Ehmer, J. v. Maxim Crane Works ( 2023 )

J-A07002-23
2023 PA Super 96JOHN D. EHMER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MAXIM CRANE WORKS, L.P. : No. 2431 EDA 2022
Appeal from the Order Entered August 2, 2022
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 200801612
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
OPINION BY DUBOW, J.: FILED JUNE 07, 2023
Appellant, John D. Ehmer, appeals from the trial court’s order
transferring venue in the underlying personal injury lawsuit from Philadelphia
County to Columbia County based on forum non conveniens.1 After careful
review, we conclude that the trial court abused its discretion. We are, thus,
constrained to reverse the order transferring venue.
Appellant is a resident of Berwick, Columbia County. Maxim is a
Kentucky corporation, registered to conduct business in Pennsylvania.2
Maxim’s Pennsylvania corporate office is in Bridgeville, Allegheny County.
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1An order transferring venue is an interlocutory order, appealable as of right.
Pa.R.A.P. 311(c)
2It appears from the pleadings that Maxim’s principal place of business is in
Kentucky, but it is registered to conduct business as a limited partnership in
Pennsylvania.
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On February 20, 2019, Appellant suffered injuries when his vehicle
collided with the rear of a Maxim tractor trailer on Interstate 80 in Columbia
County. The Maxim truck was driving below the speed limit in the right lane
of travel.
On August 19, 2020, Appellant filed the instant personal injury lawsuit
against Maxim in Philadelphia County.3 On April 5, 2022, after the completion
of discovery, Maxim filed a motion requesting to transfer venue to Columbia
County pursuant to forum non conveniens. Maxim alleged that trial in
Columbia County would provide easier access to Appellant’s medical records
and the scene of the collision, and trial in Philadelphia would pose a hardship
to three witnesses: Kurt McHugh, Kelly Bowman, and Pennsylvania State
Trooper Nicholas Alifieris. In support, Maxim attached to its motion written
affidavits, signed by the witnesses, that compare the burden of appearing in
Columbia County with the burden of appearing in Philadelphia County. Maxim
did not include, in the affidavits or relevant trial court filings, a summary of
the testimony of the witnesses and an explanation of the relevancy of the
testimony to Maxim’s defense.
On August 2, 2022, after briefing from the parties, the court granted
Maxim’s motion and transferred venue from Philadelphia to Columbia County.
On August 3, 2022, Appellant filed an Emergency Motion for Reconsideration.
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3 The trial court overruled Maxim’s preliminary objections to venue in
Philadelphia. See Order, 12/9/20.
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On August 24, 2022, the court denied Appellant’s motion. Appellant timely
filed a Notice of Appeal.
Appellant raises a single issue for our review:
Whether the trial court abused its discretion, thereby committing
an error of law, in granting the motion of Maxim to transfer this
matter from the Court of Common Pleas of Philadelphia County
where it had been pending for almost two years and was
scheduled for a trial date certain in that court in only 31 days, to
the Court of Common Pleas of Columbia County, based upon the
doctrine of forum non conveniens, where, as here, Maxim failed
to produce sufficient evidence of record to meet its heavy burden
of demonstrating that the continued litigation of this case in the
trial court in Philadelphia County would be oppressive and
vexatious, thus warranting transfer to the Court of Common Pleas
of Columbia County?
Appellant’s Br. at 6 (unnecessary capitalization omitted, proper nouns
amended).
A.
A plaintiff’s choice of forum “is entitled to great weight, and must be
given deference by the trial court.” Powers v. Verizon Pa., LLC, 230 A.3d
492, 496 (Pa. Super. 2020). As a result of that deference, the plaintiff’s choice
of forum “should rarely be disturbed[.]” Cheeseman v. Lethal
Exterminator, Inc., 701 A.2d 156, 162 (Pa. 1997).
