J-S71032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    BRANDON GASS, AS                           :   IN THE SUPERIOR COURT OF
    ADMINISTRATOR AND                          :        PENNSYLVANIA
    ADMINISTRATOR AD                           :
    PROSEQUENDUM FOR THE ESTATE                :
    OF DOROTHY TALTON, DECEASED,               :
    AND ALICIA GASS, INDIVIDUALLY              :
                                               :
                       Appellants              :
                                               :   No. 1511 EDA 2018
                                               :
                v.                             :
                                               :
                                               :
    WANDA GASS, JOSHUA J.                      :
    MCALLISTER, STETSON COURIER,               :
    INC., KITAE PARK, THE HERTZ                :
    CORPORATION D/B/A HERTZ RENT-              :
    A-CAR, SAMSUNG ELECTRONICS                 :
    CO., LTD.                                  :

                Appeal from the Order Entered April 16, 2018
     In the Court of Common Pleas of Philadelphia County Civil Division at
                      No(s): April Term, 2016 No. 3505


BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                               FILED APRIL 09, 2019

       Appellants Brandon Gass, as administrator of the estate of Dorothy

Talton, deceased, and Alicia Gass, individually, appeal from the order granting

the petitions to transfer venue based upon forum non conveniens1 of Appellees

Stetson Courier, Inc., and The Hertz Corporation doing business as Hertz
____________________________________________


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-S71032-18



Rent-A-Car, which was joined by Appellees Wanda Gass and Samsung

Electronics Co., Ltd. (Samsung).2 We affirm.

        The trial court summarized the relevant background of this matter as

follows:

        Shortly before midnight on April 30, 2014, [Appellee] Wanda Gass
        was traveling eastbound on the Pennsylvania Turnpike in Newville,
        Pennsylvania, Cumberland County. Decedent Dorothy Talton and
        [Appellant] Alicia Gass were passengers in [Appellee] Wanda
        Gass’s vehicle. [All three were returning to their home in Atco,
        New Jersey.] The area where [Appellee] Wanda Gass was
        operating her car was a two-lane stretch of turnpike that was
        under construction. Although no construction was ongoing at the
        time that [Appellee] Wanda Gass was driving in the area, the
        roadway was set up for such construction, with Jersey barriers on
        either side of the roadway. Given the late time of night, it was
        dark. A steady rain was falling.

        Approximately 500 feet beyond the crest of a hill [Appellee]
        Wanda Gass stopped her car in the right hand lane of the turnpike
        and turned the lights of the vehicle off. Subsequently, [Appellee]
        Gass’s vehicle was struck first by [Appellee] Josh McAllister’s
        vehicle and then a second time by Kitae Park’s vehicle. Decedent
        Dorothy Talton was thrown from the vehicle and was pronounced
        dead at the scene. Surviving [Appellant] Alicia Gass suffered
        serious injuries, including facial lacerations, head injury resulting
        in loss of consciousness, and other injuries that required
        intubation. [Appellant] Alicia Gass was treated at Carlisle Regional
        Hospital immediately following the accident and eventually was
        transferred to Hershey Medical Center for further treatment.

                                          ***

        On April 29, 2016, [Appellant] Alicia Gass, acting on her own
        behalf, and [Appellant] Brandon Gass, acting as Administrator of
        the Estate of Dorothy Talton, filed this action in . . . Philadelphia.
        [Appellants] brought several claims for negligence and wrongful
        death, as well as a survival action. On December 26, 2017,
        [Appellee] Hertz [Corporation] filed a Motion to Transfer for Forum
____________________________________________


2   The remaining defendants are not parties to this appeal.

                                           -2-
J-S71032-18


       Non Conveniens and [Appellee] Samsung eventually joined that
       [m]otion. [Appellee] Stetson Courier filed an analogous [m]otion
       on December 28, 2017. [Appellees] argued that venue should be
       transferred from Philadelphia to Cumberland County because (1)
       the accident occurred in Cumberland County; (2) neither the
       [Appellants] nor [Appellees] reside in Philadelphia; and (3)
       multiple witnesses have attested via signed affidavit to the
       hardship of traveling 150 miles from where they live and work in
       Cumberland County to Philadelphia for an eventual trial. On
       February 2, 2018, [Appellants] filed an answer [to] each motion
       opposing transfer. On February 5, 2018[,] this [c]ourt permitted
       the parties to conduct discovery on the issue of venue and ordered
       the parties to submit supplemental briefing by April 6, 2018.
       [Eight witnesses were deposed on March 27, 2018, in Cumberland
       and Dauphin Counties regarding the issue of hardship in traveling
       to Philadelphia for trial.3 Appellees] Wanda Gass and Hertz
       [Corporation] timely complied with this [c]ourt’s [o]rder
       [regarding supplemental briefing]. [Appellee] Stetson Courier
       filed untimely supplemental briefing on April 9, 2018. [Appellants]
       also filed an untimely supplemental brief on April 9, 2018.

