Capper, W. v. Sharma Equity ( 2015 )

J-A05026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WALTER AND CYNTHIA CAPPER, H/W, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
SHARMA EQUITY, L.L.C., D/B/A BRILL &
SHARMA EQUITY, L.L.C., AND HAMILTON
TOWERS AND BALDEV SHARMA, D/B/A
HAMILTON TOWERS AND SUDESH
SHARMA, D/B/A HAMILTON TOWERS
AND BRANDYWINE ELEVATOR COMPANY,
INC.,
Appellees No. 1699 EDA 2014
Appeal from the Order entered May 12, 2014,
in the Court of Common Pleas of Philadelphia County,
Civil Division, at No(s): 130201054
BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 24, 2015
Spouses Walter and Cynthia Capper, (“Mr. Capper,” or collectively,
“Appellants”), appeal from the trial court’s order granting the motion of
Sharma Equity, L.L.C., d/b/a Brill & Sharma Equity, L.L.C., and Hamilton
Towers and Baldev Sharma, d/b/a Hamilton Towers and Sudesh Sharma,
d/b/a Hamilton Towers and Brandywine Elevator Company, Inc. (collectively
“Sharma”), and transferring venue from Philadelphia County to Lehigh
County. We affirm.
The trial court summarized the factual and procedural posture of this
case as follows:
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[Appellants] allege that [Mr. Capper] sustained injuries
when he tripped and fell while exiting an elevator on the first
floor of [Sharma’s] premises on June 14, 2011. The elevator is
located in the Hamilton Towers in Allentown, Lehigh County,
Pennsylvania. [Appellants] allege that [Mr. Capper] tripped
because the elevator stopped and opened "at a point where the
floor of the elevator was significantly below the surface of the
first floor." None of the parties or witnesses, including
[Appellants], are residents of Philadelphia County. Witness
Rosemary Achey resides in Catasauqua, Lehigh County.
Pennsylvania. Witness James Darcy resides in Allentown, Lehigh
County, Pennsylvania. Witness Michael O'Brien resides in
Schnecksville, Lehigh County, Pennsylvania. Witness Margaret
Perkowski resides in Walnutport, Northampton County,
Pennsylvania, which is about 74 miles from the Philadelphia
County Court of Common Pleas and only 14 miles from the
Lehigh County Court of Common Pleas.
On April 7, 2014, [and April 23, 2014] [Sharma] filed …
motion[s] to transfer venue to Lehigh County. [] On April 28,
2014, [Appellants] filed an Answer to [Sharma’s] motion to
transfer venue. On May 12, 2014, the Court granted [Sharma’s]
motion to transfer the case to the Lehigh County Court of
Common Pleas. [Appellants] timely appealed.
Trial Court Opinion, 5/12/14, at 1-2 (unnumbered) (footnotes omitted).
Appellants present a single issue for our review:
Did the trial court abuse its discretion in transferring this matter
on the basis of forum non conveniens from the Philadelphia
County Court of Common Pleas to the Lehigh County Court of
Common Pleas where the detailed facts of record do not
establish [that] a single deposed witness has testified that
traveling to Philadelphia as opposed to Allentown presents any
inconvenience, where there is no justification to view the
premises in issue, and where there [are] no facts of record which
demonstrate that [A]ppellants’ choice of forum is oppressive or
vexatious[?]
Appellants’ Brief at 4.
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Pennsylvania Rule of Civil Procedure Rule 1006 governs venue
transfers and provides in pertinent part:
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.
Pa.R.C.P. 1006(d)(1). We acknowledge that, as the plaintiffs, Appellants’
forum choice should be “rarely … disturbed,” is entitled to great weight, and
must be given deference by the trial court. Wood v. E.I. du Pont de
Nemours & Co., 829 A.2d 707, 711 (Pa. Super. 2003). Nevertheless, “a
plaintiff’s choice of venue is not absolute or unassailable.” Connor v.
Crozer Keystone Health Sys., 832 A.2d 1112, 1116 (Pa. Super. 2003)
(internal citation omitted).
We review a trial court’s order transferring venue due to forum non
conveniens for an abuse of discretion. Walls v. Phoenix Ins. Co., 979
A.2d 847, 850 n.3 (Pa. Super. 2009) (internal citation and quotation marks
omitted). We will uphold a trial court’s order transferring venue based on
forum non conveniens “[i]f there exists any proper basis” for the trial court’s
determination. Connor, 832 A.2d at 1116 (Pa. Super. 2003) (internal
citation omitted). “[A] trial court's order on venue will not be disturbed if
the order is reasonable after a consideration of the relevant facts of the
case.” See Mateu v. Stout, 819 A.2d 563, 565 (Pa. Super. 2003).
Instantly, in transferring this action to Lehigh County from Philadelphia
County, the trial court reasoned:
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In Cheeseman v. Lethal Exterminator, Inc., the Supreme
Court of Pennsylvania stated that a petition to transfer venue
may be granted if the defendant provides detailed information on
the record that the plaintiff’s chosen forum is oppressive or
vexatious to the defendant. [FN16: 701 A.2d 156, 162 (Pa.
