J-A08046-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT O. FINCH                                 IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

AMERICAN PREMIER UNDERWRITERS,
INC., CONSOLIDATED RAIL
CORPORATION AND NORFOLK
SOUTHERN RAILWAY COMPANY,

                            Appellees               No. 1416 EDA 2015


                   Appeal from the Order Dated April 17, 2015
              In the Court of Common Pleas of Philadelphia County
                Civil Division at No(s): 02182 August Term, 2013


BEFORE: BOWES, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED SEPTEMBER 30, 2016

       Appellant, Robert O. Finch, appeals from an order entered on April 17,

2015, granting the motion to transfer venue filed by Appellees, American

Premier Underwriters, Inc. (Penn Central), Consolidated Rail Corporation

(Conrail), and Norfolk Southern Railway Company (Norfolk Southern)

(collectively Appellees or defendants).1 We vacate and remand for further

proceedings.




____________________________________________


1
  An order transferring venue is an interlocutory order that is appealable as
of right under Pa.R.A.P. 311(c). See Forrester v. Hanson, 901 A.2d 548,
552 (Pa. Super. 2006).



*Retired Senior Judge assigned to the Superior Court.
J-A08046-16


     On August 21, 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 the defendants, or their corporate predecessors, from

1970 through 2005. During the course of his employment, Appellant alleges

that he was exposed to various toxic substances that caused bladder cancer.

     On March 20, 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

of the defendants’ motion.    The trial court entered an order granting the

defendants’ motion on April 17, 2015 and thereafter denied Appellant’s

motion for reconsideration on June 3, 2015. Appellant filed a timely notice

of appeal on May 7, 2015. The trial court filed an opinion in support of its

ruling on July 13, 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 [this] action to Blair
     County an error of law and a manifest abuse of discretion when
     the [d]efendants, Penn Central, Conrail and Norfolk Southern,
     did not identify any witnesses who would be vexed or oppressed
     by testifying in Philadelphia rather than Blair County, attached
     an affidavit from a prospective witness replete with
     misstatements to support their position, and where [Appellant],
     filed an [a]nswer to [d]efendants’ [m]otion with affidavits from
     five co-workers, who will be called to testify by [Appellant],
     indicating that they would not be vexed or oppressed by
     testifying in Philadelphia, identifying five [former] executives of
     the [d]efendants who would be subpoenaed as witnesses and
     called to testify, four living in the immediate Philadelphia area

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       and the fifth in Atlanta, Georgia, all obviously finding
       Philadelphia a more convenient forum than Blair County, a four
       hour drive away, identifying the misstatements in the affidavit of
       [one of Appellant’s former supervisors] and providing the [trial
       court] with a letter from [one of appellant’s expert witnesses]
       stating that his appearance in Blair County to testify would cost
       [Appellant] $1,500.00 more than his appearance and testimony
       in Philadelphia[?]

Appellant’s Brief at 4.

       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.[2]
       See Plum v. Tampax, Inc., 160 A.2d 549, 552–53 (Pa. 1960)
       (“While the plaintiff ordinarily controls choice of the forum, a
____________________________________________


2
  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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     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
     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.




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      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

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).




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        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).

      In this case, the trial court determined that “trying this case in

Philadelphia County poses unnecessary hardship and inconvenience on the

[d]efendants.”     Trial   Court   Opinion,   7/13/15,   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 Appellant’s medical treatment providers are located in

Blair County. Id. at 2 (unpaginated).

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

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

that a trial in Philadelphia County would represent an oppressive burden to

the defendants. For their part, the defendants argue that the trial court did

not abuse its discretion in transferring this matter. The defendants note that

Blair County is the location of Appellant’s workplace and where he sustained

his alleged injuries, the county of residence for Appellant’s former

supervisors and co-workers, and the location of Appellant’s treating

physicians and medical records.       The defendants argue they will incur

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J-A08046-16


expenses in calling Appellant’s former supervisors and treating physicians at

the time of trial in Philadelphia.   The defendants also argue that they will

incur expenses and experience disruptions in their business operations owing

to the need to secure testimony from current employees at a trial in

Philadelphia.    For the following reasons, we conclude that the defendants

failed to meet their “heavy burden” of establishing that Appellant’s choice of

forum is vexatious or oppressive to the defendants and not merely an

inconvenience.    Specifically, the defendants failed to support their transfer

petition with sufficient facts demonstrating that a trial in Philadelphia County

placed an oppressive burden on the defendants and 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.    In that capacity, he is responsible for monitoring legal claims

involving both Norfolk Southern and Conrail.     Tatum’s affidavit states that

Appellant resides in Blair County and that he worked for Penn Central from

June 1970 to March 1976, for Conrail from April 1976 to May 1999, and

thereafter for Norfolk Southern from June 1999 to April 2005.             Tatum

identified two former supervisors (including Jon Freas) and five former

co-workers of Appellant who are anticipated to testify at trial.         Tatum’s

affidavit states that all of these individuals reside in Blair County.    Tatum


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J-A08046-16


also stated that the defendants would incur expenses and disruptions in their

ongoing business operations if current employees were called to testify at

trial in Philadelphia. Tatum did not identify any current employees by name,

however. Finally, Tatum listed three medical providers that offered services

to Appellant in Blair County, noting that witnesses from these entities would

be required to travel extensively in order to provide testimony at a trial in

Philadelphia.

