Powers v. Verizon Pa., LLC, No. 1391 EDA 2018

• Decision Date: 11 March 2020
• Docket Number: No. 1391 EDA 2018
• Citation: 230 A.3d 492
• Parties: Thomas POWERS, Appellant v. VERIZON PENNSYLVANIA, LLC, Verizon Pennsylvania, Inc., Verizon Communications, Verizon Communications, Inc., and Oxford Lane Community Association v. Kourtney Chichilitti and Raja Gali
• Court: Pennsylvania Superior Court

230 A.3d 492

Thomas POWERS, Appellant

v.VERIZON PENNSYLVANIA, LLC, Verizon Pennsylvania, Inc., Verizon Communications, Verizon Communications, Inc., and Oxford Lane Community Association

v.Kourtney Chichilitti and Raja Gali

No. 1391 EDA 2018

Superior Court of Pennsylvania.

Argued December 3, 2019

Filed March 11, 2020

OPINION BY STEVENS, P.J.E.:

Appellant, Thomas Powers, appeals from the order entered in the Court of Common Pleas of Philadelphia County granting the above-named Appellee, Verizon entities ("Verizon"), its Petition for Forum Non Conveniens to Transfer Venue to Bucks County. Herein, Appellant contends the court erred in so granting because Verizon failed to establish that the chosen forum of Philadelphia was anything more than merely inconvenient. For the following reasons, we affirm.

The trial court provides an apt factual and procedural history, as follows:

On or about March 27, 2016, Appellant, Thomas Powers, suffered personal injuries in front of his home at 415 Elm Circle in Chalfont, Bucks County, Pennsylvania (hereinafter, the "415 Elm Circle Property"). Specifically, Appellant stepped on the lid of a cable service box, his foot entered the box, and it came to rest approximately 18 inches beneath the box's surface. See Appellee's Petition for Forum Non Conveniens to Transfer Venue Pursuant to Pa.R.C.P. 1006(d), ¶ 1.

On or about August 22, 2017, Appellant commenced the underlying action in Philadelphia County by filing his Complaint against Appellee, Verizon Pennsylvania, LLC, and Oxford Lane Community Association (hereinafter, "Oxford Lane"). On December 8, 2017, Oxford Lane filed its Third-Party Joinder Complaint, through which it joined Ms. Kourtney Chichilitti (hereinafter, "Chichilitti") and Mr. Raja Gali (hereinafter, "Gali") as Additional Defendants to the underlying action.

Chichilitti is Appellant's daughter. She resides with Appellant at the 415 Elm Circle Property, and she owns that property. Gali is Appellant's neighbor. He resides at 417 Elm Circle in Chalfont, Pennsylvania (hereinafter, the "417 Elm Circle Property"), and owns that property.

In its Joinder Complaint, Oxford Lane alleged that the subject cable service box is located between the curb and concrete walkway in front of the 417 Elm Circle property, or alternatively that it straddles the shared property line of the 415 and 417 Elm Circle Properties. Accordingly, Oxford Lane claimed that Chichilitti and/or Gali were negligent with regard to the dangerous condition of the cable service box. Id. ¶¶ 3-4.

On December 11, 2017, Appellant filed his Amended Complaint pursuant to the September 14, 2017 Order, which upheld Appellee's Preliminary Objections in part. On February 5, 2018, Apellee filed his Answer to Appellant's Amended Complaint and New Matter Cross-Claim. That same day, Appellee filed its Motion for Leave to Join Oldcastle Precast, Inc., F/D/B/A Carson Industries, LLC, and Carson Industries, LLC, as Additional Defendants (hereinafter, "Oldcastle" and "Carson Industries"). Carson Industries designed, manufactured, and sold the subject service cable box, while maintaining its registered office in Glendora, California. Sometime after it designed, manufactured, and sold the subject cable service box, Carson Industries merged with into Oldcastle. Oldcastle's registered office is located in Auburn, Washington. Id. ¶ 5

On March 6, 2018, Appellee filed its Petition for Forum Non Conveniens to Transfer Venue to Bucks County Pursuant to Pa.R.C.P. 1006(d) (hereinafter "Appellee's Petition"). On March 12, 2018, Oxford Lane filed its Response in Support of Appellant's Petition to Transfer Venue under Pa.R.C.P. 1006(d) (hereinafter, "Oxford Lane's Response"). On March 22, 2018, Appellant filed his Answer to Appellee's Petition (hereinafter, "Appellant's Answer"), as well as his Reply to Oxford Lane's Response in Support of Appellant's Petition. On March 29, 2018, Appellant filed its Reply Brief in Support of its Petition.

