J-A08024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHARLES E. BETTWY JR.                           IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

AMERICAN PREMIER UNDERWRITERS,
INC., AND CONSOLIDATED RAIL
CORPORATION

                            Appellees               No. 1039 EDA 2015


                   Appeal from the Order Dated March 9, 2015
              In the Court of Common Pleas of Philadelphia County
                  Civil Division at No(s): September Term, 2013


BEFORE: BOWES, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 03, 2016

       Appellant, Charles E. Bettwy, Jr., appeals from an order entered on

March 9, 2015,1 granting the motion to transfer venue filed by Appellees,

American Premier Underwriters, Inc. (Penn Central) and Consolidated Rail

Corporation (Conrail) (collectively Appellees or defendants).2 We vacate and

remand for further proceedings.


____________________________________________


1
 Although the order granting the motion to transfer venue was dated March
6, 2015, it was not docketed until March 9, 2015. We have amended the
caption accordingly.
2
  An order transferring venue is an interlocutory order that is appealable as
of right under Pa. R.A.P. 311(c). See Forrester vs. Hanson, 901 A.2d
548, 552 (Pa. Super. 2006)



*Retired Senior Judge assigned to the Superior Court.
J-A08024-16


      On September 6, 2013, Appellant filed a civil complaint in the Court of

Common Pleas of Philadelphia County pursuant to the Federal Employers’

Liability Act (FELA), 45 U.S.C. § 51 et seq.       The complaint alleges that

Appellant worked for Penn Central and Conrail from 1967 through 1998.

During the course of his employment, Appellant alleges that he was exposed

to various toxic substances that caused bladder cancer.        Appellant further

alleges that the defendants committed the acts that lead to his exposure to

toxic substances at their headquarters in Philadelphia, Pennsylvania.

      On February 9, 2015, the defendants moved to transfer venue to the

Court of Common Pleas of Blair County based on forum non conveniens.

See Pa.R.C.P. 1006(d)(1). Appellant filed an answer and brief in opposition

to the defendants’ motion. The trial court granted the defendants’ motion

on   March    9,   2015   and   thereafter   denied   Appellant’s   motion    for

reconsideration on April 7, 2017. Appellant filed a timely notice of appeal on

March 31, 2015. The trial court issued an opinion in support of its ruling on

May 27, 2015.

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

      In a motion to transfer venue based on forum non conveniens,
      was the [t]rial [c]ourt’s [o]rder transferring th[is] action to Blair
      County an error of law and a manifest abuse of discretion whe[re
      the motion was untimely under the court’s December 11, 2013
      Case Management Order and where the totality of circumstances
      failed to demonstrate that litigating Appellant’s claims in
      Philadelphia County constituted a vexatious and oppressive
      burden?]

Appellant’s Brief at 4.

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       The precise issue before us centers on whether the trial court abused

its discretion in transferring this matter to Blair County pursuant to Pa.R.C.P.

1006(d)(1), which 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).       Our Supreme Court recently set forth several legal

principles that guide our analysis of this issue:

       Plaintiffs have long been provided with the initial choice of the
       court in which to bring an action, if that court has jurisdiction.[3]
       See Plum v. Tampax, Inc., 160 A.2d 549, 552–53 (Pa. 1960)
       (“While the plaintiff ordinarily controls choice of the forum, a
       court does not exercise jurisdiction if it is a seriously
       inappropriate forum for the trial of the action so long as an
       appropriate forum is available to the plaintiff.”)[, quoting
       Restatement (Second) of Conflict of Laws § 117e (Tentative
       Draft No. 4, 1957)]. 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. 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] fairness and practicality.”
       Okkerse v. Howe, 556 A.2d 827, 832 (Pa. 1989) (citation
____________________________________________


3
  Under FELA, federal jurisdiction runs concurrent with that of state courts
and the plaintiff in such a case has the right to file his claims where the
defendant resides, where the cause of action arose, or where the defendant
does business when the action commences. See 45 U.S.C.A. § 56. Rule
2179 of the Pennsylvania Rules of Civil Procedure provides, among other
things, that a personal injury action against a corporation may be brought in
a county where the entity regularly conducts business.              Pa.R.C.P.
2179(a)(2). No one in this case disputes that the defendants regularly
conduct business in Philadelphia County; thus, venue was proper, for
purposes of Rule 2179, before the trial court.




