McGuinness, D. v. Elite-Concrete Systems, Inc. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DREW MCGUINNESS AND KATELYN : IN THE SUPERIOR COURT OF
MCGUINNESS H/S AND WILLIAM : PENNSYLVANIA
DUSCH :
:
Appellant :
:
:
v. :
: No. 1176 EDA 2021
:
ELITE-CRETE SYSTEMS, INC., :
NORTHEAST ELITE CRETE, INC., :
ROBERT SATTELMYER, JOHN DOES :
1-10, ABC CORPORATIONS 1-10 :
AND SHERWIN-WILLIAMS :
CORPORATION AND THE SHERWIN- :
WILLIAMS COMPANY :
Appeal from the Order Entered May 26, 2021
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): June Term 2020 No. 00945
BEFORE: NICHOLS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN J.: FILED SEPTEMBER 14, 2022
Drew McGuinness and Katelyn McGuinness, husband and wife, and
William Dusch (collectively, “Appellants”) appeal from the order transferring
their products liability, negligence, and loss of consortium action from
Philadelphia County to Allegheny County based on forum non conveniens. We
affirm.
We summarize the factual and procedural history of this appeal from the
record. In September 2018, Drew McGuiness (“Mr. McGuinness”) and William
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* Retired Senior Judge assigned to the Superior Court.
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Dusch (“Mr. Dusch”) were contractors, who along with David Sims (“Mr.
Sims”), were refinishing a basement floor of a residence in Whitehall,
Allegheny County. See Amended Complaint, 9/3/20, at ¶¶ 22-25; see also
Appellees’ Joint Motion to Transfer Venue, 3/18/21, at 3 and Exhibit B (Fire
Marshal’s Fire Report, 11/29/18 (“Exhibit B” or the “Marshal’s report”));
Appellants’ Response in Opposition to Transfer, 4/7/21, at 1 (unnumbered).1
After cleaning and preparing the concrete floor, Mr. McGuinness and Mr.
Dusch prepared to stain the floor using “Hydra-Stone,” a dyeing or staining
agent produced by Elite-Crete Systems, Inc. (“Elite-Crete”) and sold by
Northeast Elite Crete, Inc. (“Northeast”) and Northeast’s owner, Robert
Sattelmyer (“Mr. Sattelmyer”), and acetone, which was sold by Sherwin-
Williams Corporation and the Sherwin-Williams Company (collectively,
“Sherwin-Williams”).2 See Amended Complaint, 9/30/20, at ¶¶ 5-7, 12. Mr.
McGuinness and Mr. Dusch mixed the acetone and Hydra-Stone to spray on
the basement floor. See Exhibit B.
Mr. McGuinness, Mr. Dusch, and Mr. Sims had sprayed the mixture for
approximately fifteen minutes, when Mr. Dusch then saw flames under and
around the base of a water heater and then a bright flash. See id. A fuel air
explosion erupted in the basement and set Mr. Dusch and Mr. Sims on fire.
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1Appellants have cited to the Marshal’s report in their statement of the case
and have not challenged the accuracy of the report as setting forth the factual
background of this matter.
2We collectively refer to Sherwin-Williams, Elite-Crete, Northeast, and Mr.
Sattelmyer as “Appellees.”
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See id. Mr. McGuinness, who was going down the stairs to the basement at
the time of the explosion, was also set on fire. See id. The three men
managed to get out of the home, but Mr. McGuinness and Mr. Dusch suffered
severe burns over thirty percent of their bodies. See id. at ¶¶ 31-32.
Several members of the homeowners’ family were at home and heard
or felt the explosion. One family member saw the men as they came up from
the basement and ran from the home. At least two neighbors saw or heard
the explosion and attempted to help the men by spraying them with their
garden hoses. See id. Local first responders, including police, medics, and
firefighters, arrived at the scene. See id. Allegheny County Deputy Fire
Marshal George Hollenberger (“Deputy Marshal Hollenberger”) investigated
the explosion, interviewed numerous witnesses, and authored the Marshal’s
report that included an eleven-page narrative section with twenty-two
summaries of interviews of first responders, a utility worker who entered the
home after the explosion, as well as Mr. McGuinness, Mr. Dusch, and Mr. Sims.
See id. As a result of his investigation, Deputy Marshal Hollenberger
determined that an open flame from the water heater ignited the vapors from
the acetone and Hydra-Stone mixture and resulted in the fuel air explosion in
the basement. See id.
