J-A06030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LARRY A. LYTLE                                 IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

CONSOLIDATED RAIL CORPORATION
AND NORFOLK SOUTHERN RAILWAY
COMPANY

                                                    No. 1952 EDA 2014


                  Appeal from the Order Entered June 3, 2014
             In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): April Term, 2013 No. 04215


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                             FILED MARCH 24, 2015

     Larry A. Lytle appeals from the order entered June 3, 2014, in the

Court of Common Pleas of Philadelphia County, transferring the action to

Blair County pursuant to forum non conveniens. In this timely appeal, Lytle

argues the trial court erred as a matter of law or manifestly abused its

discretion in determining his choice of venue was oppressive and vexatious

to Defendants Consolidated Rail Corporation and Norfolk Southern Railway

Company (collectively “Conrail”). After a thorough review of the submissions

by the parties, the relevant law, and the certified record, we affirm on the

basis of the sound reasoning of the trial judge, the Honorable Mark I.

Bernstein.
J-A06030-15



      Briefly, Lytle worked for Conrail for more than 30 years, during which

time he claims he was exposed to dangerous chemicals and toxins, all or

some of which caused him to contract colorectal and liver cancer.               At all

times relevant to this matter, Lytle worked in Blair County and never worked

in Philadelphia County. All known medical providers to Lytle are from Blair

County. Fact witnesses from Conrail are all from Blair County or adjoining

counties. Additionally, certain Conrail employees who are expected to testify

and attend the trial are subject to 24-hour-a-day call, which would be

impossible to maintain if the trial took place in Philadelphia.

      Our standard of review is well-settled.

      In an appeal from an order transferring venue on the basis of
      forum non conveniens, our standard of review is “whether the
      trial court committed an abuse of discretion.”

      If there exists any proper basis for the trial court's decision to
      transfer venue [pursuant to Pa.R.C.P. 1006(d)(1)], 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 or the record.

Stoner v. Penn Kleen, Inc., 59 A.3d 612, 614 (Pa. Super. 2012) appeal

denied, 101 A.3d 787 (Pa. 2014) (citations omitted).

      The standards for transferring a case based upon                forum non

conveniens were announced in Cheeseman v. Lethal Exterminator, Inc.,

701 A.2d 156 (Pa. 1997).      Relevantly, the party seeking change of venue




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J-A06030-15


must demonstrate with particularity, that plaintiff’s choice of forum is either

oppressive or vexatious.1 Id. at 162.

        Application of the Cheeseman standard has recently been clarified by

our Supreme Court in Bratic v. Rubendall, 99 A.3d 1 (Pa. 2014). Bratic

emphasizes the fairness and practicality goals of forum non conveniens2 and

reiterates that the trial court decision must be reasonable in light of the

peculiar facts of the case.3 Bratic further recognizes that “interference with

one’s business and personal life caused by the participatory demands of a

distant trial is patent,” and requires no extra detail.   Id. at 9. Essentially,

Bratic provides for a practical rather than formulaic approach to the

determination to transfer a case based upon inconvenient forum.

        With the Cheeseman standard, as applied by Bratic, as our

touchstone, our review of the certified record demonstrates to us that the

trial court’s decision to transfer this matter to Blair County is supported by

the record.4 The trial court considered relevant matters and determined trial


____________________________________________


1
 The oppressive or vexatious language was first used in Scola v. AC & S,
Inc., 657 A.2d 1234, 1241 (Pa. 1995), but Cheeseman formally adopted
oppressive or vexatious as the standard.
2
    Bratic, 99 A.3d at 6.
3
    Bratic, 99 A.3d at 7.
4
  Factual determinations and conclusions found in the Pa.R.A.P. 1925(a)
opinion are supported by proper citations to the record.



