Doe, J. v. Bright Horizons Children's Cntr ( 2021 )

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2021 PA Super 183JILL AND JOHN DOE, AS PARENTS : IN THE SUPERIOR COURT OF
AND LEGAL GUARDIANS OF JACK : PENNSYLVANIA
DOE, A MINOR :
:
Appellants :
:
:
v. :
: No. 1733 EDA 2020
:
BRIGHT HORIZONS CHILDREN’S :
CENTER, LLC BRIGHT HORIZONS :
FAMILY SOLUTIONS, LLC BRIGHT :
HORIZONS CHILDREN’S CENTER, :
INC. BRIGHT HORIZONS FAMILY :
SOLUTIONS, INC. BRIGHT :
HORIZONS LIMITED PARTNERSHIP :
HILDEBRANDT LEARNING CENTERS, :
LLC PENNSYLVANIA STATE :
UNIVERSITY CREATIVE BEGINNINGS :
CHILD CARE, LLC CREATIVE :
BEGINNINGS CHILD CARE CENTER :
BRIGHT HORIZONS, INC. BRIGHT :
HORIZONS, LLC :
Appeal from the Order Entered August 27, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 200101781
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
OPINION BY BOWES, J.: FILED SEPTEMBER 10, 2021
Jill and John Doe (“Parents”), as parents and legal guardians of Jack
Doe, a minor, appeal from the August 27, 2020 order transferring the
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underlying case from Philadelphia County to Berks County based on forum non
conveniens.1 After thorough review, we affirm.
Parents commenced this action in Philadelphia County against Bright
Horizons Children’s Center, LLC, Bright Horizons Family Solutions, LLC, Bright
Horizons Children’s Center, Inc., Bright Horizons Family Solutions, Inc., Bright
Horizons Limited Partnership, Bright Horizons, Inc. Bright Horizons, LLC
Hildebrandt Learning Centers, LLC, Creative Beginnings Child Care, LLC,
Creative Beginnings Child Care Center (collectively “Bright Horizons”) and the
Pennsylvania State University (the “University”) on January 16, 2020, seeking
damages on behalf of their minor son who allegedly suffered two years of
sexual abuse perpetrated by Andrew McCollin at Creative Beginnings Child
Care Center (the “Daycare Center”) in Reading, Pennsylvania. They asserted
claims for negligence, negligent supervision, negligent hiring and retention,
and premises liability relating to Jack’s persistent abuse at the Daycare
Center.
Following the filing of a second amended complaint, Bright Horizons
moved to transfer the case to Berks County.2 They alleged that trial in
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1 An order in a civil action “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” is an interlocutory
appeal as of right. Pa.R.A.P. 311(c).
2Prior to Bright Horizons’ filing of a motion to transfer the case to Berks
County, the University filed a motion to transfer the case to Centre County.
(Footnote Continued Next Page)
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Philadelphia County would be oppressive to them as the Daycare Center would
not be able to maintain state-mandated teacher-to-student ratios if the
classroom teachers expected to be called to testify at trial were required to
travel one and one-half to two and one-half hours to Philadelphia City Hall.3
See Motion to Transfer, 5/14/20, at ¶¶ 9-13.
In support of the motion, Bright Horizons provided an affidavit from
Kaitlin Martin, the Regional Manager for Bright Horizons Children’s Centers
LLC. Ms. Martin stated therein that Pennsylvania law mandates teacher-to-
student ratios based on the age of the children. The Daycare Center required
twenty-three teachers and three administrators to meet the required ratio
each day, and as of March 2020, it employed a total of thirty teachers and
administrators. Id. at ¶ 12. Ms. Martin maintained that if four or more staff
members were unavailable to work at the same time, the Daycare Center
could not meet the required ratio. Since Parents identified, by name, nine
staff members in their Third Amended Complaint, Bright Horizons anticipated
that the presence of at least those nine persons would be required for at least
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The University’s motion was denied, and it subsequently joined the motion
filed by Bright Horizons.
3 The University had previously filed a motion to transfer this case to Centre
County, Pennsylvania, which the trial court denied. After Bright Horizons filed
the motion to transfer the case to Berks County, the University joined in that
motion. The trial court expressly stated that the University’s argument played
no role in its decision to transfer the action to Berks County. See Trial Court
Opinion, 1/11/21, at 2 n.2.
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a portion of the trial. Ms. Martin also attested that it would be impractical to
hire additional staff, a process that takes three to four weeks and requires
background checks and training, to provide the necessary coverage to enable
the nine individuals to attend trial.
