Rutter's, Inc. v. Ritchey, D.

J-A24002-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAVID RITCHEY AND HOLLY : IN THE SUPERIOR COURT OF
RITCHEY : PENNSYLVANIA
:
V. :
:
RUTTER'S INC., RUTTER'S HOLDING, :
INC, AND CHR CORPORATION AND :
GENERAL MOTORS COMPANY, :
SUPREME CORPORATION, JIFFY : No. 2219 EDA 2020
LUBE INTERNATIONAL, INC., :
KATHLEEN SWEIGART, AND KEITH :
MCNAUGHTON, JR. :
:
:
APPEAL OF: RUTTER'S INC.,
RUTTER'S HOLDING, INC, AND CHR
CORPORATION
Appeal from the Order Entered September 15, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 190801527
BEFORE: LAZARUS, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 29, 2022
Defendants, Rutter’s Inc, Rutter’s Holding, Inc., and CHR Corporation
(collectively, Rutter’s) appeal from the trial court’s order1 denying their motion
to transfer venue, from Philadelphia County to either Cumberland County or
York County, on the basis of forum non conveniens. See Pa.R.C.P.
1006(d)(1). After careful review, we affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 See infra at 6 (discussing our Court’s grant of Rutter’s petition for review of
interlocutory order denying change of venue).
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Plaintiffs, David and Holly Ritchey (h/w) (collectively, the Ritcheys),
reside in Mechanicsburg, Cumberland County. Rutter’s is a Pennsylvania
corporation that has its principal place of business in York, Pennsylvania, and
regularly conducts business in Philadelphia. On October 4, 2017, near the
intersection of Slate Hill Road and Appleton Street in Lower Allen Township,
Cumberland County, David Ritchey sustained personal injuries when a GMC2
truck, owned by Rutter’s and operated by a Rutter’s employee,3 stopped
quickly to make a left-hand turn.4 As a result of the truck’s abrupt stop, Mr.
Ritchey lost control of and was thrown from his motorcycle. Mr. Ritchey
sustained catastrophic and permanent injuries, including, but not limited to, a
traumatic brain injury, fractured bones and ribs, vision loss, severe
headaches, and cognition and memory loss.
Immediately after the accident, Mr. Ritchey was airlifted to Penn State
Health Milton S. Hershey Medical Center (Hershey), in Dauphin County, for
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2 On September 19, 2019, the parties stipulated that General Motors, LLC
(GM) “shall be substituted in as a defendant in this matter in place of General
Motors Company.” Stipulation, 9/19/19, at ¶ 1. GM is the manufacturer of
the Rutter’s truck.
3At the time of the accident, Zachary Houseknecht was driving the Rutter’s
vehicle in which Garrett Ebersole was a passenger.
4 The Rutter’s truck was three vehicles ahead of Mr. Ritchey’s motorcycle at
the time of the accident. The two vehicles between Mr. Ritchey’s motorcycle
and the Rutter’s truck were operated by additional Defendants, Kathleen
Sweigert and Keith McNaughton. See infra at 4.
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emergency medical care. After being released from Hershey, Mr. Ritchey
received post-accident medical care for approximately three months at
Jefferson University Hospital and Magee Rehabilitation Hospital (Magee), both
located in Philadelphia. In March and April 2018 and, again, in January and
February 2019, Mr. Ritchey received rehabilitative care at Messiah Lifeways,
which is located in Cumberland County.
On August 14, 2019, the Ritcheys filed a multi-count complaint against
Defendants5 in Philadelphia County. In their complaint, the Ritcheys raised
claims of negligence against Rutter’s, Jiffy Lube, GM and Supreme
Corporation6 (Supreme) (Counts I-III), strict products liability against GM and
Supreme (Count IV), and breach of express and implied warranties against
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5 Supreme allegedly installed the body of the Rutter’s truck, which included
the allegedly defective brake lights. Defendants Supreme and Jiffy Lube filed
preliminary objections to the Ritchey’s complaint. The Ritcheys alleged,
among other claims, that GM and Supreme had negligently designed,
manufactured, assembled, distributed, sold, or supplied the subject GM truck,
which could not be safely used as intended. Ritchey Complaint, 8/14/19, at
¶¶ 34-36. The Ritcheys also alleged that Jiffy Lube negligently performed
maintenance upon and or/inspected the subject truck, including failing to
ensure that the truck’s rear brake light was operable. Id. at ¶¶ 29-32. Finally,
the complaint alleged that Supreme and Jiffy Lube sold a dangerously
defective product.
