Rubin v. Lehman

• Decision Date: 24 July 1995
• Citation: 660 A.2d 636,443 Pa.Super. 1
• Parties: Allen W. RUBIN, Administrator of the Estate of Steven P. DiLeonardo, Deceased, Appellant, v. Kenneth LEHMAN, Eleanor M. Lehman, Anthony DiLeonardo, Jr., Richard Diegel, Bucks County International, Inc., Arnold McClarin, Upper Southampton Township Industrial Development Authority, Delaware Valley Development Authority, Davisville Properties, Inc., Davisville Center, Inc., M. Barry Schultz & Co., Gulf Oil Corp., Cumberland Farms, Inc., Morton's Gulf, Inc., James J. Morton, William Dreyer's Lawn Service and General Motors Corporation.
• Court: Pennsylvania Superior Court

Page 636

660 A.2d 636

443 Pa.Super. 1

Allen W. RUBIN, Administrator of the Estate of Steven P DiLeonardo, Deceased, Appellant, v. Kenneth LEHMAN, Eleanor M. Lehman, Anthony DiLeonardo, Jr. Richard Diegel, Bucks County International, Inc., Arnold McClarin, Upper Southampton Township Industrial Development Authority, Delaware Valley Development Authority, Davisville Properties, Inc., Davisville Center, Inc., M. Barry Schultz & Co., Gulf Oil Corp., Cumberland Farms, Inc., Morton's Gulf, Inc., James J. Morton, William Dreyer's Lawn Service and General Motors Corporation.

Superior Court of Pennsylvania.

Argued Sept. 28, 1994.

Filed May 11, 1995.

Reargument Denied July 24, 1995.

Ronald L. Wolf, Philadelphia, for appellant.

Wayne A. Schaible, Philadelphia, for Lehman, appellee.

Before McEWEN, TAMILIA, and FORD ELLIOTT, JJ.

FORD ELLIOTT, Judge:

This is an appeal from the January 31, 1994 order of the Court of Common Pleas of Philadelphia County granting appellees Kenneth and Eleanor Lehman's petition to transfer venue to Bucks County. We reverse.

The underlying lawsuit stems from an automobile accident which occurred in February 1990. The accident, involving an automobile driven by Kenneth Lehman and an automobile driven by Anthony DiLeonardo, Jr., occurred along County Line Road, dividing Bucks and Montgomery Counties. At the time of the accident DiLeonardo's brother Steven was a passenger in his vehicle. As a result of the collision, both Anthony and Steven DiLeonardo were ejected from their vehicle. Steven DiLeonardo was struck by an oncoming tow truck and killed.

Allen W. Rubin, Administrator of the Estate of Steven DiLeonardo, filed suit in Philadelphia County against the Lehmans, General Motors Corporation, the tow truck company and driver, the owner of the vehicle in tow, and nine other corporate defendants who all had an ownership interest in the property at the intersection where the accident occurred. In a companion suit currently pending in Philadelphia County, Anthony DiLeonardo likewise sued these same defendants.

In October 1993, appellees Kenneth and Eleanor Lehman petitioned to have the case transferred to the Court of Common Pleas of Bucks County on the grounds of forum non conveniens. In the petition, appellees alleged that transfer was proper for several reasons. Appellees pointed to the facts that the accident occurred in Bucks County, that four of the individual defendants reside in Bucks County, that the causes of action had very little connection to Philadelphia County, that the Philadelphia County courts are overburdened, and that for the majority of witnesses in this case it would be more convenient to testify in Bucks County. Many of the allegations in appellees' petition were unsubstantiated; appellees failed to take depositions or secure affidavits to support their allegations concerning the convenience of witnesses. Appellant responded to the petition by specifically denying several of the allegations and offering testimonial affidavits to support his position. The trial court, on this record and without conducting a hearing, granted the petition and transferred the case to Bucks County. Appellant asks us to review that decision.

To that end, appellant raises three issues, all concerning the propriety of the trial court's decision to transfer venue.

I. Did the trial court adequately consider plaintiff's choice of forum in granting the motion to transfer?

II. Did the trial court improperly order transfer when petitioning defendants did not demonstrate through record evidence that Philadelphia is inconvenient for any party or witness and plaintiff established that this forum is convenient for parties and witnesses?

III. Did the trial court improperly order transfer when the record shows Bucks County is an inconvenient forum for parties and witnesses?

All three issues will be addressed together with the following discussion.

It is a well-established rule of law in this Commonwealth that the party seeking to change venue must satisfy a heavy burden by pointing to record evidence of the claimed hardships imposed by plaintiff's choice of forum. See Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989); Scribner v. Mack Trucks, 427 Pa.Super. 71, 628 A.2d 435 (1993).

