J-A14009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PAUL SINCLAIR AND KELLY WELLS                    IN THE SUPERIOR COURT OF
SINCLAIR,                                              PENNSYLVANIA

                         Appellants

                    v.

FIRST GLOBAL EXPRESS, INC. AND
YAKOV R. MELNIK,

                         Appellees                   No. 2860 EDA 2016


               Appeal from the Order Entered August 18, 2016
            In the Court of Common Pleas of Philadelphia County
                     Civil Division at No(s): 160100231


BEFORE: BENDER, P.J.E., BOWES, J., and SHOGAN, J.

MEMORANDUM BY BENDER, P.J.E.:                          FILED JULY 28, 2017

      Appellants, Paul Sinclair (“Mr. Sinclair”) and Kelly Wells Sinclair (“Mrs.

Sinclair”) (referred to jointly as “the Sinclairs”), appeal from the August 18,

2016 order granting Appellees’, First Global Express, Inc. (“First Global”) and

Yakov R. Melnik (“Mr. Melnik”), Motion to Transfer Venue for Forum Non

Conveniens. After careful review, we affirm.

      The trial court summarized the relevant facts and procedural history of

this case in its Pa.R.A.P. 1925(a) opinion:

             This matter arises from a motor vehicle accident that
      occurred on the Pennsylvania Turnpike at milepost 226.9 in
      Cumberland County, Pennsylvania on January 14, 2014. [The
      Sinclairs] reside in Haw River, North Carolina. [First Global] is
      incorporated in Illinois with a business address in Rockford,
      Illinois. [Mr. Melnik] is an adult individual residing in Erie,
      Pennsylvania. [The Sinclairs] filed suit in Philadelphia County on
      January 5, 2016.
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            The facts of the case as presented in the Amended
      Complaint are as follows. At all relevant times[,] Mr. Melnik was
      acting as an agent of [First Global]. On the date of the accident,
      … Mr. Sinclair was working as a long[-]haul truck driver. [He]
      was sleeping in his parked tractor trailer in an area specifically
      designated for parking such vehicles on the Pennsylvania
      Turnpike. While driving a commercial truck, Mr. Melnik drove
      into the designated area and collided with the parked vehicle in
      which [Mr. Sinclair] was sleeping, causing injury to [Mr.
      Sinclair].

            Pursuant to Pa.R.C.P. 1006(d)(1), Appellees filed a Motion
      to Transfer based upon the doctrine of Forum Non Conveniens
      requesting the matter be transferred to Erie County[.]1[] The
      parties were given approximately two months to engage in
      discovery relevant to [Appellees’] Motion, after which an
      argument and evidentiary proceeding was held. … [T]his [c]ourt
      granted [Appellees’] Motion and transferred this matter to the
      Cumberland County Court of Common Pleas[.]2[]
         1
            Pursuant to Pa.R.C.P. 1028(a)(1), [Appellees] initially
         filed Preliminary Objections challenging venue. [Appellees]
         subsequently withdrew their Preliminary Objections.
         2
           [Appellees] requested this matter be transferred to Erie
         County.     However, this [c]ourt noted venue was
         appropriate in either Cumberland County or Erie County.

Trial Court Opinion (“TCO”), 12/30/16, at 1-2 (citations to record omitted).

      The Sinclairs filed a timely notice of appeal on August 22, 2016,

followed by a timely court-ordered Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal.     The Sinclairs now present the following

issue for our review:

      Did the trial court abuse its discretion when, based on the
      affidavit of a defendant who works as a long-haul tractor-trailer
      driver that it would be “extremely oppressive and inconvenient”
      and “extremely difficult” for him to have to travel to Philadelphia
      to defend this lawsuit, it transferred venue of this law suit under
      the doctrine of forum non conveniens from the easily reachable
      transportation hub of Philadelphia County to Cumberland


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      County, a location equally if not more inconvenient for the
      parties and for all or all but one of the potential witnesses?

The Sinclairs’ Brief at 6.

      Before addressing the merits of the Sinclairs’ claim, we note our

standard of review:

      In an appeal from an order transferring venue on the basis of
      forum non conveniens, our standard of review is “whether the
      trial court committed an abuse of discretion.”

         If there exists any proper basis for the trial court’s decision
         to transfer venue [pursuant to Pa.R.C.P. 1006(d)(1)], 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 or the
         record.

Stoner v. Penn Kleen, Inc., 59 A.3d 612, 614 (Pa. Super. 2012) (quoting

Bratic v. Rubendall, 43 A.3d 497, 499 (Pa. Super. 2012), reversed on

other grounds, 99 A.3d 1 (Pa. 2014) (internal citations omitted)).

    Pennsylvania Rule of Civil Procedure 1006(d)(1) 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.” Pa.R.C.P. 1006(d)(1). “In

applying Rule 1006(d), the trial court must give deference to the plaintiff’s

choice of forum in ruling on a petition to transfer venue.” Stoner, 59 A.3d

at 614 (internal citation and quotation marks omitted).        “While a plaintiff

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

of forum non conveniens ‘is a necessary counterbalance to insure [sic]


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fairness and practicality.’”     Bratic v. Rubendall, 99 A.3d 1, 6 (Pa. 2014)

(quoting Okkerse v. Howe, … 556 A.2d 827, 832 ([Pa.] 1989)). The party

seeking a transfer of venue bears a heavy burden. Id. at 7.

