Bochetto, G. v. Dimeling, Schreiber & Park , 151 A.3d 1072 ( 2016 )

J-A24033-16
2016 PA Super 272GEORGE BOCHETTO, AS IN THE SUPERIOR COURT OF
ADMINISTRATOR OF THE ESTATES OF PENNSYLVANIA
ANDREW MILLER, DECEASED, DENNIS
FALIZE, DECEASED AND
JAVIER TERRON SANCHO, DECEASED
AND
MARK MILLER AND SUSAN MARIE
MILLER, DIRK JAN FALIZE,
KARIN DEN TURK AND JOSE M. TERRON
SANCHO
Appellants
v.
DIMELING, SCHREIBER & PARK,
AND
AMERICAN CAPITAL STRATEGIES, LTD,
AND
CONTINENTAL MOTORS, INC., F/K/A
TELEDYNE
CONTINENTAL MOTORS,
AND
TELEDYNE TECHNOLOGIES, INC.,
AND
TDY INDUSTRIES, INC.,
AND
ALLEGHENY TECHNOLOGIES, INC.,
AND
ALLEGEHENY TELEDYNE, INC.,
AND
PIPER AIRCRAFT CORPORATION,
AND
HONEYWELL INTERNATIONAL, INC.,
F/K/A
ALLIED-SIGNAL, INC.
Appellees No. 313 EDA 2016
Appeal from the Order Dated December 23, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 04911, August Term, 2011
J-A24033-16
BEFORE: BOWES, J., OTT, J., and SOLANO, J.
OPINION BY SOLANO, J.: FILED DECEMBER 05, 2016
The estates and family members of three victims of a fatal air crash in
Portugal appeal the December 23, 2015, order of the Court of Common
Pleas of Philadelphia that, for the second time, dismissed their case with
prejudice on grounds of forum non conveniens. We affirm.
This case was initially before this Court on an appeal from the trial
court’s first dismissal on forum non conveniens grounds. We refer the reader
to our opinion in that appeal, Bochetto v. Piper Aircraft Co., 94 A.3d 1044(Pa. Super. 2014) (“Bochetto I”), appeal denied, 112 A.3d 648 (Pa.
2015), for a more complete statement of facts.
The plane crash occurred on September 15, 2009, near Castro Verde,
Portugal, during a nighttime flight training exercise being conducted by the
Aeronautical Academy of Evora (“AAE”). All three occupants of the plane
died: Javier Terrón Sancho, a Spanish citizen who was the AAE flight
instructor; and two student pilots — Dennis Falize, a Dutch citizen, and
Andrew Miller, who had dual Dutch and Australian citizenship.
The aircraft was manufactured by Piper Aircraft Co. in Florida in 1998.
It was initially sold to Northern Air Inc. (located in Grand Rapids, Michigan),
later sold to S & S Aviation, Inc. (located in Sylvania, Ohio), and finally sold
to the Ben-Air Flight Academy (located in Belgium) in 2001. On June 18,
2009, Ben-Air leased the aircraft to AAE, a flight school located in Portugal
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and operated by its parent company CAE Global Academy (“CAE”).
Bochetto I, 94 A.3d at 1045 (citing Trial Court Opinion, 9/27/12, at 1-3).
The Plaintiffs brought this wrongful death and survival action in the
Court of Common Pleas of Philadelphia on September 2, 2011. The named
Plaintiffs include George Bochetto, who was appointed by the Philadelphia
Orphans’ Court to be administrator for the estates of the decedents in
Pennsylvania1; Dutch citizens Mark Miller and Susan Miller, the parents of
Andrew Miller; Dutch citizens Dirk Falize and Karin den Turk, the parents of
Dennis Falize; and Spanish citizen José Terrón Sancho, the brother of Javier
Terrón Sancho. Plaintiffs’ Response to Defendants’ Motion to Dismiss,
4/2/12, ¶ 7. They named as Defendants fourteen companies involved in the
manufacture of the aircraft, and alleged that the Defendants were liable
under theories of strict products liability, negligence, breach of express and
implied warranties, fraud, and civil conspiracy. Bochetto I, 94 A.3d at
1045-46.2 The parties agree that all Defendants are located in the United
States. See Civil Action Complaint, 9/9/11, ¶ 9-36.
____________________________________________
1
The court originally appointed Robert C. Daniels, who, after his death, was
replaced by Mr. Bochetto.
2
The original Defendants included Piper, the Florida-based company that
designed, manufactured, and sold the aircraft; Dimeling, Schreiber, & Park,
a Philadelphia entity that allegedly oversaw and directed the activities of
Piper; American Capital Strategies Ltd., a West Conshohocken company that
allegedly worked with Dimeling to direct the activities of Piper; Continental
Motors, Inc., the company responsible for the engine assembly in the
aircraft; Teledyne Technologies Incorporated; TDY Industries, LLC;
(Footnote Continued Next Page)
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On February 24, 2012, Defendants Piper Aircraft Co., American Capital
Strategies, Ltd., and Dimeling, Schrieber, & Park filed a Motion to Dismiss
with Prejudice for Forum Non Conveniens pursuant to 42 Pa.C.S. § 5322(e).3
These Defendants argued that dismissal was appropriate because:
The aircraft was maintained in Portugal, the pilot was trained in
Portugal, the underlying accident occurred in Portugal, the
Portuguese government conducted the accident investigation,
and all of the nonparty witnesses and relevant documents are in
Portugal. All of the decedents are from Europe, and the real
parties in interest in this case are from Europe.
