Powers, T. v. Verizon Pennsylvania ( 2020 )

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