Booth, N. and T. v. AIMCO

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NIA BOOTH AND TONI BOOTH IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
AIMCO D/B/A CUMBERLAND COURT
APARTMENTS AND AIMCO AND
CUMBERLAND COURT ASSOCIATES
D/B/A CUMBERLAND COURT
APARTMENTS AND ASIA WANNAMAKER
AND LASHAE TOLBERT AND NHPMN
MANAGEMENT, LLC
Appellees No. 211 EDA 2013
Appeal from the Order Entered December 6, 2012
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 02889 July Term, 2012
BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 29, 2014
Appellants, Nia Booth and Toni Booth, appeal from the order entered
petition to transfer venue on the basis of forum non conveniens and
transferring this tort action to Dauphin County. We affirm.
The relevant facts and procedural history of this appeal are as follows.
On October 6, 2010, the individual Appellees, Asia Wannamaker and Lashae
Tolbert, allegedly threw a scalding hot liquid on Appellants while inside the
Cumberland Court apartment co
Wannamaker, Ms. Tolbert, and Appellants all reside in Dauphin County and
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lived in, or next to, the Apartment Complex at the time of the incident.
Appellees AIMCO, Cumberland Court Apartments, and Cumberland Court
Associates, owned the Apartment Complex on the date of the incident.
Appellee NHPMN Management, LLC was the management company for the
Apartment Complex. Appellants sued Appellees in Philadelphia County,
alleging negligence and assault and battery. Appellants currently live within
two and one-half miles of the Dauphin County Courthouse. The Apartment
Complex is less than one mile from the Dauphin County Courthouse. Tyra
Fleurimond was the community manager at the Apartment Complex at the
time of the incident. Elaine Babilonia and Iliana Cruz are subsequent
community managers at the Apartment Complex. Ms. Fleurimond, Ms.
Babilonia, and Ms. Cruz live approximately 17, 28, and 6 miles from the
Dauphin County Courthouse, respectively; and approximately 117, 87, and
101 miles from the Philadelphia County Courthouse, respectively. All of
these potential witnesses have young children who require transportation to
and from school or daycare. The children also need adult supervision during
the evening hours. Ms. Fle
obligations as a Baltimore City police officer. Appellants received medical
treatment for their injuries in Dauphin County. Appellees own several
apartment complexes in the Philadelphia area. These complexes and their
employees had no connection with the incident.
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On July 23, 2012, Appellants filed their complaint in Philadelphia
County. On August 23, 2012, Appellees filed an answer with new matter
and cross-claim to the complaint. On October 1, 2012, Appellees filed a
petition to transfer venue from Philadelphia County to Dauphin County on
the basis of forum non conveniens. Appellants responded on October 22,
2012, and Appellees filed a sur reply on October 26, 2012. The court
entered an order granting Appe
6, 2012. Appellants timely filed a notice of appeal on Monday, January 7,
2013. The court ordered Appellants to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellants timely
complied.
Appellants raise the following issue for our review:
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
TRANSFER VENUE] FOR FORUM NON CONVENIENS?
Appellants argue Philadelphia County is the proper venue for the
instant action. Appellants point out the corporate Appellees own or manage
a number of apartment complexes in the Philadelphia area, and no longer
own or manage any apartment complexes in Dauphin County. Appellants
hardship that Ms. Fleurimond would face if she had to travel to Philadelphia
to testify. Appellants argue Ms. Fleurimond is a professional employee who
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should reasonably expect to appear in Philadelphia County, the site of a
number of apartment complexes owned by her employer, to protect her
alleviate her alleged hardships by having her husband swap shifts to care for
teenage son care for the younger children. Appellants also assert a
Philadelphia County venue would not burden Ms. Babilonia or Ms. Cruz, who
should not expect to be called as witnesses because they started their
employment at the Apartment Complex after the date of the incident and
can offer no relevant testimony. Appellants conclude the court erred by
ounty. We
disagree.
We review an order transferring an action on the basis of forum non
conveniens for an abuse of discretion. Catagnus v. Allstate Ins. Co., 864
A.2d 1259, 1263 (Pa.Super. 2004). An abuse of discretion occurs when the
court overrides or misapplies the law, exercises judgment in a manifestly
unreasonable manner, or renders a decision based on partiality, prejudice,
bias, or ill-will. Zappala v. Brandolini Property Management, Inc., 589
Pa. 516, 536, 909 A.2d 1272, 1284 (2006). If there is any basis for the trial
must stand. Id.
given great weight, but it is not absolute or unassailable. Id.
Pennsylvania Rule of Civil Procedure 1006(d)(1) governs transfer on
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the basis of forum non conveniens
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
transfer venue should not be granted, unless the defendant meets its burden
of demonstrating, with detailed information on the record
Cheeseman v.
Lethal Exterminator, Inc., 549 Pa. 200, 213, 701 A.2d 156, 162 (1997).
choice of forum
another county would provide easier access to witnesses or other sources of
Id.
the defendant is insufficient. Id. Cheeseman a
require any particular form of proof. All that is required is that the moving
Wood v. E.I. du
Pont de Nemours and Co., 829 A.2d 707, 714 (Pa.Super. 2003) (en
banc), appeal denied, 580 Pa. 699, 860 A.2d 124 (2004).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Gary F.
court opinion
comprehensively discusses and properly disposes of the question presented.
(See Trial Court Opinion, filed January 21, 2014, at 2-5) (finding: all
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potential main witnesses reside in Dauphin County; all potential main
witnesses would be forced to travel daily distances of approximately 200
miles round-trip; all potential main witnesses are responsible for care of
minor children; distance and time required for potential witnesses to travel
daily to Philadelphia County would impose serious hardships on them; no
Philadelphia within scope of their employment; these witnesses could not
reasonably expect to be regularly hauled into Philadelphia court because of
nature of their jobs; hardships facing potential witnesses demonstrate
Philadelphia County venue would be oppressive; Dauphin County would
evidence; location of incident and all other sources of proof are located in
Dauphin County; transfer to Dauphin County was proper). Accordingly, we
affirm on the basis of the trial court opinion.
Order granting the petition affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2014
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