Bochetto I, 94 A.3d at 1047 (citing Motion to Dismiss for Forum Non
Conveniens, 2/24/2012, ¶2). The Defendants claimed that a Portuguese
investigation revealed that CAE/AAE conducted poor aircraft maintenance
and pilot training and established that those entities were the “most
culpable” for the accident; but, according to the Defendants, CAE/AAE could
not be party to Plaintiffs’ suit because it was not subject to personal
jurisdiction in Pennsylvania. See Motion to Dismiss for Forum Non
Conveniens, 2/24/12, ¶ 5-7, 9, 16.
Plaintiffs opposed the motion, countering that the United States has
compelling connections with this case, all of the evidence related to the
_______________________
(Footnote Continued)
Allegheny Technologies, Inc.; Allegheny Teledyne Incorporated; Honeywell
International, Inc., a company responsible for the aircraft's auto-pilot
system; McCauly Propeller Systems; Textron, Inc.; and Cessna Aircraft, Co.
See Bochetto I, 94 A.3d at 1046. Plaintiffs settled their claims with some of
these Defendants. Id. at 1046 n.3.
3
Defendant Honeywell joined the motion on July 19, 2012.
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design and manufacture of the aircraft is located in the United States, the
negligence claims against the foreign defendants are untenable, and CAE has
a strong presence in the United States. See Plaintiff’s Response to
Defendant’s Motion to Dismiss, 4/2/12. ¶ 1-9.
The trial court granted the motion to dismiss on December 10, 2012,
after all Defendants submitted written stipulations “(1) accepting service of
process in a subsequent action brought in Portugal alleging the same injuries
and damages as set forth in the within action; (2) admitting jurisdiction in
Portugal; and (3) waiving the statute of limitations defense in the
subsequent action to be filed in Portugal.” Bochetto I, 94 A.3d at 1047(quoting Trial Court Opinion, 9/27/12, at 1).4
Plaintiffs appealed on December 27, 2012, arguing that the trial court
misapplied the law when analyzing the forum non conveniens factors.5 This
Court agreed, and held that the trial court erred when it “limited its
discussion to those forum non conveniens factors that were specific to
Pennsylvania, and did not address the network of connections to the United
States as a whole.” Bochetto I, 94 A.3d at 1053. In remanding the case,
____________________________________________
4
The trial court entered a conditional order and opinion granting the motion
on September 27, 2012.
5
Plaintiffs also contended that the trial court abused its discretion in failing
to give proper deference to the Plaintiffs’ choice of forum and improperly
shifting the burden of proof on the motion to Plaintiffs. We did not address
those grounds in our disposition of Plaintiffs’ first appeal.
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we instructed the trial court to consider “factors which connect the case
generally to the United States, and not merely to Pennsylvania.” Bochetto
I, 94 A.3d at 1056 (citing Aerospace Finance Leasing, Inc. v. New
Hampshire Ins. Co., 696 A.2d 810, 815-16 (Pa. Super. 1997)); see also
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257-58 (1981) (one of the
leading Supreme Court precedents in this area).
We also held that the trial court abused its discretion by rendering a
one-sided discussion which did not “fully consider and discuss the factors
weighing both against, and in favor of, an appellant’s choice of forum.”
Bochetto I, 94 A.3d at 1055 (citing Wright v. Aventis Pasteur, Inc., 905
A.2d 544, 552 (Pa. Super. 2006), appeal denied, 916 A.2d 1103 (Pa.
2007)); see also Bochetto I at 1056 (citing Plum v. Tampax, Inc., 160
A.2d 549, 553 (Pa. 1960)). We specifically listed several private 6 and public
____________________________________________
6
We stated that the following private factors weigh in Plaintiffs’ favor:
(1) evidence relating to the design, manufacture and testing of
the aircraft is located in the United States; (2) all of the
witnesses regarding [Plaintiffs'] claims of design defect and
products liability are located in the United States; (3) evidence
relating to the aircraft's two previous American owners, and
documentation of maintenance and upkeep of the aircraft during
that time period, are located in the United States; (4) two of the
remaining defendant-corporations (Dimeling and American
Capital) are registered Pennsylvania corporations; (5) two of the
remaining defendant corporations maintain principal places of
business in Pennsylvania (Allegheny Technologies, Inc., and
Allegheny Teledyne, Inc.); (6) three of the remaining defendant-
(Footnote Continued Next Page)
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factors7 favoring Plaintiffs’ choice of forum in this case. Bochetto I, 94 A.3d
at 1055. We remanded “for the trial court to conduct a complete and
thorough analysis of all relevant forum non conveniens factors in this case”
and cautioned the court against placing central emphasis on any one factor.
Id. at 1056, n.11 (emphasis in original) (citing Reyno, 454 U.S. at 249-50).
Upon remand, the trial court ordered the parties to conduct discovery
and file supplemental briefs in light of the directives of this Court. Trial Court
Opinion, 12/23/15, at 2. After oral argument, the lower court again
dismissed the case on forum non conveniens grounds by the order dated
December 23, 2015. Id.