A plaintiff’s choice of forum is not, however, unassailable. A court may
override the plaintiff’s prerogative and order a venue transfer where the
defendant proves, “with detailed information on the record,” that the plaintiff’s
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chosen forum is oppressive.4 Wood v. E.I. du Pont de Nemours and Co.,
829 A.2d 707, 711-12 (Pa. Super. 2003) (en banc). See also Pa.R.C.P.
1006(d)(1).5
“[I]mportant considerations when measuring oppressiveness are:
relative ease of access to witnesses or other sources of proof; availability of
compulsory process for attendance of unwilling, and cost of obtaining willing,
witnesses; costs associated with witnesses’ attendance; and ability to conduct
[a] view of premises involved in dispute.” Ritchey v. Rutter’s Inc., 286 A.3d
248, 255 (Pa. Super. 2022) (citation omitted). There is “a vast difference
between a finding of inconvenience and one of oppressiveness” and, thus, we
reiterate that “the party seeking a change of venue bears a heavy burden in
justifying the request, and it has been consistently held that this burden
includes the demonstration on the record of the claimed hardships.” Id. at
254, 259 (emphasis added, citations omitted). See also Bratic v. Rubendall,
99 A.3d 1, 7-8 (Pa. 2014) (same).
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4 A defendant may also secure transfer of venue where it proves that the
plaintiff’s choice of forum was vexatious, i.e., “designed to harass the
defendant[.]” Wood, 829 A.2d at 712. Maxim does not allege that Appellant
elected to file his lawsuit in Philadelphia to harass it.
5 “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).
“[W]hile Rule 1006(d)(1) on its face allows transfer based on ‘the convenience
of the parties,’ 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 v. Rubendall, 99 A.3d 1, 8 (Pa. 2014)
(citation omitted).
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Finally, we review the trial court’s decision for abuse of discretion. Walls
v. Phoenix Ins. Co., 979 A.2d 847, 850 n.3 (Pa. Super. 2009). “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 of record.” Ritchey, 286 A.3d at 254 (citation and ellipses
omitted).
B.
In its Rule 1925(a) opinion, the trial court explained that it granted
Maxim’s motion to transfer venue because the witnesses, parties, medical
records, and scene of the collision are all located in Columbia County:
Here, the scene of the accident that [gave] rise to the causes of
action in [Appellant’s] Complaint, all fact witnesses expected to
be called at trial, all records related to Plaintiff’s medical
treatment, and the Parties themselves are located in or near
Columbia County and are located more than 100 miles and several
hours from Philadelphia.
Also, trial in Columbia County would provide easier access for a
jury view of the scene of the accident. . . . Plaintiff’s perception of
the scene is a crucial issue in this case, such that Plaintiff’s experts
opine that the conditions were such that he could not see properly,
while Defendants’ experts reach a contrary conclusion. The jury’s
understanding of the circumstances of the accident would clearly
be aided by a view of the accident location, and, like in Wood, the
Defendant’s request for a jury view was warranted[.]
The affidavits of Trooper [Alifieris], Mr. McHugh, and Ms. Bowman
provide further support to conclude that a trial in Philadelphia
would be oppressive to [Maxim].
Trial Ct. Op., 10/17/22, at 7-8.
C.
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Appellant argues that the trial court erred by improperly considering
certain factors when transferring venue. Appellant’s Br. at 20-37. In
particular, he first argues that the court should not have considered the
hardship posed to McHugh, Bowman, and Trooper Alifieris because Maxim
failed to provide a “general statement of what their testimony will cover.” Id.
at 22. We agree.
As a starting point to our analysis, we reiterate that a defendant seeking
to transfer venue bears the burden of placing detailed information on the
record to support transfer. Ritchey, 286 A.3d at 255. When the transfer
request is based on an allegation of witness hardship, the defendant must (1)
identify the allegedly encumbered witness, and (2) make a general statement
of what testimony that witness will provide. Bochetto v. Dimeling,
Schreiber & Park, 151 A.3d 1072, 1083 (Pa. Super. 2016) (citing Petty v.
Suburban Gen. Hosp., 525 A.2d 1230, 1234 (Pa. Super. 1987). The general
statement must establish that the witness possesses testimony that is
relevant and necessary to the defense. See id. (referring to such witnesses
as “key” to the defense).