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     omitted). [Our Supreme] Court has “emphatically stated that
     the [plaintiff's] choice of forum ... is entitled to weighty
     consideration[,]” id., citing Walker v. Ohio River Co., 205 A.2d
     43, 45 (Pa. 1964); “[t]hus, 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[.]” [Okkerse, 556 A.2d at
     832 (emphasis in original)].

Bratic v. Rubendall, 99 A.3d 1, 6-7 (Pa. 2014).

     Our    Supreme     Court’s   decision   in   Cheeseman       v.    Lethal

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

party’s burden under Rule 1006(d)(1).

     [T]he defendant may meet its burden of showing that the
     plaintiff's choice of forum is vexatious to him by establishing with
     facts on the record that the plaintiff's choice of forum was
     designed to harass the defendant, even at some inconvenience
     to the plaintiff himself. See, [Gulf Oil v. Gilbert, 330 U.S. 501
     (1947)]. Alternatively, the defendant may meet his burden by
     establishing on the record that 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. [T]he defendant must show more than that the
     chosen forum is merely inconvenient to him.

Cheeseman, 701 A.2d at 162.

     To resolve a forum non conveniens question, a trial court must

examine the totality of circumstances. Fessler v. Watchtower Bible and

Tract Society of New York, Inc., 131 A.3d 44, 49 (Pa. Super. 2015).

Factors such as distance, burden of travel, time away from family or work,

disruption to business operations, difficulty in obtaining witnesses, and

access to proof are relevant to the court’s inquiry.   Lee v. Thrower, 102


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J-A08024-16


A.3d 1018, 1022-1023 (Pa. Super. 2014).        “No single factor is dispositive.”

Fessler, 131 A.3d at 49.           For obvious reasons, the potential for

oppressiveness grows as witness travel distances increase. Id.

      While a moving party must support a transfer petition with detailed

information on the record, neither Cheeseman nor Rule 1006(d) requires

any particular form of proof.     Bratic, 99 A.3d at 9; Lee, 102 A.3d at

1022-1023. So long as the moving party presents “a sufficient factual basis

for the petition, [] the trial court retains the discretion to determine whether

the particular form of proof is sufficient.”   Bratic, 99 A.3d at 9; Lee, 102

A.3d at 1022-1023.

      When ruling on a petition to transfer venue pursuant to
      [Pa.R.C.P.] 1006(d)(1), 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.” Zappala v.
      Brandolini Property Management, Inc., 909 A.2d 1272, 1283
      (Pa. 2006)[, citing Cheeseman v. Lethal Exterminator, Inc.,
      701 A.2d 156, 162 (Pa. 1997)]. Accordingly, appellate courts
      review a trial court's ruling on a motion to transfer for an abuse
      of discretion. [Zappala, 909 A.2d at 1284] (citation omitted).

        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).

Bratic v. Rubendall, 99 A.3d 1, 6-7 (Pa. 2014).


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J-A08024-16


       In this case, the trial court determined that the defendants met their

burden under rule 1006(d)(1) “by establishing on the record[] that trial in

Blair County would provide easier access to witnesses and other sources of

proof and [that a trial in Philadelphia County would be] burdensome to

witnesses.” Trial Court Opinion, 5/27/15, at 3 (unpaginated). Specifically,

the trial court’s opinion noted that Appellant’s exposures occurred in Blair

County, his former supervisors and co-workers reside in Blair County, and

medical treatment providers are located in Blair County and Western

Pennsylvania. Id. at 2, 4 (unpaginated).