Plaintiffs filed a notice of appeal to this Court on January 8, 2016. In
their brief, they raise the following issues:
_______________________
(Footnote Continued)
corporations maintain registered agents in Pennsylvania
(Continental, Teledyne Technologies, Inc., and Honeywell).
Bochetto I, 94 A.3d at 1055 (paragraphing, footnotes and citations
omitted).
7
We pointed out that Portugal has less of an interest in this case than
Scotland did in Reyno (where the aircraft accident took place in Scotland
and the victims/plaintiffs were from Scotland), because, “In this case, none
of the decedents/pilots, plaintiffs, defendants or parties-in-interest are
Portuguese.” Bochetto I, 94 A.3d at 1055. We also mentioned that the trial
court should have discussed the general interest that the United States has
“in ensuring that American manufacturers are deterred from producing
defective products.” Id. (citing Reyno, 454 U.S. at 260). We note that
Bochetto I mentions the deterrence factor twice — as both a public and
private factor. In this opinion, we address it in our discussion of the public
factors.
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1. Did the lower court abuse its discretion by failing to afford the
appropriate deference or “solicitude” due to Plaintiffs' choice of
forum?
2. Did the lower court's failure to accord any deference to
Plaintiffs' choice of forum necessarily result in a misapplication of
the law, which is evident from the lower court's failure to find
that even one private or public factor weighed in favor of
Plaintiffs?
3. Did the lower court commit reversible error when it accorded
dispositive weight to Defendants' purported inability to join non-
parties CAE and AAE, and improperly shifted the burden of proof
to Plaintiffs[]?
4. Did the lower court abuse its discretion by disregarding this
Court's instruction to consider the substantial United States
interest in ensuring that American manufacturers are deterred
from producing defective products?
Appellants’ Brief at 5-6 (emphasis in original; suggested answers omitted).
A trial court’s decision to dismiss based on forum non conveniens will
not be disturbed absent an abuse of discretion. Cinousis v. Hechinger
Dep't Store, 594 A.2d 731, 731 (Pa. Super. 1991). Appellants challenging a
trial court’s discretionary decision face a “heavy burden”: “It is not sufficient
to persuade the appellate court that it might have reached a different
conclusion if, in the first place, charged with the duty imposed on the court
below; it is necessary to go further and show an abuse of the discretionary
power.” Id. at 731-32 (citations omitted). A trial court will have abused its
discretion when “in reaching [its] conclusion the law is overridden or
misapplied, or the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill will.” Aerospace, 696 A.2d at 812
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(citation omitted). If there is any valid basis for the trial court's decision, the
decision will not be disturbed. Cinousis, 594 A.2d at 732 (citation omitted).
As we explained in Bochetto I, a motion for dismissal based on
interstate forum non conveniens is governed by Section 5322(e) of the
Judicial Code, which reads:
Inconvenient forum.—When a tribunal finds that in the
interest of substantial justice the matter should be heard in
another forum, the tribunal may stay or dismiss the matter in
whole or in part on any conditions that may be just.
42 Pa.C.S. § 5322(e) (emphasis in original). A court deciding such a motion
must consider that (1) a plaintiff's choice of forum should not be disturbed
except for weighty reasons, and (2) an action shall not be dismissed unless
an alternative forum is available to the plaintiff. Humes v. Eckerd Corp.,
807 A.2d 290, 293-94 (Pa. Super. 2002) (citing Poley v. Delmarva Power
& Light Co., 779 A.2d 544, 546 (Pa. Super. 2001)).
To determine whether “weighty reasons” exist, a trial court must
examine both the private and public factors announced by Gulf Oil Corp. v.
Gilbert, 330 U.S. 501 (1947). See Bochetto I, 94 A.3d at 1048-1050;
Humes, 807 A.2d at 294-95. The private factors include:
[T]he relative ease of access to sources of proof; availability of
compulsory process for attendance of unwilling, and the cost of
obtaining attendance of willing, witnesses; possibility of view of
premises, if view would be appropriate to the action; and all
other practical problems that make trial of a case easy,
expeditious and inexpensive. There may also be questions as to
the enforceability of a judgment if one is obtained. The court will
weigh relative advantages and obstacles to fair trial.
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Gilbert, 330 U.S. at 508. With respect to public factors, the Supreme Court
advised:
Administrative difficulties follow for courts when litigation is piled
up in congested centers instead of being handled at its origin.
Jury duty is a burden that ought not to be imposed upon the
people of a community which has no relation to the litigation.
. . . There is an appropriateness, too, in having the trial . . . in a
forum that is at home with the state law that must govern the
case, rather than having a court in some other forum untangle
problems in conflict of laws, and in law foreign to itself.
Id. at 508-09.
Here, the trial court concluded that Plaintiffs’ choice of forum was
entitled to some deference, but not overwhelming deference. Trial Court
Opinion, 12/23/15, at 19-21. The trial court then weighed both private and
public factors for and against Plaintiffs’ choice of forum.
In discussing the private factors, the trial court found that access to
most of the evidence was evenly weighted between the parties:
Evidence relating to the aircraft's original and subsequent
American owners, and documentation of maintenance and
upkeep before the 2001 sale of the aircraft are located in the
United States. The more relevant evidence, however, is the
documentation of maintenance and upkeep after the aircraft was
sold to the Belgium company and then leased to the Portuguese
academy. None of that evidence is in the United States.
