Gass, B. v. Gass, W.

J-S71032-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRANDON GASS, AS : IN THE SUPERIOR COURT OF
ADMINISTRATOR AND : PENNSYLVANIA
ADMINISTRATOR AD :
PROSEQUENDUM FOR THE ESTATE :
OF DOROTHY TALTON, DECEASED, :
AND ALICIA GASS, INDIVIDUALLY :
:
Appellants :
: No. 1511 EDA 2018
:
v. :
:
:
WANDA GASS, JOSHUA J. :
MCALLISTER, STETSON COURIER, :
INC., KITAE PARK, THE HERTZ :
CORPORATION D/B/A HERTZ RENT- :
A-CAR, SAMSUNG ELECTRONICS :
CO., LTD. :
Appeal from the Order Entered April 16, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): April Term, 2016 No. 3505
BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED APRIL 09, 2019
Appellants Brandon Gass, as administrator of the estate of Dorothy
Talton, deceased, and Alicia Gass, individually, appeal from the order granting
the petitions to transfer venue based upon forum non conveniens1 of Appellees
Stetson Courier, Inc., and The Hertz Corporation doing business as Hertz
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1 An order changing venue in a civil action is interlocutory but appealable as
of right. Pa.R.A.P. 311(c); see Jackson v. Laidlaw Transit, Inc., 822 A.2d
56, 57 n.1 (Pa. Super. 2003).
J-S71032-18
Rent-A-Car, which was joined by Appellees Wanda Gass and Samsung
Electronics Co., Ltd. (Samsung).2 We affirm.
The trial court summarized the relevant background of this matter as
follows:
Shortly before midnight on April 30, 2014, [Appellee] Wanda Gass
was traveling eastbound on the Pennsylvania Turnpike in Newville,
Pennsylvania, Cumberland County. Decedent Dorothy Talton and
[Appellant] Alicia Gass were passengers in [Appellee] Wanda
Gass’s vehicle. [All three were returning to their home in Atco,
New Jersey.] The area where [Appellee] Wanda Gass was
operating her car was a two-lane stretch of turnpike that was
under construction. Although no construction was ongoing at the
time that [Appellee] Wanda Gass was driving in the area, the
roadway was set up for such construction, with Jersey barriers on
either side of the roadway. Given the late time of night, it was
dark. A steady rain was falling.
Approximately 500 feet beyond the crest of a hill [Appellee]
Wanda Gass stopped her car in the right hand lane of the turnpike
and turned the lights of the vehicle off. Subsequently, [Appellee]
Gass’s vehicle was struck first by [Appellee] Josh McAllister’s
vehicle and then a second time by Kitae Park’s vehicle. Decedent
Dorothy Talton was thrown from the vehicle and was pronounced
dead at the scene. Surviving [Appellant] Alicia Gass suffered
serious injuries, including facial lacerations, head injury resulting
in loss of consciousness, and other injuries that required
intubation. [Appellant] Alicia Gass was treated at Carlisle Regional
Hospital immediately following the accident and eventually was
transferred to Hershey Medical Center for further treatment.
***
On April 29, 2016, [Appellant] Alicia Gass, acting on her own
behalf, and [Appellant] Brandon Gass, acting as Administrator of
the Estate of Dorothy Talton, filed this action in . . . Philadelphia.
[Appellants] brought several claims for negligence and wrongful
death, as well as a survival action. On December 26, 2017,
[Appellee] Hertz [Corporation] filed a Motion to Transfer for Forum
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2 The remaining defendants are not parties to this appeal.
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Non Conveniens and [Appellee] Samsung eventually joined that
[m]otion. [Appellee] Stetson Courier filed an analogous [m]otion
on December 28, 2017. [Appellees] argued that venue should be
transferred from Philadelphia to Cumberland County because (1)
the accident occurred in Cumberland County; (2) neither the
[Appellants] nor [Appellees] reside in Philadelphia; and (3)
multiple witnesses have attested via signed affidavit to the
hardship of traveling 150 miles from where they live and work in
Cumberland County to Philadelphia for an eventual trial. On
February 2, 2018, [Appellants] filed an answer [to] each motion
opposing transfer. On February 5, 2018[,] this [c]ourt permitted
the parties to conduct discovery on the issue of venue and ordered
the parties to submit supplemental briefing by April 6, 2018.