The court granted, in part, Jiffy Lube’s preliminary objections striking, without
prejudice, any allegations the Ritcheys made regarding recklessness, reckless
conduct, and related claims for punitive damages. The court overruled the
remainder of Supreme’s and Jiffy Lube’s preliminary objections.
Jiffy Lube was ultimately dismissed, without prejudice, from the underlying
lawsuit on August 12, 2020.
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GM and Supreme (Count V).7 The Ritcheys alleged that the Rutter’s truck
“was equipped with an unreasonably dangerous and defectively designed rear
brake light apparatus that failed to effectively warn vehicles travelling behind
the truck of sudden stops.” Ritchey Complaint, 8/14/19, at ¶ 19. On
November 22, 2019, Rutter’s filed an answer and new matter, including cross-
claims. The Ritcheys filed a reply to Rutter’s new matter.
On December 27, 2019, Rutter’s and CHR Corporation moved to join, as
additional Defendants, Kathleen Sweigert and Keith McNaughton—the
individuals who allegedly operated the two other motor vehicles traveling
between Mr. Ritchey’s motorcycle and the Rutter’s truck when the incident in
question occurred. See Motion for Leave to File Joinder Complaint, 12/27/19,
at ¶ 5; see also Pa.R.C.P. 2253 (joinder of parties). On January 22, 2019,
the court granted the motion and permitted Rutter’s to file a joinder complaint
against Sweigert and McNaughton. Rutter’s filed its joinder complaint on
January 28, 2019, and, after being served, Sweigert and McNaughton were
joined in the case.8
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7Holly Ritchey, in her own right, filed a loss of consortium claim against all
Defendants. See Ritchey Complaint, 8/14/19, at ¶¶ 50-52.
8On March 12, 2020, additional Defendant Sweigert filed an answer and new
matter to the joinder complaint. Additional Defendant McNaughton filed his
answer and new matter and new matter cross-claim on October 20, 2020.
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On March 16, 2020, Rutter’s filed a motion to transfer venue, based
upon Rule 1006(d)(1); GM, Jiffy Lube, and Supreme joined in the motion to
transfer. In the motion, Rutter’s alleged that the case should be transferred
from Philadelphia County to either Cumberland County or York County for the
convenience of the parties and witnesses, where: the underlying accident
occurred in Cumberland County; none of the parties is domiciled or maintains
its principal places of business in Philadelphia County; and an overwhelming
number of witnesses are located in or adjacent to Cumberland County or York
County and “would suffer significant hardship and inconvenience if forced to
travel more than 100 miles (each way) to Philadelphia County for depositions
and trial.” Appellants’ Brief, at 7. To support its motion to transfer venue,
Rutter’s attached 20 witness affidavits wherein each affiant attested to the
fact that venue in Philadelphia County would be a “great hardship due to
personal, family, and employment responsibilities and would otherwise be
extremely inconvenient.”
The Ritcheys filed a motion opposing the motion to transfer; Rutter’s
filed a reply to the Ritcheys’ opposition motion. Between June and July of
2020, the parties conducted several remote depositions9 for purposes of the
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9 These depositions were held remotely via Zoom from the affiants’
Cumberland County and York County residences or places of business. Cf.
Hoose v. Jefferson Home Health Care, Inc., 754 A.2d 1 (Pa. Super. 2000)
(stating defendant’s consistent appearance in chosen forum for purposes
(Footnote Continued Next Page)
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transfer motion. In addition, the parties filed supplemental briefs on the issue.
On July 30, 2020, the trial court denied Rutter’s motion to transfer without
holding a hearing or issuing an opinion.
On September 15, 2020, Rutter’s filed a petition for permission to
amend the July 30, 2020 order to include language certifying the interlocutory
order for immediate appeal. See Pa.R.A.P. 312, 1311(b); 42 Pa.C.S. §
702(b). The trial court denied the motion.10 Although the trial judge did not
initially author a Rule 1925(a) opinion, in an order denying Rutter’s petition
for permission to appeal, the Honorable James Crumlish, III, “provided the
salient factors that [he] considered in exercising [hi]s discretion” to deny
Rutter’s petition to transfer venue, stating:
1. The [c]ourt took into consideration the location of potential witnesses,
their relationships to the parties and the availability of alternatives to
in[-]person discovery and in[-]court testimony to alleviate
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of pre-trial procedures and discovery is legitimate consideration weighing
against defendant’s claim of oppressive or vexatious forum).