Trial Court Opinion, 12/23/15, at 21 (emphasis in original). However, the
trial court stated that access to the witnesses weighed in favor of Portugal:
while neither a court in the United States nor Portugal could compel
attendance by overseas witnesses, most of Plaintiffs’ witnesses are party-
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and operated by its parent company CAE Global Academy (“CAE”).
Bochetto I, 94 A.3d at 1045 (citing Trial Court Opinion, 9/27/12, at 1-3).
The Plaintiffs brought this wrongful death and survival action in the
Court of Common Pleas of Philadelphia on September 2, 2011. The named
Plaintiffs include George Bochetto, who was appointed by the Philadelphia
Orphans’ Court to be administrator for the estates of the decedents in
Pennsylvania1; Dutch citizens Mark Miller and Susan Miller, the parents of
Andrew Miller; Dutch citizens Dirk Falize and Karin den Turk, the parents of
Dennis Falize; and Spanish citizen José Terrón Sancho, the brother of Javier
Terrón Sancho. Plaintiffs’ Response to Defendants’ Motion to Dismiss,
4/2/12, ¶ 7. They named as Defendants fourteen companies involved in the
manufacture of the aircraft, and alleged that the Defendants were liable
under theories of strict products liability, negligence, breach of express and
implied warranties, fraud, and civil conspiracy. Bochetto I, 94 A.3d at
1045-46.2 The parties agree that all Defendants are located in the United
States. See Civil Action Complaint, 9/9/11, ¶ 9-36.
____________________________________________
1
The court originally appointed Robert C. Daniels, who, after his death, was
replaced by Mr. Bochetto.
2
The original Defendants included Piper, the Florida-based company that
designed, manufactured, and sold the aircraft; Dimeling, Schreiber, & Park,
a Philadelphia entity that allegedly oversaw and directed the activities of
Piper; American Capital Strategies Ltd., a West Conshohocken company that
allegedly worked with Dimeling to direct the activities of Piper; Continental
Motors, Inc., the company responsible for the engine assembly in the
aircraft; Teledyne Technologies Incorporated; TDY Industries, LLC;
(Footnote Continued Next Page)
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obtain proper service or personal jurisdiction over either AAE or
CAE in Pennsylvania or elsewhere in the United States. The
Defendants' case will be severely inhibited by their inability to
join AAE and CAE in a trial that occurs in the United States. This
weighs very heavily in finding that Portugal, where service and
jurisdiction may be had upon AAE and CAE, is a more
appropriate forum.
In the event that the Defendants are found liable in a
United States court, they would be forced to initiate duplicative
contribution and indemnity actions against AAE and CAE in
Portugal. This would result in the otherwise unnecessary burden
of litigating the same issues in two separate trials under two
separate legal systems. This strongly demonstrates that Portugal
is a more appropriate and convenient forum in which to litigate
all of the issues in the case in one trial.
This factor weighs heavily in favor of Portugal and is a
“weighty reason” to disregard the Plaintiffs' choice of forum.
Trial Court Opinion, 12/23/15, at 26 (emphasis in original). The court
therefore concluded that the private factors overall favor trial in Portugal.
The trial court also found that the public factors weighed in favor of
litigation in Portugal. Regarding local interest, the trial court noted that
“Pennsylvania bears only a tangential relation to the facts of this case and it
would be improper to burden a Pennsylvania jury with a case in which the
community holds virtually no interest.” Trial Court Opinion, 12/23/15, at 27-
28.8 Regarding national interest, the trial court acknowledged that the
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8
In Bochetto I we instructed the trial court to consider Portugal’s limited
interest in this case, considering that “none of the decedents/pilots,
plaintiffs, defendants, or parties-in-interest are Portuguese.” Bochetto I, 94
A.3d at 1055. In so doing, we contrasted this case with Reyno, where the
case was dismissed to Scotland in part because “[t]he pilot and all of the
(Footnote Continued Next Page)
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United States has an interest in regulating product manufacturers. Id. at
30.9 The trial court placed this deterrence factor on an equal footing with
Portugal’s national interest in regulating safe aircraft operations in its skies.
Id. at 30-31 (citing Reyno, 454 U.S. at 260-61; Dahl v. United
Technologies Corp., 632 F.2d 1027, 1032-33 (3d Cir. 1980)). Finally, the
trial court found that the Pennsylvania court’s obligation to apply Portuguese
negligence law weighed in favor of litigation in Portugal. Id. at 29 (citing
Tyro Industries v. James A. Wood, Inc., 614 A.2d 279, 282 (Pa. Super.
1992)).
Plaintiffs contend that the trial court erred in several parts of this
analysis. We discuss Plaintiffs’ arguments in turn.
_______________________
(Footnote Continued)
decedents' heirs and next of kin were Scottish subjects and citizens.” 454
U.S. at 235. Although the trial court here did not specifically address the lack
of connection the decedents and their families have with Portugal when
discussing the public factors, the court did consider that the decedents/
plaintiffs lack a connection with the United States, and therefore concluded
that the burden the trial would impose on Pennsylvania’s court system would
not have been justified. Trial Court Opinion, 12/23/15, at 27-28. We note
that here, unlike in Reyno, the plaintiffs reside in different jurisdictions,
none of which is where the accident occurred (though some, like Spain and
the Netherlands, are in closer proximity to Portugal than to Pennsylvania and
the United States). Neither party argues that the location of the nominal
plaintiff, the American court-appointed administrator (Mr. Bochetto), should
be given significant weight.
