J-A28034-19

                                   2020 PA Super 58


    THOMAS POWERS                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    VERIZON PENNSYLVANIA, LLC,                 :   No. 1391 EDA 2018
    VERIZON PENNSYLVANIA, INC.,                :
    VERIZON COMMUNICATIONS,                    :
    VERIZON COMMUNICATIONS, INC.,              :
    AND OXFORD LANE COMMUNITY                  :
    ASSOCIATION                                :
              v.                               :
                                               :
                                               :
    KOURTNEY CHICHILITTI AND RAJA              :
    GALI                                       :

                 Appeal from the Order Entered April 18, 2018
      In the Court of Common Pleas of Philadelphia County Civil Division at
                       No(s): August Term, 2017 No. 1977


BEFORE:      PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                             FILED MARCH 11, 2020

        Appellant, Thomas Powers, appeals from the order entered in the Court

of Common Pleas of Philadelphia County granting the above-named Appellee,

Verizon entities (“Verizon”), its Petition for Forum Non Conveniens to Transfer

Venue to Bucks County.          Herein, Appellant contends the court erred in so

granting because Verizon failed to establish that the chosen forum of




____________________________________________


*   Former Justice specially assigned to the Superior Court.
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Philadelphia was anything more than merely inconvenient. For the following

reasons, we affirm.

     The trial court provides an apt factual and procedural history, as follows:

     On or about March 27, 2016, Appellant, Thomas Powers, suffered
     personal injuries in front of his home at 415 Elm Circle in Chalfont,
     Bucks County, Pennsylvania (hereinafter, the “415 Elm Circle
     Property”). Specifically, Appellant stepped on the lid of a cable
     service box, his foot entered the box, and it came to rest
     approximately 18 inches beneath the box’s surface.               See
     Appellee’s Petition for Forum Non Conveniens to Transfer Venue
     Pursuant to Pa.R.C.P. 1006(d), ¶ 1.

     On or about August 22, 2017, Appellant commenced the
     underlying action in Philadelphia County by filing his Complaint
     against Appellee, Verizon Pennsylvania, LLC, and Oxford Lane
     Community Association (hereinafter, “Oxford Lane”).             On
     December 8, 2017, Oxford Lane filed its Third-Party Joinder
     Complaint, through which it joined Ms. Kourtney Chichilitti
     (hereinafter, “Chichilitti”) and Mr. Raja Gali (hereinafter, “Gali”)
     as Additional Defendants to the underlying action.

     Chichilitti is Appellant’s daughter. She resides with Appellant at
     the 415 Elm Circle Property, and she owns that property. Gali is
     Appellant’s neighbor. He resides at 417 Elm Circle in Chalfont,
     Pennsylvania (hereinafter, the “417 Elm Circle Property”), and
     owns that property.

     In its Joinder Complaint, Oxford Lane alleged that the subject
     cable service box is located between the curb and concrete
     walkway in front of the 417 Elm Circle property, or alternatively
     that it straddles the shared property line of the 415 and 417 Elm
     Circle Properties. Accordingly, Oxford Lane claimed that Chichilitti
     and/or Gali were negligent with regard to the dangerous condition
     of the cable service box. Id. ¶¶ 3-4.

     On December 11, 2017, Appellant filed his Amended Complaint
     pursuant to the September 14, 2017 Order, which upheld
     Appellee’s Preliminary Objections in part. On February 5, 2018,
     Apellee filed his Answer to Appellant’s Amended Complaint and
     New Matter Cross-Claim. That same day, Appellee filed its Motion

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     for Leave to Join Oldcastle Precast, Inc., F/D/B/A Carson
     Industries, LLC, and Carson Industries, LLC, as Additional
     Defendants (hereinafter, “Oldcastle” and “Carson Industries”).
     Carson Industries designed, manufactured, and sold the subject
     service cable box, while maintaining its registered office in
     Glendora, California. Sometime after it designed, manufactured,
     and sold the subject cable service box, Carson Industries merged
     with into Oldcastle. Oldcastle’s registered office is located in
     Auburn, Washington. Id. ¶ 5

     On March 6, 2018, Appellee filed its Petition for Forum Non
     Conveniens to Transfer Venue to Bucks County Pursuant to
     Pa.R.C.P. 1006(d) (hereinafter “Appellee’s Petition”). On March
     12, 2018, Oxford Lane filed its Response in Support of Appellant’s
     Petition to Transfer Venue under Pa.R.C.P. 1006(d) (hereinafter,
     “Oxford Lane’s Response”). On March 22, 2018, Appellant filed
     his Answer to Appellee’s Petition (hereinafter, “Appellant’s
     Answer”), as well as his Reply to Oxford Lane’s Response in
     Support of Appellant’s Petition. On March 29, 2018, Appellant
     filed its Reply Brief in Support of its Petition.