In contrast, Ms. Martin described how she was able to arrange for the
District Attorney’s office of Berks County to interview more than thirty daycare
center employees in September 2019 without hiring additional staff or
violating teacher/student ratios, because it was a ten-to-fifteen-minute drive
to the Berks County Courthouse, rather than the minimum one and one-half
hour drive to Philadelphia City Hall. Id. at ¶¶ 17-18.
Parents filed a response in which they argued that it would not be
oppressive for the Daycare Center employees to appear at trial in Philadelphia.
Furthermore, they maintained that Philadelphia was more convenient for the
corporate witnesses of Bright Horizons who would be flying in to testify at trial.
Finally, they alleged that Ms. Martin’s affidavit lacked the requisite specificity
as to the number of students enrolled in the Daycare Center, their ages, and
the total number of staff employed to determine whether the mandated ratio
could be met. On its face, Parents contended that Ms. Martin’s affidavit
established that only nineteen teachers were required each day to comply with
the state staffing mandates, and that the daycare center employed thirty
teachers, more than enough to adequately staff the daycare center while some
teachers were testifying in Philadelphia.
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The trial court issued an order permitting the parties to conduct
discovery and submit supplemental briefs on this forum non conveniens issue.
Thereafter, the trial court granted Bright Horizons’ motion and transferred the
case to Berks County. Parents timely appealed and complied with Pa.R.A.P.
1925(b). The trial court issued its opinion pursuant to Rule 1925(a), and the
matter is ripe for our review. We are presented with one issue:
Did the trial court abuse its discretion by concluding that Bright
Horizons would be oppressed by venue in Philadelphia, and
therefore by transferring this case to Berks County under
Pa.R.C.P. 1006(d)(1), where the pertinent evidence described
Bright Horizons’ concerns about the inconvenience associated with
trial as a general matter and did not demonstrate oppression as a
consequence of trial in Philadelphia as compared to Berks County?
Appellants’ brief at 2.
The following general principles govern the transfer of a case based on
forum non conveniens. A plaintiff’s forum choice should be “rarely . . .
disturbed,” is entitled to great weight, and must be given deference by the
trial court, but it is not “not absolute or unassailable.” Powers v. Verizon
Pa., LLC, 230 A.3d 492, 496 (Pa.Super. 2020) (quoting Wood v. E.I. du
Pont de Nemours & Co., 829 A.2d 707, 711 (Pa.Super. 2003) (en banc)).
In seeking transfer under Rule 1006(d)(1), a defendant must make a detailed
factual showing that the chosen forum is oppressive or vexatious, not merely
inconvenient. See Bratic v. Rubendall, 99 A.3d 1, 7-8 (Pa. 2014). However,
the Bratic Court clarified that while inconvenience is not enough, “there is no
burden to show near-draconian consequences.” Id. at 10. As we held in
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Wood, supra at 712, factors such as the relative ease of access to sources
of proof, whether compulsory process is available to obtain the attendance of
unwilling witnesses, the costs associated therewith, and the possibility of a
view are important considerations when measuring oppressiveness. See also
Powers, supra at 497; Moody v. Lehigh Valley Hosp.-Cedar Crest, 179
A.3d 496, 502 (Pa.Super. 2018).
The trial court found that Bright Horizons “met their burden of providing
detailed information on the record to demonstrate trial in Philadelphia would
be oppressive.” Trial Court Opinion, 1/11/21, at 9. Noting that nine current
teachers were named in Parents’ Third Amended Complaint, and that twenty
current teachers worked with Andrew McCollin, the court found reasonable
Bright Horizons’ averment that at least nine and perhaps as many as twenty
current teachers would be called to testify at trial. In the court’s view, that
would require “a dynamic feat of scheduling to comply with the law” regarding
staffing while making the teachers available. Id. at 10. The court placed
great weight on the fact that this feat had already been successfully
accomplished in September 2019, when thirty staff members were shuttled
by a car service from the daycare to the Berks County Courthouse for
interviews with the District Attorney. In that instance, transportation entailed
“only a ten to fifteen minute drive,” which “played a necessary supporting role
in this effort because it minimized the amount of time teachers were out of
the classroom.” Id. at 10. The court concluded that arranging analogous
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transit for an approximately ninety minute drive into Philadelphia, coupled
with the added complication that the Daycare might not be able to bring in
teachers from other facilities for supplemental staff coverage, presented a far
heavier burden.