10 In its order denying Rutter’s motion to amend the trial court’s July 30, 2020
interlocutory order, the court stated that the instant matter did not involve a
controlling question of law for which there was a substantial ground for
difference of opinion and that an immediate appeal from the interlocutory
order would not materially advance the ultimate termination of the matter,
noting that it had
fully consider[ed] the thorough briefing of the parties . . .
consider[ed] the pled [c]omplaint [and the] identity of the claimed
witnesses[,] and the failure of [Rutter’s] to disclose the lengthy
treatment that [Mr. Ritchey] received at medical facilities in
Philadelphia County relating to [Mr. Ritchey’s] claimed injuries[.]
Order, 9/15/20.
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inconvenience to witnesses, methods the [c]ourt itself has sought to
perfect during the emergence from [the pandemic] shutdown;
2. The [c]ourt further considered the extensive treatment that Plaintiff
David Ritchey received at medical facilities in Philadelphia, treatment
that was not disclosed in Defendants’ moving papers, and treatment
that provides more than an inconsequential or coincidental connection
to this jurisdiction;
3. The [c]ourt considered the nature of the injuries suffered by Plaintiff and
the substantial likelihood that both the liability and damages phases of
the case would require a significant number of experts, individuals for
whom neither Philadelphia nor York [n]or Cumberland County would be
a convenient forum;
4. The [c]ourt considered [] the (even if remote) possibility Defendants’
motivation or the transfer amounted to forum shopping to a jurisdiction
with a lower verdict potential; and
5. [T]he [c]ourt took into consideration these factors in addition to the
arguments of the parties and concluded that, in its discretion,
Defendants had not met their burden to show that Plaintiffs’ choice of
forum was vexatious, oppressive, or overly burdensome to Defendants.
Order, 11/4/20, at 1-2.
On November 13, 2020, Rutter’s filed a petition for review in this Court,
see 42 Pa.C.S.A. § 5571(d); Pa.R.A.P. 1311, and an application for stay, both
of which our Court granted on December 10, 2020. See Per Curiam Order,
12/10/20. In its appellate brief, Rutter’s raises the following issue for our
consideration:
Whether the [trial] court abused its discretion and/or committed
an error of law in failing to follow the legal standard for
transferring venue based on forum non conveniens established by
the Pennsylvania Supreme Court in Cheeseman v. Lethal
Exterminator, Inc., [] 701 A.2d 156 (Pa. 1997), and Bratic v.
Rubendall, [] 99 A.3d 1 ([Pa.] 2014), where the “totality of the
circumstances” overwhelmingly support transfer of venue.
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Appellants’ Brief, at 4.
On March 24, 2022, this panel remanded the matter to the trial court
“for the preparation of a complete Rule 1925(a) opinion, wherein it [was to
weigh[] all the relevant factors,[] including the averments in the twenty
detailed affidavits offered by the defense, appl[y] Bratic to the facts of this
case, and give[] due consideration to the significance of the distance between
the forum county and the transfer counties, Cumberland and York, in this
matter.” Ritchey v. Rutter’s Inc., No. 2219 EDA 2020, at *18 (Pa. Super.
filed March 24, 2022) (unpublished memorandum decision). On May 2, 2022,
the trial court filed an 11-page Rule 1925(a) opinion discussing its reasons for
denying Defendants’ motion to transfer. Specifically, the court found that the
20 affidavits represented a superficial[,] forced showing of inconvenience,”
and that “the witnesses[’] statements indicate that any interruption of their
daily activities to attend a trial anywhere represents a hardship, with the
additional distance enhancing the time required to participate[, and that
d]istance, alone, as an abstract factor[,] is an insufficient basis upon which to
transfer this matter.” Rule 1925(a) Opinion, 5/2/22, at 10-11. The court also
mentioned that using the “tools available to the court,” id. at 10, convenience
may be achieved without witnesses having to travel the long distance from
York or Cumberland County to Philadelphia. The parties submitted
supplemental briefs after the court issued its Rule 1925(a) opinion on remand.
