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November 8th, 2023
In the case of Smith v. CMS West Inc., 2023 PA Super 218 (October 30, 2023), the Superior Court affirmed a trial court’s decision to allow transfer of the case from Philadelphia County to Butler County on the basis of forum non conveniens.
Smith was operating a batching and mixing cement system (hereinafter “cement mixer”) as a lawful business invitee at the Semper Concrete facility owned and operated by CMS West, located at 858 New Castle Road, Butler, PA 16001. As part of the cement mixer’s operation, users were required to intermittently use a hand scraper to remove concrete build-up from the mixing paddles inside the cement mixer while the mixer was energized and running. While following the facility’s approved cement mixer cleaning procedures, the cement mixer amputated Smith’s right hand.
Smith filed a complaint in the Court of Common Pleas of Philadelphia County alleging negligence and strict liability. CMS West filed a petition to transfer venue for forum non conveniens pursuant to Pa.R.Civ.P. 1006(d)(1), seeking transfer of the case to Butler County. In support of its petition, CMS West submitted affidavits/certifications of four (4) witnesses who explained that traveling from Butler County to Philadelphia County would: present significant financial hardships, interfere with family obligations and caretaking. Importantly, CMS West noted that these witnesses were “central witnesses in the case, as they were the only individuals identified by OSHA as being present during the incident.
The court also considered a separate discovery motion in which defense counsel sought a protective order to prohibit Smith from taking “venue-related” depositions of a group of witnesses that CMS West sought to depose in order to counter the hardships presented in CMS West’s petition. The court denied CMS West’s motion for protective order and further ordered that Smith was allowed to submit, within thirty (30) days of the order, up to six (6) affidavits of witnesses of their choosing to present to the court in its consideration of the motion to transfer. Thereafter, Smith submitted three (3) deposition transcripts and one (1) affidavit of witness to establish that Philadelphia was a more convenient forum. However, the witnesses were not considered to be central to the case, and only one of Smith’s witnesses indicated that it would be a hardship if the matter was transferred to Butler County. Ultimately, the court determined that CMS West’s witnesses would suffer substantial hardships both monetary and/or hardships due to medical reasons if forced to participate in a trial in Philadelphia County. As such the court concluded that Philadelphia County was an oppressive and vexatious forum, permitting transfer of the matter to Butler County. Smith appealed this decision to the Superior Court.
“[A] plaintiff’s forum choice should be ‘rarely . . . disturbed,’ is entitled to great weight, and must be given deference by the trial court.” Powers v. Verizon Pennsylvania, LLC, 230 A.3d 492, 496 (Pa. Super. 2020). A trial court’s order transferring venue due to forum non conveniens is reviewed for an abuse of discretion. Id. at 496. A trial court’s order transferring venue based on forum non conveniens will be upheld “[i]f there exists any proper basis” for the trial court’s determination. Id.
Pa.R.Civ.P. 1006 provides in relevant 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.Civ.P. 1006(d)(1). In seeking forum transfer under Rule 1006(d)(1), the defendant must show more than that the chosen forum is merely inconvenient to him, as the rule permits transfers only if the chosen forum is oppressive and vexatious for the defendant. Powers, 230 A.3d at 496. “[D]istance alone is not dispositive, but it is inherently part of the equation.” Bratic v. Rubendall, 626 Pa. 550, 99 A.3d 1, 9 (2014). However, 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. Id. “[I]mportant considerations when measuring oppressiveness are: relative ease of access to witnesses or other sources of proof; availability of compulsory process for attendance of unwilling, and cost of obtaining willing, witnesses; costs associated with witnesses’ attendance; and ability to conduct [a] view of premises involved in dispute.” Ritchey v. Rutter’s Inc., 286 A.3d 248, 255 (Pa. Super. 2022).
When the transfer request is based on allegations of witness hardship, the defendant must not only identify the allegedly encumbered witness but must also make a general statement of what testimony that witness will provide. Ehmer v. Maxim Crane Works, L.P., 296 A.3d 1202, 1207 (Pa. Super. 2023). Significantly, the general statement must establish that the potential witness is “key” to the defense. Petty v. Suburban Gen. Hosp., 525 A.2d 1230, 1234 (Pa. Super. 1987). “The weight that the trial court places on the hardship should be in direct proportion to the degree of relevance or necessity of that witness’[s] testimony to the defense.” Id. at 1207-08, n.6.
Here, the Superior Court concluded that the trial court’s determination that a one-way 300 mile trek from Butler to Philadelphia was more than inconvenient, and in fact was oppressive, was within the discretion of the trial court, and should not be disturbed on appeal.[1]
Smith v. CMS West Inc., 2023 PA Super 218 (October 30, 2023) can be accessed here.
[1] Contrast this case with Tranter v. Z&D Tour, Inc., 2023 PA Super 200 (October 11, 2023) where the Superior Court determined that a trial court abused its discretion in transferring a case from Philadelphia County to Westmoreland County, which involved a one-way distance of 240 miles. Tranter v. Z&D Tour, Inc., 2023 PA Super 200 (October 11, 2023) can be accessed here.