Appellants filed a complaint in the Philadelphia County Court of Common
Pleas asserting claims against Appellees for products liability, negligence, and
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loss of consortium.3 Appellants filed an amended complaint in September
2020, wherein they stated the same claims and identified Elite-Crete, the
producer of Hydra-Stone, as a corporation of the state of Indiana; Northeast,
the seller of the Hydra-Stone, as a Pennsylvania corporation based in Bucks
County; Mr. Sattelmyer, the owner of Northeast, as a resident of Bucks
County;4 and Sherwin-Williams, the producer of the acetone, as an Ohio
corporation. See Amended Complaint, 9/30/20, at ¶¶ 4-7, 12. Appellants, in
relevant part, claimed that Mr. Sattelmyer gave them improper instructions
on the use of Hydra-Stone with acetone in a residential basement. See id. at
¶ 8. Appellees filed answers and new matter and counterclaims,5 and
Appellants replied to the new matter. The parties thereafter engaged in
discovery.
In March 2021, Appellees jointly moved to transfer venue to Allegheny
County based on forum non conveniens. Appellees asserted that Appellants’
action had no relationship to Philadelphia County and all evidence and
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3Appellants also named unknown individuals and corporations as defendants
but have yet to identify additional defendants. Mr. Sims is not a party to this
action.
4 Appellants’ original complaint identified Mr. Sattelmyer as a resident of
Philadelphia; but after Mr. Sattelmyer file a preliminary objection, the
amended complaint listed his place of residence as Bucks County.
5Among the affirmative defenses raised by Appellees were claims of product
misuse. See Elite-Crete’s Answer and New Matter, 9/28/20, at ¶ 173;
Sherwin-Williams’s Answer and New Matter, 10/2/20, at New Matter, ¶ 8;
Northeast’s Answer and New Matter, 11/11/20, at New Matter, ¶ 3; Mr.
Sattelmyer’s Answer and New Matter, 12/2/20, at New Matter, ¶ 3.
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witnesses were in Allegheny County. Appellees attached the Marshal’s report
as an exhibit. See Appellees’ Joint Motion to Transfer Venue, 3/18/21, at 3-
4, 6 and Exhibit B.
The trial court scheduled a remote hearing at which it would consider
additional affidavits and deposition evidence. Appellees submitted six
supplemental affidavits—one from a neighbor who attempted to assist Mr.
McGuinness and Mr. Dusch after the explosion, and five from first responders.
All six affiants asserted that they would experience hardships if called to testify
at a trial in Philadelphia County. See Notice of Filing of Evidentiary Affidavits,
5/12/21, at Exhibits A-F. On May 26, 2021, the court heard oral arguments,
including the parties’ arguments on whether the six supplemental affidavits
were relevant or necessary to Appellees’ defense. See N.T., 5/26/21, at 14-
26. At the conclusion of the hearing, the trial court granted Appellees’ joint
motion to transfer venue to Allegheny County. Appellants timely appealed, 6
and both Appellants and the court complied with Pa.R.A.P. 1925.
Appellants raise the following issues for our review:
1. Is it reversible error to grant a forum non conveniens motion
when: (1) the motion is based on [Appellees’] unsubstantiated
claim that “21 critical defenses witnesses” are located over 300
miles away from [Appellants’] chosen venue; (2) the trial court
accepted [Appellees’] unsubstantiated claim at face value
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6 An order changing venue is immediately appealable pursuant to Pa.R.A.P.
311(c). See Pa.R.A.P. 311(c) (stating that “[a]n appeal may be taken as of
right from an order in a civil action or proceeding changing venue, transferring
the matter to another court of coordinate jurisdiction, or declining to proceed
in the matter on the basis of forum non conveniens or analogous principles”).
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without conducting any meaningful analysis of the claim; and
(3) nothing in the record suggests that the 21 supposed
witnesses have any information beneficial to the defense?
2. Is it reversible error to grant a forum non conveniens motion
when [Appellees] do not claim that they, their businesses, or
their employees will be burdened by [Appellants’] chosen
venue, which is actually more convenient for [Appellees]?
3. Is it reversible error for a trial court to transfer venue based on
factual grounds that [Appellees] did not raise themselves, and
that [Appellants] had no chance to rebut?
Appellants’ Brief at 3 (renumbered).
