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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 MARCH 24, 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, 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
remand with instructions.
____________________________________________
* 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).
J-A24002-21
Plaintiffs, David and Holly Ritchey (h/w), reside in Mechanicsburg,
Cumberland County. Rutter’s is a Pennsylvania corporation that has its
principal place of business in York, Pennsylvania, and allegedly 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, stopped quickly to make a
left-hand turn.3 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
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, both located
____________________________________________
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.
3 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.
-2-
J-A24002-21
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
Defendants4 in Philadelphia County. In their complaint, the Ritcheys raised
claims of negligence against Rutter’s, Jiffy Lube,5 GM and Supreme
Corporation6 (Supreme Corp.) (Counts I-III), strict products liability against
GM and Supreme Corp. (Count IV), and breach of express and implied
warranties against GM and Supreme Corp. (Count V).7 The Ritcheys alleged
____________________________________________
4 The Ritcheys also filed suit against GM, Supreme Corp., and Jiffy Lube
International, Inc. Defendants Supreme Corp. and Jiffy Lube filed preliminary
objections to the Ritchey’s complaint. The Ritcheys alleged, among other
claims, that GM and Supreme Corp. 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 failure to ensure that the truck’s
rear break light was operable. Id. at ¶¶ 29-32. The complaint also alleged
that Supreme Corp. and Jiffy Lube sold a dangerously defective product.
The court granted, in part, Jiffy Lube’s preliminary objections striking, without
prejudice, any allegations Plaintiffs made regarding recklessness, reckless
conduct, and related claims for punitive damages. The court overruled the
remainder of Supreme Corp.’s and Jiffy Lube’s preliminary objections.
5 Jiffy Lube was ultimately dismissed, without prejudice, from the underlying
lawsuit on August 12, 2020.
6 Supreme Corp. allegedly installed the body of the Rutter’s truck, which
included the allegedly defective brake lights.
7 Holly Ritchey, in her own right, filed a loss of consortium against all
Defendants. See Ritchey Complaint, 8/14/19, at ¶¶ 50-52.
-3-
J-A24002-21
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
On March 16, 2020, Rutter’s filed a motion to transfer venue, based
upon Rule 1006(d)(1); GM, Jiffy Lube, and Supreme Corp. joined in the motion
to transfer. In the motion, Rutter’s alleged that the case should be transferred
____________________________________________
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.
-4-
J-A24002-21
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 maintain
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
transfer motion. In addition, the parties filed supplemental briefs on the issue.
____________________________________________
9 These depositions were held remotely via Zoom from the affiants’
Cumberland County and York County residences or places of business. Cf.
Hoose, supra (stating defendant’s consistent appearance in chosen forum
for purposes of pre-trial procedures and discovery is legitimate consideration
weighing against defendant’s claim of oppressive or vexatious forum).
Likewise, we do not find compelling the Ritcheys’ claim that because Rutter’s
chose to join additional defendants in Plaintiffs’ forum that it weighs against
Rutter’s claim of vexatiousness or oppressiveness.
-5-
J-A24002-21
On July 30, 2020, the trial court denied Rutter’s motion to transfer, by order,
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
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
inconvenience to witnesses, methods the [c]ourt itself has sought to
perfect during the emergence from shutdown;
____________________________________________
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 (emphasis added).
-6-
J-A24002-21
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. 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.
Appellants’ Brief, at 4.
“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
-7-
J-A24002-21
it is not "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. It is well-
established that a party seeking a change of venue bears a heavy burden in
justifying the request, which requires an on-the-record demonstration of
hardships. Walker v. Ohio River Co., 205 A.2d 43 (Pa. 1964).
On appeal, we will only reverse a trial court’s decision as to the transfer
of venue 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. “[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. Public Communs., Inc., 126 A.3d 895, 923 (Pa. 2015).
Rule 1006(d)(1)11 of the Pennsylvania Rules of Civil Procedure provides:
____________________________________________
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[.]”).
-8-
J-A24002-21
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). In Cheeseman, supra, our
Supreme Court set forth a defendant’s burden to successfully change venue
of a case based on the doctrine of forum non conveniens as follows:
[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 (headnote and page number omitted) (emphasis added). 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 v. E.I. du Pont de Nemours & Co., 829 A.2d 707, 712 (Pa. Super.
2003) (en banc) (important considerations when measuring oppressiveness
-9-
J-A24002-21
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, 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 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. 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.
- 10 -
J-A24002-21
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 lives more than 100 miles from
Philadelphia County and “is engaged in business activities which 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
is the fact that all Defendants occasionally conduct business there. Bratic,
99 A.3d at 4. On appeal, our Court 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 our 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.” 99 A.3d at 5.
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, properly transferred the case. Id. at 8. The Court
- 11 -
J-A24002-21
pointed out that the trial court properly did not consider 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 stating 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.
Here, like in Bratic, Rutter’s argument is based on an allegation that
trial in Philadelphia County would be oppressive. 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”). Accordingly,
Rutter’s was required to demonstrate “with detailed information on the record,
- 12 -
J-A24002-21
that [the Ritcheys’] chosen form is oppressive or vexatious to [Rutter’s].” Id.
The Ritcheys point out in their response to Rutter’s motion to transfer that
“[n]othing contained in [Defendants’] affidavits comes close to ‘detailed
information’ that venue in Philadelphia is oppressive or vexatious” and
“[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,5/5/2020, at 11-12.
We disagree.
