J-A24010-14



                               2014 PA Super 240



HYUN JUNG “JOANN” LEE                             IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellant

                   v.

BOWER LEWIS THROWER, GILBANE
BUILDING COMPANY, PENNSYLVANIA
UNIVERSITY STATE UNIVERSITY,
SASAKI ASSOCIATES, AND GILBANE,
INC.

                   v.

JOHN M. ARMSTRONG, SCHWEPPE
LIGHTING DESIGN, INC., A/K/A D.
SCHWEPPE LIGHTING DESIGN, INC. AND
SWEETLAND ENGINEERING &
ASSOCIATES, INC.
                                                     No. 2421 EDA 2013


              Appeal from the Order Entered August 9, 2013
           In the Court of Common Pleas of Philadelphia County
                    Civil Division at No(s): 121003863


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

OPINION BY GANTMAN, P.J.:                          FILED OCTOBER 22, 2014

     Appellant, Hyun Jung “Joann” Lee, appeals from the order entered in

the Philadelphia County Court of Common Pleas, which granted the petition

of Appellees, Bower Lewis Thrower Architects (“Bower”), Gilbane Building

Company    (“Gilbane”),    Pennsylvania   State   University   (“PSU”),   Sasaki

Associates (“Sasaki”), Gilbane, Inc., John M. Armstrong, Schweppe Lighting
_____________________________

*Retired Senior Judge assigned to the Superior Court.
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Design (“Schweppe”), and            Sweetland Engineering &    Associates, Inc.

(“Sweetland”) to transfer venue from the Philadelphia County Court of

Common Pleas to the Centre County Court of Common Pleas, based on

forum non conveniens.1 We affirm.

        The trial court opinion sets forth the relevant facts of this case as

follows:

           This action arises out of an automobile accident that
           occurred on November 23, 2010, on the campus of Penn
           State University in State College, PA. [Appellant] was
           crossing Bigler Road on foot at night when she was struck
           by a pickup truck driven by Penn State employee John
           Armstrong, who was on his way home from work.
           [Appellant] suffered a severe brain injury as a result of the
           accident.

           The location where [Appellant] was crossing Bigler Road
           was next to Penn State’s East Parking Deck, a structure
           that had been built as a part of a larger campus
           improvement project.        The project involved designing
           various elements of infrastructure in and around the
           parking deck, such as sidewalks, crosswalks, and lighting.
           [Appellant] brought this action claiming that [Appellees],
           among whom are the companies who designed and built
           the area at issue, negligently designed the intersection by
           failing to include proper lighting and warning signs.¹

              ¹ [Appellant] brought a separate lawsuit against
              Armstrong in Centre County, PA. That matter was
              settled.  Armstrong was joined as an additional
              defendant by [Appellee] Sakasi Associates.

(Trial Court Opinion, dated April 11, 2014, at 1-2).


____________________________________________


1
    Pa.R.C.P. 1006(d)(1).



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      Appellant filed a complaint on October 26, 2012, in the Philadelphia

County Court of Common Pleas against Appellees Bower, Gilbane, PSU,

Sasaki, and Gilbane, Inc.     From January 3, 2013 through April 1, 2013,

Appellees and Appellant filed various pleadings, which resulted in the joinder

of John M. Armstrong, Schweppe, and Sweetland as additional defendants in

the action.

      On April 15, 2013, Appellee Sweetland filed a petition to transfer

venue based on forum non conveniens.          The other Appellees joined the

petition.    Appellant opposed the petition to transfer on May 6, 2013.      On

August 9, 2013, the trial court granted Appellees’ petition and transferred

the case to Centre County.

      Appellant timely filed a notice of appeal on August 12, 2013.         The

court did not order Appellant to file a concise statement of errors complained

of on appeal, pursuant to Pa.R.A.P. 1925(b), and Appellant filed none.

      Appellant raises the following issue for our review:

            DID THE [TRIAL] COURT ABUSE ITS DISCRETION AND
            MISAPPLY THE LAW IN DISREGARD OF THE STRINGENT
            BURDEN IMPOSED ON [APPELLEES] SEEKING TRANSFER
            ON FORUM NON CONVENIENS GROUNDS WHEN IT
            GRANTED THE PETITION TO TRANSFER VENUE IN THIS
            CASE WHERE THERE EXISTED NO EVIDENCE THAT TRIAL
            IN PHILADELPHIA COUNTY WOULD BE VEXATIOUS OR
            OPPRESSIVE TO [APPELLEES]?

(Appellant’s Brief at vii).

      Appellant argues the court failed to apply the stringent test set forth in

Cheeseman v. Lethal Exterminator, Inc., 549 Pa. 200, 701 A.2d 156

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(1997), when it simply conducted a balancing test between Philadelphia

County and Centre County and the relative inconvenience of a small number

of witnesses who might not be called to testify at trial. Moreover, Appellant

contends the affidavits of the witnesses were conclusory and vague.

