The Inconvenient Truth About Forum Non Conveniens Motions in Pennsylvania

 

Key Points:

  • It is becoming increasingly difficult to transfer a case from Philadelphia to another county.
  • The Superior Court is now giving consideration to the type of witness claiming a burden.
  • The Superior Court has expanded the factors relevant to a transfer to include potential costs to defense counsel.

 

In any state court civil proceeding there is the potential for venue to exist in multiple counties. Plaintiffs' counsel routinely shop for the best forum for their clients regardless of the connection, or lack thereof, of the forum to the plaintiff. One of the most frequent inquiries we receive from clients involves concerns about their litigation being “stuck” in the Philadelphia Court of Common Pleas, despite the fact that the incident, parties and potential witnesses may be located in a far-flung Pennsylvania county. So long as a plaintiff can establish that venue is proper in Philadelphia, the only option available to a defendant who seeks to transfer venue to a different county that also has proper venue is to file a forum non conveniens motion. Unfortunately, while the Latin name itself, as well as the Pennsylvania Rule of Civil Procedure which permits an inter-county transfer, explicitly involves the concept of “inconvenience” to the litigants and witnesses, the recent appellant trend in Pennsylvania completely disregards any concept of inconvenience and has increasingly raised the evidentiary bar for a transfer to be granted.

Venue transfer between counties based on forum non conveniens is governed by Pa.R.C.P. 1006(d)(1), which provides: "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." However, case law has interpreted that rule to require something more than just mere inconvenience, and it is now well established that a party seeking transfer pursuant to 1006(d)(1) must demonstrate "with detailed information on the record" that the plaintiff's chosen forum is vexatious or oppressive. Cheeseman v. Lethal Exterminator Inc., 701 A.2d 156, 162 (Pa. 1997). A defendant may meet its burden on a transfer motion by showing that the plaintiff's forum choice was "designed to harass defendant, even at some inconvenience to plaintiff himself or by showing that trial in another county would provide easier access to witnesses or other sources of proof."

The recent en banc Pennsylvania Superior Court decision in Bratic v. Rubbendall, 43 A.3d 497 (Pa. Super. 2012) underscores the tremendous deference that is given to the plaintiff's choice of forum and the difficulties in having a case transferred to a forum that is obviously better suited to hear the action. Bratic involved an action for wrongful use of civil proceedings and abuse of process filed in Philadelphia County. The claim upon which the action was based was filed in Dauphin County, the defendants were from Dauphin County, all witnesses were from Dauphin County and none of the plaintiffs were from Philadelphia. The sole connection to Philadelphia was that some of the defendants occasionally conducted business in Philadelphia. The trial court transferred venue to Dauphin County, citing the above facts and noting that Dauphin County would provide better access to potential witnesses and the court documents from the prior Dauphin County action, all of which established that the plaintiff's choice of forum was vexatious and oppressive to the defendants.

On appeal, the Superior Court found that the trial court had given consideration to factors that were previously held to be of little or no relevance to a forum non conveniens transfer motion. The court also created some new "factors" of their own. In following established case law, the court first pointed out that the residency of the plaintiff is irrelevant. The court then reaffirmed that a defendant's claim that no significant aspect of the case involves the chosen forum is not the type of "record evidence" that can establish that the chosen forum is oppressive and vexatious. The court then went on to address arguments regarding the location of witnesses in the case. What is potentially troubling about the Bratic decision is the way the court evaluated, and disregarded, that potential impact.

Eight key witnesses were identified by the defendants, and all of them resided in Dauphin County. The defendants provided affidavits from seven of the witnesses, which stated that they would incur substantial costs for fuel, tolls, lodging and meals, and miss at least an entire day from the duties of their respective businesses. In dismissing the impact on these witnesses, the Bratic Court initially commented that the affidavits contained identical language. The court then closely examined the nature and positions of the witnesses. They noted that four of the witnesses were officers or employees of the named corporate defendants. The court then looked to another case wherein it had ruled that the burdens placed upon a professional insurance claims adjuster to travel from Monroe County to Philadelphia County to testify did not create an oppressive or vexatious forum. Walls v. Phoenix Ins. Co., 979 A.2d 847 (Pa. Super. 2009). The court in Walls found that the adjuster was "not a hapless citizen being hauled into court, but is a professional insurance claims adjuster who will surely be fully compensated by his client…," and that such costs are a normal expense to a party to litigation. The Bratic decision relied on Walls to analogize corporate witnesses to the claims adjuster and further raises the bar regarding the type of evidence necessary to establish oppression and vexation.

The court also rejected the affidavits of the remaining four witnesses for the defendants. They found that the four were involved in "client-based professions," (they were two attorneys, a consultant and a marketing representative for an insurance company) and that any potential impact on their clients was not relevant. Rather, the court ruled that the only relevant inquiry would be the impact on their businesses, noting that the witnesses had failed to state that impact with any specificity in their affidavits.

Lastly, the Bratic decision compared the costs of the witnesses' participation to the costs that would be incurred by the defendants in having their Philadelphia counsel travel to Monroe County to try the case. They noted that the costs of having counsel travel would be "significantly greater" than reimbursing the corporate witnesses and that, therefore, the Philadelphia forum was not vexatious or oppressive since it would actually save the defendants money in defense costs.

The Bratic decision underscores the difficulty in having a case transferred to another forum—even when that forum clearly is more appropriate and convenient. In addition to reinforcing the need for highly specific and individualized affidavits from the potentially impacted witnesses, the decision is worrisome in that it expands the inquiry a court may give to the type of witness who is claiming the burden. Should the witnesses all be employees of a corporate defendant, the court is likely to find that any reimbursements for travel to the chosen forum are normal litigation costs that do not rise to the level of being oppressive and vexatious.

The decision is also of concern since the court used the Walls opinion to justify an inquiry into the increased costs to defense counsel in the event of a transfer. As urged in a dissent joined by three judges, the inquiry as to the impact on defense counsel should have been completely irrelevant. Such an inquiry presupposed that the court understood the defendants' preferences better than the defendants themselves. The defendants chose to file the motion to transfer in the first place!

*Matt is a shareholder in our Philadelphia, Pennsylvania, office. He can be reached at 215.575.2721 or mcwilson@mdwcg.com.

Defense Digest, Vol. 18, No. 4, December 2012