9
In Bochetto I we stated that the trial court should have discussed the
general interest that the United States has “in ensuring that American
manufacturers are deterred from producing defective products.” Bochetto I,
94 A.3d at 1055 (citing Reyno, 454 U.S. at 260).
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Deference to Plaintiffs’ Choice of Forum
Plaintiffs first argue that the trial court abused its discretion by failing
to afford appropriate deference or “solicitude” to their choice of forum.
Appellants’ Brief at 41-42. Plaintiffs claim that the trial court should have
concluded that because other factors were evenly weighted, deference
tipped the scales in their favor. Id. at 45-46.
Plaintiffs argue that, in assessing the appropriate level of deference to
give them, the trial court erred by (a) ignoring this Court’s decisions in
Bochetto I and Aerospace, by “fail[ing] to recognize these two opinions as
the primary precedential decisions on Pennsylvania’s forum non conveniens
law,” and by (b) relying on Reyno and In re W. Caribbean Crew
Members, 632 F.Supp.2d 1193 (S.D. Fla. 2009). In the latter two cases,
less deference was given to foreign plaintiffs’ choice to bring suit in the
United States, rather than pursuing litigation in their home countries.
Appellants’ Brief at 43-44. Plaintiffs claim they are due greater deference in
this case because “the choice was between Portugal, where no Defendant or
Plaintiff is located, and the United States, where all of the Defendants reside,
where the evidence supporting Plaintiffs’ claims is maintained, and where
the misconduct causing the accident occurred.” Id. at 44-45 (emphasis in
original). Plaintiffs state, “No party has suggested that Plaintiffs should have,
or even could have, sued in the Decedents’ respective home fora (in Spain,
the Netherlands, or Australia).” Id. at 44.
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Contrary to Plaintiffs’ assertion, the trial court’s analysis was
consistent with this Court’s decisions in Bochetto I and Aerospace. In
Bochetto I, this Court held that, “[w]hile foreign plaintiffs enjoy ‘less
deference’ with regard to their choice of forum, their choice is still entitled to
solicitude.” 94 A.3d at 1056 (citations omitted). Here, the trial court gave
Plaintiffs’ choice “some deference, but not overwhelming deference.” Trial
Court Opinion, 12/23/15, at 19.
In Aerospace, this Court held that it was not bound to assume that a
Pennsylvania forum was unreasonably inconvenient for a Delaware plaintiff.
696 A.2d at 814. This Court explained that “[a]ny state in our United States
would, most likely, be significantly more convenient for the American
plaintiff than trying its case in the defendant’s preferred forum, a foreign
country.” Id. This case is factually distinguishable from Aerospace because
it involves foreign plaintiffs.
The trial court did not err in holding that, under Reyno, a foreign
plaintiff’s choice of an American forum is entitled to less deference than such
a choice by an American plaintiff. See Trial Court Opinion, 12/23/15, at 19-
21. In Bochetto I, this Court cited Reyno for this same proposition. See
Bochetto I, 94 A.3d at 1056. While we noted in Bochetto I that this Court
is not bound by federal decisions such as In re W. Caribbean Crew
Members, see Bochetto I, 94 A.3d at 1050, the trial court did not err in
considering such decisions for their persuasive value.
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Plaintiffs are correct in their assertion that their home countries of
Spain, the Netherlands, and Australia may not present the most convenient
forums for a suit; however, that does not mean Plaintiffs have free choice of
any other available forum. In a global case such as this, no one jurisdiction
may stand out as convenient. The trial court was not required to give
overwhelming deference to Plaintiffs’ choice and was free to determine
whether, despite the solicitude to which Plaintiffs were entitled, weighty
reasons existed to favor suit somewhere else. We hold that the trial court
accorded Plaintiffs’ choice of forum appropriate deference under
Pennsylvania law.
Public and Private Factors
Plaintiffs next complain that the trial court misapplied the law and
abused its discretion when it failed to find “even one” private or public factor
weighed in their favor. See Appellants’ Brief at 49. Plaintiffs contend that if
the factors were properly counted, they were, at least, evenly balanced, and
the trial court then should have found in their favor. See id. at 48.
In part, this issue seems to be one of semantics. It is possible, for
example, to say that at least six factors relating to the availability of
witnesses and evidence weigh in favor of Plaintiffs, using the list on page 47
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of Appellants’ brief that is taken from Bochetto I, 94 A.3d at 1055-56.10
Plaintiffs’ complaint apparently is that the trial court did not employ some
sort of score card that gave these factors a total score of 6 in Plaintiffs’
favor. But the weighing of factors is not an exercise in counting numbers. As
we pointed out in Petty v. Suburban Gen. Hosp., 525 A.2d 1230, 1234
(Pa. Super. 1987):
The party seeking the transfer must clearly specify the key
witnesses to be called and must make a general statement of
what their testimony will cover. The emphasis must be on this
showing rather than on numbers. One key witness may outweigh
a great number of less important witnesses.
525 A.2d at 1234 (quoted citation omitted). This principle applies not just to
the location of the witnesses, but to each public and private factor, and to
the weighing of the factors overall. A discerning analysis involves more than
a simple tally.
