J-A22024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    TIMOTHY WATSON                             :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NICK J. CAPO AND NATIONAL                  :
    DELIVERY SYSTEMS, INC.                     :
                                               :   No. 983 EDA 2018

                 Appeal from the Order Entered March 6, 2018
      In the Court of Common Pleas of Philadelphia County Civil Division at
                      No(s): 00457 December Term, 2016


BEFORE:      BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E.*


MEMORANDUM BY NICHOLS, J.:                           FILED DECEMBER 11, 2018

        Appellant Timothy Watson appeals from the order granting the petition

to transfer venue1 from Philadelphia County to Somerset County based upon

forum non conveniens of Appellees Nick J. Capo and National Delivery

Systems, Inc. Appellant asserts that the trial court abused its discretion in

granting the petition. We affirm.

        The trial court summarized the relevant factual and procedural

background of this matter as follows:

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 An order changing venue in a civil action is interlocutory but appealable as
of right. Pa.R.A.P. 311(c). See Jackson v. Laidlaw Transit, Inc., 822 A.2d
56, 57 n.1 (Pa. Super. 2003).
J-A22024-18


       This appeal arises out of a motor vehicle accident in Somerset
       County. On December 1, 2015[,] around 9:58 PM, [Appellant]
       was traveling westbound on the Pennsylvania Turnpike at or near
       mile post 106 in Somerset County, PA. At the aforementioned
       time and place, [Appellant] was driving a 2012 Peterbilt tractor
       trailer truck in the right lane of traffic with a passenger, Cindy
       Weaver.[2] Subsequently, [Appellee] Capo,[3] driving a 2012
       Freightliner tractor trailer truck, struck the right side of
       [Appellant’s] vehicle. The truck driven by [Appellee] Capo was
       leased/rented/owned by [Appellee] National Delivery Systems
       Inc. (“NDS”).[4] [Appellee] Capo left the scene of the collision, but
       was located by the State Police and given a citation for causing
       the accident. [Appellant] sustained various injuries and was taken
       to an emergency room in Somerset County.

       The accident was reported to and investigated by the Pennsylvania
       State Police, Somerset County. Trooper Brian Seifert of the
       Somerset Barracks of the Pennsylvania State Police Turnpike
       Division went to the accident scene and wrote a report. The
       accident was also investigated by Trooper Derek Thorpe of the
       Somerset Barracks of the Pennsylvania State Police Turnpike
       Division.

                                          ***

       [Appellant initiated this matter by filing a complaint on December
       7, 2016. Thereafter, Appellees filed preliminary objections; before
       the preliminary objections could be ruled upon, Appellant filed an
       amended complaint on January 27, 2017.              Appellees filed
       preliminary objections to the amended complaint, which were
       sustained, and Appellant filed a second amended complaint on
       March 23, 2017. On April 11, 2017, Appellees filed an answer and
       new matter.] On November 16, 2017, [Appellees] filed [a] Motion
       to Transfer to Somerset County pursuant to forum non
       conveniens. [In support of the motion to transfer, Appellees
____________________________________________


2Appellant resides in Catonsville, Maryland, and Ms. Weaver resides in Glen
Burnie, Maryland.

3Appellee Capo resides in Connellsville, Pennsylvania, which is in Fayette
County.

4NDS has a principal place of business in Ellicott City, Maryland. NDS also
does business in Philadelphia at its “Philadelphia Terminal.”

                                           -2-
J-A22024-18


      argued that the accident occurred in Somerset County, State
      Police from Somerset County responded to the accident and would
      have to travel at least seven hours round-trip to attend trial in
      Philadelphia County, Appellant was first treated at the Somerset
      County Hospital, the Somerset County Courthouse is 237 miles
      away from City Hall in Philadelphia, and Appellee Capo would incur
      significant expense in traveling to Philadelphia for trial. Appellees
      also submitted an affidavit of Trooper Seifert indicating that
      traveling to Philadelphia for trial would be burdensome.] On
      December 15, 2017, th[e c]ourt ordered the parties to submit
      supplemental briefing on the issue of venue and allowed the
      parties to conduct limited discovery related to venue[, in which
      neither party engaged].       On February 9, 2018, the parties
      submitted their supplemental briefing. [Appellant attached an
      affidavit from Ms. Weaver to his supplemental briefing, in which
      Ms. Weaver stated that she would be more inconvenienced by
      having to travel to Somerset County rather than Philadelphia.] On
      March 6, 2018, th[e c]ourt granted [Appellees’] Motion to Transfer
      to Somerset County based on forum non conveniens. [Appellant]
      timely appealed on March 14, 2018.

      On March 22, 2018, th[e c]ourt ordered [Appellant] to file a
      Statement of Matters Complained of on Appeal pursuant to
      Pa.R.A.P. 1925(b).

