99 A.3d at See, e.g., Passodelis v. Erie Insurance Co., 2014 WL , Sept. 16, 2014 Memorandum Opinion (affirming a transfer from Philadelphia to Allegheny County); Capper v. Sharma Equity, 2015 WL , Feb 24, 2015 Memorandum Opinion (affirming transfer from Philadelphia to Lehigh County); Keefer v. Consolidated Rail Corp., 2015 WL Mar 4, 2015 Memorandum Opinion (affirming transfer from Philadelphia to Cumberland County); and Lytle v. Consolidated Rail Corporation, 2015 WL , Mar 24, 2015 Memorandum Opinion (affirming transfer from Philadelphia to Blair County, and noting at footnote 5 that: Instantly the record reveals that Philadelphia is 230 miles from Blair County. Not only is this 2.3 times further than in Bratic, for reference, we note that it is more than twice the

6 distance from Philadelphia to New York, NY, and almost 100 miles further than Philadelphia to Washington, DC ). 16 Fishel v. Christian-Baker Company, Philadelphia C.P., No (J. Massiah Jackson, Nov 18, 2014) (Order with opinion attached as Court Exhibit A ). 17 Horst v. Union Carbide Corp., 2015 WL , (C.P. Lackawanna, No. 15 CV 1903) (J. Nealon, Aug. 3, 2015). Copyright 2016, Dale G. Larrimore, Esquire First published May 2016, in The Verdict, Vol , Issue 5, published by the Philadelphia Trial Lawyers Association, Philadelphia, PA