       Appellant objects to the trial court’s ruling, alleging that the facts

offered in support of the petition to transfer were insufficient since the

defendants offered no affidavits from witnesses who said that a trial in

Philadelphia County would represent an oppressive burden.4 For their part,

the defendants argue the trial court did not abuse its discretion since: (1)

Appellant resides in Blair County; (2) Appellant worked in Blair County; (3)

Appellant’s claims of injury arose in Blair county; (4) Appellant received

medical treatment in Blair County and Western Pennsylvania; and, (5)

Appellant’s former supervisors and co-workers reside in Blair County.    We

____________________________________________


4
   Appellant also refers to the fact that the defendants’ transfer motion was
filed outside the period for pretrial motions as provided in the case
management order entered on December 11, 2013. This claim is largely
undeveloped and, in view of our disposition of Appellant’s substantive
challenge, we shall address this claim no further.



                                           -6-
J-A08024-16


conclude, for the following reasons, that the defendants failed to meet their

“heavy burden” of establishing that Appellant’s choice of forum is vexatious

or oppressive to defendants and not merely an inconvenience. Specifically,

the defendants failed to support their transfer petition with sufficient facts.

Accordingly, the trial court abused its discretion in concluding that trial in

Blair County would provide easier access to witnesses and other sources of

proof and that a trial in Philadelphia County would unduly burden the

witnesses in this case.

       The defendants relied upon the affidavit of Rodney S. Tatum (Tatum)

in requesting the transfer of Appellant’s claims to Blair County. According to

his affidavit, Tatum is currently employed as a claims manager for Norfolk

Southern Railway Company (Norfolk Southern).               In that capacity, he is

responsible for monitoring legal claims involving Conrail.       Tatum’s affidavit

states that Appellant resides in Blair County and that he worked for Penn

Central from October 1967 to March 1976 and thereafter for Conrail from

April 1976 through January 1998.               Upon information and belief, Tatum

states that Appellant worked exclusively at locations in Blair County and that

he never worked for the defendants in Philadelphia County.5 Tatum offered

the following information regarding the location of witnesses and materials

____________________________________________


5
  According to his responses to the defendants’ requests for admissions,
Appellant worked for the Pennsylvania Railroad in Philadelphia as a member
of the track crew for six months in 1967.



                                           -7-
J-A08024-16


likely to be introduced in this case and the burdens associated with their use

in a trial in Philadelphia:

      4. Upon information and belief, none of the known supervisors
      that [Appellant] had throughout his railroad career are located in
      Philadelphia County, Pennsylvania.       [Appellant’s] co-workers
      and/or supervisors that are expected to testify are located in and
      around Blair County, Pennsylvania.

      5. Specifically, Jon Freas and Ronald Osmolinski are former
      supervisors from the Hollidaysburg Car Shop and Juniata
      Locomotive Shop who may be called as witnesses of behalf of
      the [d]efendants in this matter.       Both Mr. Freas and Mr.
      Osmolinski reside in Blair County, Pennsylvania.

      6. Additionally, based upon similar cases brought against the
      [d]efendant by [Appellant’s] counsel that also allege toxic
      exposures at the Hollidaysburg and Juniata shops, [d]efendant
      anticipates that [Appellant] may call the following witnesses, all
      former employees of the [d]efendants, in support of his case:
      Larry Lytle, Dennis Waite, Walter Zolna, Wilber Boggs, and Terry
      Rhoads. These witnesses have been deposed in other pending
      cases and all of them reside in or around Blair County.

      7. Additionally, upon information and belief, [Appellant’s] known
      primary medical providers, including those persons who provided
      treatment to [Appellant] regarding the instant alleged injury, are
      located in and around Blair County. Upon information and belief,
      none of [Appellant’s] known primary medical providers are
      located in or near Philadelphia County. They would be required
      to travel extensively in order to be present to provide trial
      testimony. To date, [Appellant] has treated with the following
      providers:

         * Dr. Azad Niyaz – 503 Main Street, Belwood, PA (Blair
         County)[;]

         * Altoona Regional Health System – Altoona, PA (Blair
         County)[;]

         * Veterans Affairs Medical Center – Altoona, PA (Blair
         County)[;]


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J-A08024-16


         *    UPMC Shadyside Cancer Center – Pittsburgh, PA
         (Allegheny County)[.]

      8.    It is anticipated that trial in this matter would last
      approximately two (2) weeks.         [The defendants] will incur
      expenses with respect to [their] intention to call former
      supervisors and treating physician witnesses at the time of trial
      in Philadelphia, Pennsylvania. These expenses would be reduced
      considerably if trial were conducted in Blair County, Pennsylvania
      where those witnesses are located.