Rutter’s supported its motion to transfer with twenty affidavits from
potential witnesses all averring trial in Philadelphia would be oppressive and
a “great hardship,” see Bratic, supra; Thrower, 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 witnesses12 testified
during their depositions that travel would be oppressive and more than
____________________________________________
12 Instantly, the Ritcheys identified and obtained affidavits from two key
eyewitnesses to the accident, Carol Vinck and additional Defendant
McNaughton, who swore to 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.” Id. at 13. Vinck was operating the vehicle
behind Mr. Ritchey’s motorcycle at the time of the accident.
- 13 -
J-A24002-21
burdensome, citing the COVID-19 pandemic,13 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,
time out of the office, disruption to business operations, and the greater
difficulty involved in obtaining witnesses and sources of proof are more
significant”).14
One of the “salient factors” the trial court considered when ruling on
the transfer motion is that two of Mr. Ritchey’s treating physicians are from
____________________________________________
13Although not precedential, we note that COVID 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”).
14 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.
- 14 -
J-A24002-21
Philadelphia. However, notably, the bulk of Mr. Ritchey’s post-accident acute
care and rehabilitation took place in either Cumberland County or York County,
both distant from Philadelphia County. Cf. Hoose, supra (where majority of
sources of proof, including witnesses and medical care providers, resided or
were located in Philadelphia’s neighboring counties (i.e., Delaware County or
Montgomery County), hardship not apparent to support transfer of venue).
Moreover, the trial court’s consideration that Defendants did not
“disclose[] in [their] moving papers” that Mr. Ritchey received care at medical
facilities in Philadelphia should not have been a decisive factor in the court’s
transfer analysis under Rule 1006(d)(1), where the location and convenience
of plaintiff’s witnesses is generally immaterial to central questions of
oppressiveness to a defendant in a forum case. See Catagnus v. Allstate
Ins. Co., 864 A.2d 1259, 1264 (Pa. Super. 2004); Wood, supra at 715 (“the
proper focus of the inquiry ‘is whether the choice of forum is oppressive or
vexatious to the defendant’”) (emphasis added); but 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).
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
- 15 -
J-A24002-21
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. As our Supreme Court emphasized in
Bratic, “the interference with one’s business and personal life caused by the
participatory demands of a distant lawsuit is patent.” Id. at 563.
Furthermore, the trial court’s conclusory statement 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,” is unsupported by record evidence. Out of the twenty
affiants who stated that travel to Philadelphia would be a “great hardship due
to personal, family, and employment responsibilities” and who averred that
such a commute would be “oppressive and very inconvenient,” each one
resides and/or work in Cumberland County or York County, counties that are
more than 100 miles from Philadelphia.15 See Bratic, supra (where case
involves transfer from Philadelphia to more distant county, “distance . . . is
inherently a part of the equation”).
Finally, with regard to the court’s statement that it considered “the
(even if remote) possibility Defendants’ motivation for the transfer amounted
to forum shopping,” we note that the term “forum shopping” is traditionally
____________________________________________
15 Cumberland County is roughly 137 miles from Philadelphia and York County
is roughly 106 miles from Philadelphia. See Cubano v. Sheehan, 2016 PA
Super 193, 146 A3d 791 n. 5 (Pa. Super. 2016) (court may take judicial notice
of geographical facts).
- 16 -
J-A24002-21
used in the context of discussing a plaintiff’s choice of forum. See Fessler
v. Watchtower Bible & Tract Soc’y of N.Y. Inc., 131 A.3d 44, 52 (Pa.
Super. 2015) (citing Zappala v. James Lewis Group (Zappala II), 982
A.2d 512, 521 (Pa. Super. 2009), and Cheeseman, distinguishing “between
‘proper’ forum shopping in which the plaintiff seeks a certain forum because
it is ‘closer to the office of plaintiff’s attorney, or closer to a transportation
center,’ and ‘improper’ forum shopping, which occurs ‘where a plaintiff
manufactures venue by naming and serving parties who are not proper
defendants to the action for the purpose of manipulating the venue rules to
create venue where it does not properly exist’”) (emphasis added). See also
Zappala v. Brandolini Prop. Mgmt. (Zappala I), 909 A.2d 1272, 1286 n.14
(Pa. 2006) (“We disapprove of forum shopping and explain in detail that a
defendant aggrieved by such a strategy has recourse through either forum
non conveniens in accord with Rule 1006(d)(1)[,] or through averment that
absent a transfer there cannot be a fair and impartial trial.”).
After a comprehensive review of the record, it is unclear whether the
trial court abused its discretion in denying Rutter’s motion to transfer venue
on the basis of forum non conveniens. Walker, supra. Accordingly, we must
remand for a detailed and comprehensive opinion in which the trial court
explains the reasons behind its ruling. While we are aware of the
“considerable discretion” that trial courts are vested with in balancing the
arguments of the parties in a forum challenge, we find the trial court’s list of
the “salient factors,” several of which are inappropriate for a transfer analysis,
- 17 -
J-A24002-21
insufficient to conduct full and appropriate appellate review of the matter on
appeal.
We remand to the trial court for the preparation of a complete Rule
1925(a) opinion, wherein it weighs all the relevant factors, Wood, supra at
712, including the averments in the twenty detailed affidavits offered by the
defense, applies Bratic to the facts of this case, and gives due consideration
to the significance of the distance between the forum county and the transfer
counties, Cumberland and York, in this matter.
Case remanded with instructions. Jurisdiction retained.
- 18 -