J-A24010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

                        E                     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.*

MEMORANDUM BY GANTMAN, P.J.:                 FILED SEPTEMBER 29, 2014



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



Compa




_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-A24010-14


                                                               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

           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).

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

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


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



                                           -2-
J-A24010-14


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 Appell

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

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

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

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

                                     -3-
J-A24010-14


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

                                                     en 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 v

         consider the level of prior court involvement, and consider

         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).


            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.

                                     -4-
J-A24010-14



       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

       great weight at the expense of the plaintiff losing his
                         Cheeseman, supra at 209, 701 A.2d at
       160; see generally Incollingo v. McCarron, 611 A.2d
       287, 290 91 (Pa.Super. 1992)
       assertions of witness convenience did not warrant transfer,
       but transfer appropriate based on, inter alia,
       backlog of civil cas
       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
                                          with detailed information

                                                     Cheeseman,
       supra

       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


          designed to harass the defendant, even at some
          inconvenience to the plaintiff himself. Alternatively,
          the   defendant    may    meet     his   burden    by

                                   -5-
J-A24010-14



           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

                                       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)
                                             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

                                      Cheeseman and Rule 1006(d) do not

                                       Id. at *6. Rather, the moving party



retains the discretion to determine whether the particular form of proof is

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

                                                                            -

                              Id. at *7.    Bratic held the near-identical

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


                                    -6-
J-A24010-14


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.


        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),

                                    -7-
J-A24010-14




       that many of its critical witnesses were plant employees
       who would be forced to travel over 190 miles to attend
                                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

          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) (ob
       traveling from Delaware, Bucks, Montgomery or Chester

       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
       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

       In fact, this is the case here:   even through it appears

                                  -8-
J-A24010-14


       undisputed that [Gilbane] has a Philadelphia office, it also
       appears undisputed that Jarir Abu-Shaheen does not travel

       speculative at best.


                                                              lly
          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

          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]

       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

       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

       [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-
       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.

           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
          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

                                   -9-
J-A24010-14


        for other witnesses and for defense counsel to attend trial
        in Centre County. Whether or not 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



See Bratic, supra

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



case to Centre County. Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2014

                                    - 10 -