The relevance of the witness’ testimony is core to the court’s forum non
conveniens analysis, because hardship to a particular “key witness may
outweigh a great number of less important witnesses.” Id. (citation omitted).
It is, thus, incumbent upon the defendant to show, through the general
statement of witness testimony, that its proposed witness is relevant to its
defense. Mere speculation that a witness possesses relevant information is not
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sufficient. Walls, 979 A.2d at 853-54. Only after the defendant has placed
detailed information on the record establishing that the witness possesses
information relevant to its defense should the trial court proceed to consider
the alleged hardship posed to the witness.6
Here, Maxim appended to its transfer motion three affidavits, one each
for McHugh, Bowman, and Trooper Alifieris. In each affidavit, the witness
speculates that “I understand that I may be called as a witness to testify and
or attend trial,” and alleges that testifying in Philadelphia would pose a
hardship. McHugh Aff. ¶¶ 3-4, 2/16/22; Bowman Aff. ¶¶ 4-5, 4/1/22; Trooper
Alifieris Aff. ¶¶ 3-4, 2/9/22. None of the affidavits, however, indicate the
content of the witness’ potential testimony. Moreover, Maxim did not, in its
motion to transfer venue or any of its filings in support, provide a general
statement about the testimony that McHugh, Bowman, or Trooper Alifieris
would provide on its behalf. Instead, Maxim alleged that the content of the
witnesses’ testimony is obvious from their employment. See Reply Brief,
4/29/22, at 11-13.
The court found that trial in Philadelphia would pose a hardship to
McHugh, Bowman, and Trooper Alifieris, and that such hardship warranted in
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6 After the defendant proves that the proposed witness possesses relevant
testimony, the trial court must determine if the witness will suffer sufficient
hardship from trial in a distant forum. See Bratic, 99 A.3d at 9-10 (discussing
the sufficiency of hardship to witnesses). If so, the witness’ hardship factors
into the trial court’s forum non conveniens analysis. The weight that the trial
court places on the hardship should be in direct proportion to the degree of
relevance or necessity of that witness’ testimony to the defense. See
Bochetto, 151 A.3d at 1083.
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favor of venue transfer. The trial court did not, however, make any finding
that these witnesses possess testimony relevant to Maxim’s defense. Nor
could the trial court make such a finding, as Maxim failed to provide the court
with any statement of what testimony those witnesses would provide. We,
thus, conclude that the trial court abused its discretion by misapplying the law
when it found that hardship to McHugh, Bowman, and Trooper Alifieris
warranted in favor of a venue transfer, without first determining that these
witnesses possess testimony relevant to Maxim’s defense.7, 8
D.
Appellant next asserts that the court erred by considering the need for
a site visit as a factor in transferring venue. Appellant’s Br. at 33-37. The trial
court determined that a site visit in this case is necessary and, thus, weighs
in favor of transfer to Columbia County. See Trial Ct. Op. at 7-8.
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7 In its brief to this Court, Maxim cites numerous cases in support of its
assertion that the affidavits were sufficient to justify a venue transfer. See
Maxim’s Br. at 26-28. We find these cases distinguishable because they do
not address the situation here—that Maxim failed to establish that these
witnesses were relevant to its defense. Rather, these cases address a separate
and distinct issue: the sufficiency of the evidence that a witness would suffer
hardship if required to testify in a distant forum. See, e.g., Bratic, 99 A.3d
at 9-10.
8 Additionally, in granting the venue change, the trial court considered,
without identifying any specific witnesses, that “all fact witnesses expected to
be called at trial” reside in Columbia County. Trial Ct. Op. at 7. This was error,
as the existence of speculative, unnamed witnesses is not the type of detailed
record information necessary to justify a venue transfer. See Walls, 979 A.2d
at 853-54 (observing that “‘potential’ witnesses who might be called to
appear” do not factor into the forum non conveniens analysis).