[Eight witnesses were deposed on March 27, 2018, in Cumberland
and Dauphin Counties regarding the issue of hardship in traveling
to Philadelphia for trial.3 Appellees] Wanda Gass and Hertz
[Corporation] timely complied with this [c]ourt’s [o]rder
[regarding supplemental briefing]. [Appellee] Stetson Courier
filed untimely supplemental briefing on April 9, 2018. [Appellants]
also filed an untimely supplemental brief on April 9, 2018.
Trial Ct. Op., 8/6/18, at 1-2.
In their supplemental briefing, Appellees relied upon the affidavits and
depositions of Appellees’ witnesses, which included testimony indicating the
hardships that would arise if each witness were to take time away from work
and personal obligations to travel to and from Philadelphia for trial.
Corporal Glenn Ahl, a supervisor at the Newville State Police barracks in
Cumberland County, testified that Troopers Neil Gearhart and William Duncan
responded to the scene of the accident. Corporal Ahl testified that the
Pennsylvania State Police barracks where he and Troopers Gearhart and
Duncan work is understaffed. Ahl Dep., 3/27/18, at 8. Corporal Ahl stated
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3 An additional witness, Trooper Cord Holliday, who had responded to the
scene of the accident, had been deposed separately for trial in January 2018
in Philadelphia.
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that it would be a much lesser burden for the Troopers to appear for trial in
Cumberland County because it would take less time and be less likely to result
in gaps in coverage. Id. at 15-16. According to Corporal Ahl, state vehicles
would have to be supplied to the Troopers to make the trip to and from
Philadelphia. Id. at 14-15.
Troopers Duncan and Gearhart confirmed Corporal Ahl’s testimony and
testified to personal responsibilities at home that also would be disrupted.
See Duncan Dep., 3/27/18, at 13-15; Gearhart Dep., 3/27/18, at 9-12.
Retired Corporal John Rosenberger, who had investigated the matter, testified
that although he did not have work obligations, travel to Philadelphia for trial
would be a hardship because he was moving out of the Cumberland County
area and Philadelphia would be much further away than Cumberland County.
Rosenberger Dep., 3/27/18, at 10.
Former Cumberland County Deputy Coroner Christopher Zeigler, who
now works as an instructor for a healthcare facility management company,
testified that his teaching schedule would be significantly disrupted if the trial
occurred in Philadelphia as opposed to Cumberland County. See Zeigler Dep.,
3/27/18, at 10-14. Cumberland County First Deputy Coroner Mark Kann
testified to the hardships that would affect his office based on his belief that
coroner records that are subpoenaed from the Coroner’s office would have to
be personally delivered to the court. Kann Dep., 3/27/18, at 10-11.
Paramedics Scott Tindel and James Wettrich, Jr., were first responders
to the scene of the accident. Mr. Tindel normally works a night shift and Mr.
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Wettrich normally works a day shift. Mr. Tindel testified that he would likely
have to work an overnight shift, travel to and from Philadelphia for trial, and
immediately work another night shift. Tindel Dep., 3/27/18, at 11. Mr.
Wettrich testified that he has supervisory duties that would be disrupted if he
were required to travel to and from Philadelphia for trial. See Wettrich Dep.,
3/27/18, at 9-19.
On April 13, 2018, the trial court granted Appellees’ motions to transfer
based on forum non conveniens, and transferred the matter to the Court of
Common Pleas of Cumberland County.4
Appellants filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) statement. The trial court complied with Rule 1925(a). In its Rule
1925(a) opinion, the trial court indicated that
[i]n the present case, and despite [Appellants’] contrary
assertions, [Appellee5] provided detailed evidence to support
[her] Motion to Transfer. [Appellee] submitted eight sworn
affidavits affirming [her] witnesses’ location in Cumberland
County and the personal and professional hardships that these
affiants would face if required to travel to Philadelphia for trial.
[Appellee] provided further detail as to the burden that trial in
Philadelphia would impose on [Appellee’s] witnesses in the form
of eight deposition transcripts. Moreover, these eight depositions
also detailed the fact that trial in Philadelphia would provide poor
access to relevant sources of proof[.]
____________________________________________
4 Shortly after the motions to transfer venue were granted, all defendants in
this case except Appellee Wanda Gass settled this matter. Accordingly, Wanda
Gass is the only remaining Appellee in this appeal, and will be designated as
“Appellee.”
5 Appellee joined the Hertz Corporation’s motion to transfer in full and
provided supplemental briefing to the trial court regarding the motion.