The trial court did consider that some items weighed in favor of an
American forum. For example, the court found that the evidence relating to
the aircraft’s design, original and subsequent American owners, and
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10
These are: (1) evidence relating to design, manufacture, and testing of
the aircraft is in the United States, (2) witness regarding design defect and
products liability are in the United States, (3) evidence relating to prior
American owners and their maintenance and upkeep of the aircraft is in the
United States, (4) two defendants are Pennsylvania corporations, (5) two
defendants maintain their principal places of business in Pennsylvania, and
(6) three defendants maintain registered agents in Pennsylvania. Appellants’
Brief at 47 (¶¶ 1-6). We note that some of the items on this list are
duplicative, and the items could validly be grouped together as one factor, or
as some number of factors less than six, depending on how they are worded.
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maintenance prior to 2001 is located in the United States. See Trial Court
Opinion, 12/23/15, at 21. But the court then concluded that these items,
when compared to others relating to the availability of evidence (e.g., that
evidence related to more recent aircraft maintenance and pilot error is in
Portugal), resulted in an overall even “balance” between the two sides with
respect to this factor. See id. Thus, instead of listing each point regarding
availability of evidence on some sort of chart and then counting them up,
the court assessed this category overall according to the importance of the
different types of evidence at issue:
Evidence relating to the aircraft’s original and subsequent
American owners, and documentation of maintenance and
upkeep before the 2001 sale of the aircraft are located in the
United States. The more relevant evidence, however, is the
documentation of maintenance and upkeep after the aircraft was
sold to the Belgium company and then leased to the Portuguese
academy. None of that evidence is in the United States.
Id. (emphasis in original). By engaging in such a qualitative assessment of
the evidence and its importance, rather than merely counting up items in a
list, the court did not abuse its discretion. See Petty, 525 A.2d at 1234.
See also Reyno, 454 U.S. at 249-50 (explaining that forum non conveniens
decisions need to retain flexibility and turn on the facts of each case).
In sum, contrary to Plaintiffs’ assertion, the trial court did consider
factors that were in Plaintiffs’ favor, as we instructed in Bochetto I. Rather
than ignoring those factors, the trial court evaluated them along with
countervailing factors and concluded that many of the private and public
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factors were evenly divided between the parties. Again, the court did not
abuse its discretion by engaging in that analysis.
Apart from their general compliant about how factors were counted,
Plaintiffs challenge the trial court’s analysis and weighing of several specific
private and public interest factors. In addressing this argument, we reiterate
that our role is not to determine whether this Court, in the first instance,
would have reached a different conclusion than the trial court, but rather to
decide whether the trial court abused its discretion. See Cinousis, 594 A.2d
at 731-32. With that standard in mind, we hold that the trial court did not
abuse its discretion in considering the specific public and private factors
about which Plaintiffs complain.
Regarding the private factors, Plaintiffs claim that the trial court should
not have considered that the Defendants had agreed to submit to foreign
jurisdiction when considering their location. Appellants’ Brief at 51-52. We
disagree. In Bochetto I, we noted that “[t]he locations of corporate offices
and registered agents have been considered by Pennsylvania courts in
assessing forum non conveniens claims, specifically with relevance to the
ease of obtaining process on potential witnesses.” 94 A.3d at 1055 n.10.
Where, as here, defendants stipulate to accepting service of process in the
alternative forum, and “that they will make all necessary and relevant
evidence and witnesses within their custody and control available for an
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action in Portugal,” Appellees’ Brief at 38, their location in the United States
is of diminished relevance in the forum non conveniens analysis.
Plaintiffs also complain that the trial court found the ability to view the
premises both to have “no bearing” and to be “equally balanced.” Appellants’
Brief at 55-56. They argue, “Had the appropriate deference been given to
the [Plaintiffs’] choice of forum, the lack of need to view the accident site
visit in Portugal would have been considered a reason not to disturb
[Plaintiffs’] choice.” Appellant’s Reply Brief at 18 (emphasis in original). On
this point, the trial court found that
The physical condition of the [airfield] from which the
doomed plane took off appears to have no bearing on any issue.
The parties have not asserted that the condition of the airfield
played any part in the fatal accident. Debris from the accident
was photographed; it is unlikely that any useful debris remains
at the airfield six year[s] later.
The remains of the aircraft are housed in a Portuguese
university. The Portuguese government had no problem sending
the engines to the United States for inspection by Teledyne and
then having them returned to Portugal. If all or a portion of the
aircraft is needed at a trial in the United States, there does not
appear to be a major difficulty in shipping the remains to the
United States.
This issue is equally balanced.
Trial Court Opinion, 12/23/15, at 22-23 (footnote omitted; emphasis in
original). The trial court cited Walls v. Phoenix Ins. Co., 979 A.2d 847,
852-53 (Pa. Super. 2009), for the proposition that it is unnecessary for a
jury to view a scene if it is unlikely to be in substantially the same condition
well after the event in question.