The facts underlying this case are strikingly similar to those in Okkerse, supra. Okkerse involved an intersectional collision in Montgomery County in which one of the drivers, Mrs. Okkerse, was killed. Her husband filed suit, in Philadelphia County against the driver of the other vehicle, Ford Motor Company (the manufacturer of Mrs. Okkerse's vehicle), property owners whose overgrown shrubs allegedly obscured vision at the intersection, various governmental agencies who allegedly had responsibility for controlling the intersection, and twenty-two property owners who allegedly owned the road leading to the intersection. Of all the defendants, the only connection to Philadelphia County was that Ford Motor Company and the Department of Transportation had offices there. One of the defendants in Okkerse ¹ filed a petition to transfer venue on the grounds of forum non conveniens. The petition was granted, reversed by this court, and eventually appealed to the supreme court.

On appeal, the supreme court, affirming this court, concluded that the moving party's failure to support the petition with record evidence required a denial of the petition to transfer.

Justice McDermott, writing for the majority in Okkerse, stressed the importance of the moving party's development of a record to support the petition to transfer based upon the doctrine of forum non conveniens.

Thus, the party seeking a change of venue bears a heavy burden in justifying the request, and it has been consistently held that this burden includes the demonstration on the record of the claimed hardships. The Rules of Civil Procedure provide for a procedure whereby a complaining party can develop such a record, and this procedure has been recognized and endorsed by the Superior Court:

a proper procedure under Rule 1006(d)(1) necessarily implicates the requirements for petition and answer set forth in Pa.R.C.P. 206 through 209, including the taking of evidence by deposition or otherwise on disputed issues of fact.

Hosiery Corporation of America v. Rich, 327 Pa.Super. 472, 475, 476 A.2d 50, 51 (1984).

Okkerse at 518, 556 A.2d at 832 (emphasis in original).

Similarly, because there was no testimony or evidence provided by appellees on which the trial court might have based its decision we must reverse in this matter. Appellees failed to take any depositions, secure affidavits, or establish any record evidence, whatsoever. Instead, the trial court based its decision to transfer venue on the allegations of hardship and inconvenience raised in appellees' petition.

However, as this court has previously held:

We refuse to sanction the transfer of a cause of action premised on the convenience of parties and witnesses on the mere allegation, specifically denied by plaintiff/appellant, of the petitioner.

Petty v. Suburban General Hospital, 363 Pa.Super. 277, 285, 525 A.2d 1230, 1234 (1987). Presently, many of the allegations in appellees' petition, upon which the decision to transfer venue was based, were specifically denied by appellant in his response to the petition. For instance, appellant disputed that decedent was a resident of Bucks County prior to his death; that a significant number of non-party witnesses to the accident reside and/or work in Bucks County; that defendant Anthony DiLeonardo, Jr., resided in Bucks County at the time of the accident; that all sources of proof are located in Bucks and Montgomery Counties; and that Bucks County is a more convenient forum for all parties.

As this court has previously ruled, "[i]f the petitioner does not take Rule 209 discovery and the court does not order it, the court must, under Rule 209, consider as true all responsive allegations of fact in the answer to the petition." Burns v. Pennsylvania Manufacturers Ass'n., 417 Pa.Super. 631, 635, 612 A.2d 1379, 1381 (1992) (emphasis in original). See also Alford v. Phil. Coca-Cola Bottling, 366 Pa.Super. 510, 531 A.2d 792 (1987). The lack of a record mandated that the allegations in appellant's responsive pleading be accepted as true. Additionally, appellant did not merely rest on his responsive pleading, but rather appellant provided the trial court with testimonial affidavits from various parties and witnesses who stated that Philadelphia County would be a convenient forum. Appellees presented the trial court with no record evidence to weigh in their favor. Therefore, we cannot conclude as did the trial court that, based upon a weighing of the relevant factors, the balance was strongly in favor of appellees. ²

While we recognize that the trial court has broad discretion in matters such as this, before it can order a transfer it must "find 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 original). As noted by the Petty court, "[I]f the trial court has not held the defendant to the proper burden or has clearly erred in weighing the factors to be considered, the equivalent of an abuse of discretion has been demonstrated. Discretion must be exercised within the applicable standards." Petty 363 Pa.Super. at 282, 525 A.2d at 1232-33, quoting Reyno v. Piper Aircraft Co., 630 F.2d 149, 160 (3d Cir.1980) (citations omitted). Instantly, this court's doubt concerning the decision to transfer is grounded in appellees' failure to present any record evidence in support of their assertion that the transfer is more convenient for both parties and the witnesses.

Additionally, while this court recognizes that a trial court can consider matters of public interest as a basis for transfer without a supporting record, the lack of any record regarding private...