Further, Appellant alleges the court lacked sufficient detailed information to

support Appellees’ contention that Appellant’s chosen forum was not merely

inconvenient but also oppressive or vexatious. Appellant submits the court

misapplied the law and abused its discretion by failing to use the more

stringent standard of vexatious or oppressive. Appellant concludes the court

erred when it transferred the case to Centre County, and the order must be

reversed. We disagree.

      Review of an order regarding the transfer venue on forum non

conveniens grounds implicates these principles:

         When ruling on a petition to transfer venue pursuant to
         Rule 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.,
         589 Pa. 516, 535, 909 A.2d 1272, 1283 (2006) (citing
         Cheeseman, supra at 213, 701 A.2d at 162).
         Accordingly, appellate courts review a trial court’s ruling on
         a motion to transfer for an abuse of discretion. Id. at 537,
         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

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          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).

       Our case law once recognized forum non conveniens
       transfers based on considerations affecting the court’s
       interests, such as court congestion (as opposed to the
       parties' interest in having the case resolved in a forum
       with less backlog), or imposing jury duty and court costs
       on the people of a community with no relation to the
       litigation. See Scola v. AC & S, Inc., 540 Pa. 353, 657
       A.2d 1234, 1241 (1995) (citation omitted); Okkerse v.
       Howe, 521 Pa. 509, 556 A.2d 827, 832 (1989) (citations
       omitted); Plum v. Tampax, Inc., 399 Pa. 553, 561-62,
       160 A.2d 549, 553-54 (1960) (citations omitted). As
       lower courts applied these principles on a case-by-case
       basis, “a policy developed of according court congestion
       great weight at the expense of the plaintiff losing his
       chosen forum.” Cheeseman, supra at 209, 701 A.2d at
       160; see generally Incollingo v. McCarron, 611 A.2d
       287, 290–91 (Pa.Super. 1992) (holding defendant’s
       assertions of witness convenience did not warrant transfer,
       but transfer appropriate based on, inter alia, “substantial
       backlog of civil cases” in Philadelphia courts (citations
       omitted)).

       Cheeseman clarified the factors on which a trial court
       may rely when ruling on a forum non conveniens motion,
       holding 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.” Cheeseman,
       supra at 213, 701 A.2d at 162. So called “public interest”
       factors affecting the court’s own concerns are not
       controlling because Rule 1006(d)(1) speaks only in terms
       of convenience to the parties and witnesses, not the
       courts. Id. at 212, 701 A.2d at 161–62. By way of
       example, Justice Cappy noted:

          [T]he defendant may meet its burden of showing
          that the plaintiff’s choice of forum is vexatious to him

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               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. at 213, 701 A.2d at 162 (footnote and internal citation
          omitted). Thus, Cheeseman was not intended to increase
          the level of oppressiveness or vexaciousness a defendant
          must show; rather, understood in its articulated context,
          Cheeseman merely corrected the practice that developed
          in the lower courts of giving excessive weight to “public
          interest” factors when ruling on a forum non conveniens
          motion. Whatever public interest factors exist, they are
          not determinative; they are only a factor insofar as they
          bear directly on the ultimate test.        And while Rule
          1006(d)(1) on its face allows transfer based on “the
          convenience of the parties[,]” Pa.R.C.P. 1006(d)(1),
          convenience or the lack thereof is not the test our case law
          has established: the moving party must show the chosen
          forum is either oppressive or vexatious.

Bratic v. Rubendall, 2014 WL 4064028, at *3-*4 (Pa. August 18, 2014).

      A moving party must support a petition to transfer venue with detailed

information on the record; however, “Cheeseman and Rule 1006(d) do not

require any particular form of proof.” Id. at *6. Rather, the moving party

must 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.”    Id. (internal citations and brackets omitted).    Further, while

mere inconvenience remains insufficient, “there is no burden to show near-


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draconian consequences.”     Id. at *7.    Bratic held the nearly identical

affidavits from the potential witnesses in that case were alone sufficient to

support transfer from Philadelphia to Dauphin County, based on factors such

as distance, burden of travel, time out of office, disruption to business

operations, difficulty in obtaining witnesses and access to proof generally.

Id. at *5-*6.

     Instantly, the trial court reasoned as follows:

        In this case, [Appellees] have met their burden in showing
        through detailed evidence on the record that trial in
        Philadelphia would be oppressive.         [Appellees] have
        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.²
        Several witnesses also detailed personal obligations, such
        as childcare, that would make a multi-day trip burdensome
        and disruptive.

           ² This [c]ourt is certainly aware that trial in Centre
           County will not excuse these witnesses from
           testifying at all. However, a witness who is on-call at
           a trial less than ten minutes from his office can go to
           work for at least some of the day. Should trial occur
           in Philadelphia, this would not be possible, and due
           to the unpredictable nature of trial scheduling, it is
           likely that each witness would need to spend multiple
           days in Philadelphia awaiting his or her turn to
           testify.




