J-A05026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WALTER AND CYNTHIA CAPPER, H/W,               IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellants

                     v.

SHARMA EQUITY, L.L.C., D/B/A BRILL &
SHARMA EQUITY, L.L.C., AND HAMILTON
TOWERS AND BALDEV SHARMA, D/B/A
HAMILTON TOWERS AND SUDESH
SHARMA, D/B/A HAMILTON TOWERS
AND BRANDYWINE ELEVATOR COMPANY,
INC.,

                          Appellees               No. 1699 EDA 2014


               Appeal from the Order entered May 12, 2014,
           in the Court of Common Pleas of Philadelphia County,
                    Civil Division, at No(s): 130201054


BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                      FILED FEBRUARY 24, 2015

      Spouses Walter and Cynthia Capper, (“Mr. Capper,” or collectively,

“Appellants”), appeal from the trial court’s order granting the motion of

Sharma Equity, L.L.C., d/b/a Brill & Sharma Equity, L.L.C., and Hamilton

Towers and Baldev Sharma, d/b/a Hamilton Towers and Sudesh Sharma,

d/b/a Hamilton Towers and Brandywine Elevator Company, Inc. (collectively

“Sharma”), and transferring venue from Philadelphia County to Lehigh

County. We affirm.

      The trial court summarized the factual and procedural posture of this

case as follows:
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            [Appellants] allege that [Mr. Capper] sustained injuries
      when he tripped and fell while exiting an elevator on the first
      floor of [Sharma’s] premises on June 14, 2011. The elevator is
      located in the Hamilton Towers in Allentown, Lehigh County,
      Pennsylvania.    [Appellants] allege that [Mr. Capper] tripped
      because the elevator stopped and opened "at a point where the
      floor of the elevator was significantly below the surface of the
      first floor."   None of the parties or witnesses, including
      [Appellants], are residents of Philadelphia County.      Witness
      Rosemary Achey resides in Catasauqua, Lehigh County.
      Pennsylvania. Witness James Darcy resides in Allentown, Lehigh
      County, Pennsylvania.      Witness Michael O'Brien resides in
      Schnecksville, Lehigh County, Pennsylvania. Witness Margaret
      Perkowski resides in Walnutport, Northampton County,
      Pennsylvania, which is about 74 miles from the Philadelphia
      County Court of Common Pleas and only 14 miles from the
      Lehigh County Court of Common Pleas.

            On April 7, 2014, [and April 23, 2014] [Sharma] filed …
      motion[s] to transfer venue to Lehigh County. [] On April 28,
      2014, [Appellants] filed an Answer to [Sharma’s] motion to
      transfer venue. On May 12, 2014, the Court granted [Sharma’s]
      motion to transfer the case to the Lehigh County Court of
      Common Pleas. [Appellants] timely appealed.

Trial Court Opinion, 5/12/14, at 1-2 (unnumbered) (footnotes omitted).

      Appellants present a single issue for our review:

      Did the trial court abuse its discretion in transferring this matter
      on the basis of forum non conveniens from the Philadelphia
      County Court of Common Pleas to the Lehigh County Court of
      Common Pleas where the detailed facts of record do not
      establish [that] a single deposed witness has testified that
      traveling to Philadelphia as opposed to Allentown presents any
      inconvenience, where there is no justification to view the
      premises in issue, and where there [are] no facts of record which
      demonstrate that [A]ppellants’ choice of forum is oppressive or
      vexatious[?]

Appellants’ Brief at 4.




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      Pennsylvania Rule of Civil Procedure Rule 1006 governs venue

transfers and provides in pertinent part:

      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).    We acknowledge that, as the plaintiffs, Appellants’

forum choice should be “rarely … disturbed,” is entitled to great weight, and

must be given deference by the trial court.      Wood v. E.I. du Pont de

Nemours & Co., 829 A.2d 707, 711 (Pa. Super. 2003). Nevertheless, “a

plaintiff’s choice of venue is not absolute or unassailable.”      Connor v.

Crozer Keystone Health Sys., 832 A.2d 1112, 1116 (Pa. Super. 2003)

(internal citation omitted).

      We review a trial court’s order transferring venue due to forum non

conveniens for an abuse of discretion.      Walls v. Phoenix Ins. Co., 979

A.2d 847, 850 n.3 (Pa. Super. 2009) (internal citation and quotation marks

omitted). We will uphold a trial court’s order transferring venue based on

forum non conveniens “[i]f there exists any proper basis” for the trial court’s

determination.    Connor, 832 A.2d at 1116 (Pa. Super. 2003) (internal

citation omitted). “[A] trial court's order on venue will not be disturbed if

the order is reasonable after a consideration of the relevant facts of the

case.” See Mateu v. Stout, 819 A.2d 563, 565 (Pa. Super. 2003).