In addition, the following circumstances contributed to the trial court’s
finding of oppressiveness: that the facts giving rise to the cause of action
occurred in Berks County; none of the defendants is located in Philadelphia
County; and Parents did not identify any witnesses situated in Philadelphia.
Id. at 12. Moreover, the trial court found Parents’ arguments in opposition to
Ms. Martin’s affidavit and deposition testimony unpersuasive. While the trial
court acknowledged that there were some inconsistencies in Ms. Martin’s
statements, the court concluded that they did not warrant “jettisoning her
testimony in toto” as Parents argued. Id. at 13. After reading Ms. Martin’s
deposition “as a whole,” the court found her testimony to be trustworthy and
credible, especially her uncontroverted testimony about “the scheduling
accommodations that occurred when the Berks County District Attorney’s
Office interviewed thirty staff members.” Trial Court Opinion, 1/11/21, at 13.
In reviewing the trial court’s decision, we are mindful of the following.
A trial court ruling on a petition to transfer venue pursuant to Rule 1006(d)(1)
is “vested with considerable discretion . . . to balance the arguments of the
parties, consider the level of prior court involvement, and consider whether
the forum was designed to harass the defendant.” Bratic, supra at 7. On
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appeal, we will only reverse a trial court’s decision on a motion to transfer if
the trial court abused its discretion. Id. “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 o[f] the
record. Id. 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. Id. See also Powers, supra at 496 (holding “[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.”).
Parents contend that “the record evidence did not justify a finding that
Philadelphia was an oppressive locale for Bright Horizons to litigate this case.”
Appellant’s brief at 16. They direct our attention to several cases that they
maintain underscore the significant burden a defendant bears in overcoming
a plaintiff’s choice of proper venue. In Bratic, supra, trial in Philadelphia was
found to have crossed the line from inconvenient to oppressive based upon
affidavits from seven witnesses who lived more than one hundred miles from
Philadelphia and who attested that litigation in Philadelphia would be a
disruption and a personal and financial hardship.
In Moody v. Lehigh Valley Hosp.-Cedar Crest, 179 A.3d 496, 509
(Pa.Super. 2018), plaintiffs commenced a wrongful death and survival action
in Philadelphia for the death of their child due to medical malpractice.
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Defendants Sacred Heart Hospital, Lehigh Valley Hospital, Medical Imaging
and a number of treating physicians, including, inter alia, Dr. Andrew Unger,
were located in Allentown, Lehigh County, sixty miles from Philadelphia, while
another defendant, Children’s Hospital of Philadelphia, was located in
Philadelphia.4 The Sacred Heart defendants moved to transfer venue to
Lehigh County, and offered two affidavits in support of their claim that trial in
Philadelphia would be oppressive. At the last minute, Lehigh Valley Hospital
and Medical Imaging joined the motion and submitted ten additional affidavits.
The trial court granted the motion concluding that the affidavits created a clear
record of oppressiveness. In particular, the trial court credited Dr. Unger’s
affidavit averring that a “prolonged absence” for trial in Philadelphia would
negatively “impact” his “ability to serve my patients and cover [Sacred Heart]
with regard to neonatology care[.]” Id. at 500.
This Court reversed, finding, inter alia, that the trial court abused its
discretion when it expressly refused to consider the plaintiffs’ evidence that
the allegedly indispensable Dr. Unger had been absent from work for two
weeks for personal and professional reasons and Sacred Heart was able to
provide coverage for his absence. We also noted that the trial court
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4 The Moody plaintiffs represented that there had never been a precedential
ruling in this Commonwealth transferring venue to another county on forum
non conveniens grounds “where there was an active defendant residing in [the
chosen forum.]” Furthermore, they pointed out that negligence occurred in
Philadelphia, the chosen forum, and considerable medical care, witnesses, and
evidence were located in Philadelphia.
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impermissibly placed the burden on the plaintiffs by faulting them for not
offering proof that there were witnesses who would find Lehigh County an
oppressive venue. While some defendant physicians complained that trial in
Philadelphia would disrupt their daycare and parenting responsibilities, we
found that trial was not anticipated for two years, and that it could be
scheduled for a date certain that would allow these individuals to make the
necessary accommodations at that time.
Parents also point to Fessler v. Watchtower Bible & Tract Soc’y of
N.Y., Inc., 131 A.3d 44 (Pa.Super. 2015), consolidated appeals one of which
arose out of a motor vehicle accident in Chester County. Some defendants
resided in Chester County and others in Philadelphia. The trial court
transferred the case to Chester County, and this Court reversed, reasoning
that a distance of forty miles from Chester County to Philadelphia was
inconvenient but did not rise to the level of oppressiveness.