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To justify a venue transfer based on the need for a site visit, the need
must be supported by detailed information on the record.9 Walls, 979 A.2d at
852-53. While the law does not require any particular form of proof, “a mere
guess about the likelihood of a future [site visit] can hardly be construed as
the type of ‘detailed information on the record’ that was mandated by the
Supreme Court[.]” Id. at 853. This is because site visits are “seldom
necessary . . . and our experience is that such visits are rarely conducted.”
Id. at 852 (citing Johns v. First Union Corp., 777 A.2d 489, 492 (Pa. Super.
2001)) (emphasis and internal quotation omitted).
Finally, we emphasize that with the state of modern technology, site
visits are rarely the sole means of providing a factfinder with necessary
information about the site of an event. In Walls, we observed that site visits
are rare, particularly where “there is no reason to believe that photographs,
videos, or even an internet transmitted webcast, could not suffice[.]” Id. at
853. Technology has made the need for such visits nearly obsolete.
With these principles in mind, we address whether the trial court
properly determined that the need for a site visit supports a venue transfer.
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9 Compare Wood, 829 A.2d at 713-15 (affirming order transferring case
pursuant to forum non conveniens in premises liability action based on, inter
alia, the trial court’s finding that the defendant placed detailed information on
the record establishing the need for a jury view at trial), with Johns v. First
Union Corp., 777 A.2d 489, 492 (Pa. Super. 2001) (reversing order
transferring case pursuant to forum non conveniens in premises liability action
based on, inter alia, the trial court’s finding that the defendant only made a
bald conclusion, without any facts to support it, that a jury view would be
necessary at trial).
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The trial court relied on Maxim’s argument that a jury view of the scene would
be necessary due to a material disagreement in the expert opinions. Trial Ct.
Op. at 7-8. The court opined that Appellant’s “perception of the scene is a
crucial issue in this case, such that [Appellant’s] experts opine that the
conditions were such that he could not see properly, while [Maxim’s] expert[]
reach[es] a contrary conclusion.” Id. Thus, “a jury view was warranted[.]” Id.
at 8.
After careful review, including a thorough review of the expert reports
appended to Maxim’s transfer motion, we conclude that the record does not
support the trial court’s finding. None of the experts rely on, or even mention,
the physical condition of the scene as a contributing factor to the collision.
Rather, the primary dispute between the experts involves whether the Maxim
truck was fully in the right lane or partially onto the right shoulder at the time
of the collision. More importantly, Maxim’s expert does not opine that
Appellant’s perception of the scene of the collision is relevant to its defense.
The trial court, thus, abused its discretion by misapplying the law when it
considered the need for a site visit in the absence of any evidence on the
record that such a need exists.
E.
The trial court’s remaining considerations are insufficient to justify a
venue transfer. The trial court relied on the fact that Appellant’s medical
records are maintained and stored in Columbia County. Trial Ct. Op. at 7.
Since technology allows the quick and easy transfer of medical records, the
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initial location of the records is not a factor that establishes the need to change
Appellant’s choice of forum.
The court also relied upon the fact that Appellant lives in Columbia
County. Id. This factor alone is insufficient to warrant a change of venue.
Bratic, 99 A.3d at 8 (the plaintiff’s residence “is peripheral to the issue and
insufficient to warrant transfer”).10
F.
In sum, considering the above, we are constrained to reverse the trial
court’s order transferring this case to Columbia County.
Order reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2023
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10 Contrary to the trial court’s finding, Maxim’s corporate office is not “in or
near Columbia County.” Trial Ct. Op. at 7. It is, in fact, several counties away
in Allegheny County. Answer of Defendant, Maxim Crane Works, L.P., to
Plaintiff’s Complaint with New Matter, 12/21/20, at ¶ 2 (“It is admitted only
that Maxim Crane Works is located at 1225 Washington Pike, Bridgeville,
PA.”). Ritchey, 286 A.3d at 258 n.14 (observing that a “court may take
judicial notice of geographical facts” (citation omitted)). Maxim’s location,
thus, does not warrant in favor of a venue transfer.
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