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J-A06030-15


in Philadelphia County would prove unduly burdensome upon the defense

and their witnesses.        The trial court determined said burden would be

substantially reduced by conducting the trial in Blair County. 5

       Accordingly, the order transferring this matter to Blair County for trial

is affirmed. The parties are directed to attach a copy of the trial court’s July

9, 2013, Pa.R.A.P. 1925(a) opinion in the event of further proceedings.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2015




____________________________________________


5
  We note that in Bratic, the initial choice of venue was 100 miles distance
for the defense, which weighed heavily in favor of the trial court’s decision to
transfer the case. Instantly, the record reveals Philadelphia is 230 miles
from Blair County. Not only is this 2.3 times further than in Bratic, for
reference, we note it is more than twice the distance from Philadelphia to
New York, New York, and almost 100 miles further than Philadelphia to
Washington, D.C.




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                                                       IN TIlE COURT OF COMMON PLEAS
                                                           OF PHlLADELPHlA COUNTY
                                                              CIVIL TRIAL DIVISION


                       LARRYA. LYTLE                                                        APRIL TERM,201l
,\
                                         Plaintiff.
                                    v.                                                      NO. 04215

                       CONSOLIDATED RAIL CORPORATION,
                       and NORFOLK SOUTHERN RAIL WAY
                       COMPANY

                                         Defendants.

                                                                        OPINION

                                On April 29, 20 13 Larry A. Lytle filed a complaint against Consolidated Rail

                      Corporation and Norfolk Southern Railway Company pursuant to the Federal Employers'

                      LiabiJity Act, (FELA) Tide 4S U.S.C. §§SJ-60,' On May 7, 2014 defendants filed amotion to

                      uansfer venue to Blair County. Pennsylvania on the basis of Forum Non Conveniens pursuant to

                      PaR.c.p. JO06(d)(J). 2 On June J, 2014 that motion was granted? On June 18,2014 Plaintiff

                      filed a timely appeal. 4

                               Plaintiff. a resident of Blair Counti, was employed by defendant railroads and alleges

                      that he contracted illnesses while he was working as an employee of the defendants through his

                   exposure to various toxins. 6 Plaintiffalleges that this exposure lasted about 34 years. from the

                   beginning of his employment on or about June i, 1976 through September 3, 20]0. 7 Unlil

                   further discovery is completed it is impossible 10 know how many wilnesses will be needed.

                   1 .Plaintiff's
                                Complaint 111-4.
                  1 Motion [() Transfer. May 7. 2014
                  1 Ordu: Filed. June 6. 20 14.
                  • Notice of Appeal: June 18.2014.                                          .
                  j Plaintiff's Complaint 11. Cambria County is adjacent 10 Blair County and is over four hours aWilY from
                  Philadelphia County.
                  , Pliint;ffs Complaint 116- 12.
                  7 PlalntJlrs Complaint UO.


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     COPIES SENT PURSUANT TO Pa.R.C.P. 236{b) T. TAYLOR 07/11/2014



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       Plaintiff alleges that such exposure caused him to develop colorectal cancer and liver cancer.'

      Plaintiff further aUeges that defendants were engaged in interstate commerce as a common

      carrier railroad. 9 When plaintiff was employed by defendants he worked exclusively in Blair

      County. Pennsylvania. 10 Plaintiff has never worked for defendants in Phil~elphia County.

      Pennsylvania."

             Jon Freas is a former supervisor of plaintiff and will be used as a witness to "testify as to

      the job duties and requirements of electricians and regarding thejob and safety training received

      by electricians... 12 Freas resides iii Blair County, 230 mil es from the Philadelphia Court of

      Common Pleas. I) Freas testified that it would take him four hours to conunute to Philadelphia

     and that his 'employer would incur substantial expense and hardship due to his travel expenses

     and absenee from work.      I.     Freas testified that a trial conducted in Blair County would reduce this

     burden considerably. IS

            None oftbe known supervisors that plaintiffhad throughout his railroad career reside in
                                                 1oS
     Philadelphia County. PeMsylvania.                 Plaintiff's co-workers and supervisors who are expected to

     testify are aJllocated in and around Blair County.17 If these employees are required to spend an

     extended amount of time in Philadelphia as witnesses, their absences would be UJ)duty
                                                                                                                                    G
                                          11
     burdensome to their employer.             Peets. assistant manager of claims for Nonolk Southern

