J-A30006-15, J-A30017-15


                                  2015 PA Super 274

STEPHANIE FESSLER,                                IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

WATCHTOWER BIBLE AND TRACT
SOCIETY OF NEW YORK, INC., AND
CHRISTIAN CONGREGATION OF
JEHOVAH’S WITNESSES, INC. AND
SPRING GROVE CONGREGATION OF
JEHOVAH’S WITNESSES, INC. AND
TERRY JEANNE MONHEIM,

                            Appellees                  No. 106 EDA 2015


                 Appeal from the Order November 17, 2014
           In the Court of Common Pleas of Philadelphia County
       Civil Division at No(s): SEPTEMBER TERM, 2013, NO. 01293
____________________________________________________________

COREY SCOTT,                                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

RENEE MENNA & WAWA, INC. D/B/A
WAWA

                            Appellee                   No. 820 EDA 2015


                       Appeal from the Order March 5, 2015
              In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): DECEMBER TERM, 2013, NO. 02055

BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A30006-15, J-A30017-15



OPINION BY JENKINS, J.:                            FILED DECEMBER 30, 2015

       These consolidated appeals1 involve the same issue: whether the trial

court in these civil actions abused its discretion by ordering transfer of venue

from Philadelphia County to another county under the doctrine of forum non

conveniens.

       We hold that the trial court abused its discretion in both Fessler and

Scott by granting the defendants’ motions to transfer venue to York County

and Chester County, respectively, on the basis of forum non conveniens.

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.

                                         Fessler

       Stephanie Fessler alleges that between ages 14-16, she was sexually

abused by Terry Monheim, a middle-aged woman that she met through the

Spring Grove Congregation of Jehovah’s Witnesses (“Spring Grove”).          The

misconduct allegedly took place either in York County, where the Spring




____________________________________________


1
  Pursuant to Pa.R.A.P. 503, we consolidate these appeals because they
involve the same issue. We refer to Fessler v. Watchtower, et al. as
“Fessler” and to Scott v. Menna as “Scott”.



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Grove Congregation is situated, or in Maryland, where Monheim lived, less

than a half hour from the York County courthouse.

       On September 11, 2013, Fessler commenced a civil action via writ of

summons in the Court of Common Pleas of Philadelphia County against

Watchtower Bible And Tract Society of New York, Inc. (“Watchtower”),

Christian Congregation Of Jehovah’s Witnesses, Inc. (“CCJW”), Spring

Grove2 and Monheim. The writ of summons listed Watchtower’s and CCJW’s

address as Patterson, New York.            On February 18, 2014, Fessler filed a

complaint alleging that venue was proper in Philadelphia County because

Watchtower and CCJW regularly conduct business in Philadelphia. The court

overruled the Congregations’ preliminary objections alleging improper venue

and scheduled trial in Philadelphia for December 1, 2014.

       On    October     9,   2014,    following   the   close   of   discovery,   the

Congregations filed a Rule 1006(d)(1) motion requesting a transfer of venue

to York County on the ground that trial in Philadelphia would be oppressive.

The Congregations presented evidence that Fessler and Fessler’s parents,

who all expected to testify at trial, reside in York County. The Congregations

did not, however, offer evidence that traveling to Philadelphia would be

oppressive to these witnesses. The Congregations also submitted affidavits


____________________________________________


2
 We will refer to Watchtower, CCJW and Spring Grove collectively as “the
Congregations”.




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from four church representatives who averred that (1) they lived in York

County or Maryland, more than 100 miles from Philadelphia,3 (2) they gave

depositions and expected to testify during trial, (3) they would have to

attend one or more days of trial, and (4) they would miss at least one

workday      for   every   day    they      spent   in    Philadelphia.        Further,   the

Congregations attached Internet records indicating that Fessler’s former

therapist,    an   expected      witness,      works     in   York   County.    Lastly,   the

Congregations asserted, upon information and belief, that family members of

the alleged abuser, Monheim, were expected to testify, and that they lived in

Maryland, less than thirty minutes from the York County courthouse.