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The trial court did not abuse its discretion in reaching the conclusion
that the location of the airfield had no bearing on its analysis. The only law
Plaintiffs cite for their argument is Aerospace, 696 A.2d at 814. We note
that the court in Aerospace agreed that, “where defendant has not shown
that a view of the premises will be necessary or helpful to its case, trial court
did not abuse its discretion in denying defendant's motion to dismiss for
forum non conveniens.” See id. (citing Beatrice Foods Co. v. Proctor &
Schwartz, 455 A.2d 646 (Pa. Super. 1982), and finding that “proper
documentary evidence of the condition of the jet has been sufficiently
preserved — thus, abolishing the need to view the accident scene or the
damaged aircraft during trial”). Where, as here, a trial court finds that
Defendants have not shown that a view of the premises will be necessary or
helpful to its case, Aerospace does not mandate that the court deny the
motion, but rather that this factor not be considered as favoring dismissal.
Plaintiffs also protest that the trial court did not give any weight to the
location of their counsel in Pennsylvania. Appellants’ Brief at 56. Because of
the complexity of this case, Plaintiffs claim they require specific counsel and
that they will be deprived of their choice of counsel in Portugal, as there is
no pro hac vice admission procedure there. Id. However, the trial court
correctly declined to give “compelling” weight to this factor, noting that it is
unsupported by any case law. Trial Court Opinion, 12/23/15, at 23. Indeed,
we have approved in the past a trial court’s observation that “[t]he only
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discernible contact that this case has with Pennsylvania is the location of
plaintiff's counsel, and we refuse to recognize this as a compelling
consideration.” Cinousis, 594 A.2d at 733 (quoted citation omitted). See
also Hunter v. Bayer Corp., 65 Pa. D.&C. 4th 298, 322 (C.P. Phila. 2003)
(location of attorneys not relevant in forum non conveniens analysis), aff’d
sub nom Engstrom v. Bayer Corp., 855 A.2d 52 (Pa. Super. 2004)).
Plaintiffs cite no law to the contrary, and we are told of no reason why
Plaintiffs may not continue to benefit from the expertise of their chosen
counsel by using him as a consultant if the litigation is outside of
Pennsylvania.
Plaintiffs also complain that the trial court gave no weight to the
location of 80 non-party witnesses who could testify regarding what they
claim were 128 “substantially similar” in-flight accidents. Appellants’ Brief at
55. In response, Defendants contend that the evidence of those separate,
unrelated incidents is not relevant to whether this case would be more
conveniently tried in another forum. Appellees’ Brief at 27-28.11
The trial court found the location of these witnesses to be irrelevant
because of a lack of evidence that the 128 other accidents were sufficiently
similar to the one in this case to be admissible at trial. Trial Court Opinion,
____________________________________________
11
Defendants also point out that this Court, in Bochetto I, did not
specifically list the evidence of other accidents as a factor in favor of
Plaintiffs’ choice of forum. Appellees’ Brief at 27-28.
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12/23/15, at 21. We discern no abuse of discretion. The court was making a
prediction about a complex evidentiary question. It did so on the basis of the
limited information provided to it. Questions regarding the admissibility of
evidence are themselves matters committed to a trial court’s discretion, and
we generally are loathe to disturb them. See Smalls v. Pittsburgh-
Corning Corp., 843 A.2d 410, 413 (Pa. Super. 2004), appeal denied, 857
A.2d 680 (Pa. 2004). At this very early stage of the case, on the limited
record presented to a court on a forum non conveniens issue, the court
could not have been expected to analyze this evidence question in any
greater depth than it did. See generally Reyno, 454 U.S. at 258 (noting
that motion does not require detailed submissions, but only “enough
information to enable the [trial court] to balance the parties’ interests”); cf.
Bratic v. Rubendall, 99 A.3d 1, 5 (Pa. 2014) (allowing, but not requiring,
assumption of admissibility). The trial court stated a sound basis for failing
to accord weight to evidence of the other accidents, and we therefore will
not disturb its conclusion. See Cinousis, 594 A.2d at 732 (if there is any
basis for the trial court’s decision, the decision will not be disturbed).
Regarding the public factors, Plaintiffs disagree with the trial court’s
conclusion that Portuguese negligence law would apply in this case, and
claim that “there was no record support for this finding; it was pure
supposition.” Appellants’ Brief at 57. Plaintiffs assert they provided affidavits
from European attorneys stating that U.S. law would apply. Id.- 23 -
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A trial court deciding a motion to dismiss on forum non conveniens
grounds need not definitively discern what law would apply, but may
surmise that foreign law might apply and recognize that the conflict of laws
inquiry itself is burdensome to a domestic court. See, e.g., Engstrom v.
Bayer Corp., 855 A.2d 52, 57 (Pa. Super. 2004) (affirming trial court’s
dismissal where dismissal was based in part on the need to engage in a
conflict of laws analysis); Cinousis, 594 A.2d at 733 (affirming dismissal
where it was likely that foreign law would apply). Here, the trial court said it
“may be true” that the product liability claims in the case will be governed
by the law of some American jurisdiction and that Portuguese law will “likely
apply” to other issues — a determination that, the court noted, this Court did
not dispute in Bochetto I. See Trial Court Opinion, 12/23/15, at 29. The
trial court’s prediction that Portuguese law might apply was not manifestly
unreasonable, and the court did not abuse its discretion in making it. See
Aerospace, 696 A.2d at 812.12
Joinder of CAE and AAE
Plaintiffs next argue that the trial court improperly gave dispositive
weight to Defendants’ purported inability to join non-parties CAE and AAE in
the United States. They also claim the court shifted the burden of proof to
____________________________________________
12
Plaintiffs also complain that the trial court did not recognize that general
deterrence was a public factor that weighed in Plaintiffs’ favor. Appellants’
Brief 52-54. This issue will be discussed below, in connection with Plaintiffs’
fourth issue.