Finally, Parents direct our attention to Walls v. Phoenix Ins. Co., 979
A.2d 847 (Pa.Super. 2009), an insurance coverage dispute filed in Philadelphia
County involving property located in Monroe County. The defendant insurance
company sought to transfer the action to Monroe County because the event
giving rise to the litigation occurred there, it would be easier to conduct a site
inspection with a jury if trial was conducted there, and no anticipated
witnesses were located in Philadelphia County. Following an evidentiary
hearing, the trial court granted the motion to transfer, after concluding that
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the plaintiff lived in Monroe County, the case was appropriate for a jury view
in Monroe County, it would be burdensome for defendant’s adjuster to appear
at trial in Philadelphia, and any potential contractors or code enforcement
officials who would be called to testify would likely be based in Monroe County.
This Court reversed, finding that the plaintiff had not proven oppressiveness.
We held that the plaintiff’s residence was not a proper consideration, the
possibility of a view was not enough to negate plaintiff’s choice of forum, the
insurance adjuster’s expenses would likely be compensated by his employer,
and the defendant had provided no specifics to support a finding that unnamed
witnesses possessed relevant information.
Parents contend that the evidence in this case is insufficient to justify
transfer to Berks County on forum non conveniens grounds. They maintain,
first, that the record does not substantiate that trial in Philadelphia would
compel Bright Horizons to close the Daycare Center based on a lack of
teachers, or even meaningfully impact its operation. While Parents
acknowledge they may call upon some personnel who may have witnessed
McCollin’s misconduct to testify, Parents maintain there is no reason to call
them all, and certainly no reason for these witnesses to testify on the same
day. Parents submit further that some teachers could testify via videotaped
deposition. Parents also contend there is no reason for the teachers to be
present in court during the entire trial as Ms. Martin alluded. In short, Parents
argue that with proper management, there would be no need to require the
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presence of a large number of teachers to present testimony on any one day,
and no support for the trial court’s finding that either the Daycare Center
would be forced to close during the trial or operate in violation of state
mandated teacher-to-student ratios.
In ruling that venue in Philadelphia was oppressive, the trial court placed
great weight on evidence that during the criminal investigation, the proximity
of the daycare to the District Attorney’s office was key to maintaining Daycare
operations during a three-day period when the D.A.’s office interviewed every
employee of the Daycare Center. Parents contend, however, that the criminal
investigation provides a “poor analogue” to a March 2022 trial. Appellants’
brief at 22. Even if live testimony is required from twenty or more of these
witnesses, Parents maintain that such testimony can be scheduled in such a
way as to avoid closing the Daycare. Id. at 23. There would be no reason
for four or more teachers to be absent per day as Ms. Martin hypothesized in
her deposition, and certainly no need for nine teachers to be present in the
courtroom throughout the trial. Id. Since trial is scheduled to commence at
the earliest in March 2022, there is time to plan the least disruptive approach
amid Covid concerns, if necessary.
Furthermore, according to Parents, the case focuses “on corporate
decisionmaking by a multi-billion-dollar corporation based in Massachusetts.”
Id. Many of the key witnesses will be flying into Philadelphia from Boston,
Chicago, Washington, DC, Minnesota, and Florida, regardless of whether trial
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occurred in Reading or Philadelphia. Parents point out that the courthouse is
a ten-minute drive from the Philadelphia airport. Some witnesses would be
traveling from areas near Philadelphia, and Parents maintain that Philadelphia
is a much more convenient forum for them.
Finally, Parents point out that the trial court credited Ms. Martin’s
deposition testimony about the importance of the continuity of care and the
additional hardships presented by pandemic protocols, even though she did
not deem such factors important enough to delineate in her affidavit.
Ms. Martin, the regional manager for Bright Horizons since July 2018,
explained the mandated state teacher-to-student ratios for the various age
groups of children. She personally assisted with the coordinating of schedules
to facilitate the thirty interviews conducted by the District Attorney’s office.
Id. at 90. She described how she arranged for a car service to retrieve a staff
member from the Daycare and transport her to the Berks County Courthouse,
fifteen to twenty minutes away. As one staff member was returning, another
was sent. “[T]hat way, when that teacher returned to the center, they could
return to ratio in their classroom.” Id. at 131. Thus, they were able to rotate
staff out in such a way as to avoid having more than one or two teachers out
of the building at any one time for any length of time. Id. The teachers could
return and provide continuity of care to the children.