The following standards and principles govern our review. We review
the trial court’s order granting a defendant’s motion to transfer venue due to
forum non conveniens for an abuse of discretion. See Powers v. Verizon
Pennsylvania, LLC, 230 A.3d 492, 496 (Pa. Super. 2020). This Court will
uphold the trial court if there is any proper basis for the trial court’s
determination. See id. We will not disturb the trial court if its order is
reasonable after a consideration of the relevant facts of the case. See id.Pennsylvania Rule of Civil Procedure 1006(d)(1) states: “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.Civ.P. 1006(d)(1). The trial
court must give deference to a plaintiff’s choice of forum and should not grant
a defendant’s motion to transfer venue based on forum non conveniens unless
the defendant shows with detailed information on the record that the chosen
forum is oppressive or vexatious. See Cheeseman v. Lethal Exterminator,
Inc., 701 A.2d 156, 162 (Pa. 1997). A defendant bears a “heavy burden”
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when challenging the plaintiff’s choice of venue based on forum non
conveniens. See Moody v. Lehigh Valley Hospital—Cedar Crest, 179 A.3d
496, 507 (Pa. Super. 2018). The trial court abuses its discretion if it does not
hold a defendant to the proper burden of showing that the plaintiff’s chosen
forum is oppressive. See Catagnus v. Allstate Ins. Co., 864 A.2d 1259,
1264 (Pa. Super. 2004).
Our Supreme Court has clarified that to show oppressiveness, a
defendant need not show “near-draconian consequences” resulting from a trial
in the plaintiff’s chosen forum. See Bratic v. Rubendall, 99 A.3d 1, 10 (Pa.
2014).7 A defendant must show more than mere inconvenience to himself;
he, however, may demonstrate oppressiveness by establishing on the record
that trial in another county would provide easier access to witnesses or other
sources of proof. See Cheeseman, 701 A.2d at 162. If the facts of record
allow the trial court to find that the plaintiff’s chosen forum is “more than
merely inconvenient,” this Court should refrain from disturbing the trial court’s
ruling because we would have reached a different conclusion. See Bratic, 99
A.3d at 10 (noting that it is error for this Court to substitute our judgment for
that of the trial court).
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7 Although a plaintiff is not prohibited from “forum shopping,” see Zappala
v. James Lewis Group, 982 A.2d 512, 520 (Pa. Super. 2009), the Bratic
Court noted that the doctrine of forum non conveniens “is a necessary
counterbalance to insure [sic] fairness and practicality” when a plaintiff is
under no obligation to provide reasons for the selection of a forum. See
Bratic, 99 A.3d at 6 (citation omitted).
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Our Supreme Court’s decision in Bratic is instructive. In that case, the
trial court granted the defendants’ motion to transfer venue from Philadelphia
County to Dauphin County reasoning that: (1) the cause of action took place
in Dauphin County; (2) the defendants were from Dauphin County and the
plaintiffs were not from Philadelphia County; (3) the defendants’ witnesses
lived over 100 miles from Philadelphia County and their business activities
would have made their appearances in Philadelphia County “far more of a
burden” than in Dauphin County; and (4) the sole connection between the
plaintiffs’ cause of action to Philadelphia County was that the defendants
occasionally conducted business in Philadelphia. See Bratic, 99 A.3d at 3-4.
This Court reversed the trial court. Our Supreme Court granted allowance of
appeal, concluded that the trial court did not abuse its discretion, and reversed
this Court. See id. at 4-7, 10.
In Bratic, our Supreme Court reasoned that “the trial court’s proper
consideration of the totality of the evidence justified the order to transfer the
case.” See id. at 8. The Bratic Court emphasized that our appellate standard
of review required a determination of whether there was “any proper basis”
for the trial court’s decision and expressly disapproved of this Court’s
“stringent examination” of each isolated fact mentioned by the trial court. See
id. Further, the Bratic Court concluded that the affidavits in that case, which
alleged the burdens and business disruptions resulting from travel from
Dauphin County to Philadelphia, provided a sufficient basis to sustain the
transfer of venue. See id. at 9. The Court explained that neither Cheeseman
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nor Rule 1006(d) required a defendant to produce any particular form of proof
to show the oppressiveness of a chosen forum. See id. Rather, “[a]ll that is
required is that the moving party present a sufficient factual basis for the
petition [to transfer venue, and t]he trial court retains the discretion to
determine whether the particular form of proof [] is sufficient” to transfer
venue based on forum non conveniens. Id. (citations omitted). The burdens
associated with travelling, the Court continued, are evident and “simple
inconvenience fades in the mirror and near[s] oppressiveness with every
milepost of the turnpike and Schuylkill Expressway.” See id. at 10.