1997)] "[T]he 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 premises involved in the dispute." [FN17: Id.]
The elevator in the current dispute is located in Allentown,
Lehigh County, Pennsylvania. A jury view of the elevator could
provide a visual of the area surrounding [Mr. Capper’s] alleged
trip and fall. Likewise, three witnesses expected to testify live in
Lehigh County and a fourth resides in Northampton County, only
14 miles from the Lehigh County Court of Common Pleas.
Trial Court Opinion, 5/12/14, at 2-3 (unnumbered) (citations to the record
and additional footnotes omitted).
In a recent opinion “to clarify the requirements for transfers based on
forum non conveniens as expressed in Cheeseman,” our Supreme Court
stated:
Cheeseman was not intended to increase the level of
oppressiveness or vexatiousness a defendant must show; rather,
understood in its articulated context, Cheeseman merely
corrected the practice that developed in the lower courts of
giving excessive weight to “public interest” factors when ruling
on a forum non conveniens motion. Whatever public interest
factors exist, they are not determinative; they are only a factor
insofar as they bear directly on the ultimate test. And while Rule
1006(d)(1) on its face allows transfer based on “the convenience
of the parties[,]” Pa.R.C.P. 1006(d)(1), convenience or the lack
thereof is not the test our case law has established: the moving
party must show the chosen forum is either oppressive or
vexatious.
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Bratic v. Rubendall, 99 A.3d 1, 6; 7-8 (Pa. 2014) (some internal citations
omitted).
In its analysis, our Supreme Court further explained:
Turning to the instant matter, we find the trial court's
proper consideration of the totality of the evidence justified the
order to transfer the case. Trial courts are vested with
considerable discretion when ruling on such a motion, and “[i]f
there exists any proper basis for the trial court's decision to
transfer venue, the decision must stand.” Zappala, at 1284
(citation omitted). The Superior Court's stringent examination in
isolation of each individual fact mentioned by the trial court was
inconsistent with the applicable standard of review; a ruling on a
motion to transfer must be affirmed on appeal “[i]f there exists
any proper basis for the trial court's decision[.]” Id. (citation
omitted).
***
If we consider only appellants' seven affidavits [supporting
appellants’ argument for forum non conveniens], there “exists a
[ ] proper basis for the ... transfer[.]” Zappala, at 1284 (citation
omitted). It cannot be said the trial court misapplied the law or
failed to hold appellants to their proper burden to establish
oppression. Cf. Catagnus, at 1264 (“[T]he trial court's failure to
hold the defendant to the proper burden constitutes an abuse of
discretion.” (citation omitted)). While typically the “fact that the
site of the precipitating event was outside of plaintiff's choice of
forum is not dispositive[,]” Walls, at 852 (citations omitted), it is
axiomatic that “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[.]” Bratic, at
505 (Gantman, J., dissenting) (internal citations omitted).
The affidavits here, of course, employed nearly identical
language, as the factual basis for each is nearly identical—the
oppressiveness of trial 100 miles away, which is manifestly
troublesome. The trial judge need not be told like a child how
the distance in and of itself makes things more disagreeable and
disruptive to the persons obliged to travel. Nor is it a secret
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requiring iteration that trial in Dauphin County would provide
easier access to local appellants and their local witnesses, as
well as the relevant court documents on which the very case is
based. Further, given the witnesses' respective job titles, we
cannot agree with the Superior Court that the affidavits were
insufficient to enable the trial court to intuit the professional
oppressiveness, more than inconvenience, that is patent therein.
***
[] As between Philadelphia and adjoining Bucks County,
the situation in Cheeseman, we speak of mere inconvenience; as
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.
We reaffirm the Cheeseman standard, but hold 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. Mere inconvenience remains insufficient, but there is no
burden to show near-draconian consequences. Although the
Superior Court may have reached a conclusion different than the
trial court, this does not justify disturbing the ruling; the
Superior Court effectively substituted its judgment for that of the
trial court, which it may not do. The facts of record allow the
finding that trial in Philadelphia would be more than merely
inconvenient. As there was clearly a proper evidentiary basis for
this conclusion, the trial court did not abuse its discretion in
granting the motion transferring the case to Dauphin County.
Bratic, supra, at 8-10 (internal footnote omitted).
Here, based on our review of the record and consonant with Bratic,
we find no abuse of discretion by the trial court in transferring venue from
Philadelphia County to Lehigh County. The trial court appropriately
considered the totality of the record evidence in support of Sharma’s
argument of forum non conveniens, including the residency of various
witnesses, and the proximity of the Lehigh County Court of Common Pleas to
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the premises where Mr. Capper fell. Finding that there was a proper
evidentiary basis for the trial court’s order transferring venue, we affirm.
See Mateu, 819 A.2d at 567 (finding that “the facts … present a proper
basis for the trial court's decision to transfer venue” where the new venue
“would provide easier access to the sources of proof, namely, to the
witnesses”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2015
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