Vogel v. National R.R. Passenger Corp.
Decision Date | 20 January 1988 |
Citation | 370 Pa.Super. 315,536 A.2d 422 |
Parties | Andrew H. VOGEL, III, James C. Byerly and Fulton Bank, Co-Executors of the Estate of W. Charles McMinn, III, Deceased, Appellants, v. NATIONAL RAILROAD PASSENGER CORPORATION, a/k/a Amtrak and East Hempfield Township and Pennsylvania Power & Light Company, Appellees. |
Court | Pennsylvania Superior Court |
Gary Lee, Philadelphia, for appellants.
Elizabeth Walker, Philadelphia, for Nat. R.R., appellee.
Joseph M. Oberlies, Philadelphia, for East Hempfield, appellee.
Andrew F. Susko, Philadelphia, for Pa. Power, appellee.
Before CIRILLO, President Judge, and WIEAND and OLSZEWSKI, JJ.
This appeal is from an order transferring venue of plaintiffs' cause of action on grounds of forum non conveniens from Philadelphia to Lancaster County.
W. Charles McMinn was killed on October 14, 1984 when an Amtrak passenger train collided with the automobile which he was operating at a grade crossing in East Hempfield Township, Lancaster County, Pennsylvania. On October 14, 1986, Andrew H. Vogel, III, James C. Byerly, and Fulton Bank, the co-executors of McMinn's estate, commenced a wrongful death and survival action in the Court of Common Pleas of Philadelphia County to recover damages against National Railroad Passenger Corporation (Amtrak), Pennsylvania Power & Light Company (P P & L), and East Hempfield Township. 1 In response to a petition filed by Amtrak for transfer of venue pursuant to Pa.R.C.P. 1006(d)(1), 2 the trial court transferred venue to Lancaster County. This appeal followed. 3
Appellants contend that the trial court abused its discretion when it transferred the action to Lancaster County without benefit of depositions on disputed issues of fact. Because of the absence of depositions, appellants argue that Amtrak failed to meet its burden of proving that a change of venue was necessary for the convenience of the parties and witnesses. Appellants also contend that Amtrak waived its right to seek a transfer of venue when it engaged in preliminary discovery in Philadelphia before filing a petition for transfer of venue.
This Court considered Pa.R.C.P. 1006(d)(1) in Fox v. Pennsylvania Power & Light Co., 315 Pa.Super. 79, 461 A.2d 805 (1983), where we said:
A court is authorized by Pa.R.C.P. 1006(d) to transfer an action to the appropriate court of any other county where the original action could have been brought if it will serve the convenience of parties and witnesses. This rule vests considerable discretion in the trial judge to determine whether to grant a petition for a change of venue. On appeal from such an order, the only issue is whether the trial judge abused his discretion. Plum v. Tampax, Inc., 399 Pa. 553, 560, 160 A.2d 549, 553 (1960); Hamay v. County of Washington, 291 Pa.Super. 137, 141, 435 A.2d 606, 608 (1981); Daugherty v. Inland Tugs Company, 240 Pa.Super. 527, 531, 359 A.2d 465, 467 (1976); Tarasi v. Settino, 223 Pa.Super. 158, 161-162, 298 A.2d 903, 905 (1972).
In determining whether or not to transfer venue, a court should look to the interests of the litigants. Daugherty v. Inland Tugs Company, supra, 240 Pa.Super. at 530, 359 A.2d at 466. Accord: Koenig v. International Brotherhood of Boilermakers, 284 Pa.Super. 558, 575, 426 A.2d 635, 644 (1980). The choice of forum by the plaintiff is also entitled to weighty consideration and should not be disturbed lightly. Walker v. The Ohio River Company, 416 Pa. 149, 152, 205 A.2d 43, 45 (1964); Koenig v. International Brotherhood of Boilermakers, supra, 284 Pa.Super. at 575, 426 A.2d at 643; Pennsylvania Power & Light Company v. Gulf Oil Corporation, 270 Pa.Super. 514, 539-540, 411 A.2d 1203, 1217 (1979), cert. denied, 446 U.S. 966, 100 S.Ct. 2943, 64 L.Ed.2d 825 (1980); Daugherty v. Inland Tugs Company, supra, 240 Pa.Super. at 531, 359 A.2d at 467.
Id. at 81-82, 461 A.2d at 806.
In the instant case, there were weighty reasons for transferring appellants' action to Lancaster County. The collision between Amtrak's train and decedent's automobile had occurred in Lancaster County, where the decedent had resided and worked. Letters Testamentary had been issued to appellants as co-executors of decedent's estate by the Register of Wills of Lancaster County. Police and rescue personnel, who had responded to the accident scene, and the coroner, who had performed the autopsy, all resided in Lancaster County. If the accident site were to be viewed by a trial jury, this could be done only in Lancaster County. Moreover, one of the defendants, East Hempfield Township, was a political subdivision located in Lancaster County. Another defendant, P P & L, had its offices in Lehigh County and conducted business in Lancaster County, but had no connection with Philadelphia County. Only Amtrak, which maintained an office and did business in Philadelphia, had any apparent connection with Philadelphia County. Cf. Fox v. Pennsylvania Power & Light Co., supra at 82-83, 461 A.2d at 806-807. These facts appear of record and are not disputed.
Plaintiffs' initial choice of forum was Lancaster County. Only when new counsel entered an appearance on behalf of the plaintiffs was the Lancaster County action discontinued and a new action begun in Philadelphia. 4 Moreover and in any event, Ernest v. Fox Pool Corp., 341 Pa.Super. 71, 75, 491 A.2d 154, 156 (1985), citing 1 Goodrich Amram 2d § 1006(d):1 (1976).
Although depositions were not taken in support of Amtrak's petition for change of venue, this fact is not alone fatal to the trial court's exercise of discretion to transfer venue. Depositions are necessary only when the facts essential to a decision are in dispute. See: DiNardo v. Central Penn Air Services, Inc., 358 Pa.Super. 75, 79, 516 A.2d 1187, 1189 (1986); Urban v. Urban, 332 Pa.Super. 373, 380, 481 A.2d 662, 666 (1984). In this case there...
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