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On August 23, 2022, this Court heard reargument on the transfer issue. The
matter is now ripe for disposition.
It is well established that “a plaintiff’s forum choice should be ‘rarely . .
. disturbed[;]’ [it] is entitled to great weight, and must be given deference by
the trial court[, but it] is not absolute or unassailable.” Powers v. Verizon
Pa., LLC, 230 A.3d 492, 496 (Pa. Super. 2020) (quotation omitted). In ruling
on a petition to transfer venue pursuant to Rule 1006(d)(1), a trial court 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, 99 A.3d at 7.
“Thus, 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.” Okkerse v. Howe,
556 A.2d 827, 832 (Pa. 1989). The moving party must “present a sufficient
factual basis for the petition[, and t]he trial court retains the discretion to
determine whether the particular form of proof presented in support of the
petition is sufficient.” Wood v. E.I. du Pont de Nemours & Co., 829 A.2d
707, 714 (Pa. Super. 2003) (en banc).
On appeal, we will only reverse a trial court’s decision as to the transfer
of venue if the trial court abused its discretion. Cheeseman, supra at 159.
“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
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manifestly unreasonable, or the result of partiality, prejudice, bias[,] or ill will,
as shown by the evidence o[f] the record.” Bratic, supra at 7 (citation
omitted). “[W]here the record does not reflect an abuse of discretion by the
trial court, the Superior Court may not disturb a trial court’s discretionary
ruling by substituting its own judgment for that of the trial court.” Polett v.
v. Public Communs., Inc., 126 A.3d 895, 923 (Pa. 2015).
Pennsylvania Rule of Civil Procedure 1006(d)(1)11 provides:
For the convenience of the 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) (emphasis added). “While a plaintiff need not provide
reasons for selecting one venue over another, the doctrine of forum non
conveniens ‘is a necessary counterbalance to [e]nsure fairness and
practicality.’” Okkerse, supra at 832. However, a plaintiff’s choice of forum
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). “Moreover, the term forum non conveniens
is actually a misnomer because inconvenience is not enough reason to transfer
venue. The plaintiff’s choice of forum must be either vexatious, i.e., intended
to harass, or so oppressive as to require transfer.” Id. (citation omitted).
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11In its reply brief, Rutter’s specifically notes that it has only ever challenged
venue based upon Rule 1006(d)(1). Appellee’s Reply Brief, at 9 (“Rutter’s
Defendants never challeng[ed] the propriety of venue in Philadelphia County
under Rule 1006(e) of the Pennsylvania Rules of Civil Procedure[.]”).
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Cheeseman, supra, is the seminal case in which our Supreme Court
set forth a defendant’s burden to successfully change venue of a case based
on the doctrine of forum non conveniens:
[T]he defendant may meet its burden of showing that the
plaintiff’s choice of forum is vexatious to him 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 to 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. at 162 (citation omitted). Later, in Bratic, supra, our Supreme Court
clarified the level of “oppression” needed for a trial court to grant a change of
venue based on forum non conveniens. Specifically, the Bratic Court
reaffirmed Cheeseman’s holding that “[m]ere inconvenience remains
insufficient” to grant a venue change, but further stated that “there is no
burden to show near-draconian consequences.” Bratic, 99 A.3d at 21; id. at
7-8 (in seeking transfer under Rule 1006(d)(1), defendant must
“demonstrate[],with detailed information on the record,” that chosen forum is
oppressive or vexatious, not merely inconvenient). See Wood, supra at 712(important 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 the cost of obtaining willing,
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witnesses; costs associated with witnesses’ attendance; and ability to conduct
view of premises involved in dispute).
Rutter’s insists that this case is controlled by Bratic. In Bratic, Plaintiffs
instituted a lawsuit in Philadelphia County for wrongful use of civil proceedings
and common-law abuse of process claims based on a previously-dismissed
tortious interference lawsuit that had been brought in Dauphin County. Id.
at 3. Defendants petitioned to transfer venue of the wrongful use/abuse of
process case to Dauphin County, pursuant to Rule 1006(d)(1), based on forum
non conveniens. Id. In their petition, Defendants alleged that the pertinent
witnesses and evidence were located in Dauphin County, that taking witness
depositions would be a hardship if they occurred in Philadelphia County, and
that trial in Philadelphia County would also prove to be a hardship as the venue
was more than 100 miles from Dauphin County. Id. at 4. To support their
petition, Defendants provided seven affidavits from potential witnesses, all of
whom lived more than 100 miles from Philadelphia. Id. Each witness stated
in his or her affidavit that having trial in Plaintiffs’ chosen forum
would be both disruptive and a personal and financial hardship if
[he or she] should be called to testify at deposition or trial’
because he or she ‘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, [he or she] would
be forced to take at least one full day away from [work].
