J-S10037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MELVIN G. KEEFER                              IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellant

                    v.

CONSOLIDATED RAIL CORPORATION
AND NORFOLK SOUTHERN RAILWAY
COMPANY

                         Appellee                  No. 1955 EDA 2014


                 Appeal from the Order Entered June 8, 2014
            In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): August Term, 2013 No. 000168


BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                      FILED MARCH 04, 2015

      Appellant, Melvin G. Keefer, appeals from the order entered in the

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

Appellees, Consolidated Rail Corporation (“Conrail”) and Norfolk Southern

Railway Company, to transfer venue in this work-related personal injury

action under the Federal Employers’ Liability Act and the Locomotive

Inspection Act, from Philadelphia County to Cumberland County on the

ground of forum non conveniens. We affirm.

      The trial court opinion sets forth the relevant facts and procedural

history of this case as follows:

         On September [4], 2013, [Appellant] filed a complaint
         against [Conrail] and Norfolk Southern Railway Company
_________________________

*Retired Senior Judge assigned to the Superior Court.
J-S10037-15


         pursuant to the Federal Employers’ Liability Act, (FELA)
         Title 45 U.S.C. §§ 51-60 and the Locomotive Inspection
         Act, [49] U.S.C. § 20701 et seq.      On May 1, 2014,
         [Appellees] filed a motion to transfer venue to either
         Cumberland County or Dauphin County on the basis of
         Forum Non Conveniens pursuant to Pa.R.C.P. 1006(d)(1).
         On June [8], 2014, that motion was granted and the action
         was transferred to Cumberland County. On June 18, 2014
         [Appellant] filed a timely appeal.

(Trial Court Opinion, filed July 11, 2014, at 1) (internal citations omitted).

The court did not order a concise statement of errors complained of on

appeal per Pa.R.A.P. 1925(b), and Appellant filed none.

      Appellant now raises one issue for our review:

         IN A MOTION TO TRANSFER VENUE BASED ON FORUM
         NON CONVENIENS BY APPELLEES WAS THE TRIAL
         COURT’S ORDER TRANSFERRING THE ABOVE ACTION TO
         CUMBERLAND COUNTY AN ERROR OF LAW AND A
         MANIFEST ABUSE OF DISCRETION WHEN APPELLEES
         PRESENTED NO EVIDENCE OF ANY WITNESSES WHO WILL
         BE VEXED OR OPPRESSED WITH THE TRIAL IN
         PHILADELPHIA COUNTY AS OPPOSED TO CUMBERLAND
         COUNTY?

(Appellant’s Brief at 3).

      We review an order transferring an action on the basis of forum non

conveniens for an abuse of discretion. Catagnus v. Allstate Ins. Co., 864

A.2d 1259, 1263 (Pa.Super. 2004). An abuse of discretion occurs when the

court overrides or misapplies the law, or exercises judgment in a manifestly

unreasonable manner, or renders a decision based on partiality, prejudice,

bias, or ill-will. Zappala v. Brandolini Property Management, Inc., 589

Pa. 516, 536, 909 A.2d 1272, 1284 (2006). If there is any basis for the trial


                                    -2-
J-S10037-15


court’s decision, its ruling must stand. Id. A plaintiff's choice of forum is

given great weight, but it is not absolute or unassailable.     Jackson v.

Laidlaw Transit Inc. & Laidlaw Transit PA, Inc., 822 A.2d 56, 57

(Pa.Super. 2003).

     Appellant argues Appellees failed to specify particular witnesses who

will appear at trial and whether trial in Philadelphia County would be

vexatious and oppressive to these witnesses. Appellant complains the trial

court did not apply the stringent test for transfer where the record lacks

evidence of hardship, vexation and oppression for Appellees.       Appellant

states Congress gave him the right to sue Appellees anywhere they do

business.   Appellant concludes the trial court erred when it transferred

Appellant’s case to Cumberland County on the ground of forum non

conveniens, and we should reverse the court’s transfer order and remand for

trial in Philadelphia County. We disagree.

        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 v. Lethal Exterminator,
        Inc., 549 Pa. 200, 209, 701 A.2d 156, 160 (1997)]; see

                                    -3-
J-S10037-15


       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
          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 vexatiousness 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

                                   -4-
J-S10037-15


         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, ___ Pa. ___, 99 A.3d 1, 6-7 (2014).            This Court

recently explained:

         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 9. 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-draconian
         consequences.” Id. at 10. 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 8-9.