      Instantly, in transferring this action to Lehigh County from Philadelphia

County, the trial court reasoned:


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           In Cheeseman v. Lethal Exterminator, Inc., the Supreme
     Court of Pennsylvania stated that a petition to transfer venue
     may be granted if the defendant provides detailed information on
     the record that the plaintiff’s chosen forum is oppressive or
     vexatious to the defendant. [FN16: 701 A.2d 156, 162 (Pa.
     1997)] "[T]he 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." [FN17: Id.]

           The elevator in the current dispute is located in Allentown,
     Lehigh County, Pennsylvania. A jury view of the elevator could
     provide a visual of the area surrounding [Mr. Capper’s] alleged
     trip and fall. Likewise, three witnesses expected to testify live in
     Lehigh County and a fourth resides in Northampton County, only
     14 miles from the Lehigh County Court of Common Pleas.

Trial Court Opinion, 5/12/14, at 2-3 (unnumbered) (citations to the record

and additional footnotes omitted).

     In a recent opinion “to clarify the requirements for transfers based on

forum non conveniens as expressed in Cheeseman,” our Supreme Court

stated:

           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 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.




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Bratic v. Rubendall, 99 A.3d 1, 6; 7-8 (Pa. 2014) (some internal citations

omitted).

     In its analysis, our Supreme Court further explained:

            Turning to the instant matter, we find the trial court's
     proper consideration of the totality of the evidence justified the
     order to transfer the case.        Trial courts are vested with
     considerable discretion when ruling on such a motion, and “[i]f
     there exists any proper basis for the trial court's decision to
     transfer venue, the decision must stand.” Zappala, at 1284
     (citation omitted). The Superior Court's stringent examination in
     isolation of each individual fact mentioned by the trial court was
     inconsistent with the applicable standard of review; a ruling on a
     motion to transfer must be affirmed on appeal “[i]f there exists
     any proper basis for the trial court's decision[.]” Id. (citation
     omitted).

                                    ***

            If we consider only appellants' seven affidavits [supporting
     appellants’ argument for forum non conveniens], there “exists a
     [ ] proper basis for the ... transfer[.]” Zappala, at 1284 (citation
     omitted). It cannot be said the trial court misapplied the law or
     failed to hold appellants to their proper burden to establish
     oppression. Cf. Catagnus, at 1264 (“[T]he trial court's failure to
     hold the defendant to the proper burden constitutes an abuse of
     discretion.” (citation omitted)). While typically the “fact that the
     site of the precipitating event was outside of plaintiff's choice of
     forum is not dispositive[,]” Walls, at 852 (citations omitted), 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[.]” Bratic, at
     505 (Gantman, J., dissenting) (internal citations omitted).

           The affidavits here, of course, employed nearly identical
     language, as the factual basis for each is nearly identical—the
     oppressiveness of trial 100 miles away, which is manifestly
     troublesome. The trial judge need not be told like a child how
     the distance in and of itself makes things more disagreeable and
     disruptive to the persons obliged to travel. Nor is it a secret


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     requiring iteration that trial in Dauphin County would provide
     easier access to local appellants and their local witnesses, as
     well as the relevant court documents on which the very case is
     based. Further, given the witnesses' respective job titles, we
     cannot agree with the Superior Court that the affidavits were
     insufficient to enable the trial court to intuit the professional
     oppressiveness, more than inconvenience, that is patent therein.

                                   ***

            [] As between Philadelphia and adjoining Bucks County,
     the situation in Cheeseman, we speak of mere inconvenience; as
     between Philadelphia and counties 100 miles away, simple
     inconvenience fades in the mirror and we near oppressiveness
     with every milepost of the turnpike and Schuylkill Expressway.

            We reaffirm the Cheeseman standard, but hold the
     showing of oppression needed for a judge to exercise discretion
     in favor of granting a forum non conveniens motion is not as
     severe as suggested by the Superior Court's post-Cheeseman
     cases. Mere inconvenience remains insufficient, but there is no
     burden to show near-draconian consequences. Although the
     Superior Court may have reached a conclusion different than the
     trial court, this does not justify disturbing the ruling; the
     Superior Court effectively substituted its judgment for that of the
     trial court, which it may not do. The facts of record allow the
     finding that trial in Philadelphia would be more than merely
     inconvenient. As there was clearly a proper evidentiary basis for
     this conclusion, the trial court did not abuse its discretion in
     granting the motion transferring the case to Dauphin County.

Bratic, supra, at 8-10 (internal footnote omitted).

     Here, based on our review of the record and consonant with Bratic,

we find no abuse of discretion by the trial court in transferring venue from

Philadelphia County to Lehigh County.         The trial court appropriately

considered the totality of the record evidence in support of Sharma’s

argument of forum non conveniens, including the residency of various

witnesses, and the proximity of the Lehigh County Court of Common Pleas to


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the premises where Mr. Capper fell.      Finding that there was a proper

evidentiary basis for the trial court’s order transferring venue, we affirm.

See Mateu, 819 A.2d at 567 (finding that “the facts … present a proper

basis for the trial court's decision to transfer venue” where the new venue

“would provide easier access to the sources of proof, namely, to the

witnesses”).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2015




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