      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.

Id. (quoting Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156, 162

(Pa. 1997)).

      Here, the Sinclairs argue that the trial court’s transfer of venue from

Philadelphia County to Cumberland County made the trial of this case

“considerably more inconvenient for [them], [their] fact and expert

witnesses, and even for [First Global] – given how many more non-stop

flights exist between Chicago and Philadelphia than between Chicago and

Harrisburg.”   The Sinclairs’ Brief at 13. Moreover, the Sinclairs claim that

the trial court’s reliance on the single paragraph in Mr. Melnik’s affidavit,

claiming “difficulty, inconvenience, and oppressiveness,” in granting the

transfer of venue, constitutes an abuse of discretion.         Id. at 13-14.

However, after careful review of the record, we discern no abuse of

discretion by the trial court.



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      The trial court found the Bratic case, which involves a matter

transferred from Philadelphia County to Dauphin County, similarly, on the

basis of forum non conveniens, to be instructive here.       See TCO at 4-5

(citing Bratic, 99 A.3d at 1).    In Bratic, the Supreme Court emphasized

the importance of considering the totality of the evidence in determining

whether a forum is oppressive and vexatious, and noted that factors to be

considered may include distance and the disruption of a witness’ personal or

professional life. Bratic, 99 A.3d at 8.

      Moreover, the trial court noted that the affidavits in Bratic were

essentially identical in nature to the affidavits in the instant case, stating

that trial in Philadelphia would be a personal and financial hardship due to

the associated costs, travel and time away from work. See TCO at 5 (citing

Bratic, 99 A.3d at 4 n.3). In discussing the sufficiency of the affidavits, the

Bratic Court stated:

      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.

                                       …
      A petition to transfer venue must be supported by detailed
      information on the record, but Cheeseman and Rule 1006(d) do
      not require any particular form of proof. All that is required is
      that the moving party present a sufficient factual basis for the
      petition, and the trial court retains the discretion to determine
      whether the particular form of proof is sufficient.

Bratic, 99 A.3d at 9.


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      In support of its decision to grant the transfer of venue in the instant

case, the trial court opined:

      Here, Mr. Melnik submitted an affidavit with the submission of
      his Motion. The affidavit stated [he] was a resident of Erie
      County, Pennsylvania; it would be extremely difficult for him to
      travel to Philadelphia for the trial; trial in Philadelphia would be
      extremely oppressive and inconvenient.           In addition to Mr.
      Melnik’s affidavit, at the evidentiary hearing[,] [Appellees]
      submitted to the [c]ourt an affidavit of Corporal John
      Rosenberger of the Pennsylvania State Police.                It was
      represented to the [c]ourt that Corporal Rosenberger was the
      appropriate supervisor of the responding trooper to address the
      trooper’s concerns.         Accordingly, Corporal Rosenberger
      submitted an affidavit on behalf of Trooper Duncan, the
      responding officer. The affidavit stated Trooper Duncan was
      assigned to the Cumberland County area; approximately three
      hours away from Philadelphia. As such, it would be oppressive
      and vexatious for Trooper Duncan to come to Philadelphia to
      testify.
                                       …

      Based upon Mr. Melnik’s residence, Philadelphia’s City Hall is
      nearly a seven-hour drive of over 400 miles. This is not a mere
      ride from a neighboring county into Philadelphia. Participating at
      a trial in Philadelphia over 400 miles and nearly seven hours of
      traveling time from home will certainly impact a defendant far
      beyond mere inconvenience. The scenario presented here is not
      one of a long, possibly inconvenient drive to and from
      Philadelphia each day of trial. Instead, allowing this case to
      remain in Philadelphia would cause [Mr. Melnik] to be uprooted
      from his daily life. Attending trial over 400 miles away from
      home leaves little possibility of meeting any professional or
      personal obligations a defendant may have.

TCO at 5-6 (citations to the record omitted).

      In response to the Sinclairs’ argument that the fact that Mr. Melnik is

employed as a long-haul truck driver negates his ability to claim the chosen

forum was oppressive, the trial court stated:     “[T]his [c]ourt sees a stark



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contrast between being forced to travel over 400 miles away as a litigant,

and traveling as a long[-]haul truck driver.”      Id. at 7.     The trial court

further noted that the Sinclairs’ reliance “upon the accessibility of the airport

and the ease of traveling into Philadelphia International Airport from [the

Sinclairs’] home state of North Carolina; the willingness of [the Sinclairs’]

out-of-state treating physicians to fly into Philadelphia and the presumed

ease for the [Appellees] to fly into Philadelphia … are little more than fleeting

presumptions.” Id. at 7-8.

      In sum, we conclude that the trial court properly considered the

totality of the circumstances and that the record adequately supports its

decision to grant the transfer of venue.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2017




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