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Trial Ct. Op. at 12.
On appeal, Appellants raise the following questions for our review:
[1.] Whether the [trial] court abused its discretion in
impermissibly narrowing the totality of the circumstances
standard by placing undue weight on only four factors, contrary
to Supreme Court precedent that demonstrates that [Appellee’s]
witnesses’ alleged hardships amount to mere inconveniences
which do not support a decision to transfer to Cumberland County?
[2.] Whether in its analysis of the totality of the circumstances,
the trial court abused its discretion in ignoring factors raised by
[Appellants,] which are relevant to whether the [Appellee’s]
affiant witnesses would be oppressed by testifying in trial in
Philadelphia?
[3.] Whether the trial court abused its discretion in neglecting to
address that the majority of [Appellee’s] witnesses will not testify
at trial?
Appellants’ Brief at 7-8 (emphasis in original) (full capitalization omitted).
In their first two issues, Appellants raise related claims that the trial
court improperly considered the totality of the circumstances in granting
Appellee’s motions to transfer venue based on forum non conveniens.
Specifically, Appellants assert that the trial court put undue weight on
the distance between Philadelphia and Cumberland County. Id. at 24.
Appellants argue that the trial court gave excessive consideration to the
personal and professional disruptions in the lives of Appellee’s witnesses.
Appellants assert that “evidence of disruption to present personal obligations
is a factor entitled to little weight,” and “the professional lives of [Appellee’s
w]itnesses would be merely inconvenienced, which is insufficient to support a
transfer of venue.” Id. at 26, 34. Similarly, Appellants argue that the trial
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court “gave too much credence to the assertion that Cumberland County
would provide greater access to relevant sources of proof [such as the
coroner’s records and viewing the site of the accident].” Id. at 35.
Appellants also assert that the trial court ignored certain factors that
should have been assessed as a part of the totality of the circumstances
analysis. Appellants argue that the trial court failed to address the oppression
that Appellee will face by transferring this matter to Cumberland County. Id.
at 42. Additionally, Appellants assert that the motions to transfer were filed
at a late stage in litigation. Id. at 40.
Regarding our standard of review, it is well settled that
appellate courts review a trial court’s ruling on a motion to transfer
for an abuse of discretion.
In this regard, the trial court’s ruling must be reasonable in
light of the peculiar facts. If there exists any proper basis
for the trial court’s decision to transfer venue, the decision
must stand. 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.
Bratic v. Rubendall, 99 A.3d 1, 7 (Pa. 2014) (citations omitted).
Pennsylvania Rule of Civil Procedure 1006 provides for the transfer of
venue 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).
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“[A] petition to transfer venue should be granted only if the defendant
‘demonstrat[es], with detailed information on the record, that the plaintiff’s
chosen forum is oppressive or vexatious to the defendant.’” Bratic, 99 A.3d
at 7 (quoting Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156, 162
(Pa. 1997)). “[T]he party seeking a change of venue bears a heavy burden
in justifying the request . . . .” Id. (citation omitted). A trial court is not to
“engage[] in a balancing test. We rejected that approach . . . because it
disregarded the great weight accorded to the plaintiff’s initial choice of forum.
Transfer on forum non conveniens grounds is proper only if the defendant
proves that the chosen forum is oppressive to him.” Moody v. Lehigh Valley
Hosp.-Cedar Crest, 179 A.3d 496, 508 (Pa. Super. 2018) (citations omitted),
appeal denied, 194 A.3d 117 (Pa. 2018).
Determining whether a forum is oppressive “requir[es] consideration of
the totality of the circumstances. The distance between the two forums, the
disruption to the parties’ personal and professional lives, are part of the
equation, but no one factor is dispositive.” Id. at 508 n.9. Additionally, a
trial court may consider factors such as whether depositions of defense
witnesses have taken place in the plaintiff’s chosen forum and inconvenience
to defense witnesses in the requested forum. See Fessler v. Watchtower
Bible & Tract Soc'y of New York, Inc., 131 A.3d 44, 52 (Pa. Super. 2015);
Hoose v. Jefferson Home Health Care, Inc., 754 A.2d 1, 4 (Pa. Super.
2000).