    Corporati?n, testified that this bUrden and disruption 10 employers would be reduced



 I  Plaintiff's Complainl1! I.
I   Plainlirrs Complaint 15.
 III Plaintifrs Responses to Defendant's request for Admissions ,,1-3. May 7, 20 14.
 II Plamtiff's Responses to Defendant's request for Admissions at 11.
 II Affidavit of Jon Freas t14-5.
 IJ Affidavit of}OfI Freas 16.
I. Affidavit ofJon Freas 17.
IJ Affidavit of Jon Freas 18.
I'  Affidavit of Jacqueline Peets '14.
17 Affidavit of Jacquelme Peets 14.
I' Affidavit of JaCflueJine Peets 15.
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      considerably by conducting the trial in Blair County.19 Peets also testified that Plaintitrs known

      medical providers, including those persons who provided treatment to Plaintiff regarding the

      instant alleged injury, are located in Blair County, Pennsylvania 20

               A personal actio~ against a corporation or similar entity may be brought in the county

      where the cause of action arose. 2 ! Therefore, Blair County is a proper venue. ''The right of a

     plaintiff to choose a forum is not absolute.'.n The Court, f~r the convenience of parties and

     witnesst:s may transfer an action to the appropriate court of any other county where the action

     could originally have been brought, upon petition of any party.21 The trial court is vested with

     discretion in detennining whethe~ or not to grant a petition to transfer venue Wlder Pa.R.C.P.

     IOO6(d)."

             In Cheeseman v. Lethal Exterminator. Inc. 25 tbe Pennsylvania Supreme Court staled that

     a petition to transfer venue pursuant to Rule l006(d)(I) should not be granted unless the

  d~fendant     meets his burden of demonstrating, with detailed information on the record. that the

  plaintiff's chosen forum is oppressive or vexatious to the defeodanl.2b If the defendant can show,

 through detailed infonnation on the record, that the plaintiffs' choice of forum is oppressive or

 vexatious, the case should be moved.

           "Claims by the defendant in its petition that no significant aspect of the case involves the

 chosen forum, and that litigating in another forum would be more convenient. .. do not amolUltto

 a showing that the chosen forom is oppressive or vexarious.'027 However, the defendant ''may


.9  Affidavi! of Jacqueline Peets 'fi 1·6.
10 Affidavit  of Jacquehne Peets 17.
 11 Pa.R.G.P. 2179(a)(3).
 21 Wi!ls V' Kaschak. 420 Pa.Supu. 5110 (1992).
l:t Pa.R.C.P. 10000dXI).
N See. Hosiery Corp. of Amerjca. Inc. y. Rich. 327 P.a..Suptr. 472 (J 984).
11 549 Pa. 200, 2J 4 (1997)
26 549 Pa.. 200,113 (1997).
2J 549 Pa. 2M, 214 (1997)


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        meet this burden by establishing on the record that trial in the chosen forum is oppressive to him;

        for instance, rhat trial in another county would provide easier access to witnesses and other

        sources of proof.,,21 There is   DO   talismanic form of proof required. "All that is required is that

        the moving party present a sufficient factual basis for     tbe petition.,,29
                                                                                                                                         g,!
                Blair County is where    the plaintiff worked for the defendants and where the alleged
       exposure occurred for over thirty years. Plaintiff resides in Blair County. In the present ~e

       defendants have shown through evidence on the record that .trial in Philadelphia County would

       be unduly burdensome to their witnesses and their witnesses' employers. Defendams have also

       shown thrpugh evidence on the record that trial in Blair 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 Blair County on the basis of Forum

      NOH CQnveniens purstlant to Pa.R.C.P. IOOS(d)(l). For Jhe reasons set fortb above the judgment

      should be affirmed.
                                                                                                                                     Q
                                                                         BY THE COURT.




                                                                                                                              '. )


1'M.
:If   Wood v. BJ du Pont de Nemours and Co., 829 A.2d 707, 714 (pa. Super. 2(03).

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