Forman v. Rossman

• Decision Date: 12 March 1996
• Citation: 672 A.2d 1341,449 Pa.Super. 34
• Parties: Sheila J. FORMAN, Executrix of the Estate of Mark Forman, Deceased and Sheila J. Forman In Her Own Right, Appellant, v. Morris ROSSMAN, D.O., Andrew C. Friedman, Regional Internal Medicine Associates, Ltd., Larry Cohen, M.D., Delaware Valley Medical Center, Delaware Valley Radiology, R. Zeit, M.D., and Bensalem Rescue Squad, Inc.
• Court: Pennsylvania Superior Court

Page 1341

672 A.2d 1341

449 Pa.Super. 34

Sheila J. FORMAN, Executrix of the Estate of Mark Forman Deceased and Sheila J. Forman In Her Own Right, Appellant, v. Morris ROSSMAN, D.O., Andrew C. Friedman, Regional Internal Medicine Associates, Ltd., Larry Cohen, M.D., Delaware Valley Medical Center, Delaware Valley Radiology, R. Zeit M.D., and Bensalem Rescue Squad, Inc.

Superior Court of Pennsylvania.

Argued Nov. 2, 1995.

Filed March 12, 1996.

Eugene D. McGurk, Jr., Philadelphia, for appellant.

Andrew J. Gallogly, Philadelphia, for Bensalem Rescue Squad, appellee.

Wendy B. Kaliner and Amy Snell, Philadelphia, for Delaware Valley Medical Center, Delaware Valley Radiology and Zeit, appellees.

Before ROWLEY, P.J., ^* and CAVANAUGH, ^** WIEAND, McEWEN, CIRILLO, DEL SOLE, BECK, JOHNSON and HOFFMAN, JJ.

CIRILLO, Judge.

Sheila J. Forman appeals from an order entered by the Court of Common Pleas of Philadelphia County granting a petition to transfer this medical malpractice action to Bucks County pursuant to Pa.R.C.P. 1006(d)(1). We affirm.

Sheila J. Forman filed a complaint in Philadelphia County seeking to recover damages for injuries that allegedly resulted from several medical providers' negligent treatment of her husband, Mark Forman (the decedent). After filing its answer, one of the medical providers, Delaware Valley Medical Center, filed a petition to transfer the action to Bucks County based upon the doctrine of forum non conveniens. ¹ In its petition, the medical center alleged that Bucks County would be a more convenient forum for this action because all of the parties and a vast majority of witnesses and sources of proof are located in that county. The medical center further averred that trial in Bucks County would be less disruptive to the medical providers' practices because that county is "more accessible" than Philadelphia County. In addition, the medical center contended that public interest in the speedy resolution of civil litigation would be served by transfer of this action to Bucks County because that court's docket is less congested than the Philadelphia County docket. In response, Forman filed an answer alleging that several of the medical providers maintain offices in Philadelphia and that the decedent died in Philadelphia. The trial court granted the medical center's petition to transfer the action. Forman now appeals and asks this court to determine:

[If] the order of transfer entered by the trial court of the Philadelphia Court of Common Pleas [was] improper and unsupported by evidence in the record?

Our standard of review in an appeal from an order granting a transfer based upon the doctrine of forum non conveniens is whether the trial court committed an abuse of discretion. German v. AC & S, Inc., 430 Pa.Super. 497, 635 A.2d 159 (1993), rev'd on other grounds, 540 Pa. 353, 657 A.2d 1234 (1995). A trial judge has great discretion in reviewing petitions to change venue based upon forum non conveniens, on appeal the Superior Court only needs to determine whether the trial judge abused that discretion. McCrory v. Abraham, 441 Pa.Super. 258, 657 A.2d 499 (1995) (citations omitted). "An appellant must show that in reaching a conclusion, the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will." Id. (citation omitted).

Appellants rely upon Scola v. AC & S, Inc., 540 Pa. 353, 657 A.2d 1234 (1995), to advance the argument that the trial court improperly granted a petition to transfer the venue of this case to Bucks County. In Scola, the party opposing the trial court's transfer of venue of consolidated asbestos cases claimed that the trial court invoked improper transfer procedures in order to determine that a different venue would be appropriate for the disposition of the cases. On review from this court, the Pennsylvania Supreme Court determined that the trial court not only failed to consider whether the original venue was "oppressive and vexatious," but, in fact, merely considered the location of the asbestos exposure, the residences of the appellees, and the congestion of the Philadelphia court system when it ordered that the cases be transferred.