     On April 18, 2018, [the lower court] issued an Order, which
     granted Appellee’s Petition and transferred this case from the
     Philadelphia Court of Common Pleas to the Bucks County Court of
     Common Pleas. On April 20, 2018, Appellant filed his Motion for
     Reconsideration of the [lower court’s] April 18, 2018 Order. On
     April 23, 2018, [the lower court] denied Appellant’s Motion for
     Reconsideration.

     On May 4, 2018, Appellee appealed [the lower court’s] April 18,
     2018 Order. On May 8, 2018, [the lower court] ordered Appellee
     to file a statement of errors complained of on appeal pursuant to
     Pennsylvania Rule of Civil Procedure 1925(b). On May 23, 2018,
     Appellee filed its Statement of Matters Complained of on Appeal.

     …

     [In its Rule 1925(b) statement], Appellant has complained that
     “[t]he court erred when it granted [Appellee’s Petition,] where
     none of the Defendants sustained their burden of establishing,
     with detailed facts on the record, that [Appellant’s] chosen forum
     was oppressive or vexatious to them.” Appellant’s Statement of
     Matters Complained of on Appeal, at 1-2.


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J-A28034-19



Lower Court’s Pa.R.A.P. 1925(a) Opinion, 12/24/18, at 1-3.

      In Appellant’s brief, he presents the following question for our

consideration:

      [Did] the Lower Court abuse[] its discretion when it granted
      Verizon’s petition to transfer this case to the Bucks County Court
      of Common Pleas on the doctrine of forum non coveniens where
      none of the Defendants sustained their burden of establishing,
      with detailed facts on the record, that Mr. Powers’ chosen forum
      was oppressive or vexatious to them?

Appellant’s brief, at 5.

      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 v. Crozer Keystone Health Sys., 832 A.2d 1112,

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).

      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.



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J-A28034-19



Pa.R.C.P. 1006(d)(1). In seeking forum transfer under Rule 1006(d)(1), “the

defendant must show more than that the chosen forum is merely inconvenient

to him[,]”    Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156, 162

(Pa. 1997) (footnote omitted), as the rule permits transfers only if the chosen

forum is oppressive and vexatious for the defendant. Bratic v. Rubendall,

99 A.3d 1 (Pa. 2014).

       We acknowledge that a plaintiff’s 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).1 Nevertheless, “a plaintiff's choice of venue is not absolute

or unassailable.” Connor, 832 A.2d at 1116 (internal citation omitted).

       This    Court’s    recent     decision    Wright   v.   Consolidated   Rail

Corporation, 215 A.3d 982 (Pa.Super. 2019) we set forth the following

principles informing a trial court’s review of motions for transfer of venue

claiming forum non conveniens:

       The doctrine of forum non conveniens “provides the court with a
       means of looking beyond technical considerations such as
       jurisdiction and venue to determine whether litigation in the
       plaintiff's chosen forum would serve the interests of justice under
       the particular circumstances.” Alford, 531 A.2d at 794 (citation
       omitted). The doctrine addresses the issue of plaintiffs bringing
       “suit in an inconvenient forum in the hope that they will secure
       easier or larger recoveries or so add to the costs of the defense
       that the defendant will take a default judgment or compromise for


____________________________________________


1 There is no dispute that venue in Philadelphia County, where Verizon is
located, is proper.

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J-A28034-19


     a larger sum.” Hovatter, 193 A.3d at 424 (quotation marks and
     quotation omitted).

        The two most important factors the trial court must apply
        when considering whether dismissal is warranted are that
        “1.) the plaintiff's choice of forum should not be disturbed
        except for ‘weighty reasons,’ and 2.) there must be an
        alternate forum available or the action may not be
        dismissed.”

        ....


          To determine whether such “weighty reasons” exist as
          would overcome the plaintiff's choice of forum, the
          trial court must examine both the private and public
          interest factors involved.       Petty v. Suburban
          General Hospital, 363 Pa.Super. 277, 525 A.2d
          1230, 1232 (1987). The Petty Court reiterated the
          considerations germane to a determination of both the
          plaintiff's private interests and those of the public as
          defined by the United States Supreme Court in Gulf
          Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91
          L.Ed. 1055 (1947). They are:

                the relative ease of access to sources of
                proof; availability of compulsory process
                for attendance of unwilling, and the cost
                of obtaining attendance of willing,
                witnesses; possibility of view of premises,
                if view would be appropriate to the
                actions; and all other practical problems
                that make trial of a case easy, expeditious
                and inexpensive.      There may also be
                questions as to the enforceability of a
                judgment if one is obtained. The court will
                weigh relative advantages and obstacles
                to a fair trial.

                                    ***

                Factors of public interest also have place
                in applying the doctrine. Administrative
                difficulties follow for courts when litigation

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J-A28034-19


                  is piled up in congested centers instead of
                  being handled at its origin. Jury duty is a
                  burden that ought not to be imposed upon
                  the people of a community which has no
                  relation to the litigation. . . .