Id.
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Relying on Cheeseman, the trial court in Bratic granted Plaintiffs’
petition to transfer venue for the following reasons: (1) the prior lawsuit took
place in Dauphin County; (2) all Defendants were from Dauphin County; (3)
each of Defendants’ eight witnesses lived more than 100 miles from
Philadelphia County and was “engaged in business activities [that] make their
ability to appear at trial in Philadelphia County far more of a burden than a
trial in Dauphin County;” and (4) the only connection with Philadelphia County
was the fact that all Defendants occasionally conducted business there.
Bratic, 99 A.3d at 4. On appeal, a three-judge panel affirmed the trial court’s
order transferring the case to Dauphin County. See Bratic v. Rubendall,
No. 2413 EDA 2009 (Pa. Super. filed Jan. 14, 2011) (now-withdrawn
unpublished memorandum decision). A divided Court en banc reversed the
panel decision, finding that Defendants did not meet the burden of
demonstrating that trial in the Plaintiffs’ forum “would be oppressive or
vexatious,” noting that the trial court relied on irrelevant factors (Plaintiffs’
putative inconvenience; prior lawsuit having been brought in Dauphin County;
Defendants’ sole connection to Philadelphia County is occasional business; and
site of precipitating event occurred outside of Philadelphia County) and that
Defendants “ha[d] not offered particularized averments sufficient to satisfy
their burden as required by Cheeseman and its progeny.” Bratic, 99 A.3d
at 5.
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Our Supreme Court granted the Defendants’ petition for allowance of
appeal and ultimately concluded that the trial court, after considering the
totality of the evidence, had properly transferred the case. Id. at 8. The
Court pointed out that the trial court was correct in not considering court
congestion where it would not have borne on the ultimate consideration as to
whether the chosen venue was oppressive or vexatious. Id. Moreover, the
Supreme Court found that the affidavits presented by the defense did not lack
the requisite detail to illustrate how businesses would be affected by trial in
Philadelphia, where “the interference with one’s business and personal life
caused by the participatory demands of a distant lawsuit is patent,” id. at 9,
especially where the case involves a transfer from Philadelphia to a more
distant county, like Dauphin. While the Court noted that “distance alone is
not dispositive, . . . it is inherently a part of the equation.” Id. (“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.”); id. at 10 (affidavits demonstrating trial 100 miles away is
manifestly troublesome). Ultimately, the Supreme Court reaffirmed the
Cheeseman standard, but held that “the showing of oppression needed for a
judge to exercise discretion in favor of granting a forum non conveniens
motion is not as severe as suggested by the Superior Court’s post-
Cheeseman cases.” Id.
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Similar to the defendant in Bratic, Rutter’s argument is based on an
allegation that trial in Philadelphia County would be oppressive where
plaintiff’s chosen forum is more than 100 miles from York County and
Cumberland County. See Cheeseman, 701 A.2d at 162 (in addition to
proving vexatiousness, defendant may meet burden to transfer venue under
Rule 1006(d)(1), alternatively, by “establishing on the record that trial in the
chosen forum is oppressive to him”). Thus, in order to successfully transfer
the case, Rutter must demonstrate “with detailed information on the record,
that [the Ritcheys’] chosen form is oppressive or vexatious to [Rutter’s].” Id.
In their response to Rutter’s motion to transfer, the Ritcheys note that
“[n]othing contained in [Defendants’] affidavits comes close to ‘detailed
information’ that venue in Philadelphia is oppressive or vexatious” and that
“[Rutter’s argument] that the location of the alleged personal injury and a
majority (if not all) of the prospective witnesses work or reside in Cumberland
County . . . is unequivocally ‘not the type of record evidence that proves
litigating the case in the chosen forum is oppressive and vexatious.’”