       Fessler opposed the Congregations’ motion to transfer, claiming that

York County has the largest backlog of any county in Pennsylvania, so

transfer to York County would be oppressive to Fessler. Fessler also assailed

the Congregations for waiting until after completion of discovery before

moving for transfer of venue, because it deprived Fessler of the opportunity

to conduct discovery on the alleged oppressiveness to defense witnesses.

____________________________________________


3
  The four church representatives averred the following: Troy Ruhlman
averred that he lives 130 miles from downtown Philadelphia but only 20
miles from the York County courthouse. Neal Cluck averred that he lives
120 miles from downtown Philadelphia but less than 12 miles from the York
County courthouse. Eric Hoffman averred that he lives over 100 miles from
downtown Philadelphia but only ten miles from the York County courthouse.
Gary Neal averred that he lives over 100 miles from downtown Philadelphia
but only 21 miles from the York County courthouse.




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        In addition, Fessler argued that the Congregations expected to call

four witnesses4 for whom Philadelphia was more convenient than York

County.     Three of these witnesses, Fessler noted, live in Patterson, New

York, which is 156 miles from Philadelphia but 265 miles from York County.

The fourth witness, Hollingsworth, lived in Toms River, New Jersey, 61 miles

from Philadelphia but 164 miles from York County.                  The Congregations

responded that only two of these four witnesses are listed as witnesses in

the Congregations’ pretrial memorandum, and none of these witnesses

submitted affidavits averring that trial in York County would be inconvenient

for them.

        On November 13, 2014, the Philadelphia court entered an order

transferring venue to York County.             Fessler filed a timely appeal from this

order, and both Fessler and the Philadelphia court complied with Pa.R.A.P.

1925.

                                          Scott

        On December 16, 2013, Corey Scott, then a Chester County resident,

filed a complaint in the Court of Common Pleas of Philadelphia County

against Renee Menna, a Chester County resident, and Wawa, Inc. (“WaWa”)

for personal injuries allegedly sustained in an automobile accident in a Wawa

parking lot in Chester County. Scott filed his action in Philadelphia on the

____________________________________________


4
   Richard Moake,         Eric   Sandoval,       Thomas    Jefferson,   Jr.,   and   Don
Hollingsworth.



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ground that Wawa has an agent for service of process in Philadelphia and

regularly conducts business in Philadelphia by operating five Wawa stores

(none of which were related to Scott’s accident). Neither Menna nor WaWa

filed preliminary objections alleging improper venue.

        On April 23, 2015, Scott entered into a monetary settlement with

Wawa and discontinued his action against Wawa.          On February 5, 2015,

Menna, the lone remaining defendant, filed a motion to transfer venue to

Chester County under the doctrine of forum non conveniens.             Menna

asserted that trial in Philadelphia would be oppressive because she and Scott

resided in Chester County at the time of the accident, 5 the accident took

place in Chester County, Scott’s healthcare providers’ offices are in Chester

County, and Wawa, the only Philadelphia defendant, has been dismissed

from the case.

        On March 2, 2015, the Philadelphia court entered an order transferring

venue to Chester County. Scott filed a timely appeal from this order, and

the Philadelphia court filed an opinion without requiring Scott to comply with

Pa.R.A.P. 1925.

                 Relevant Forum Non Conveniens Standards

        Both of these interlocutory appeals involve the same issue: whether

the Philadelphia court properly exercised its discretion in granting a motion

____________________________________________


5
    Scott moved to Philadelphia in November 2014.




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to transfer venue to another county under the doctrine of forum non

conveniens.     We have jurisdiction over both appeals pursuant to Pa.R.A.P.

311(c), which permits an appeal as of right from an order in a civil action

changing venue.

       Plaintiffs “have long been provided with the initial choice of the court

in which to bring an action, if that court has jurisdiction.”       Bratic v.

