Heckrote, S. v. Comcast Corp.

J-A09031-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SYLVIA HECKROTE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
COMCAST CORPORATION, COMCAST : No. 1409 EDA 2020
OF SOUTHEAST PENNSYLVANIA LLC, :
SCHANER'S MOBILE HOME PARK, :
SANATOGA REAL ESTATE & :
DEVELOPMENT INC., LIFTED UP :
MINISTRIES, LIBERTY MINISTRIES :
INC., AND JOHN DOE #1-10 :
Appeal from the Order Entered May 16, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 191102838
BEFORE: NICHOLS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED MAY 4, 2022
Sylvia Heckrote (Heckrote) appeals from the May 16, 2020 order
entered in the Court of Common Pleas of Philadelphia County (trial court)
granting the motion to transfer venue filed by Comcast of Southeast
Pennsylvania LLC, et al. (Comcast Defendants) in this personal injury action
based on forum non conveniens. We reverse and remand for further
proceedings consistent with this Memorandum.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A09031-22
I.
This procedurally unusual case arises from a March 31, 2018 incident
wherein Heckrote tripped and fell outside of her home located in Schaner’s
Mobile Home Park at 3000 East High Street in Sanatoga, Pennsylvania, in
Montgomery County. Heckrote alleged that she fell on cables and/or wires in
front of her home attached to a fallen telephone pole and that she suffered
severe injuries caused by the negligence of the Comcast Defendants.
Heckrote initiated this action on November 21, 2019, by filing a
complaint against the Comcast Defendants in Philadelphia County. In April
2020, arguing that Philadelphia County is an oppressive and vexatious forum
and that venue is instead appropriate in Montgomery County, the Comcast
Defendants filed a motion to transfer venue pursuant to Pa.R.C.P. 1006(d)(1).
On May 16, 2020, the trial court granted the motion but mistakenly noted that
Heckrote had not filed a response to the motion to transfer venue. The trial
court dismissed the action without prejudice for Heckrote to refile it in
Montgomery County within 20 days.
On May 21, 2020, Heckrote filed a motion for reconsideration
challenging the court transferring venue without holding a hearing or allowing
for discovery. The trial court denied the motion for reconsideration on May
28, 2020. Heckrote timely filed the instant appeal from the trial court’s May
16, 2020 order on June 8, 2020. Several months later, on February 16, 2021,
-2-
J-A09031-22
the trial court ordered Heckrote to file a Rule 1925(b) statement and she filed
a statement the next day. See Pa.R.A.P. 1925(b).
On April 26, 2021, the trial court entered an amended order it which it
essentially sought to rescind its May 16, 2020 order by granting Heckrote’s
motion for reconsideration and denying the Comcast Defendants’ motion to
transfer venue.1 In September 2021, the trial court issued an opinion
requesting that we remand this case to the Court of Common Pleas of
Philadelphia County to be heard. The court explained that when it initially
granted the Comcast Defendants’ motion for transfer on May 16, 2020:
there was an ongoing global pandemic and issues with the
City of Philadelphia computers. Due to these issues, this Court
was not in receipt of Plaintiff’s Answer to the Defendant’s motion
to transfer. A Motion for Reconsideration was then filed by Plaintiff
on May 21, 2020, which this Court denied. After receiving the
Plaintiff’s Notice of Appeal, and issuing a 1925(b) Statement of
Matters, this Court received Plaintiff’s Statement of Matters,
which stated that this Court did not consider the April 29,
2020 Answer to the Defendant’s Motion to Transfer. Upon
reading this issue, this Court went back and found that
Plaintiff had indeed filed an Answer. On April 12, this Court
____________________________________________
1 The trial court’s order conflicts with the general rule that it was divested of
jurisdiction to act, given the procedural posture of this case at the time, where
it was well beyond 30 days after entry of the May 16 order and Heckrote had
already filed this appeal. See 42 Pa.C.S. § 5505 (“Except as otherwise
provided or prescribed by law, a court upon notice to the parties may modify
or rescind any order within 30 days after its entry, notwithstanding the
prior termination of any term of court, if no appeal from such order has
been taken or allowed.”) (emphasis added); see also Pa.R.A.P. 1701(a),
(b)(3) (stating general rule that after appeal is taken, trial court may no longer
proceed in matter and providing that it may grant reconsideration of an order
only if application for reconsideration is timely filed and reconsideration is
granted within time prescribed for filing notice of appeal).