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Plaintiffs to show that CAE and AAE could be joined in a lawsuit in the United
States and not in Portugal. Plaintiffs contend that the trial court’s error was
“even more obvious” because Plaintiffs proved that AAE could not be sued in
Portugal because it “has been out of business for years,” and that CAE has
no known operations in Portugal, though it does have a presence in the
United States. Appellants’ Brief at 60-61. We disagree with Plaintiffs’
assessment of the trial court’s findings.
First, the trial court did not improperly shift the burden of proof to
Plaintiffs to prove that CAE and AAE cannot be sued in Portugal and can be
sued in Pennsylvania. The trial court appropriately recognized that “[t]he
burden of proof and persuasion is on Defendants as the moving party.” Trial
Court Opinion, 12/23/15, at 31. It was Defendants’ burden to convince the
trial court that weighty reasons existed to overcome Plaintiffs’ choice of
forum, and Defendants successfully carried that burden by showing, among
other things, that potential parties CAE and AAE could not be sued in the
United States,13 but that they are extant business entities in Portugal and
____________________________________________
13
The court noted that CAE, Inc. is headquartered in Montreal, Canada, and
maintains flight schools in over thirty countries. Each of the subsidiaries
operating in America are separate corporate entities and not appropriate
defendants in this suit. Trial Court Opinion, 12/23/15, at 8-9; Defendants’
Letter to Trial Court, 10/27/15. Neither party contends that AAE has a
presence in the United States.
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may be joined to a lawsuit filed in that forum.14 Trial Court Opinion,
12/23/15, at 3, 7-9, 24-26. We defer to the trial court’s broad discretion in
its assessment of the evidence presented by both parties.
Furthermore, the record demonstrates that the trial court carefully
considered many public and private factors in reaching its conclusion, and
did not, as Plaintiffs claim, have a “myopic focus” on the potential joinder of
AAE and CAE. As noted above, when determining the proper weight to be
afforded this particular factor, the trial court relied on Reyno, in which the
Supreme Court held that dismissal on the grounds of forum non conveniens
was appropriate where the American defendants wished to implead foreign
third-parties, because forcing American defendants to pursue a subsequent
indemnity suit abroad would be burdensome to those defendants. See
Reyno, 454 U.S. at 259. Here, the trial court similarly found that denying
the dismissal “would result in the otherwise unnecessary burden of litigating
____________________________________________
14
While AAE ceased operating as a flight school in 2012, it is still a
registered corporation with assets in Portugal. Trial Court Opinion, 12/23/15,
at 8. The CAE subsidiary that Defendants wish to join is a Portuguese
company with its head office in Portugal. See Appellees’ Brief in Support of
Motion to Dismiss for Forum Non Conveniens, and Exhibits 1-20, 9/14/15, at
Exhibits 4 (CAE’s Portuguese Government Registration and Certificate,
showing the address of the registered head office in Portugal), 5 (screenshot
of website of CAE’s Portuguese subsidiary), 16 (declaration of Portuguese
attorney Joao Taborda). However, we note that Defendants admit “CAE is
nothing more than a holding company with a partial ownership interest in
AAE. Thus, CAE’s connection to this lawsuit is, at best, remote.” Appellees’
Brief at 35 (citations to the record omitted). The more significant party is
AAE.
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the same issues in two separate trials under two separate legal systems.”
Trial Court Opinion, 12/23/15, at 26. The trial court did not abuse its
discretion in concluding that joinder considerations weighed heavily against
Plaintiffs’ choice of forum.
American Interest in Deterrence
Plaintiffs claim in their fourth issue that the trial court neglected to
consider the interest of the United States in deterring American
manufacturers from producing defective products, thereby failing to follow
this Court’s instruction from Bochetto I. As noted above, the trial court did
consider the American deterrence factor, but found it to be on an equal
footing with Portugal’s national interest in regulating safe aircraft operations
within its borders. Trial Court Opinion, 12/23/15, at 30-31.15 The trial court
therefore did not disregard this Court’s instruction or abuse its discretion.
* * *
In sum, the trial court properly considered our opinion in Bochetto I
and did not abuse its discretion in applying that opinion and granting
____________________________________________
15
Plaintiffs argue that the trial court discounted the significance of the
deterrence factor by relying on statements in Reyno, 454 U.S. at 260-61,
and Dahl v. United Technologies Corp., 632 F.2d 1027, 1032-33 (3d Cir.
1980), that deemphasized its importance. However, a close reading of the
trial court’s opinion shows that it did not improperly weigh the American
interest in deterrence. The court cited our opinion in Bochetto I
emphasizing the factor’s importance and then quoted what the federal cases
said about the factor — in particular, that the factor “is not sufficient by itself
to warrant retention of jurisdiction.” Trial Court Opinion, 12/23/15, at 30-31.
The court’s statement was not inconsistent with our holding in Bochetto I.
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Defendants’ motion to dismiss based on forum non conveniens. Accordingly,
we affirm the order granting dismissal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2016
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