      The defendants also relied upon the affidavit of Jon Freas (Freas) in

requesting a transfer of venue in this case. Freas’ affidavit states that he

worked as a supervisor at certain Blair County job sites from 1980 through

the present. Freas and Appellant worked at a Blair County job site at the

same time. According to his deposition testimony, Freas retired shortly after

executing his affidavit in this case. Freas also testified that attending trial in

Philadelphia for more than a day would be a hardship since he takes care of

his elderly father, frequently babysits for his young granddaughter, and

owns two dogs.

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

Philadelphia would be oppressive or vexatious for the defendants. First, the

defendants have not identified any current employees who will be called to

testify at trial in this matter. Thus, the defendants will not incur expenses

associated with trial attendance by current employees and the defendants




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J-A08046-16


will not experience disruptions in their ongoing business operations because

of a trial in Philadelphia.

      Second, for the vast majority of retired, non-medical fact witnesses,

there is no information of record showing that these individuals will

experience a hardship or oppression in attending trial in Philadelphia.

Appellant last worked for the defendants ten years ago and all of his

identified former supervisors and co-workers have retired.        Five former

co-workers of Appellant submitted affidavits in opposition to the defendants’

transfer motion and all five affiants, who are now retired, stated that

traveling to Philadelphia for trial would not be vexatious, oppressive,

burdensome, or inconvenient.     Moreover, in responding to the defendants’

motion to transfer, Appellant listed five former executives of the defendant

corporations whom he intends to subpoena for trial.            Four of these

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

Atlanta, Georgia. The proximity of these witnesses to the Philadelphia area

and the accessibility of the area via multiple methods of transportation leads

us to conclude that a trial in Philadelphia presents no hardship to former

employees of the defendants. In its Rule 1925(a) opinion, the court failed to

consider the proximity of these fact witnesses to the Philadelphia area.

Additionally, the court erred to the extent it deemed these former executives

as experts who Appellant intended to call at trial. See Trial Court Opinion,

7/13/15, at 2 (asserting that “the inconvenience [of] expert witnesses is not


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J-A08046-16


a controlling factor when deciding transfer of venue”), citing Norman v.

Norfolk & W.Ry.Co., 323 A.2d 850 (Pa. Super. 1974).               These former

executives are fact witnesses whom Appellant will subpoena at the time of

trial and, as such, their travel burden is a relevant factor in the court’s forum

non    conveniens      analysis.       These     oversights,    and     possible

mischaracterizations, constitute an abuse of the trial court’s discretion.

      Tatum’s affidavit identified two of Appellant’s former supervisors from

Blair County whom the defendants anticipate calling at trial.         For one of

these individuals, Ronald Osmolinski, no information appears in the record to

show that attendance at trial in Philadelphia poses a hardship or oppressive

burden.   Freas, however, testified at a deposition that attending trial in

Philadelphia for more than one day would constitute a burdensome hardship,

given his personal commitments. We reject the idea that the hardship of a

single fact witness is sufficient to demonstrate oppression and overcome the

deference given to Appellant’s elected forum.      Counsel for the defendants

can adjust the order in which they call their witnesses at trial in order to

accommodate Freas’ commitments or they can preserve his testimony for

trial through the use of a video recording.

      Turning to the burden of securing medical records and testimony from

treating physicians, we also fail to see how a trial in Philadelphia imposes an

oppressive burden in terms of the transmittal of documentary evidence and

the acquisition of trial testimony from Appellant’s treatment providers. The


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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 qualifies as oppression.          Appellant himself

will need to call some, if not all, of his own treatment providers 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

transporting Appellant’s medical records and calling Appellant’s treating

physicians at trial does not appear oppressive in this case, the trial court

abused its discretion in ordering the transfer of this matter.3

____________________________________________


3
  Lastly, to complete our assessment of the totality of the circumstances, our
review of the parties’ submissions and the record shows that both sides will
call expert witnesses from around the United States. In Pennsylvania,
(Footnote Continued Next Page)


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J-A08046-16


      In sum, the totality of facts simply does not support the trial court’s

determination that a trial in Philadelphia County represents an oppressive

and vexatious burden to the defendants or that Blair County offers easier

access to witnesses and other sources of proof. Instead, the facts show only

that trial in Philadelphia would represent an inconvenience to the defense.

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

      Order vacated. Case remanded for further proceedings.         Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2016




                       _______________________
(Footnote Continued)

retained experts are not accorded controlling weight in a forum non
conveniens analysis. See Norman, 323 A.2d at 855-856. Nevertheless, we
agree with Appellant that, on balance, Blair County does not offer easier
access to witnesses and other sources of information and that trial in
Philadelphia County does not pose an oppressive or vexatious burden.



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