Johns v. First Union Corp.

• Decision Date: 09 May 2001
• Citation: 777 A.2d 489
• Parties: James JOHNS, Appellant, v. FIRST UNION CORPORATION, t/a First Union National Bank and First Union National Bank, Joseph F. Bushek, Joseph F. Bushek, Jr., Individually and t/a Bushek Automotive, Bushek Automotive, Stephen J. Desmond and James F. Desmond and 1-800 Hitch-It, Inc., Joseph G. Slemmer, Individually and t/a Slemmer Realty Company and Slemmer Realty Company, Appellees.
• Court: Pennsylvania Superior Court

777 A.2d 489

James JOHNS, Appellant, v. FIRST UNION CORPORATION, t/a First Union National Bank and First Union National Bank, Joseph F. Bushek, Joseph F. Bushek, Jr., Individually and t/a Bushek Automotive, Bushek Automotive, Stephen J. Desmond and James F. Desmond and 1-800 Hitch-It, Inc., Joseph G. Slemmer, Individually and t/a Slemmer Realty Company and Slemmer Realty Company, Appellees.

Superior Court of Pennsylvania.

Argued February 27, 2001.

Filed May 9, 2001.

James Johns, appellant, pro se.

Robert C. Mickle, Philadelphia, for Bushek Automotive.

Joseph M. DeMarco, Media, for Desmond and 1-800 Hitch-It.

David Karamessinis, Conshohocken, for First Union National Bank.

Before Del SOLE, P.J., EAKIN and LALLY-GREEN, JJ.

DEL SOLE, President Judge:

¶ 1 This is an appeal from a trial court order transferring Appellant's cause of action from Philadelphia County to the Court of Common Pleas of Bucks County based on the doctrine of forum non conveniens. We reverse.

¶ 2 Appellant instituted this action seeking to recover for injuries suffered while he was riding his bicycle home from his place of employment. Appellant's complaint alleges that, when traversing property owned, leased, and/or occupied by the Appellees, Appellant's bicycle hit an asphalt mound, causing him to be thrown forward over the handlebars onto the pavement. As a result, Appellant alleged he suffered certain injuries.

¶ 3 Appellant originally filed suit in the Court of Common Pleas of Bucks County, but later filed a praecipe for a voluntary discontinuance before reinstituting the action in Philadelphia County. A Petition to Transfer Venue was filed by Appellees, to which Appellant responded. The trial court granted the petition and this appeal followed.

¶ 4 A trial court has considerable discretion in granting a change of venue based on forum non conveniens and absent an abuse of that discretion, we will not disturb its decision. Keuther v. Snyder, 444 Pa.Super. 468, 664 A.2d 168, 169 (1995). However, if the trial court has not held the defendant to the proper burden, the equivalent of an abuse of discretion has been demonstrated. Johnson v. Henkels & McCoy, Inc., 707 A.2d 237, 239 (Pa.Super.1997).

¶ 5 A trial court should not grant a petition to transfer venue unless "the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiff's chosen forum is oppressive or vexatious to the defendant." Cheeseman v. Lethal Exterminator 549 Pa. 200, 701 A.2d 156, 162 (1997). The Cheeseman court explained that a petitioner can meet this burden by:

establishing with facts on the record that the plaintiff's choice of forum was designed to harass the defendant, even at some inconvenience to the plaintiff himself. Alternatively, the 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 the ability to conduct a view of the premises involved in the dispute. But we stress that the defendant must show more than that the chosen forum is merely inconvenient to him.

Id.

¶ 6 In this case Appellees' petition averred that Appellant's employer is located in Bucks County, the site of the accident is in Bucks County, and all the defendants with the exception of First Union Corporation and First Union National Bank are within Bucks County. The petition also states that numerous witnesses who are expected to testify at trial are located in Bucks County. Thereafter one individual Appellee is named and two other references are made to "a representative" of different Appellees.

¶ 7 In response Appellant replied that he resides in Philadelphia County. He also lists 36 other witnesses, which include an eyewitness, EMS personnel and differing treating physicians and health care workers for whom Philadelphia would be the more convenient forum. Appellant further states that Philadelphia is actually substantially closer in distance and travel time to the scene of the accident than is the courthouse of Bucks County.

¶ 8 The trial court granted the petition to transfer reasoning that because of the contacts named in Appellees' petition "Bucks...