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       The Superior Court, in affirming a Philadelphia trial court’s
       transfer to Bradford County, PA,³ noted the value of this
       kind of evidence. The Superior Court in Wood v. E.I. du
       Pont de Nemours & Co., 829 A.2d 707 (Pa.Super. 2003),
       appeal denied, 580 Pa. 699, 860 A.2d 124 (2004),
       affirmed the trial court’s decision, which was, in part,
       based on “detailed information on the record establishing
       that many of its critical witnesses were plant employees
       who would be forced to travel over 190 miles to attend
       trial in Philadelphia.” Wood at 713. That evidence in
       Wood was presented via affidavit. The same evidence
       exists here: multiple [witnesses] will be required to travel
       nearly 200 miles to testify about a case involving
       allegations of a physical defect on Penn State’s campus.

          ³ Bradford County and Centre County are
          approximately the same distance from Philadelphia,
          albeit in different directions.

       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. Raymond v. Park Terrace Apartment, Inc.,
       882 A.2d 518, 521 (Pa.Super. 2005), appeal denied, 585
       Pa. 689, 887 A.2d 1241 (2005) (observing that “in reality,
       traveling from Delaware, Bucks, Montgomery or Chester
       County to Philadelphia is not particularly onerous.”) This
       observation reinforces the idea that travel beyond these
       counties, therefore, can be onerous. It is undisputed that
       travel 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
       [Appellees].

       [Appellant] note[s] that because some of the witnesses in
       this case work for companies that also have offices in
       Philadelphia, a Philadelphia forum could not be
       inconvenient. Absent any connection between this fact
       and a showing of inconvenience to the specific witnesses
       [Appellees] plan to call, this fact is not dispositive. An
       employee who works for a company that happens to have

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       a branch in a particular city does not necessarily mean that
       such an employee would not be inconvenienced by travel
       to that city. That employee could do his or her job without
       need for travel to every branch of his company’s offices.
       In fact, this is the case here: even through it appears
       undisputed that [Gilbane] has a Philadelphia office, it also
       appears undisputed that Jarir Abu-Shaheen does not travel
       to this office to do his work.⁴ This argument, therefore, is
       speculative at best.

          ⁴ [Appellant], in her “analysis” response to chunks of
          cited “affidavit language,” asks: “Again, are we really
          to believe that such an important executive working
          for a Philadelphia based construction company that is
          among the largest of its kind in the work [sic], never
          travels to Philadelphia?” [The trial court] notes that
          Abu-Shaheen is the Project Executive for projects
          based in Centre County only.

       To the end of curing the prejudice of bringing over half a
       dozen witnesses from Centre County for trial, [Appellant]
       proposes a solution and indicates that “[Appellant’s]
       counsel are agreeable to deposing all witnesses where they
       live or work and reasonable utilization of modern methods
       for presenting testimony such as video depositions and live
       video connections.” [Appellant’s] Brief In Opposition to
       Petition to Transfer Venue for Forum Non Conveniences
       [sic] Pursuant to Pa.R.C.P. 1006(d)(1).

       Although our Supreme Court has not evaluated the rapidly
       increasing role of video technology in trials as it relates to
       forum non conveniens analysis, it strikes this [c]ourt that
       [Appellant’s] proposal will also result in oppression to
       [Appellees]. The likely result of this solution would be a
       trial where the jury sees a live Plaintiff, sitting mere feet
       from the jury box, explaining her injuries, while most or all
       defense witnesses are presented via pre-recorded videos.⁵
       This is not an acceptable choice to offer [Appellees] in
       order to try to cure the oppressiveness that they have
       established will result should venue remain in Philadelphia.

          ⁵ This [c]ourt is aware 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

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           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.

        Finally, [Appellant] argues that it would be inconvenient
        for other witnesses and for defense counsel to attend trial
        in Centre County. Whether…this is true, the only detailed
        evidence on the record relating to witnesses at this point is
        the set of affidavits presented by [Appellees].6        This
        argument is speculative at best. [The trial court] would
        also note that it is not uncommon for large entities like
        Penn State University to use attorneys all over the
        Commonwealth and to simply use counsel local to Centre
        County in the event of a transfer, thus rendering the cost
        of transporting Philadelphia attorneys to State College
        unnecessary.
           6
             Although [Appellees] certainly have the burden to
           show that a forum is oppressive, this does not mean
           that [Appellees] must present [the trial court] with
           affidavits from every witness who might not be
           inconvenienced by trial in Philadelphia. The record,
           as it stands now, is sufficient for [Appellees] to meet
           their burden.

(Trial Court Opinion at 3-6).   In effect, the court considered the detailed

information of record before it granted Appellees’ motion to transfer venue.

See Bratic, supra.     The court found the seven witnesses’ affidavits were

sufficient to establish the necessary factual basis for transfer.       See id.

Therefore, we see no reason to disturb the court’s decision to transfer the

case to Centre County. Accordingly, we affirm.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2014




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