Rubendall, 99 A.3d 1, 6 (Pa.2014). “This practice derives from the notion

of convenience to the plaintiff, not from the desire to pursue verdicts in

counties perceived to be more plaintiff-friendly.” Id. “While a plaintiff need

not provide reasons for selecting one venue over another, the doctrine of

forum non conveniens is a necessary counterbalance to [e]nsure fairness

and practicality.” Id.

       In cases where venue is proper6 in the plaintiff’s chosen county,

Pa.R.Civ.P. 1006 provides a mechanism for seeking a transfer of venue to

another county on the basis of forum non conveniens.          Rule 1006(d)(1)
____________________________________________


6
  As stated above, the trial court in Fessler overruled the defendants’
objections to venue. The Rules of Appellate Procedure provide that when
the trial court sustains venue, an appeal may be taken as of right from this
order when (1) the plaintiff files an election to deem the order final within
ten days after the order, or (2) the court states in the order that a
“substantial” venue issue exists. Pa.R.A.P. 311(b). Otherwise, an objection
to venue “may be raised on any subsequent appeal in the matter from a
determination on the merits.” Pa.R.A.P. 311(g)(1)(i), (2).

The plaintiff in Fessler did not file an election deeming the order final; nor
did the trial court state in its order that a substantial venue issue exists.
Therefore, the venue issue in Fessler is not before us in this appeal.



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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.”

     The two seminal decisions on the subject of forum non conveniens are

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

Bratic, supra.    Cheeseman involved consolidated appeals of two tort

actions (a motor vehicle accident case and a medical malpractice case) in

which the Court of Common Pleas of Philadelphia County ordered transfer of

venue to Bucks County on the basis of forum non conveniens. Our Supreme

Court held in Cheeseman that the plaintiff’s choice of forum deserves

“weighty consideration”, and therefore the party seeking a change of venue

bears the burden of “demonstrat[ing], with detailed information on the

record, that the plaintiff’s chosen forum is oppressive or vexatious to the

defendant.” Id. at 162. For example,

     the defendant may meet its burden of showing that the plaintiff’s
     choice of forum is vexatious to him by establishing ... the
     plaintiff’s choice of forum was designed to harass the defendant,
     even at some inconvenience to the plaintiff himself.
     Alternatively, the defendant may meet his burden by
     establishing ... trial in the chosen forum is oppressive to him; for
     instance, that trial in another county would provide easier access
     to witnesses or other sources of proof, or to the ability to
     conduct a view of premises involved in the dispute. But, we
     stress that the defendant must show more than that the chosen
     forum is merely inconvenient to him.




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Id. In a footnote, the Court added: “A transfer petition should not be a tool

by which a defendant may forestall litigation in the underlying case by

generating litigation concerning the transfer petition.” Id. at 162 n. 8.

      The Court held that the orders to transfer the actions to Bucks County

constituted an abuse of discretion, because the trial court

      improperly focused its decision on the balance between the
      convenience of the alternate forum for both of the parties, when
      weighed against the court’s administrative interest in clearing its
      backlog. The trial court failed to hold the defendants to their
      proper burdens of establishing, through detailed information in
      the record, that the plaintiffs’ choice of forum is oppressive or
      vexatious to the defendant.

Id.

      More recently, in Bratic, our Supreme Court granted allowance of

appeal to further “clarify the requirements for transfers based on forum non

conveniens as expressed in Cheeseman.”         Bratic, 99 A.3d at 6.    Bratic

“reaffirm[ed] the Cheeseman standard” but held that “the showing of

oppression needed for a judge to exercise discretion in favor of granting a

forum non conveniens motion is not as severe as suggested by the Superior

Court’s post-Cheeseman cases.” Bratic, at 10. While “mere inconvenience

remains insufficient,” Bratic said, “there is no burden to show near-

draconian consequences.” Id. at 10.