Trial Ct. Op., 8/6/18, at 1-2.

       In their supplemental briefing, Appellees relied upon the affidavits and

depositions of Appellees’ witnesses, which included testimony indicating the

hardships that would arise if each witness were to take time away from work

and personal obligations to travel to and from Philadelphia for trial.

       Corporal Glenn Ahl, a supervisor at the Newville State Police barracks in

Cumberland County, testified that Troopers Neil Gearhart and William Duncan

responded to the scene of the accident.          Corporal Ahl testified that the

Pennsylvania State Police barracks where he and Troopers Gearhart and

Duncan work is understaffed. Ahl Dep., 3/27/18, at 8. Corporal Ahl stated
____________________________________________


3 An additional witness, Trooper Cord Holliday, who had responded to the
scene of the accident, had been deposed separately for trial in January 2018
in Philadelphia.

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J-S71032-18



that it would be a much lesser burden for the Troopers to appear for trial in

Cumberland County because it would take less time and be less likely to result

in gaps in coverage. Id. at 15-16. According to Corporal Ahl, state vehicles

would have to be supplied to the Troopers to make the trip to and from

Philadelphia. Id. at 14-15.

      Troopers Duncan and Gearhart confirmed Corporal Ahl’s testimony and

testified to personal responsibilities at home that also would be disrupted.

See Duncan Dep., 3/27/18, at 13-15; Gearhart Dep., 3/27/18, at 9-12.

Retired Corporal John Rosenberger, who had investigated the matter, testified

that although he did not have work obligations, travel to Philadelphia for trial

would be a hardship because he was moving out of the Cumberland County

area and Philadelphia would be much further away than Cumberland County.

Rosenberger Dep., 3/27/18, at 10.

      Former Cumberland County Deputy Coroner Christopher Zeigler, who

now works as an instructor for a healthcare facility management company,

testified that his teaching schedule would be significantly disrupted if the trial

occurred in Philadelphia as opposed to Cumberland County. See Zeigler Dep.,

3/27/18, at 10-14.     Cumberland County First Deputy Coroner Mark Kann

testified to the hardships that would affect his office based on his belief that

coroner records that are subpoenaed from the Coroner’s office would have to

be personally delivered to the court. Kann Dep., 3/27/18, at 10-11.

      Paramedics Scott Tindel and James Wettrich, Jr., were first responders

to the scene of the accident. Mr. Tindel normally works a night shift and Mr.

                                      -4-
J-S71032-18



Wettrich normally works a day shift. Mr. Tindel testified that he would likely

have to work an overnight shift, travel to and from Philadelphia for trial, and

immediately work another night shift.            Tindel Dep., 3/27/18, at 11.   Mr.

Wettrich testified that he has supervisory duties that would be disrupted if he

were required to travel to and from Philadelphia for trial. See Wettrich Dep.,

3/27/18, at 9-19.

       On April 13, 2018, the trial court granted Appellees’ motions to transfer

based on forum non conveniens, and transferred the matter to the Court of

Common Pleas of Cumberland County.4

       Appellants filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925(b) statement. The trial court complied with Rule 1925(a). In its Rule

1925(a) opinion, the trial court indicated that

       [i]n the present case, and despite [Appellants’] contrary
       assertions, [Appellee5] provided detailed evidence to support
       [her] Motion to Transfer. [Appellee] submitted eight sworn
       affidavits affirming [her] witnesses’ location in Cumberland
       County and the personal and professional hardships that these
       affiants would face if required to travel to Philadelphia for trial.
       [Appellee] provided further detail as to the burden that trial in
       Philadelphia would impose on [Appellee’s] witnesses in the form
       of eight deposition transcripts. Moreover, these eight depositions
       also detailed the fact that trial in Philadelphia would provide poor
       access to relevant sources of proof[.]
____________________________________________


4 Shortly after the motions to transfer venue were granted, all defendants in
this case except Appellee Wanda Gass settled this matter. Accordingly, Wanda
Gass is the only remaining Appellee in this appeal, and will be designated as
“Appellee.”

5 Appellee joined the Hertz Corporation’s motion to transfer in full and
provided supplemental briefing to the trial court regarding the motion.

                                           -5-
J-S71032-18



Trial Ct. Op. at 12.

