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In an opinion authored by Justice David Wecht, the Supreme Court of Pennsylvania re-affirmed the commonsense principle that if the relevant events and witnesses giving rise to suit occur in a Pennsylvania county hundreds of miles from Philadelphia, the place of the suit's origin, rather than Philadelphia, is the appropriate place to litigate the matter.
The cases at hand arose from a fatal multi-vehicle pileup on the Pennsylvania Turnpike over 250 miles from Philadelphia, yet plaintiffs filed their complaints in Philadelphia. The trial court transferred the cases to the county of origin, but Pennsylvania's intermediate appellate court, the Superior Court, reversed, imposing a requirement that defendant prove “key witnesses” were inconvenienced by a Philadelphia forum, a difficult task prior to discovery. The Pennsylvania Supreme Court reversed, holding that a party seeking such a transfer need only demonstrate the current forum is “oppressive” or “vexatious” to succeed on such a motion, the standard previously set by the Supreme Court in Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156 (Pa. 1997) and Bratic v. Rubendall, 99 A.3d 1 (Pa. 2014).
On Jan. 5, 2020, a motor coach bus traveling in Westmoreland County, outside Pittsburgh, rolled onto its side, causing a FedEx truck, a UPS truck, and a car driving close behind to crash as well. Following the accident, plaintiffs filed suit in Philadelphia, naming the bus company, Z&D Tour, Inc., along with FedEx, UPS, Penske Truck Leasing Company, and Sioux Trucking as defendants.
Defendants filed a forum non conveniens motion to transfer venue to Westmoreland County, where the accident took place, explaining that most of their witnesses (including multiple first responders, the county coroner, and the insurance claims investigator) live in, or near, Westmoreland County and would have had to travel over 250 miles to participate in proceedings in Philadelphia. The doctrine of forum non conveniens (Latin for “inconvenient forum”) is a longstanding legal principle that allows a court to transfer a civil case to another, more convenient venue due to the locations of the parties and witnesses involved, so long as the case could have originally been brought at the venue requested. Applying this principle, the trial court granted defendants' motion, but the Superior Court reversed.
Pennsylvania Supreme Court Rejects ‘Key Witness' Requirement for Forum Non Conveniens Transfers
In so holding, the Superior Court relied on its own case, Petty v. Suburban Gen. Hosp., 525 A.2d 1230 (1987), rather than looking to the binding Supreme Court precedent Cheeseman or Bratic. According to the Superior Court, to prevail on a motion to transfer venue on forum non conveniens grounds, petitioners—typically defendants—must establish that the witnesses who will suffer hardship if the case remains in the current venue as “key witnesses” before the trial court considers the adequacy of those witnesses' alleged hardships. A “key witness” is a witness who will provide “relevant and necessary” testimony “critical” to the defense. (The Superior Court also used the phrase “benefit the defense” in describing what a key witness must show). Thus, according to the Superior Court, because the witness affidavits did not explain how the testimony would be relevant and necessary to the defendant's case, the Superior Court found the trial judge abused his discretion in granting the motion to transfer venue.
In its unanimous opinion, however, the Supreme Court reversed the Superior Court holding, “[t]he Superior Court's innovation and imposition of a ‘key witness' requirement is inconsistent with governing law.” Rather, to succeed on a forum non conveniens motion to transfer venue, defendants must prove plaintiff's chosen venue is “oppressive” or “vexatious,” mere inconvenience is not enough. The Supreme Court said a “vexatious” forum is one that is “designed to harass the defendant, even at some inconvenience to the plaintiff himself,” citing Cheeseman. On the other hand, to describe what it means by “oppressive,” the Supreme Court discussed the facts of Bratic. In that case, defendants in a Philadelphia action sought to transfer the case to Dauphin County based on forum non conveniens. To support their motion, defendants presented seven affidavits from potential witnesses who would have had to drive a little over 100 miles to Philadelphia, resulting in substantial costs and disruption to their personal and professional lives. The trial court granted their petition to transfer venue, the Superior Court then reversed, but the Supreme Court held the defendants' initial evidentiary showing was satisfactory, emphasizing the trial court's discretion in such matters.
What Constitutes ‘Oppressive' Venue: The 100-Mile Guideline in Pennsylvania Forum Transfers
While the Supreme Court in Tranter declined to say that a venue is always “oppressive” when witnesses must travel further than 100 miles, 100 miles is a “reasonable line,” and quoting Bratic, the Pennsylvania high court reiterated that “‘between Philadelphia and counties 100 miles away, simple inconvenience fades in the mirror and we near oppressiveness with every milepost of the turnpike and Schuylkill Expressway.'” The Supreme Court also emphasized the trial court's discretion over determining when a venue is oppressive.
Ultimately, the Supreme Court held that, because the witnesses here would have been required to travel more than twice what the witnesses in Bratic would have had to travel, the trial court did not abuse its discretion and an opposite result would have contravened Bratic. The Supreme Court was unwilling to adopt the “key witness” rule because it would have required defendants to have a fully developed trial strategy at an early stage of litigation, when forum non conveniens motions are typically filed.
In its decision, the Supreme Court also clarified two points of confusion regarding the standard for ruling on a forum non conveniens motion to transfer venue. First, it reiterated court congestion is not a sufficient basis for granting said motion. Second, affidavits are not required for defendants to meet their burden for one of these motions, as the Superior Court suggested. Rather, no particular form of proof is required, just a sufficient factual basis for the petition.
Virtual Witness Testimony Not a Substitute for Proper Venue Selection in Pennsylvania Courts
Lastly, the Supreme Court dismissed plaintiffs' argument that far-flung witnesses could appear virtually. The Supreme Court noted that even though virtual appearance is a “valuable tool” and allowed courts to stay open during the pandemic, “it is not an adequate substitute.” Further, it explained Pennsylvania has no procedural rule allowing for virtual appearances of witnesses as a matter of course. Thus, not only is plaintiffs' idea “premised on purely hypothetical rules,” but it would also render the doctrine of forum non conveniens useless by making a plaintiff's choice of venue “unchallengeable.” The Supreme Court declined to effectively eliminate the doctrine of forum non conveniens, calling it “‘a necessary counterbalance to ‘[e]nsure fairness and practicality.”'
Overall, while trial courts must still give deference to a plaintiff's choice of forum, the Tranter decision might make it easier for defendants to succeed when asserting forum non conveniens by eradicating the “key witness” doctrine in Pennsylvania.
* Special thanks to Law Clerk/JD Lucy Sumner˘ for contributing to this GT Alert.
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