On April 18, 2018, [the lower court] issued an Order, which granted Appellee's Petition and transferred this case from the Philadelphia Court of Common Pleas to the Bucks County Court of Common Pleas. On April 20, 2018, Appellant filed his Motion for Reconsideration of the [lower court's] April 18, 2018 Order. On April 23, 2018, [the lower court] denied Appellant's Motion for Reconsideration.

On May 4, 2018, Appellee appealed [the lower court's] April 18, 2018 Order. On May 8, 2018, [the lower court] ordered Appellee to file a statement of errors complained of on appeal pursuant to Pennsylvania Rule of Civil Procedure 1925(b). On May 23, 2018, Appellee filed its Statement of Matters Complained of on Appeal.

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[In its Rule 1925(b) statement], Appellant has complained that "[t]he court erred when it granted [Appellee's Petition,] where none of the Defendants sustained their burden of establishing, with detailed facts on the record, that [Appellant's] chosen forum was oppressive or vexatious to them." Appellant's Statement of Matters Complained of on Appeal, at 1-2.

Lower Court's Pa.R.A.P. 1925(a) Opinion, 12/24/18, at 1-3.

In Appellant's brief, he presents the following question for our consideration:

[Did] the Lower Court abuse[ ] its discretion when it granted Verizon's petition to transfer this case to the Bucks County Court of Common Pleas on the doctrine of forum non coveniens where none of the Defendants sustained their burden of establishing, with detailed facts on the record, that Mr. Powers' chosen forum was oppressive or vexatious to them?

Appellant's brief, at 5.

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 v. Crozer Keystone Health Sys. , 832 A.2d 1112, 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).

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). In seeking forum transfer under Rule 1006(d)(1), "the defendant must show more than that the chosen forum is merely inconvenient to him[,]" Cheeseman v. Lethal Exterminator, Inc. , 549 Pa. 200, 701 A.2d 156, 162 (1997) (footnote omitted), as the rule permits transfers only if the chosen forum is oppressive and vexatious for the defendant. Bratic v. Rubendall , 626 Pa. 550, 99 A.3d 1 (2014).

We acknowledge that a plaintiff's 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).¹ Nevertheless, "a plaintiff's choice of venue is not absolute or unassailable." Connor , 832 A.2d at 1116 (internal citation omitted).

This Court's recent decision Wright v. Consolidated Rail Corporation , 215 A.3d 982 (Pa.Super. 2019) we set forth the following principles informing a trial court's review of motions for transfer of venue claiming forum non conveniens :

The doctrine of forum non conveniens "provides the court with a means of looking beyond technical considerations such as jurisdiction and venue to determine whether litigation in the plaintiff's chosen forum would serve the interests of justice under the particular circumstances." Alford [v. Philadelphia Coca-Cola Bottling Co., Inc. , 366 Pa.Super. 510], 531 A.2d [792] at 794 [ (1987) ] (citation omitted). The doctrine addresses the issue of plaintiffs bringing "suit in an inconvenient forum in the hope that they will secure easier or larger recoveries or so add to the costs of the defense that the defendant will take a default judgment or compromise for a larger sum." Hovatter [v. CSX Transportation, Inc. ] , 193 A.3d [420] at 424 [ (Pa.Super. 2018) ] (quotation marks and quotation omitted).

The two most important factors the trial court must apply when considering whether dismissal is warranted are that "1.) the plaintiff's choice of forum should not be disturbed except for ‘weighty reasons,’ and 2.) there must be an alternate forum available or the action may not be dismissed."

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To determine whether such "weighty reasons" exist as would overcome the plaintiff's choice of forum, the trial court must examine both the private and public interest factors involved. Petty v. Suburban General Hospital , 363 Pa.Super. 277, 525 A.2d 1230, 1232 (1987). The Petty Court reiterated the considerations germane to a determination of both the plaintiff's private interests and those of the public as defined by the United States Supreme Court in Gulf Oil Corp. v. Gilbert , 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). They are:

the 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 actions; 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 a fair trial.

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Factors of public interest also have place in applying the doctrine. 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

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