      Bratic instructs that consideration of the totality of circumstances is

critical to the proper resolution of a forum non conveniens question.       No

single factor is dispositive. For example, the distance between the plaintiff’s


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chosen forum and the defendant’s desired forum “alone is not dispositive,

but it is inherently part of the equation …”         Id., 99 A.3d at 9.       The

interference that trial in a distant forum will cause to the personal and

professional lives of parties, witnesses and counsel is also relevant, but not

determinative. Id. The possibility of oppressiveness grows, however, with

each passing mile that witnesses must travel to reach the courthouse: “As

between Philadelphia and adjoining Bucks County … 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 Schuylkill Expressway.”        Id. at 10.   Another

factor, the plaintiff’s residency, is “peripheral to the issue and insufficient to

warrant transfer”; nevertheless, “it is not error” for a trial court “to reflect

upon” whether “residence is probative of oppressiveness … so long as it is

not the sole reason for the judge’s decision.” Id. at 8. In addition, “public

interest” factors affecting the court’s own concerns, such as docket

congestion, are “not controlling,” because Rule 1006(d)(1) “speaks only in

terms of convenience to the parties and witnesses, not the courts.” Id. at 7,

8. But while congestion is not by itself decisive, it can still be relevant to a

finding of oppressiveness:

      This is not to say court congestion is never a consideration —
      access to justice is certainly a significant concern of our judicial
      system, which means not only the ability to get into court, but to
      have the court expeditiously address the matter — but
      congestion is not sufficient in itself to justify a change of venue.
      Ergo, if efficient resolution is precluded by uniquely disruptive

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J-A30006-15, J-A30017-15


      court volume, it cannot be impermissible for the court to so
      note, but only insofar as it bears on the ultimate consideration of
      venue as oppressive or vexatious. That is, if the congestion
      contributes to the oppressiveness of the chosen venue, it may be
      considered, though we reiterate it is not a factor sufficient by
      itself to warrant transfer …

Id. at 8 (emphasis added).

      When ruling on a Rule 1006(d)(1) motion, trial courts are vested with

“considerable discretion ... to balance the arguments of the parties, consider

the level of prior court involvement, and consider whether the forum was

designed to harass the defendant.”       Bratic, 99 A.3d at 7.     Accordingly,

appellate courts review a trial court’s ruling on a motion to transfer for an

abuse of discretion. Id. In this regard,

      the trial court’s ruling must be reasonable in light of the peculiar
      facts. If there exists any proper basis for the trial court’s
      decision to transfer venue, the decision must stand. 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 o[f] the
      record.

Id. (internal citations omitted). We must affirm a decision to transfer “[i]f

there exists any proper basis for the trial court’s decision[.]”      Id. at 8.

“[S]tringent examination in isolation of each individual fact mentioned by the

trial court [is] inconsistent with the applicable standard of review.” Id.

      Bratic’s application of these standards deserves close attention.

Rubendall, a Dauphin County attorney, represented two corporations in a

Dauphin County lawsuit against Bratic for tortious interference with contract.


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The trial court granted Bratic’s motion for summary judgment. Bratic then

sued    Rubendall      and    the    corporations     (collectively   “Rubendall”)   in

Philadelphia County, alleging that the Dauphin County lawsuit constituted

wrongful use of civil proceedings and abuse of process.                Rubendall filed

preliminary objections to Bratic’s amended complaint, and in a separate

motion, Rubendall moved to transfer the case to Dauphin County based on

forum non conveniens, arguing that the pertinent witnesses and evidence

were in Dauphin County, making depositions                  and trial in Philadelphia

oppressive for Rubendall and defense witnesses.                 Rubendall submitted

affidavits of seven witnesses, all of whom lived over 100 miles from

Philadelphia, stating that depositions and trial in Philadelphia “would be both

disruptive and a personal and financial hardship if [the witnesses] should be

called to testify,” because they “would have to incur substantial costs for

fuel, tolls and, if traveling overnight, for lodging and meals[, and for] every

day of deposition or trial in Philadelphia, [they] would be forced to take at

least one full day away from [work].” Bratic, 99 A.3d at 3-4.

       The trial court granted Rubendall’s motion to transfer venue on the

ground of forum non conveniens.7               This Court, sitting en banc, reversed.