Ms. Martin stated that the process “was extremely difficult” and “[i]t
took a lot of planning.” Id. at 132. It required coverage from other centers.
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In light of what families had been through, the Daycare Center wanted to
make sure that parents knew who would be covering in their child’s classroom,
going so far as to affix the substitute teacher’s picture to the outside of the
door. There was considerable preparation, scheduling, and coordination in
order to accommodate these interviews. In Ms. Martin’s view, it was worth it
because the teachers were able to return and finish their shift and catch up
with families at the busiest times, drop off and pick up. She stated that it
helped the children that their familiar caregiver was back again. Id. at 133-
34.
Ms. Martin explained further that coordination was required to locate
and train staff from other centers who provided coverage throughout the
process. Sometimes the Daycare Center director, other regional managers,
or Ms. Martin stepped in, none of which would have been possible after the
protocols that were put in place post-COVID-19. Even without COVID-19, Ms.
Martin expressed concerns about coordinating a similar shuffling of teachers
to and from Philadelphia. She noted that due to the longer distance and travel
time, the teachers would not likely be able to return to a classroom during the
day, which would negatively impact the continuity of care for children. “The
longer we have someone covering in a classroom for a given time, the more
challenging that can be . . . for classroom management, . . . for behaviors[.]”
Id. at 158. With COVID-19, she noted her heightened concern for the health
and safety of the children.
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The trial court did not find persuasive Parents’ arguments that Ms.
Martins’ testimony was untrustworthy. Despite some inconsistencies, the
Court found Ms. Martin’s testimony to be credible, especially her
uncontroverted descriptions of the accommodations that had to be made to
arrange for interviews of staff members at the District Attorney’s Office
located just twenty minutes from the Daycare Center.
Additionally, the trial court was persuaded by Ms. Martin’s testimony
that as many as twenty daycare teachers would be called to testify. 5 It
determined the logistics of providing state-mandated coverage for as many as
twenty Daycare teachers being absent from their classrooms for sufficient time
to travel to Philadelphia and testify was oppressive. The court relied heavily
upon the fact that while as many as thirty staff members could be shuffled
from the Daycare to the Berks County Courthouse over the course of several
days, a twenty-minute drive, while maintaining the state mandated ratios,
replicating those efforts with a ninety-minute drive to Philadelphia would be
impossible. Even without the added burden of COVID-19 protocols, the court
credited Ms. Martin’s testimony that it would be difficult to borrow enough
teachers from other Bright Horizons daycares to staff the Daycare for the
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5 While Parents only may envision calling a few teachers to testify regarding
McCollin’s conduct, Bright Horizons may intend to call many or most of the
teachers who worked with McCollin to refute allegations that they were aware
of his conduct and failed to report it. Such testimony would be relevant to the
issue of whether punitive damages are warranted.
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many hours regular teachers would be gone. Hiring new staff would be
impractical as the process takes weeks. Consequently, the court concluded
that either the Daycare would have to close or operate in violation of the state-
mandated teacher-to-student ratios, either of which presented an oppressive
burden. The court also noted that where none of the underlying facts occurred
in Philadelphia, the disruption to business operations and difficulty in obtaining
witnesses was more probative of oppressiveness. See Bratic, supra at 9
(holding “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”).
The question before us is whether, accepting the trial court’s credibility
determinations, there was enough evidence that trial in Philadelphia would be
oppressive to Bright Horizons. Contrary to Parents’ claim, the situation herein
is not analogous to Moody. In that case, the facts giving rise to the cause of
action arose both in Philadelphia and in Lehigh County, and the proof was
located in both counties. While a case was made that one defendant-physician
in Lehigh County was so indispensable to the operation of a defendant-hospital
that services could not be provided in his absence, plaintiffs offered proof that
this physician had been on vacation or absent due to professional obligations
for two weeks at a time and coverage was maintained. Critically, the trial
court expressly refused to consider this evidence, which we held constituted
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an abuse of discretion. In addition, we found that anticipated problems with
childcare and parenting responsibilities could be alleviated with planning and
a date certain for trial.
In this case, in contrast to Moody, the trial court appropriately
considered the totality of the record evidence, including the residency of
various witnesses, the distance between Berks County and the Philadelphia
City Hall, and the impact of travel time and teacher absence from the Daycare
on its operation and the children. Our review of the certified record confirms
the accuracy of the trial court’s recitation of the relevant facts and testimony.
We therefore discern a reasonable evidentiary basis for the trial court’s order
transferring venue. Hence, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/2021
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