      Hovatter, 193 A.3d at 424-25 (quotations and citations omitted)
      [ ].

Wright 215 A.3d at 991 (footnote deleted).

      In Bratic, which sought “to clarify the requirements for transfers based

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

cautioned against overemphasizing public and private interests to the undue

subordination of the ultimate issue, namely whether the chosen forum was

vexatious or oppressive:

      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.

Bratic, 99 A.3d at 6, 7–8 (some internal citations omitted).

      Like the case sub judice, Bratic presented the question of whether

proposed travel—in that case, from Dauphin County to Philadelphia—was

oppressive under Rule 1006. In the Supreme Court’s analysis, it recognized

that the burdens of travel and time out of the office increased with the distance

traveled.   Relevant to our discussion, the Court distinguished counties

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J-A28034-19



neighboring   Philadelphia   from   more   distant   counties   in   making   the

oppressiveness determination:

     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
     requiring iteration that trial in Dauphin County would provide
     easier access to local appellants and their local witnesses, as well

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J-A28034-19


      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) (emphasis added).

      In contrast to the manifest burden of travel involved in Bratic, which

the Supreme Court said required no detailed explanation in a supporting

affidavit, here, the burden of travel to Philadelphia from neighboring Bucks

County is not manifest.     In fact, Bratic’s application of the Cheeseman

rationale led it to generally categorize the burden of such a commute as “mere

inconvenience,” which would require this Court to find erroneous the order

granting Appellee Verizon’s petition for transfer, unless Verizon had identified

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J-A28034-19



additional   burdens    associated    with    the   commute      demonstrating

oppressiveness.

      Our Court has identified two examples of such additional burdens that

are germane to this matter:

      Oppressiveness requires a detailed factual showing by the
      defendant that the chosen forum is oppressive to him. Evidence
      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 are two examples of such
      facts. Wood v. E.I. du Pont De Nemours and Co., 829 A.2d
      707, 712 (Pa.Super. 2003) (en banc).

Moody v. Lehigh Valley Hosp.-Cedar Crest, 179 A.3d 496, 502 (Pa.Super.

2018).

      With that standard in mind, we review Verizon’s Petition for Forum Non

Conveniens to Transfer Venue, in which it contended that the present matter

had no meaningful connection to Philadelphia County and should be venued,

instead, in Bucks County.      Initially, we note that the petition’s general

averment that all individual parties and eyewitnesses to the accident reside in

Bucks County implicates only the issue of travel time to Philadelphia, which,

on its own, may be viewed as merely inconvenient.

      Verizon indicated additionally, however, that the location in question,

where relevant Verizon employees and witnesses live, is in northern Bucks

County and would involve a commute of over one hour, not accounting for

additional rush hour delays. Petition, 3/6/18, at ¶ 8. This is in contrast to an

approximately 15 minute commute to the Bucks County Courthouse.



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J-A28034-19



      More importantly, the petition stated that if site visits are necessary to

resolve the dispute over the exact site of the accident, then venue in Bucks

County would provide better access to critical evidence and involve less time

away from the courtroom. Also asserted in favor of transfer was the reduction

of travel time for medical professional witnesses to Appellant’s treatment.

      In the trial court’s Pa.R.A.P. 1925(a) opinion, it concludes that Appellant

expressly admitted the averments regarding the parties’ and witnesses’

respective places of residence, and it further finds, “Appellant failed to dispute

the averments in Verizon’s Petition with particularity, and thereby [] Appellant

effectively admitted those averments, based on the admissions or general

denial contained in Appellant’s Answer.” Trial Court Opinion, at 7. The court,

therefore, concluded that Verizon sustained its burden of establishing the

oppressiveness of the chosen forum. Id. (relying on two post-Cheeseman

decisions:   Mateu, 819 A.2d 536 (Pa.Super. 2003) (transfer granted from

Philadelphia to Delaware County where the defendant failed to deny

specifically petitioner’s assertions that all parties and identified witnesses,

including medical witnesses, resided in Delaware County, which thus offered

better access to sources of proof); and Raymond v. Park Terrace

Apartments, Inc., 882 A.2d 518, 523 (Pa.Super. 2005), (upholding transfer

from Philadelphia to Delaware County where plaintiff “essentially admitted

that Delaware County would provide easier access to all the sources of

proof.”)).




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J-A28034-19



      Based on our review of the record, and consonant with foregoing

authority, we decline to find an abuse of discretion by the trial court in

transferring venue from Philadelphia County to Bucks County. The trial court

appropriately considered the totality of the record evidence in support of

Verizon’s argument of forum non conveniens, including the residency of

various witnesses, and the close proximity of the Bucks County Court of

Common Pleas to the premises where Mr. Powers fell.          As we discern a

reasonable evidentiary basis for the trial court's order transferring venue, we

affirm. See Mateu, 819 A.2d at 567 (finding, “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: 3/11/20




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