Our Supreme Court granted allocatur and held that the trial court acted

____________________________________________


7
  Rubendall also filed preliminary objections claiming improper venue, but
the trial court did not explicitly rule on the preliminary objections. Bratic v.
Rubendall, 43 A.3d 497, 499 n. 1 (Pa.Super.2012) (en banc).



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within its discretion by granting Rubendall’s motion for transfer to Dauphin

County based on the totality of the evidence. Bratic, at 99 A.3d at 8. The

Supreme Court reasoned that “if we consider only [Rubendall’s] seven

affidavits, there exists a proper basis for the transfer.”   Id. at 9 (citation

omitted). The Court explained:

      The Superior Court noted six of the seven affidavits contained
      identical language, which [Bratic] argue[s] were ‘plainly
      inadequate’ because they failed to include ‘details of how the
      affiant’s “duties” or business would be affected by trial in
      Philadelphia, a[ ] claim that [Rubendall’s] businesses would be
      seriously hampered or that the affiant’s job would be at stake, or
      an[ ] averment that the affiant would not be reimbursed for
      expenses he incurred in traveling to Philadelphia[.]’ … We are
      unsure what extra detail must be enumerated — the interference
      with one’s business and personal life caused by the participatory
      demands of a distant lawsuit is patent. The witnesses need not
      detail what clients or tasks will be postponed or opportunities
      lost in order for the judge to exercise common sense in
      evaluating their worth; indeed, no one can foretell such detail.
      One hopes a judge may comprehend the existence of relevant
      general disruption from the allegations in the affidavit,
      sufficiently to rule on the issue.

Id. Although the distance between Philadelphia and Dauphin County alone

was not dispositive, it plainly was relevant, because

      one needs no detailed affidavit to understand the difference in
      logistics necessitated by a separation of 100 miles. It is not
      necessary to articulate to a jurist the inherently empirical
      concept that distance and expedience are inversely proportional.
      The Superior Court speculated upon the eight witnesses, be they
      employees or professionals, and the economic consequences as
      to each is not of record, but it may be presumed without fear of
      contradiction that to each of these people, time indeed is money,
      and days of participating in trial in Philadelphia would impact
      their ‘duties/operations[.]’

Id.

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      Subsequent to Bratic, this Court has issued one published opinion

pertaining to forum non conveniens. See Lee v. Thrower, 102 A.3d 1018

(Pa.Super.2014). In Thrower, the plaintiff filed a personal injury action in

Philadelphia County based on a motor vehicle accident on the campus of

Penn State University in Centre County.          Before the pleading stage

concluded, the defendants filed a motion to transfer venue to Centre County

on the basis of forum non conveniens.           The trial court granted the

defendants’ motion to transfer, and this Court affirmed, reasoning:

      [The defendants] submitted affidavits from seven witnesses to
      demonstrate how trial in Philadelphia County would be
      oppressive. Many of the witnesses note that they have family
      and childcare commitments that would make a multi-day trial in
      Philadelphia oppressive to them. Furthermore, some potential
      witnesses have job responsibilities that would be impossible to
      perform if they were required to spend several days and nights
      away from Centre County. For example, Steven Maruszewski,
      who oversees a staff of 1300 employees at the Office of the
      Physical Plant at Penn State, would be required to miss multiple
      days of work.       Several witnesses also detailed personal
      obligations, such as childcare, that would make a multi-day trip
      burdensome and disruptive.

Id., 102 A.3d at 1023. We observed that although “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,” it is also true that

      travel beyond these counties … can be onerous … [T]ravel to and
      from State College, Pennsylvania, could take three or four hours
      each way. This distance, combined with the number of witnesses
      in this case (there being multiple defendants, most of whom are
      based in Centre County), would result in an oppressive situation
      for [the defendants].

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Id. (emphasis in original).