The supreme court's decision in Scola relies primarily on the premise, enunciated in Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989), that when a defendant petitions for a change of venue, the defendant must "clearly adduce facts that establish such oppressiveness and vexation to a defendant as to be out of all proportion to the plaintiff's convenience." In sum, the Scola court, found that the trial court's transfer of venue analysis

failed to articulate a specific basis upon which we may conclude that Appellees have demonstrated that trial in another county would provide easier access to witnesses or other sources of proof. Additionally, we are unable to find any evidence in the record that would allow us to independently reach this conclusion.

Scola, 540 Pa. at 368, 657 A.2d at 1241-42.

It is well established that a plaintiff's choice of forum is not unassailable. Pennsylvania Rule of Civil Procedure 1006 states, in part:

(d)(1) For the convenience of the 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.

In addition, the legislature has adopted the doctrine of forum non conveniens in order to move a case to a different forum when defendants demonstrate that they fairly and practically deserve a change in the venue of a case. See Pa.R.C.P. 1006(d)(1); 42 Pa.C.S.A.Rule 1006. The law of forum non conveniens states that a plaintiff should not be deprived of his or her choice of forum unless the defendant:

[c]learly adduces facts that either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff's convenience or (2) make a trial in the chosen forum inappropriate because of considerations affecting the court's own administrative and legal problems.

Incollingo v. McCarron, 416 Pa.Super. 419, 423, 611 A.2d 287, 289 (1992) (citations omitted) (emphasis added); 42 Pa.C.S.A.Rule 1006.

In assessing prong two of the Incollingo test, courts must:

[c]onsider those elements which affect the private interests of the litigants which include: the relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling [witnesses], and the cost of obtaining attendance of unwilling witnesses; possibility of view of the premises if a view would be appropriate to the action and all other practical problems that make trial of a case easy, expeditious and inexpensive.... The court must also consider those elements in which the public has an interest and those include: problems of creating court congestion and imposing jury duty upon people of a community which has no relation to the litigation....

Incollingo at 423, 611 A.2d at 289 (citation omitted) (emphasis added). If the balance of these above factors weighs heavily in the defendant's favor, then the plaintiff's forum choice may be disturbed. Rini v. N.Y. Central R.R. Co., 429 Pa. 235, 239, 240 A.2d 372, 374 (1968). Additionally, it has been held that the burden on the defendant in proving the necessity of forum non conveniens, due to hardship, must be made on the record. Okkerse, supra (holding that when party seeking transfer substantiates change of venue by merely alleging "hardship," and where such allegations have been specifically denied in plaintiff's answer, superior court properly reversed grant of motion to transfer case's venue due to inadequate record upon which to sustain motion). Finally, before a court can order a transfer of venue, the court must determine that "transfer is more convenient for both parties to the action or for the witnesses." Nicolosi v. Fittin, 434 Pa. 133, 135, 252 A.2d 700, 701 (1969) (emphasis in the original) (emphasis added); Petty v. Suburban General Hospital, 363 Pa.Super. 277, 281, 525 A.2d 1230, 1232 (1987).

In Scola, the supreme court not only determined that the defendants had not proven that trial in the original forum would be "vexatious and oppressive," but the court also modified the holding of Incollingo, supra. Scola clarified the fact that transfer of a case under the second prong of the forum non conveniens test requires more than a mere showing or allegation that there is heavy congestion in the court system of the original forum. While public concern of court backlogs is undoubtedly one factor in a trial court's determination of transferring a case, it is not the only factor which would be strong enough to warrant a transfer of venue.

Although a defendant must bear a heavy burden in proving that the doctrine of forum non conveniens should be invoked, the defendants in the case at hand have clearly met this burden. Cf. Rubin v. Lehman, 443 Pa.Super. 1, 660 A.2d 636 (1995) (decided nine days after Scola, reversed transfer of case's venue because party seeking venue change did not develop support its petition to transfer the case with record evidence which would bear its burden of proving hardship); Keuther v. Snyder, 444 Pa.Super. 468, 664 A.2d 168 (1995) (where appellees did not establish improper venue existed because they failed to adduce facts that established oppressiveness and vexation that were out of proportion to the plaintiff's convenience, trial court's transfer of case, from Philadelphia County to Bucks County, was reversed and remanded by superior court to give appellees an opportunity to establish facts that litigation in original forum would be oppressive or vexatious). Unlike the Scola defendants who failed to present the court with sufficient evidence to warrant transfer of venue to another county under either prong of the Incollingo test, the present case is factually distinguishable from Scola, and, as a result,...