Lytle, L. v. Conrail

J-A06030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LARRY A. LYTLE IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

CONSOLIDATED RAIL CORPORATION AND NORFOLK SOUTHERN RAILWAY COMPANY

No. 1952 EDA 2014

Appeal from the Order Entered June 3, 2014 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): April Term, 2013 No. 04215

BEFORE: PANELLA, J., OTT, J., and JENKINS, J. MEMORANDUM BY OTT, J.: FILED MARCH 24, 2015

Larry A. Lytle appeals from the order entered June 3, 2014, in the Court of Common Pleas of Philadelphia County, transferring the action to Blair County pursuant to forum non conveniens. In this timely appeal, Lytle argues the trial court erred as a matter of law or manifestly abused its discretion in determining his choice of venue was oppressive and vexatious to Defendants Consolidated Rail Corporation and Norfolk Southern Railway Company (collectively “Conrail”). After a thorough review of the submissions by the parties, the relevant law, and the certified record, we affirm on the basis of the sound reasoning of the trial judge, the Honorable Mark I. Bernstein.

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Briefly, Lytle worked for Conrail for more than 30 years, during which time he claims he was exposed to dangerous chemicals and toxins, all or some of which caused him to contract colorectal and liver cancer. At all times relevant to this matter, Lytle worked in Blair County and never worked in Philadelphia County. All known medical providers to Lytle are from Blair County. Fact witnesses from Conrail are all from Blair County or adjoining counties. Additionally, certain Conrail employees who are expected to testify and attend the trial are subject to 24-hour-a-day call, which would be impossible to maintain if the trial took place in Philadelphia.

Our standard of review is well-settled.

In an appeal from an order transferring venue on the basis of forum non conveniens, our standard of review is “whether the trial court committed an abuse of discretion.”

If there exists any proper basis for the trial court's decision to transfer venue [pursuant to Pa.R.C.P. 1006(d)(1)], the decision must stand. An abuse of discretion is not merely an error of judgment, but occurs only where the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record.

Stoner v. Penn Kleen, Inc., 59 A.3d 612, 614 (Pa. Super. 2012) appeal denied, 101 A.3d 787 (Pa. 2014) (citations omitted).

The standards for transferring a case based upon forum non conveniens were announced in Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156 (Pa. 1997). Relevantly, the party seeking change of venue

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must demonstrate with particularity, that plaintiff’s choice of forum is either oppressive or vexatious.1 Id. at 162.

Application of the Cheeseman standard has recently been clarified by our Supreme Court in Bratic v. Rubendall, 99 A.3d 1 (Pa. 2014). Bratic emphasizes the fairness and practicality goals of forum non conveniens2 and reiterates that the trial court decision must be reasonable in light of the peculiar facts of the case.3 Bratic further recognizes that “interference with one’s business and personal life caused by the participatory demands of a distant trial is patent,” and requires no extra detail. Id. at 9. Essentially, Bratic provides for a practical rather than formulaic approach to the determination to transfer a case based upon inconvenient forum.

With the Cheeseman standard, as applied by Bratic, as our touchstone, our review of the certified record demonstrates to us that the trial court’s decision to transfer this matter to Blair County is supported by the record.4 The trial court considered relevant matters and determined trial ____________________________________________

1 The oppressive or vexatious language was first used in Scola v. AC & S, Inc., 657 A.2d 1234, 1241 (Pa. 1995), but Cheeseman formally adopted oppressive or vexatious as the standard. 2 Bratic, 99 A.3d at 6. 3 Bratic, 99 A.3d at 7. 4 Factual determinations and conclusions found in the Pa.R.A.P. 1925(a) opinion are supported by proper citations to the record.

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in Philadelphia County would prove unduly burdensome upon the defense and their witnesses. The trial court determined said burden would be substantially reduced by conducting the trial in Blair County. 5

Accordingly, the order transferring this matter to Blair County for trial is affirmed. The parties are directed to attach a copy of the trial court’s July 9, 2013, Pa.R.A.P. 1925(a) opinion in the event of further proceedings.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/24/2015 ____________________________________________

5 We note that in Bratic, the initial choice of venue was 100 miles distance for the defense, which weighed heavily in favor of the trial court’s decision to transfer the case. Instantly, the record reveals Philadelphia is 230 miles from Blair County. Not only is this 2.3 times further than in Bratic, for reference, we note it is more than twice the distance from Philadelphia to New York, New York, and almost 100 miles further than Philadelphia to Washington, D.C.

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IN TIlE COURT OF COMMON PLEAS OF PHlLADELPHlA COUNTY CIVIL TRIAL DIVISION

LARRYA. LYTLE APRIL TERM,201l ,\ Plaintiff. v. NO. 04215

CONSOLIDATED RAIL CORPORATION, and NORFOLK SOUTHERN RAIL WAY COMPANY

Defendants.

OPINION

On April 29, 20 13 Larry A. Lytle filed a complaint against Consolidated Rail

Corporation and Norfolk Southern Railway Company pursuant to the Federal Employers'

LiabiJity Act, (FELA) Tide 4S U.S.C. §§SJ-60,' On May 7, 2014 defendants filed amotion to

uansfer venue to Blair County. Pennsylvania on the basis of Forum Non Conveniens pursuant to

PaR.c.p. JO06(d)(J). 2 On June J, 2014 that motion was granted? On June 18,2014 Plaintiff

filed a timely appeal. 4

Plaintiff. a resident of Blair Counti, was employed by defendant railroads and alleges

that he contracted illnesses while he was working as an employee of the defendants through his

exposure to various toxins. 6 Plaintiffalleges that this exposure lasted about 34 years. from the

beginning of his employment on or about June i, 1976 through September 3, 20]0. 7 Unlil

further discovery is completed it is impossible 10 know how many wilnesses will be needed.