Trial Ct. Op., 4/18/18, at 1-2.

      Appellant filed a timely concise statement of matters complained of on

appeal on April 3, 2018. The trial court complied with Pa.R.A.P. 1925(a) by

filing an opinion on April 18, 2018, in which the trial court stated its reasoning

for its decision to grant the motion to transfer venue:

      Philadelphia is an oppressive forum. To have the case remain in
      Philadelphia would require [Appellee] Capo and witnesses to travel
      hundreds of miles to participate in litigation; disrupting their
      personal and business obligations and causing them to incur travel
      expenses to come and stay in Philadelphia.            Additionally,
      Philadelphia is over 250 miles from the scene of the accident, thus
      Somerset County affords much better access to the scene.
      Considering all the factors, this [c]ourt determined [Appellees]
      met their burden to transfer and did not err.


                                      -3-
J-A22024-18



Id. at 5.

      On appeal, Appellant raises the following issue for our review:

      Whether the trial court erred and abused its discretion when it
      granted [Appellees’] petition to transfer venue based upon a
      theory of forum non conveniens where [Appellees] failed to show
      that maintaining venue in Philadelphia would be oppressive or
      vexatious where [Appellees] regularly conduct business in
      Philadelphia County, have no ties to Somerset County, and the
      witnesses would need to travel further if this case were situated
      in Somerset County[.]

Appellant’s Brief at 4.

      Appellant asserts that

      the trial court erred and abused its discretion because [Appellees]
      did not allege a single basis on which the record supports a finding
      that venue in Philadelphia County is oppressive or vexatious.
      While there may be inconvenience to litigating a case in
      Philadelphia County for [Appellee] Capo, inconvenience does not
      translate to oppressive or vexatious.

Id. at 14-15.    Appellant argues that the trial court “ignored the fact that

[Appellant’s] chosen venue was Philadelphia County and focused almost

entirely on purported ‘undue hardship’ on [Appellee] Capo.”         Id. at 15.

Appellant asserts that because both Appellees conduct business in Philadelphia

County through NDS’ Philadelphia Terminal, it is “specious to suggest [that

they are nevertheless] burdened or oppressed when litigating a claim in the

county.” Id. Appellant argues that Appellant and Ms. Weaver are the only

eyewitnesses to the accident and since they are from near Baltimore,

Maryland, they are “substantially closer to Philadelphia County than to

Somerset County.” Id. Further, Appellant asserts that Appellees “will not call



                                     -4-
J-A22024-18



either [of the troopers who investigated the accident] as a witness during

trial,” so the burden on the troopers to travel to Philadelphia for trial should

not have factored into the decision to transfer the case to Somerset County.

Id. at 16.

      Regarding the standard of review, it is well settled that

      appellate courts review a trial court’s ruling on a motion to transfer
      for an abuse of discretion.

         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.

Bratic v. Rubendall, 99 A.3d 1, 7 (Pa. 2014) (citations omitted).

      Pennsylvania Rule of Civil Procedure 1006 provides for the transfer of

venue as follows: “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). As to the timing of a petition to transfer venue, “Rule

1006(d) imposes no time limit upon a party who seeks to transfer venue[.]”

Wood v. E.I. du Pont de Nemours & Co., 829 A.2d 707, 710 (Pa. Super.

2003) (en banc) (citation omitted).

      “[A] petition to transfer venue should be granted only if the defendant

‘demonstrat[es], with detailed information on the record, that the plaintiff’s

chosen forum is oppressive or vexatious to the defendant.’” Bratic, 99 A.3d


                                      -5-
J-A22024-18



at 7 (citing Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156, 162

(Pa. 1997)). “[T]he party seeking a change of venue bears a heavy burden

in justifying the request.”   Id. (citation omitted).   A trial court is not to

“engage[] in a balancing test.    We rejected that approach . . . because it

disregarded the great weight accorded to the plaintiff’s initial choice of forum.

Transfer on forum non conveniens grounds is proper only if the defendant

proves that the chosen forum is oppressive to him.” Moody v. Lehigh Valley

Hosp.-Cedar Crest, 179 A.3d 496, 508 (Pa. Super. 2018) appeal denied, 194

A.3d 117 (Pa. 2018). Determining whether a forum is oppressive “requir[es]

consideration of the totality of the circumstances. The distance between the

two forums, the disruption to the parties’ personal and professional lives, are

part of the equation, but no one factor is dispositive.” Id. at 508 n.9.

      In Bratic, the plaintiffs initiated an action in Philadelphia, asserting

wrongful use of civil proceedings and abuse of process claims based on a

previously dismissed lawsuit that had been litigated in Dauphin County.