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As to the timing of a petition to transfer venue, “Rule 1006(d) imposes
no time limit upon a party who seeks to transfer venue[.]” Wood v. E.I. du
Pont de Nemours & Co., 829 A.2d 707, 710 (Pa. Super. 2003) (en banc)
(internal quotation marks and citation omitted). However, our courts have
nonetheless considered the timeliness of a petition to transfer venue. See,
e.g., Fessler, 131 A.3d at 52 (providing that where a motion to transfer based
on forum non conveniens is filed on the eve of trial as an abusive tactic or “a
tool [to] forestall litigation,” it should not be granted).
In Bratic, the plaintiffs initiated an action in Philadelphia, asserting
wrongful use of civil proceedings and abuse of process claims based on a
previously dismissed lawsuit that had been litigated in Dauphin County.
Bratic, 99 A.3d at 3. Pursuant to Pa.R.C.P. 1006(d)(1), the defendants
“petitioned to transfer the case to Dauphin County based on forum non
conveniens, alleging the pertinent ‘witnesses and evidence [were] located in
Dauphin County such that depositions and trial in Philadelphia County [would]
be a hardship to the [defendants] and the witnesses upon whom [the
defendants] must rely.’” Id. at 3-4 (citation omitted). In support of their
petition to transfer, the defendants
presented affidavits of seven witnesses, all of whom live over 100
miles from Philadelphia, each stating that holding the trial there
“would be both disruptive and a personal and financial hardship if
[the witnesses] should be called to testify at deposition or trial”
because they “would have to incur substantial costs for fuel, tolls
and, if traveling overnight, for lodging and meals[, and for] every
day of deposition or trial in Philadelphia, [they] would be forced
to take at least one full day away from [work].”
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Id. at 4 (footnotes omitted).
The trial court in Bratic granted the motion to transfer, finding the
choice of Philadelphia to be vexatious and oppressive to the defendants since
(1) the earlier claim took place in Dauphin County; (2) all [of the
defendants were] from Dauphin County and none of [the plaintiffs
were] from Philadelphia County; (3) each of [the defendants’]
eight witnesses live[d] over 100 miles from Philadelphia County
and [] “engaged in business activities which [made] their ability
to appear at trial in Philadelphia County far more of a burden than
a trial in Dauphin County”; and (4) “[t]he sole connection
with Philadelphia County [was] the fact that all [defendants]
occasionally conduct[ed] business in Philadelphia.”
Id. (citation omitted).
Our Supreme Court overruled this Court’s en banc decision to reverse
the trial court and affirmed the trial court’s decision to transfer venue:
If we consider only [the defendants’] seven affidavits, there
“exist[ed] a [ ] proper basis for the . . . transfer[.]” It cannot be
said the trial court misapplied the law or failed to hold [the
defendants] to their proper burden to establish oppression. While
typically the “fact that the site of the precipitating event was
outside of plaintiff’s choice of forum is not dispositive[,]” 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[.]”
As with other factors insufficient on their own, distance alone is
not dispositive, but it is inherently part of the equation. . . .
Dauphin County . . . is not a neighbor of Philadelphia, and one
needs no detailed affidavit to understand the difference in logistics
necessitated by a separation of 100 miles. . . .
We thus cannot accept [the plaintiffs’] argument that [the
defendants’] affidavits were “plainly inadequate to overcome the
great deference owed to a plaintiff’s choice of forum[.]”
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Id. at 9 (citations and footnote omitted).
Appellants rely on Moody in support of their claims that the trial court
placed too much weight on the disruption to the defense witnesses’ personal
and professional obligations. In Moody, the administrators of a decedent’s
estate brought a wrongful death action against the decedent child’s medical
care providers. The Court of Common Pleas of Philadelphia County granted
the medical care providers’ petition to transfer venue to Lehigh County based
on forum non conveniens. Moody, 179 A.3d at 498. The administrators
appealed, and this Court reversed the order granting transfer because the trial
court applied the incorrect standard. Id. at 508.
The Moody Court concluded that the trial court “fault[ed the
a]dministrators for not introducing specific evidence of individuals in
Philadelphia who would be oppressed by a trial in Lehigh County, [and in so
doing,] the court missed the mark . . . [and, ultimately,] improperly engaged
in a balancing test.” Id. Additionally, the trial court erred by refusing to
consider evidence the administrators had presented that specifically refuted
the medical care providers’ claims of oppression in relation to their job duties.
Id. at 508-09.