                                 Discussion

      Guided by these decisions, we first address the trial court’s decision in

Fessler to grant the defendants’ motion to transfer venue from Philadelphia

to York County. The Congregations submitted affidavits from four defense

witnesses from York County asserting that trial in Philadelphia would be

oppressive for them, because they live more than 100 miles from downtown

Philadelphia, would miss at least one day of work if they had to testify in

Philadelphia, and would miss more worktime if they had to stay overnight in

Philadelphia before testifying. At first glance, this strategy seems identical

to the strategy that the defendants in Bratic and Thrower used

successfully. Upon closer inspection, however, the present case differs from

Bratic and Thrower in several important respects, and the trial court failed

to give appropriate weight to these distinctions.

      The defendants in Bratic and Thrower filed motions to transfer

venue, supported by affidavits, during the pleadings stage of the case,

before commencement of depositions.          The prompt filing of the defense

witnesses’ affidavits bolstered the credibility of their claims that trial in

Philadelphia would be oppressive.      Further, the plaintiffs in Bratic and

Thrower failed to counter the defendants’ motions with evidence that trial

outside of Philadelphia would be more oppressive than trial in Philadelphia.




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       Here, in contrast, the Congregations 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 twenty miles from Center City Philadelphia.

Moreover, the Congregations asked the trial court to transfer venue to York

County, which, as the plaintiff pointed out, has the largest civil case backlog

in Pennsylvania.      Transfer to York County could significantly delay trial, a

troubling possibility given that trial was scheduled to begin in Philadelphia

just two weeks after the court granted the Congregations’ motion for

transfer.   Finally, the plaintiff showed that trial in York County would be

more    oppressive     to   defense    witnesses   from   New   Jersey   who   lived

approximately 100 miles further from York County than from Philadelphia.8

Although the trial court determined that trial would be more convenient for

witnesses in York County than in Philadelphia, Trial Court Opinion at 2, 3, it

failed to take into account the greater inconvenience that York County poses

for the New Jersey defense witnesses.

       The facts strongly suggest that the motion to transfer venue was the

product of bad-faith collaboration between the Congregations and the four

____________________________________________


8
   The Congregations contend that there is no proof that its New Jersey
witnesses will suffer oppression because they did not submit affidavits
alleging oppression. It stands to reason, however, that these witnesses will
suffer oppression, because the distance to York County from their New
Jersey residences is about 100 miles more than to Philadelphia.



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York County witnesses.       The willingness of the York County witnesses to

testify in Montgomery County shows that they will not suffer oppression by

traveling twenty additional miles to Philadelphia for trial. The Congregations’

motion for transfer was not to avoid oppression - indeed, trial in York County

will oppress their own New Jersey witnesses - but was a last-minute gambit

to delay trial.

      In the final analysis, the Congregations have used their transfer

petition as “a tool [to] forestall litigation in the underlying case by

generating litigation concerning the transfer petition,” the abusive tactic

warned against in Cheeseman. Id. at 162 n. 8. We conclude that the trial

court abused its discretion by transferring venue from Philadelphia to York

County.

      We turn to Scott, which, as detailed above, is a personal injury action

arising out of a motor vehicle accident in Chester County. The plaintiff and

defendant Menna resided in Chester County at the time of the accident. The

other defendant, WaWa, regularly conducts business and accepts service of

process in Philadelphia, but WaWa was dismissed from the case via

settlement.       Following this settlement, the trial court granted Menna’s

motion to transfer the case to Chester County on the basis of forum non

conveniens.

      These facts are similar to the evidence in Zappala v. James Lewis

Group (“Zappala II”), 982 A.2d 512 (Pa.Super.2009). There, the plaintiff,


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a Delaware County resident, filed a personal injury action in Philadelphia

following an accident at a Chester County construction site.       The plaintiff

named multiple Chester County and Philadelphia parties as defendants. The

trial court granted summary judgment to the Philadelphia parties on the

ground that they had no ownership interest or other responsibility in the

land where the accident occurred.         The Chester County defendants moved

for transfer of venue to Chester County under Rule 1006(d)(1), and the trial

court granted their motion.