-3-
J-A09031-22
sent a letter to the Superior Court requesting that this case be
remanded and on April 26, 2021, this Court issued an Amended
Order granting Plaintiff’s Motion for Reconsideration and Denying
Defendants’ Motion to Transfer.
(Trial Court Opinion, 9/16/21, at 1-2) (emphasis added). We issued a per
curium order denying the trial court’s request for remand without prejudice
for this panel to consider the issue.
II.
Heckrote contends that remand of this case to the trial court is
necessary because the court granted the Comcast Defendants’ motion to
transfer venue on grounds of forum non conveniens without considering her
response to that motion. Heckrote also maintains the trial court abused its
discretion in granting the motion without holding a hearing on the issue of
venue or allowing any time for discovery to develop a record relating to the
appropriateness of Philadelphia as her chosen forum.2
Pennsylvania Rule of Civil Procedure 1006 governs challenges to venue
and provides in pertinent part as follows: “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). However, a plaintiff’s choice of forum
____________________________________________
2“In an appeal from an order transferring venue on the basis of forum non
conveniens, our standard of review is whether the trial court committed an
abuse of discretion.” Stoner v. Penn Kleen, Inc., 59 A.3d 612, 614 (Pa.
Super. 2012) (citation omitted).
-4-
J-A09031-22
is generally controlling and “should rarely be disturbed by the grant of a Rule
1006(d)(1) petition.” Moody v. Lehigh Valley Hosp.-Cedar Crest, 179
A.3d 496, 507 (Pa. Super. 2018), appeal denied, 194 A.3d 116 (Pa. 2018)
(citation omitted; emphasis added). “Moreover, the term forum non
conveniens is actually a misnomer because inconvenience is not enough
reason to transfer venue. The plaintiff’s choice of venue must be either
vexatious, i.e., intended to harass, or so oppressive as to require transfer.”
Id. (citation omitted).
A trial court should not grant a petition to transfer venue unless “the
defendant meets its burden of demonstrating, with detailed information on
the record, that the plaintiff’s chosen forum is oppressive or vexatious to the
defendant.” Cheeseman v. Lethal Exterminator, 701 A.2d 156, 162 (Pa.
1997). The Cheeseman court explained that a petitioner can meet this
burden by:
establishing with facts on the record that the plaintiff’s choice of
forum was designed to harass the defendant, even at some
inconvenience to the plaintiff himself. Alternatively, the defendant
may meet his burden by establishing on the record that trial in the
chosen forum is oppressive to him; for instance, that trial in
another county would provide easier access to witnesses or other
sources of proof, or the ability to conduct a view of the premises
involved in the dispute. But we stress that the defendant must
show more than that the chosen forum is merely inconvenient to
him.
Id.Proper procedure under Rule 1006(d)(1) then, unless unopposed,
requires the taking of evidence by deposition, affidavits or otherwise on
-5-
J-A09031-22
disputed issues of fact. See Rubin v. Lehman, 660 A.2d 636, 640 (Pa.
Super. 1995), appeal denied, 689 A.2d 235 (Pa. 1996) (“If this court is to be
faithful to the notion that a plaintiff’s choice of forum is entitled to weighty
consideration, then, at the very least, we should be enforcing the requirement
that the party seeking to change that venue fulfill its heavy burden with
record proof of the claimed hardships.”) (emphasis original).
In this case, the record reflects that a breakdown in the court system
caused by the Covid-19 pandemic and computer system problems resulted in
the trial court’s lack of awareness of Heckrote’s response to the Comcast
Defendants’ motion to transfer this case out of Philadelphia County. The trial
court expressly advised that it did not go back to review the case filings and
thereby discover Heckrote’s missing response until she had already filed this
appeal and the court read her Rule 1925(b) statement. As a result, the trial
court inadvertently did not require the Comcast Defendants to meet their
heavy burden of establishing with detailed information on the record that
Heckrote’s choice of forum is oppressive or vexatious. See Moody, supra at
507.
In light of the breakdown in the operation of the court and considering
that the trial court has requested remand of this case, we reverse its May 16,
2020 order and remand for further proceedings consistent with this
Memorandum.
Order reversed. Case remanded. Jurisdiction relinquished.
-6-
J-A09031-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/04/2022
-7-