Affidavit of Rodney S. Tatum, 2/3/15.

      We are unable to agree with the trial court’s conclusion that Tatum’s

affidavit included sufficient information to establish that trial in Philadelphia

would be oppressive or vexatious for the defendants. On its face, Tatum’s

affidavit showed only that anticipated supervisor, co-worker, and medical

provider witnesses would have to travel the distance from Blair County to

Philadelphia County to attend and testify at trial in this matter.      Tatum’s

affidavit does not state, however, that traveling from Blair County to

Philadelphia County poses an undue burden or significant disruption in the

daily activities of the anticipated witnesses. Our case law makes clear that

while the burden of travel is relevant to a Rule 1006(d)(1) inquiry, distance

alone is not enough to establish an oppressive burden. Bratic, 99 A.3d at

9; Fessler, 131 A.3d at 49.       As submitted, Tatum’s affidavit is devoid of

facts regarding the witnesses’ personal, professional, employment and

family   obligations,   and   other   circumstances   needed   to   undertake   a

meaningful assessment of the burden associated with attending trial in

Philadelphia and to reach, with confidence, the conclusion that trial in the

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J-A08024-16


plaintiff’s selected venue is oppressive. In the absence of such information,

the defendants failed to discharge their burden of establishing the need for a

transfer by detailed information in their motion.              Hence, the trial court’s

entry of a transfer order in this case constituted an abuse of discretion. See

Catagnus v. Allstate Insurance Company, 864 A.2d 1259, 1264 (Pa.

Super. 2004) (trial court's failure to hold defendant to proper burden on

transfer request constitutes abuse of discretion).

       We are also troubled by the trial court’s willingness to infer oppression

from travel distance alone under the particular circumstances of this case.

Tatum’s affidavit stated that Appellant retired in 1998, nearly 20 years ago.

Moreover, the record makes plain that most, if not all, of the witnesses who

possess    personal     knowledge      of      Appellant’s   work   duties   (specifically,

Appellant’s former supervisors and co-workers) are nearing or have already

achieved retirement status.        Retired individuals are less likely to have the

daily personal, professional, employment, and family commitments that

make attendance at trial away from home an undue burden for actively

employed individuals.6         Indeed, the facts here support this inference.

____________________________________________


6
  We acknowledge, of course, that retirees can confront obstacles that make
travel and attendance at an out-of-town trial an oppressive burden. Medical
issues, obligations associated with second careers, late-in-life parental duties
and other responsibilities may render distant travel an undue burden for
retired individuals. Our point here, however, is that the defendants offered
no detailed facts establishing such factors in the present case.




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J-A08024-16


Appellant    introduced     five   co-worker       affidavits   in   opposition   to   the

defendants’ transfer motion.           All five affiants stated that traveling to

Philadelphia for trial would not be vexatious, oppressive, burdensome, or

inconvenient and three of these individuals stated that they were retired.7

Appellant also points out in his brief to this Court that both former

supervisors identified in Tatum’s affidavit are presently retired.                 Taken

together, the totality of facts simply do not support the trial court’s

determination that Blair County provides easier access to witnesses and

other sources of proof and that a trial in Philadelphia County represents an

oppressive burden to the witnesses.

       We contrast the facts here with those presented in Bratic and Lee,

two recent decisions in which Pennsylvania appellate courts affirmed orders

transferring civil actions out of Philadelphia pursuant to Rule 1006(d).                In

Bratic, our Supreme Court noted that seven witnesses submitted affidavits

in support of the transfer petition under review.               Bratic, 99 A.3d at 4.

There, each affiant averred that a trial in Philadelphia “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

____________________________________________


7
 One of the retirees, Larry Lytle, was identified as an anticipated co-worker
witness in Tatum’s affidavit.




                                          - 11 -
J-A08024-16


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. Similarly, in

Lee, this Court noted that several of the witnesses in that case had “family

and childcare commitments that would make a multi-day trial in Philadelphia

oppressive to them” and that “some potential witnesses ha[d] job

responsibilities that would be impossible to perform if they were required to

spend several days and nights away from Centre County.” Lee, 102 A.3d at

4. The record before us does not establish the disruption to the witnesses’

personal     and   professional   commitments    that   the   moving    parties

demonstrated in Bratic and Lee.