Response in Opposition to Plaintiffs’ Motion to Transfer, 5/5/20, at 11-12
(emphasis in original). Cf. Powers v. Verizon Pa., L.L.C., 230 A.3d 492,
500 (Pa. Super. 2020) (where plaintiff failed to dispute, with particularity,
defendant’s averments in petition to transfer, defendant “effectively admitted
those averments”).
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Instantly, Rutter’s supported its motion to transfer with twenty affidavits
from potential witnesses, many of whom aver that trial in Philadelphia would
be oppressive and a “great hardship.” See Bratic, supra. The Ritcheys
countered Rutter’s motion with additional deposition testimony from two
potential witnesses stating that trial in Philadelphia would not be oppressive.
See Fessler v. Watchtower Bible & Tract Soc’y of N.Y. Inc., 131 A.3d
44, 52 (Pa. Super. 2015). However, at least two other witnesses testified
during their depositions that travel would be oppressive and more than
burdensome, citing the COVID-19 pandemic,12 civil unrest, increased work
obligations, and childcare needs as reasons for the now-apparent burden. 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,
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12 Although not precedential, we note that the COVID-19 pandemic came into
play in the context of forum non conveniens in Favire v. CONRAIL, 2021 Pa.
Super. Unpub. LEXIS 2554, *17 (No. 1757 EDA 2020) (Pa. Super. filed Sept.
21, 2021) (unpublished memorandum decision), where our Court stated:
In that same vein, the court considered the administrative
difficulties associated with maintaining this action in Philadelphia
concurrent with the COVID-19 pandemic, maintaining that
COVID-19 has “strained the Philadelphia court system,” which is
the largest trial court system in the Commonwealth and that the
“[i]ntroduction of unnecessary cases or parties needlessly upsets
the delicate balance between public safety and the public interests
protected by court staff.”
Id. at *16 (stating further that “public interest is not served having a
Philadelphia jury risk exposure for a case that has only fleeting
connections to this jurisdiction”).
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time out of the office, disruption to business operations, and the greater
difficulty involved in obtaining witnesses and sources of proof are more
significant”).13
Using a totality of the circumstances approach for its transfer analysis,
which it must, the trial court looked to other “salient factors” in addition to the
20 defense affidavits to determine whether the case should be tried in York or
Cumberland Counties. See Catagnus v. Allstate Ins. Co., 864 A.2d 1259(Pa. Super. 2004) (balancing test of relative convenience of plaintiff’s chosen
forum against defendant’s proposed alternative forum is misapplication of
forum non conveniens law). While acknowledging that several of Mr. Ritchey’s
post-accident acute care and rehabilitation providers were located in Dauphin
County, Cumberland County, and York County—each more than 100 miles
from Philadelphia County—the trial court found compelling the fact that two
of Mr. Ritchey’s treating physicians are from Magee in Philadelphia, that Mr.
Ritchey received medical treatment at Jefferson University Hospital, also
located in Philadelphia, and that Mr. Ritchey indicated that the Magee
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13 The evidence gathered for the venue motion occurred at the beginning of
the COVID lock-down period, when many courthouses, businesses, and cities
were shutting down operations and transitioning to remote work. Notably,
during the remote depositions counsel for the parties indicated that it would
be difficult to estimate a trial date in the matter since trials had been halted
in Philadelphia and the future landscape of jury trials amidst a pandemic was
uncertain.
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physicians would have been retained as expert witnesses in the case.14 See
Bratic, supra (trial court’s mere mention of facts that none of plaintiffs was
from Philadelphia and cost of counsel travelling to Dauphin County “does not
constitute an abuse of discretion or misapplication of the law” where those
factors were not sole reasons for judge’s decision). Notably, unlike in Bratic
where there was no connection to Philadelphia other than the fact that
“[defendants] occasionally conduct[ed] business [there],” id. at 4, here, Mr.
Ritchey received three months of post-accident medical care in Philadelphia
and two of his treating physicians, who have been retained as expert
witnesses in the case, are from Philadelphia.
In addition, when a case involves a transfer from Philadelphia to a more
distant county, like Cumberland County or York County, “factors such as the
burden of travel, time out of the office, disruption to business operation, and
the greater difficulty in obtaining witnesses and sources of proof are more
significant.” Bratic, supra at 564 (citation omitted). Here, Rutter’s
presented twenty affidavits from potential witnesses averring that trial in
Philadelphia would be oppressive and a great hardship due to personal, family,
and employment responsibilities. See Bratic, supra at 563 (“the interference
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14 See Plaintiffs’ Response in Opposition to Motion to Transfer, 4/17/20, at 2
n.2 (“Both Dr. Fried and Dr. Kucer have been retained by Plaintiffs as expert
witnesses in this case and will author reports on Mr. Ritchey’s injuries,
treatment[,] and prognosis. Both Dr. Fried and Dr. Kucer work in
Philadelphia County and live in the Philadelphia area.”) (emphasis in
original).