In the present appeal, Appellants’ issues all assert error or abuse of
discretion in the trial court’s decision to transfer their action to Allegheny
County based on forum non conveniens. Appellants initially argue that
Appellees failed to provide an adequate factual record that Philadelphia County
was an oppressive venue and that the trial court cited improper factors and
merely speculated that the third-party witnesses identified in the Marshal’s
report were necessary to a trial defense. Appellants further argue that the
trial court erred because Appellees did not allege or establish that a trial in
Philadelphia County would be oppressive to Appellees’ own businesses or
personnel8 and because Philadelphia County was in fact a more convenient
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8 Appellants also contend that no prior case has affirmed a transfer of venue
based on forum non conveniens without a showing that a named defendant
would suffer a hardship. As stated above, however, our Supreme Court has
recognized that a defendant may establish that the plaintiff’s chosen forum is
oppressive by showing that trial in another county would provide easier access
to witnesses or other sources of proof. See Cheeseman, 701 A.2d at 162.
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venue for Northeast and Sattelmyer, who were both located in Bucks County.
Appellants also assert that the trial court improperly raised arguments on
Appellees’ behalf and erred by reviewing the pleadings sua sponte to discuss
product misuse, when Appellees failed to refer to the pleadings in their motion
or at the hearing. In sum, Appellants conclude that the trial court abused its
discretion by failing to hold Appellees to their “heavy burden” of disturbing
Appellants’ venue of choice. See Appellants’ Brief at 25.
The trial court, when explaining its decision to grant Appellees’ motion
to transfer venue, found that: (1) none of Appellants’ causes of action arose
in Philadelphia County; (2) Appellees were not located in Philadelphia County
and the sole connection between the litigation and Philadelphia County was
the fact that the Appellees conducted business in Philadelphia County; (3)
none of the third-party fact witnesses live in Philadelphia County; (4) a trial
in Allegheny County would provide easier access for a jury view of the scene
of the explosion; and (5) the affidavits from the first responders contained
“ample evidence” to conclude that trial in Philadelphia County would be
oppressive to Appellees. See Trial Court Opinion, 9/17/21, at 10-12. The
court rejected Appellants’ arguments that the fact witnesses relied on by
Appellees were irrelevant or unnecessary to a trial defense, reasoning that
Appellees’ arguments that the witnesses were material to their defense were
“not frivolous,” and Appellees had a right to present their defense in a manner
of their choosing. Id. at 12-14.
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Following our review, we find that the record supports the trial court’s
decision to transfer venue from Philadelphia County to Allegheny County. In
support of their joint request to transfer venue, Appellees attached a copy of
the Marshal’s report. That report contained an extensive narrative summary
of Deputy Marshal Hollenberger’s investigation, including the statements from
first responders that they had to turn off the gas to the water heater after the
explosion. See Exhibit B (indicating that firemen entered the home and shut
off the gas valve to the hot water heater after the explosion). The narrative
summary explained the deputy marshal’s ultimate conclusion that the water
heater’s open flame ignited the fuel air explosion after Mr. Sims, Mr.
McGuinness, and Mr. Dusch sprayed the acetone and Hydra-Stone mixture.
See id. At the hearing on their joint motion, Appellees argued that the
Appellants’ failure to extinguish an open flame from the water heater when
spraying the acetone and Hydra-Stone mixture in the basement was essential
to a determination of whether Appellees were liable for the explosion. See
N.T., 5/26/21, at 24-25 (indicating that counsel for Northeast and Mr.
Sattelmyer argued that Deputy Fire Marshal “systemically went through every
witness involved” and reached a conclusion that the fire was caused because
of the failure to extinguish an open pilot light under the gas heater).