Lee v. Thrower, 102 A.3d 1018, 1022-23 (Pa.Super. 2014).

      Pennsylvania Rule of Civil Procedure 1006(d)(1) governs transfers on

the basis of forum non conveniens and 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).      “[A] petition to

transfer venue should not be granted, unless the defendant meets its burden

of demonstrating, with detailed information on the record, that the plaintiff’s

chosen forum is oppressive or vexatious to the defendant.” Cheeseman

                                     -5-
J-S10037-15


supra at 213, 701 A.2d at 162 (emphasis added). A defendant may meet

its burden by showing either: (1) the plaintiff’s choice of forum was designed

to harass the defendant; or (2) “that trial in another county would provide

easier access to witnesses or other sources of proof….” Id.

      Instantly, the trial court reasoned:

         [Appellant], a resident of Dauphin County, was employed
         by [Appellee] railroads and alleges that he sustained
         injuries while he was working as an employee of the
         defendants due to unsafe and inadequate working
         conditions. [Appellant] further alleges that [Appellees]
         were engaged in interstate commerce as a common carrier
         railroad. When [Appellant] was employed by [Appellees]
         he worked exclusively in Enola, Pennsylvania, which is
         located in Cumberland County.      [Appellant] has never
         worked     for   [Appellees]  in   Philadelphia  County,
         Pennsylvania.

         Michael Weirich is a supervisor of [Appellant] and will be
         used as a witness to testify, “as to Mr. Keefer’s job duties,
         job requirements and safety training,” as well as to his
         personal knowledge of [Appellant’s] work habits and
         attitudes.    Weirich resides and works in Cumberland
         County, 112 miles from the Philadelphia Court of Common
         Pleas.     Weirich testified that it would take him
         approximately two hours to commute to Philadelphia. Due
         to this commute, Weirich would be required to miss
         multiple days of work to testify. Weirich testified that his
         employer would incur substantial expense and hardship
         due to his travel expenses and absence from work.

         None of the known supervisors that [Appellant] had
         throughout his railroad career reside in Philadelphia
         County, Pennsylvania.       [Appellant’s] co-workers and
         supervisors who are expected to testify are located in and
         around Cumberland County.        If these employees are
         required to spend an extended amount of time in
         Philadelphia, their absences would be unduly burdensome
         to their employer.         Rodney Tatum, Manager of
         Occupational Claims for Norfolk Southern Corporation,

                                     -6-
J-S10037-15


         testified that the disruption to the employee-witnesses’
         employers would be reduced considerably by conducting
         the trial in Cumberland County, Pennsylvania.       Tatum
         additionally testified that [Appellant’s] known primary
         medical providers, including those who provided treatment
         to [Appellant] regarding the instant alleged injuries, are
         located in and around Cumberland, Pennsylvania.

         A personal action against a corporation or similar entity
         may be brought in the County where the cause of action
         arose. Therefore, Cumberland County is a proper venue.

                                  *      *      *

         Cumberland County is where the [Appellant] worked for
         [Appellees] and where the alleged injuries occurred.
         [Appellant] resides in Dauphin County, adjacent to
         Cumberland County. In the present case [Appellees] have
         shown through evidence on the record that trial in
         Philadelphia County would be unduly burdensome to their
         witnesses and their witnesses’ employers.       [Appellees]
         have also shown through evidence on the record that trial
         in Cumberland County would substantially reduce the
         burden placed upon their witnesses and their witnesses’
         employers. This evidence provides a sufficient factual
         basis for the petition to transfer the case to Cumberland
         County on the basis of Forum Non Conveniens pursuant to
         Pa.R.C.P. 1006(d)(1). For the reasons set forth above the
         judgment should be affirmed.

(Trial Court Opinion at 1-4) (internal citations omitted).         We accept the

court’s analysis.    Further, we recognize that the court said “no known

supervisors” of Appellant are from the Philadelphia area. The court did not

say “no witnesses” are from the Philadelphia area.           Moreover, the court

accounted for the two-hour, one-hundred-twelve-mile distance between

Philadelphia   and   Cumberland       County.       Given   the   totality   of   the

circumstances, as well as the evidence and affidavits of record, Appellees


                                       -7-
J-S10037-15


showed the consequences of trial in Philadelphia would be vexatious and

oppressive enough to warrant transfer.   We see no reason to disturb the

court’s decision to transfer this case to Cumberland County.   See Bratic,

supra; Lee, supra. Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2015




                                  -8-