Here, we find that the instant matter is more closely aligned with the
facts of Bratic as compared to the facts of Moody. In Bratic, a distance of
over 100 miles from Philadelphia created a hardship for the defendants, and
here the distance is over 100 miles. See Bratic, 99 A.3d at 4. Moreover, the
remainder of the considerations the Bratic trial court used to determine the
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chosen forum was oppressive are present here. Neither Appellee nor
Appellants are from Philadelphia County, potential witnesses for Appellee are
engaged in activities that make their ability to appear in Philadelphia a greater
burden than appearing in Cumberland County, and the sole connection
with Philadelphia was the fact that some Appellees6 at times conduct business
in Philadelphia. See Bratic, 99 A.3d at 4.
As to Appellants’ assertions that the trial court gave too much weight to
the hardships Appellee’s witnesses will face in their personal and professional
lives, we note that the trial court had access to all of the deposition transcripts
of the witnesses and decided the weight to give the testimony contained in
the depositions. Unlike Moody, the trial court did not refuse to consider
evidence tending to refute the hardship of the defense witnesses appearing in
Philadelphia. Accordingly, we will not disturb the trial court’s determinations
on appeal. See id. at 7.
When it comes to access to sources of proof, Appellants also assert that
the trial court gave this factor too much weight. Appellants note that it is
unlikely that the Coroner’s office will have to send an individual to personally
deliver subpoenaed records in this case, since the documents from the
Coroner’s office have been obtained in discovery. Appellants’ Brief at 37.
While requiring the Coroner’s office to send a person with records to the
courthouse may be an unlikely scenario, it is not clear that the trial court
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6The record does not reveal that Appellee Wanda Gass has a connection to
Philadelphia.
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afforded this factor undue weight, since a site view of the accident scene has
not been precluded in this case. Furthermore, the witnesses themselves are
a source of proof, and no one disputes that all of the potential defense
witnesses in this case are from Cumberland County or nearby.
Turning to the factors that Appellants assert the trial court failed to
consider in analyzing the totality of the circumstances, which include the
timing of the motions to transfer, we note that the trial court correctly
indicated that a motion to transfer venue under Rule 1006(d) can be filed at
any time. See Trial Ct. Op. at 18. Under the particular facts of Fessler, this
Court held that the motion to transfer venue was filed on the eve of trial to
disrupt the litigation and prevent trial from occurring. See Fessler, 131 A.3d
at 52. That is not the case in this matter, where discovery was ongoing and
a trial date had not been set at the time the motions to transfer venue were
filed. Accordingly, we discern no abuse of discretion regarding the trial court’s
refusal to consider the timing of the motions as a factor supporting a denial of
the motions to transfer. See Bratic, 99 A.3d at 7.
Appellants also assert that the trial court should have considered the
burden on Appellant Wanda Gass to appear in Cumberland County as
compared to Philadelphia. While Wanda Gass lives in Atco, New Jersey, which
makes Cumberland County farther for her than Philadelphia, she is not merely
a witness but a necessary party to the case. At this juncture, the witnesses
identified are all in the Cumberland County area.
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Similarly, when considering whether depositions had taken place in
Philadelphia prior to the filing of the motions to transfer, one witness, Trooper
Holliday, was deposed in Philadelphia. However, the remaining eight
depositions that were taken of defense witnesses were specifically regarding
transfer of the case on forum non conveniens grounds and were taken in
Cumberland County and the adjacent Dauphin County. Accordingly, this is
not a situation where “depositions of various witnesses[ had] already been
conducted in Philadelphia” at the time the motions to transfer venue were
filed. See Hoose, 754 A.2d at 4. Accordingly, we discern no abuse of
discretion. See Bratic, 99 A.3d at 7.
In their final issue, Appellants assert that the trial court erred because
a trial would not require the attendance of many of the defense witnesses who
indicated they would be oppressed by having to appear in Philadelphia for
trial. Appellants’ Brief at 44. Upon review, we discern no reason to disturb
the trial court’s consideration of each of the affidavits and depositions and
conclusions regarding this issue. See Bratic, 99 A.3d at 9.
Based on the analysis of the totality of the foregoing factors, we agree
with the trial court that Appellee met her burden of demonstrating that
Philadelphia is an oppressive forum. See Trial Ct. Op. at 12. Because the
record reveals a basis for transferring the instant matter, we discern no abuse
of discretion on the part of the trial court in relying on the aforementioned
factors and affidavits and depositions of potential witnesses to determine that
the chosen forum of Philadelphia was oppressive. See Bratic, 99 A.3d at 9.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/9/19
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