Bratic, 99 A.3d at 3.      Pursuant to Pa.R.C.P. 1006(d)(1), the defendants

“petitioned to transfer the case to Dauphin County based on forum non

conveniens, alleging the pertinent ‘witnesses and evidence [were] located in

Dauphin County such that depositions and trial in Philadelphia County [would]

be a hardship to the [defendants] and the witnesses upon whom [defendants]

must rely.’”   Id. at 3-4 (citation omitted).   In support of their petition to

transfer, the defendants




                                      -6-
J-A22024-18


       presented affidavits of seven witnesses, all of whom live over 100
       miles from Philadelphia, each stating that holding the trial there
       “would be both disruptive and a personal and financial hardship if
       [the witnesses] should be called to testify at deposition or trial”
       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].”

Id. at 4 (footnotes omitted).

       The trial court in Bratic granted the motion to transfer, finding the

choice of Philadelphia to be vexatious and oppressive to the defendants since

       1) the earlier claim took place in Dauphin County; (2) all [of the
       defendants were] from Dauphin County and none of [the plaintiffs
       were] from Philadelphia County; (3) each of [defendants’] eight
       witnesses live[d] over 100 miles from Philadelphia County and []
       “engaged in business activities which [made] their ability to
       appear at trial in Philadelphia County far more of a burden than a
       trial in Dauphin County”; and (4) “[t]he sole connection
       with Philadelphia County [was] the fact that all [defendants]
       occasionally conduct[ed] business in Philadelphia.”

Id. (citation omitted). A divided panel of this court affirmed the trial court.

Id.   After reargument en banc, a divided court reversed, holding that the

aforementioned facts did not demonstrate that trial in Philadelphia would be

oppressive or vexatious.5 Id.

       Our Supreme Court overruled this Court and affirmed the trial court’s

decision to transfer venue:

       If we consider only [defendants’] seven affidavits, there “exist[ed]
       a [ ] proper basis for the . . . transfer[.]” It cannot be said the trial
____________________________________________


5 We note that Appellant cites in his appellate brief to this Court’s en banc
decision to reverse the trial court in Bratic in support of his position in the
instant matter. See Appellant’s Brief at 14. As noted above, our Supreme
Court overruled this Court’s en banc decision.

                                           -7-
J-A22024-18


      court misapplied the law or failed to hold appellants to their proper
      burden to establish oppression. While typically the “fact that the
      site of the precipitating event was outside of plaintiff’s choice of
      forum is not dispositive[,]” it is axiomatic that “when the case
      involves a transfer from Philadelphia to a more distant county . .
      . , factors such as the burden of travel, time out of the office,
      disruption to business operations, and the greater difficulty
      involved in obtaining witnesses and sources of proof are more
      significant[.]”

      As with other factors insufficient on their own, distance alone is
      not dispositive, but it is inherently part of the equation. . . .
      Dauphin County . . . is not a neighbor of Philadelphia, and one
      needs no detailed affidavit to understand the difference in logistics
      necessitated by a separation of 100 miles. . . .

      We thus cannot accept [plaintiffs’] argument that [defendants’]
      affidavits were “plainly inadequate to overcome the great
      deference owed to a plaintiff’s choice of forum[.]”

Id. at 9-10 (citations and footnote omitted).

      Here, we agree with the trial court that Appellees met their burden of

demonstrating that Philadelphia is an oppressive and vexatious forum. See

Trial Ct. Op. at 5. Somerset County, in which the underlying events occurred,

is far from Philadelphia County. Indeed, in Bratic a distance of over 100 miles

from Philadelphia created a hardship for the defendants, while here the

distance is over 200 miles.    See Bratic, 99 A.3d at 4; Trial Ct. Op. at 5.

Moreover, the remainder of the considerations the Bratic trial court used to

determine the chosen forum was oppressive and vexatious are present here—

neither Appellees nor Appellant are from Philadelphia County, potential

witnesses for Appellees are engaged in activities that make their ability to




                                      -8-
J-A22024-18



appear in Philadelphia a much bigger burden than appearing in Somerset,6

and the sole connection with Philadelphia is the fact that Appellees

occasionally conduct business in Philadelphia.      See Bratic, 99 A.3d at 4.

Accordingly, the record reveals a basis for transferring the instant matter, and

we discern no abuse of discretion on the part of the trial court in relying on

the aforementioned factors and affidavit of a potential witness to determine

that the chosen forum of Philadelphia was oppressive and vexatious.7 See id.

at 9.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/18




____________________________________________


6 Although Appellant asserts that Appellees “will not call” either of the troopers
to testify, see Appellant’s Brief at 16, Appellant has assumed that Appellees
will not do so.

7 We note that Appellant attached an affidavit from Ms. Weaver to his
supplemental briefing to the trial court indicating the hardship Ms. Weaver
would face by having to travel to Somerset County rather than Philadelphia.
However, the trial court properly did not engage in a balancing test. See
Moody, 179 A.3d at 508.

                                           -9-