      To the extent that Tatum’s affidavit points out the expense of calling

former supervisors and treating physicians at the time of trial, we do not

share the trial court’s assessment that this concern warrants a transfer of

Appellant’s claims. Tatum’s affidavit identified only two former supervisors

from Blair County whom the defendants anticipate calling at trial. Appellant,

however, listed five former co-workers from Blair County as potential

witnesses.    These retired co-workers averred that appearing at trial in

Philadelphia did not present a burden to them.          Thus, the expense of

transporting non-medical fact witnesses to trial in Philadelphia appears to be

a burden that each side will share.       We also fail to see how a trial in

Philadelphia imposes an undue burden in terms of the transmittal of medical

records and the acquisition of trial testimony from treatment providers. The


                                     - 12 -
J-A08024-16


transfer of medical records, many of which are subject to production during

discovery, simply does not impose an oppressive burden on the defendants.

Likewise, we are not convinced that the acquisition of trial testimony from

Appellant’s treatment providers poses an oppressive hardship.               Appellant

himself will need to call some, if not all, of these witnesses at trial as part of

his affirmative negligence claims. In addition, we note the common practice

in Pennsylvania in which trial counsel preserve the testimony of physicians

by video recording. As this is not a case in which it appears that most or all

of the defense witnesses will be presented via video recording while

Appellant’s witnesses will appear live before the jury, the cautionary

observation that we quoted in Lee does not seem to apply. See Lee, 102

A.3d at 1024 n.5 (quoting the trial court’s observation “that it is routine for

parties to present the testimony of medical experts via video. However, this

would not be a case with one expert on each side presenting testimony via

video. It would involve most or all of the defense case consisting of

presenting hours of video to a jury.”).        Since the expense and burden of

calling Appellant’s former supervisors and treating physicians at the time of

trial does not appear oppressive in this case, the trial court abused its

discretion in ordering the transfer of this matter.

      Lastly,   to   complete   our   assessment      of   the   totality    of   the

circumstances, our review of the parties’ submissions and the record shows

that Appellant intends to subpoena for appearance at trial five former


                                      - 13 -
J-A08024-16


executives who worked for the defendants. Appellant asserts that a trial in

Philadelphia offers easier access to these witnesses, as four of these

individuals reside in the Philadelphia area and the other individual resides in

Atlanta, Georgia.    The trial court did not consider the proximity of the

Philadelphia area and its accessibility with regard to these witnesses,

concluding instead that transfer was appropriate because Appellant’s

exposures occurred in Blair        County and because          Appellant’s former

supervisors, co-workers and treating physicians were located in and around

Blair County.    See Trial Court Opinion, 5/27/15, at 5 (unpaginated).         The

court’s failure to consider the location, proximity, and accessibility of

Philadelphia    County   with   regard   to    the   former   executive   witnesses

constitutes an abuse of discretion.

      In addition, both sides will call expert witnesses from around the

United States.    Again, Appellant maintains that Philadelphia, which offers

access via multiple methods of transportation, can more easily accommodate

the travel burdens confronted by these witnesses. Taking all of these factors

into consideration, and bearing in mind that retained experts are not

accorded controlling weight under Pennsylvania law, Norman v. Norfolk &

W. Ry. Co., 323 A.2d 850, 855-856 (Pa. Super. 1974), we agree with

Appellant that, on balance, Blair County does not offer easier access to

witnesses and other sources of information.




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J-A08024-16


      In sum, the defendants failed to include detailed information in their

motion to transfer that established that a trial in Philadelphia County would

be oppressive or vexatious.       Instead, the facts showed only that trial in

Philadelphia would present a mere inconvenience to some witnesses.             As

such, the trial court improperly ordered the transfer of Appellant’s claims.

      Order vacated.         Case remanded for further proceedings.       Penn

Central’s application for admission of counsel pro hac vice granted.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/2016




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