      On appeal, Appellants raise the following questions for our review:

      [1.] Whether the [trial] court abused its discretion in
      impermissibly narrowing the totality of the circumstances
      standard by placing undue weight on only four factors, contrary
      to Supreme Court precedent that demonstrates that [Appellee’s]
      witnesses’ alleged hardships amount to mere inconveniences
      which do not support a decision to transfer to Cumberland County?

      [2.] Whether in its analysis of the totality of the circumstances,
      the trial court abused its discretion in ignoring factors raised by
      [Appellants,] which are relevant to whether the [Appellee’s]
      affiant witnesses would be oppressed by testifying in trial in
      Philadelphia?

      [3.] Whether the trial court abused its discretion in neglecting to
      address that the majority of [Appellee’s] witnesses will not testify
      at trial?

Appellants’ Brief at 7-8 (emphasis in original) (full capitalization omitted).

      In their first two issues, Appellants raise related claims that the trial

court improperly considered the totality of the circumstances in granting

Appellee’s motions to transfer venue based on forum non conveniens.

      Specifically, Appellants assert that the trial court put undue weight on

the distance between Philadelphia and Cumberland County.              Id. at 24.

Appellants argue that the trial court gave excessive consideration to the

personal and professional disruptions in the lives of Appellee’s witnesses.

Appellants assert that “evidence of disruption to present personal obligations

is a factor entitled to little weight,” and “the professional lives of [Appellee’s

w]itnesses would be merely inconvenienced, which is insufficient to support a

transfer of venue.” Id. at 26, 34. Similarly, Appellants argue that the trial



                                      -6-
J-S71032-18



court “gave too much credence to the assertion that Cumberland County

would provide greater access to relevant sources of proof [such as the

coroner’s records and viewing the site of the accident].” Id. at 35.

      Appellants also assert that the trial court ignored certain factors that

should have been assessed as a part of the totality of the circumstances

analysis. Appellants argue that the trial court failed to address the oppression

that Appellee will face by transferring this matter to Cumberland County. Id.

at 42. Additionally, Appellants assert that the motions to transfer were filed

at a late stage in litigation. Id. at 40.

      Regarding our 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).




                                       -7-
J-S71032-18



      “[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

at 7 (quoting 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) (citations omitted),

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. Additionally, a

trial court may consider factors such as whether depositions of defense

witnesses have taken place in the plaintiff’s chosen forum and inconvenience

to defense witnesses in the requested forum. See Fessler v. Watchtower

Bible & Tract Soc'y of New York, Inc., 131 A.3d 44, 52 (Pa. Super. 2015);

Hoose v. Jefferson Home Health Care, Inc., 754 A.2d 1, 4 (Pa. Super.

2000).




                                      -8-
J-S71032-18



      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)

(internal quotation marks and citation omitted). However, our courts have

nonetheless considered the timeliness of a petition to transfer venue. See,

e.g., Fessler, 131 A.3d at 52 (providing that where a motion to transfer based

on forum non conveniens is filed on the eve of trial as an abusive tactic or “a

tool [to] forestall litigation,” it should not be granted).

      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 [the

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

petition to transfer, the defendants

      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].”


                                       -9-
J-S71032-18



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 [the 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).

      Our Supreme Court overruled this Court’s en banc decision to reverse

the trial court and affirmed the trial court’s decision to transfer venue:

      If we consider only [the defendants’] seven affidavits, there
      “exist[ed] a [ ] proper basis for the . . . transfer[.]” It cannot be
      said the trial court misapplied the law or failed to hold [the
      defendants] 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 [the plaintiffs’] argument that [the
      defendants’] affidavits were “plainly inadequate to overcome the
      great deference owed to a plaintiff’s choice of forum[.]”



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J-S71032-18



Id. at 9 (citations and footnote omitted).

      Appellants rely on Moody in support of their claims that the trial court

placed too much weight on the disruption to the defense witnesses’ personal

and professional obligations. In Moody, the administrators of a decedent’s

estate brought a wrongful death action against the decedent child’s medical

care providers. The Court of Common Pleas of Philadelphia County granted

the medical care providers’ petition to transfer venue to Lehigh County based

on forum non conveniens.       Moody, 179 A.3d at 498.      The administrators

appealed, and this Court reversed the order granting transfer because the trial

court applied the incorrect standard. Id. at 508.

      The Moody Court concluded that the trial court “fault[ed the

a]dministrators for not introducing specific evidence of individuals in

Philadelphia who would be oppressed by a trial in Lehigh County, [and in so

doing,] the court missed the mark . . . [and, ultimately,] improperly engaged

in a balancing test.”   Id.   Additionally, the trial court erred by refusing to

consider evidence the administrators had presented that specifically refuted

the medical care providers’ claims of oppression in relation to their job duties.

Id. at 508-09.