Appellees also provided the trial court with six supplemental affidavits,
one from Deputy Marshal Hollenberger, who authored the Marshal’s report,
and four from the following first responders: (1) Whitehall Borough Fire Chief
Eric Harris (“Fire Chief Harris”); (2) Lieutenant Thomas Neugebauer
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(“Lieutenant Neugebauer”); (3) Firefighter Mike Petrilli; and (4) Whitehall
Borough Police Sergeant Joseph Budd.9 See Notice of Filing of Evidentiary
Affidavits, 5/12/21, Exhibits B-F. As the trial court noted, all of the first
responders asserted that they would have to travel three hundred miles from
Allegheny County to Philadelphia County, pay the costs of travel personally,
and would not be able to take leave time to attend trial. See Trial Court
Opinion, 9/17/21, at 11; see also Notice of Filing of Evidentiary Affidavits,
5/12/21, Exhibits B-F. Fire Chief Harris also averred that having firefighters
leave Whitehall Borough to testify in Philadelphia County could pose public
safety issues. See Fire Chief Harris’s Affidavit, 5/10/21, at ¶ 6 (averring that
“compelling all of the . . . firefighters that responded to the fire at the subject
property to simultaneously appear for a court hearing or trial in Philadelphia
County . . . would constitute a public safety issue . . . due to lack of
personnel”). Lieutenant Neugebauer, who had entered the home after the
explosion with the team of firefighters that turned off the gas to the water
heater, further alleged that he would experience personal hardships in
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9 We agree with Appellants that not all of the witnesses referred to by
Appellees would have information critical to Appellees’ defense. Sergeant
Joseph Budd, for example, did not enter the home after the explosion, and his
role appeared to be limited to preventing one of the homeowners from
entering the home. Additionally, nothing in the record indicates what
Firefighter Petrilli’s role was in responding to the explosion. Similarly, it does
not appear that one of the neighbors, Carlie Recht, who observed the
explosion and assisted Mr. McGuinness and Mr. Dusch after the explosion,
would have information concerning the cause of the explosion.
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arranging childcare for his child with special medical needs. See Exhibit B;
Lieutenant Neugebauer’s Affidavit, 5/10/21, at ¶¶ 5-6.
Based on the foregoing evidence in the record, there is support for the
trial court’s determination that Appellees’ affidavits contained evidence that a
trial in Philadelphia County would be oppressive to relevant witnesses for
Appellees. Deputy Marshall Hollenberger’s, Fire Chief Harris’s, and Lieutenant
Neuberger’s affidavits, when read in conjunction with the Marshal’s report,
established that Allegheny County provided better access to witnesses than
Philadelphia County. See Cheeseman, 701 A.2d at 162. Further, the record
supports the trial court’s conclusion that witnesses, such as Deputy Fire
Marshal Hollenberger, Fire Chief Harris, and Lieutenant Neuberger, as well as
other first responders who entered and secured the home, had information
relevant to Appellees’ defenses and that their travels from Allegheny County
to Philadelphia County would be oppressive. See Bratic, 99 A.3d at 9-10.
Moreover, the record belies Appellants’ arguments that the trial court
erred or abused its discretion. As in Bratic, the trial court here cited several
factors, such as the causes of action occurring in Allegheny County, the fact
that neither Appellants nor Appellees were residents of Philadelphia, and the
possible need for a site visit in granting Appellees’ motion. While none of
these factors alone would have justified a transfer based on forum non
conveniens, the trial court here, similar to the trial court in Bratic, did not
rely on any of these factors as dispositive but considered the totality of the
circumstances. See id. at 8. Furthermore, the record demonstrates that,
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contrary to Appellants’ assertions, the trial court did not speculate or act sua
sponte when considering the legal arguments presented at the hearing based
on the entire record before it. As noted above, the record confirms that the
trial court had a proper basis in the record to credit Appellees’ arguments that
the witnesses located in Allegheny County were relevant to their defense and
to reject Appellants’ arguments that the testimony of the first responders
would only be relevant to damages or could be witnesses called during
Appellants’ case-in-chief at trial. See N.T., 5/26/21, at 14-26; Trial Court
Opinion, 9/17/21, at 12-14. For similar reasons, the record does not support
Appellants’ attempts to minimize the potential significance of witness
testimony to the defense or their assertions that the hardships could be
minimized by alternative means of presenting their testimony by video
depositions or remote testimony.
We acknowledge that this is a close case. However, as Bratic cautions,
the applicable standard of review requires this Court to determine whether
there is support in the record for the trial court’s ruling based on the totality
of the circumstances, not to substitute our own judgment for that of the trial
court. See Bratic, 99 A.3d at 8. Thus, mindful of our standard of review, we
conclude that Appellees presented sufficient evidence of record that
Philadelphia was an oppressive venue and that the trial court did not abuse
its discretion in transferring Appellants’ action to Allegheny County based on
its findings.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2022
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