      This   Court   reversed.   Citing    Zappala   I   and   Cheeseman,    we

distinguished between “proper” forum shopping, in which the plaintiff seeks

a certain forum because it is “closer to the office of plaintiff’s attorney, or

closer to a transportation center,” and “improper” forum shopping, which

occurs “when a plaintiff manufactures venue by naming and serving parties

who are not proper defendants to the action for the purpose of manipulating

the venue rules to create venue where it does not properly exist.” Zappala

II, 982 A.2d at 521.       When the plaintiff engages in improper forum

shopping, “the trial court may interfere with the plaintiff’s choice of forum on

forum non conveniens grounds.” Id. We held:

      [W]e read Zappala I, in light of Cheeseman, to require that
      when, as here, the defendants that provided the basis for
      plaintiff’s choice of forum are subsequently dismissed from the
      case, the remaining defendants who seek transfer pursuant to
      Pa.R.C.P. 1006(d)(1) have the burden of proving that the
      plaintiff’s inclusion of the dismissed defendants in the case was
      designed to harass the remaining defendants.


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      This burden is in keeping with the standard established by
      Cheeseman: ‘[T]he defendant may meet its burden of showing
      that the plaintiff’s choice of forum is vexatious to him by
      establishing with facts of record that the plaintiff’s choice of
      forum was designed to harass the defendants, even at some
      inconvenience to the plaintiff himself.’ Cheeseman [], 701 A.2d
      at 162. Zappala I likewise held that a plaintiff whose strategy
      was to name inappropriate defendants for the purpose of
      establishing venue in a chosen forum are open to a challenge to
      the forum pursuant to 1006(d)(1): ‘... We disapprove of
      [improper] forum shopping and explain in detail that a defendant
      aggrieved by such strategy has recourse through ... forum non
      conveniens in accord with Rule 1006(d)(1)....’ Zappala I, [] 909
      A.2d at 1286 n. 14 (emphasis added).

Id. (emphasis in original).     “The mere fact that the Philadelphia County

Defendants were dismissed by unopposed summary judgment motions does

not establish that [the plaintiff] engaged in improper forum shopping,” we

reasoned, for “[i]f dismissal by stipulation or unopposed summary judgment

motions of the forum establishing defendants was the sole requirement for

establishing improper forum shopping, the Cheeseman requirement of

proof that the plaintiff chose a forum ‘designed to harass’ the defendant

would be obliterated.” Id. at 524. We concluded: “Given the total lack of

an evidentiary record in this case (as required by Cheeseman), we are

unable to review, let alone affirm, the trial court’s finding that [the plaintiff]

engaged in improper forum shopping by her inclusion of the Philadelphia

County Defendants in her lawsuit.” Id. at 525.

      Here, as in Zappala II, there is no evidence of record that Scott

joined the Philadelphia-based defendant, WaWa, for the sole or primary

purpose of harassing Menna. To the contrary, the fact that WaWa paid Scott

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a monetary settlement indicates that Scott had a good faith basis for suing

WaWa and thus had a legitimate reason for selecting Philadelphia as the

forum for litigation.

      Moreover, it will not be an excessive burden for Menna to drive to

Philadelphia for trial.    Chester County is approximately 40 miles from

downtown Philadelphia, only about one-third of the distance that the York

County witnesses must travel in Fessler.           Travel from Chester County is

“mere[ly] inconvenien[t]” instead of oppressive. Bratic, 99 A.3d at 10; see

also Raymond v. Park Terrace Apartments, Inc., 882 A.2d 518, 521

(Pa.Super.2005) (“since the Cheeseman decision was filed, this Court has

been reluctant to transfer cases from Philadelphia to the surrounding

counties based on forum non conveniens …. in reality, traveling from

Delaware, Bucks, Montgomery or Chester County to Philadelphia is not

particularly onerous”).   Thus, as in Fessler, the record in Scott does not

justify transfer of venue out of Philadelphia.

      Order    at   106   EDA   2015    reversed    and   remanded   for   further

proceedings.    Order at 820 EDA 2015 reversed and case remanded for

further proceedings. Jurisdiction relinquished in both cases.

      Judge Mundy joins in the Opinion.

      Justice Fitzgerald concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2015




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