1 .Plaintiff's Complaint 111-4. 1 Motion [() Transfer. May 7. 2014 1 Ordu: Filed. June 6. 20 14. • Notice of Appeal: June 18.2014. . j Plaintiff's Complaint 11. Cambria County is adjacent 10 Blair County and is over four hours aWilY from Philadelphia County. , Pliint;ffs Complaint 116- 12. 7 PlalntJlrs Complaint UO.

1 II COPIES SENT PURSUANT TO Pa.R.C.P. 236{b) T. TAYLOR 07/11/2014

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Plaintiff alleges that such exposure caused him to develop colorectal cancer and liver cancer.'

Plaintiff further aUeges that defendants were engaged in interstate commerce as a common

carrier railroad. 9 When plaintiff was employed by defendants he worked exclusively in Blair

County. Pennsylvania. 10 Plaintiff has never worked for defendants in Phil~elphia County.

Pennsylvania."

Jon Freas is a former supervisor of plaintiff and will be used as a witness to "testify as to

the job duties and requirements of electricians and regarding thejob and safety training received

by electricians... 12 Freas resides iii Blair County, 230 mil es from the Philadelphia Court of

Common Pleas. I) Freas testified that it would take him four hours to conunute to Philadelphia

and that his 'employer would incur substantial expense and hardship due to his travel expenses

and absenee from work. I. Freas testified that a trial conducted in Blair County would reduce this

burden considerably. IS

None oftbe known supervisors that plaintiffhad throughout his railroad career reside in 1oS Philadelphia County. PeMsylvania. Plaintiff's co-workers and supervisors who are expected to

testify are aJllocated in and around Blair County.17 If these employees are required to spend an

extended amount of time in Philadelphia as witnesses, their absences would be UJ)duty G 11 burdensome to their employer. Peets. assistant manager of claims for Nonolk Southern

Corporati?n, testified that this bUrden and disruption 10 employers would be reduced

I Plaintiff's Complainl1! I. I Plainlirrs Complaint 15. III Plaintifrs Responses to Defendant's request for Admissions ,,1-3. May 7, 20 14. II Plamtiff's Responses to Defendant's request for Admissions at 11. II Affidavit of Jon Freas t14-5. IJ Affidavit of}OfI Freas 16. I. Affidavit ofJon Freas 17. IJ Affidavit of Jon Freas 18. I' Affidavit of Jacqueline Peets '14. 17 Affidavit of Jacquelme Peets 14. I' Affidavit of JaCflueJine Peets 15. 2

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considerably by conducting the trial in Blair County.19 Peets also testified that Plaintitrs known

medical providers, including those persons who provided treatment to Plaintiff regarding the

instant alleged injury, are located in Blair County, Pennsylvania 20

A personal actio~ against a corporation or similar entity may be brought in the county

where the cause of action arose. 2 ! Therefore, Blair County is a proper venue. ''The right of a

plaintiff to choose a forum is not absolute.'.n The Court, f~r the convenience of parties and

witnesst:s may transfer an action to the appropriate court of any other county where the action

could originally have been brought, upon petition of any party.21 The trial court is vested with

discretion in detennining whethe~ or not to grant a petition to transfer venue Wlder Pa.R.C.P.

IOO6(d)."

In Cheeseman v. Lethal Exterminator. Inc. 25 tbe Pennsylvania Supreme Court staled that

a petition to transfer venue pursuant to Rule l006(d)(I) should not be granted unless the d~fendant meets his burden of demonstrating, with detailed information on the record. that the plaintiff's chosen forum is oppressive or vexatious to the defeodanl.2b If the defendant can show, through detailed infonnation on the record, that the plaintiffs' choice of forum is oppressive or vexatious, the case should be moved.

"Claims by the defendant in its petition that no significant aspect of the case involves the chosen forum, and that litigating in another forum would be more convenient. .. do not amolUltto a showing that the chosen forom is oppressive or vexarious.'027 However, the defendant ''may

.9 Affidavi! of Jacqueline Peets 'fi 1·6. 10 Affidavit of Jacquehne Peets 17. 11 Pa.R.G.P. 2179(a)(3). 21 Wi!ls V' Kaschak. 420 Pa.Supu. 5110 (1992). l:t Pa.R.C.P. 10000dXI). N See. Hosiery Corp. of Amerjca. Inc. y. Rich. 327 P.a..Suptr. 472 (J 984). 11 549 Pa. 200, 2J 4 (1997) 26 549 Pa.. 200,113 (1997). 2J 549 Pa. 2M, 214 (1997)

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meet this burden by establishing on the record that trial in the chosen forum is oppressive to him;

for instance, rhat trial in another county would provide easier access to witnesses and other

sources of proof.,,21 There is DO talismanic form of proof required. "All that is required is that

the moving party present a sufficient factual basis for tbe petition.,,29 g,! Blair County is where the plaintiff worked for the defendants and where the alleged exposure occurred for over thirty years. Plaintiff resides in Blair County. In the present ~e

defendants have shown through evidence on the record that .trial in Philadelphia County would

be unduly burdensome to their witnesses and their witnesses' employers. Defendams have also

shown thrpugh evidence on the record that trial in Blair County would substantially reduce the

burden placed upon their witnesses and their witnesses' employers. This evidence provides a

sufficient factual basis for the petition to transfer the case to Blair County on the basis of Forum

NOH CQnveniens purstlant to Pa.R.C.P. IOOS(d)(l). For Jhe reasons set fortb above the judgment

should be affirmed. Q BY THE COURT.

'. )

1'M. :If Wood v. BJ du Pont de Nemours and Co., 829 A.2d 707, 714 (pa. Super. 2(03).

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