      Here, we find that the instant matter is more closely aligned with the

facts of Bratic as compared to the facts of Moody. In Bratic, a distance of

over 100 miles from Philadelphia created a hardship for the defendants, and

here the distance is over 100 miles. See Bratic, 99 A.3d at 4. Moreover, the

remainder of the considerations the Bratic trial court used to determine the

                                     - 11 -
J-S71032-18



chosen forum was oppressive are present here.              Neither Appellee nor

Appellants are from Philadelphia County, potential witnesses for Appellee are

engaged in activities that make their ability to appear in Philadelphia a greater

burden than appearing in Cumberland County, and the sole connection

with Philadelphia was the fact that some Appellees6 at times conduct business

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

       As to Appellants’ assertions that the trial court gave too much weight to

the hardships Appellee’s witnesses will face in their personal and professional

lives, we note that the trial court had access to all of the deposition transcripts

of the witnesses and decided the weight to give the testimony contained in

the depositions.     Unlike Moody, the trial court did not refuse to consider

evidence tending to refute the hardship of the defense witnesses appearing in

Philadelphia. Accordingly, we will not disturb the trial court’s determinations

on appeal. See id. at 7.

       When it comes to access to sources of proof, Appellants also assert that

the trial court gave this factor too much weight. Appellants note that it is

unlikely that the Coroner’s office will have to send an individual to personally

deliver subpoenaed records in this case, since the documents from the

Coroner’s office have been obtained in discovery.        Appellants’ Brief at 37.

While requiring the Coroner’s office to send a person with records to the

courthouse may be an unlikely scenario, it is not clear that the trial court
____________________________________________


6The record does not reveal that Appellee Wanda Gass has a connection to
Philadelphia.

                                          - 12 -
J-S71032-18



afforded this factor undue weight, since a site view of the accident scene has

not been precluded in this case. Furthermore, the witnesses themselves are

a source of proof, and no one disputes that all of the potential defense

witnesses in this case are from Cumberland County or nearby.

      Turning to the factors that Appellants assert the trial court failed to

consider in analyzing the totality of the circumstances, which include the

timing of the motions to transfer, we note that the trial court correctly

indicated that a motion to transfer venue under Rule 1006(d) can be filed at

any time. See Trial Ct. Op. at 18. Under the particular facts of Fessler, this

Court held that the motion to transfer venue was filed on the eve of trial to

disrupt the litigation and prevent trial from occurring. See Fessler, 131 A.3d

at 52. That is not the case in this matter, where discovery was ongoing and

a trial date had not been set at the time the motions to transfer venue were

filed. Accordingly, we discern no abuse of discretion regarding the trial court’s

refusal to consider the timing of the motions as a factor supporting a denial of

the motions to transfer. See Bratic, 99 A.3d at 7.

      Appellants also assert that the trial court should have considered the

burden on Appellant Wanda Gass to appear in Cumberland County as

compared to Philadelphia. While Wanda Gass lives in Atco, New Jersey, which

makes Cumberland County farther for her than Philadelphia, she is not merely

a witness but a necessary party to the case. At this juncture, the witnesses

identified are all in the Cumberland County area.




                                     - 13 -
J-S71032-18



         Similarly, when considering whether depositions had taken place in

Philadelphia prior to the filing of the motions to transfer, one witness, Trooper

Holliday, was deposed in Philadelphia.           However, the remaining eight

depositions that were taken of defense witnesses were specifically regarding

transfer of the case on forum non conveniens grounds and were taken in

Cumberland County and the adjacent Dauphin County. Accordingly, this is

not a situation where “depositions of various witnesses[ had] already been

conducted in Philadelphia” at the time the motions to transfer venue were

filed.    See Hoose, 754 A.2d at 4.        Accordingly, we discern no abuse of

discretion. See Bratic, 99 A.3d at 7.

         In their final issue, Appellants assert that the trial court erred because

a trial would not require the attendance of many of the defense witnesses who

indicated they would be oppressed by having to appear in Philadelphia for

trial. Appellants’ Brief at 44. Upon review, we discern no reason to disturb

the trial court’s consideration of each of the affidavits and depositions and

conclusions regarding this issue. See Bratic, 99 A.3d at 9.

         Based on the analysis of the totality of the foregoing factors, we agree

with the trial court that Appellee met her burden of demonstrating that

Philadelphia is an oppressive forum. See Trial Ct. Op. at 12. Because the

record reveals a basis for transferring the instant matter, we discern no abuse

of discretion on the part of the trial court in relying on the aforementioned

factors and affidavits and depositions of potential witnesses to determine that

the chosen forum of Philadelphia was oppressive. See Bratic, 99 A.3d at 9.

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J-S71032-18



     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/9/19




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