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with one’s business and personal life caused by the participatory demands of
a distant lawsuit is patent”). However, the trial court ultimately concluded
that “neither Philadelphia nor York nor Cumberland County would be a
convenient forum [for the] significant number of experts necessary for the
liability and damages phases of the case.” Order, 11/4/20, at 2.
Although a majority of the Rutter’s affiants stated that travel to
Philadelphia would be a “great hardship due to personal, family, and
employment responsibilities” and that such a commute would be “oppressive
and very inconvenient,” the court found the affidavits fell short of fulfilling the
defense’s burden.15 Specifically, the trial court determined that, based upon
the record evidence, defendants did not “support [the petition] with detailed
information” that rose to the level of “a sufficient factual basis” for granting
the request to transfer the case. Bratic, supra at 9. See Wilson v. Levine,
963 A.2d 479 (Pa. Super. 2008) (defendant did not sustain burden of proving
trial in plaintiff’s forum oppressive where record insufficient to show
defendant’s named witnesses, who alleged hardship, were relevant to core
issue in case). Moreover, the court found the affiants’ statements “indicate[d]
that any interruption of their daily activities to attend a trial anywhere
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15 Cumberland County is roughly 137 miles from Philadelphia and York County
is roughly 106 miles from Philadelphia. See Cubano v. Sheehan, 146 A.3d
791 n.5 (Pa. Super. 2016) (court may take judicial notice of geographical
facts).
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represents a hardship, with the additional distance enhancing the time
required to participate” and that “[d]istance alone, as an abstract factor[,] is
an insufficient basis upon which to transfer th[e] matter.” Trial Court Opinion,
4/13/22, at 11 (emphasis added).
After a comprehensive review of the record, we conclude that the trial
court did not abuse its discretion in denying Rutter’s motion to transfer venue
on the basis of forum non conveniens. Walker, supra. Where the trial court
“retains the discretion to determine whether the particular form of proof is
sufficient [to transfer a case],” id. at 9, we find no abuse of discretion in the
court’s ultimate decision, where the court found: (1) “as information gathers
after the fact,” new witnesses may need to be called to testify and that
witnesses originally identified may offer “cumulative” testimony or not even
be necessary; (2) the use of technology to conduct remote depositions and
garner witness statements has substantially increased since the onset of the
COVID-19 pandemic and has become a vital component of pre-trial discovery
in civil trials; (3) two key eyewitnesses to the accident, Carol Vinck 16 and
additional Defendant McNaughton, included sworn testimony of their
“willingness to travel to Philadelphia County for their depositions or for trial,
and that it would not be oppressive or inconvenient for them to do so;” (4)
____________________________________________
16 Vinck was operating the vehicle behind Mr. Ritchey’s motorcycle at the time
of the accident.
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the Rutter’s affidavits contain averments amounting to nothing more than “a
superficial forced showing of inconvenience;” (5) Mr. Ritchey received three
months of medical care at a Philadelphia hospital and rehabilitation center;
(6) two of Mr. Ritchey’s treating physicians, who have been retained as expert
witnesses, are located in Philadelphia; and (7) the likelihood that a substantial
number of expert witnesses will be involved in the liability and damage phases
of trial, for whom neither Philadelphia nor York or Cumberland Counties would
be convenient forums. Order, 11/4/20, at 1-2; Trial Court Opinion, 4/13/22,
at 7-10.
Here, the maxim that “there is a vast difference between a finding of
inconvenience and one of oppressiveness,” Hoose, supra at 5, rings true.
Although admittedly a close case, one in which we may have reached a
conclusion different than the trial court, we are mindful that we may not
substitute our judgment for that of the trial court. Polett, supra. Thus,
where the court’s decision did not rise to the level of overriding or misapplying
the law, nor was it manifestly unreasonable or the result of prejudice, bias,
partiality, or ill will, we must affirm. Bratic, supra.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2022
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