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JOAN ALFORD v. PHILADELPHIA COCA-COLA BOTTLING CO. (09/29/87)

filed: September 29, 1987.

JOAN ALFORD, APPELLANT,
v.
THE PHILADELPHIA COCA-COLA BOTTLING CO., INC.



Appeal from the Order in the Court of Common Pleas, Civil, of Philadelphia County, at No. 911 May Term 1986.

COUNSEL

Alan Starker, Philadelphia, for appellant.

James P. Bradley, Philadelphia, for appellee.

Montemuro, Kelly and Cercone, JJ.

Author: Montemuro

[ 366 Pa. Super. Page 511]

Appellant Joan Alford challenges the dismissal of her action against appellee Philadelphia Coca-Cola Bottling Company, Inc. The sole issue before us is whether the Philadelphia County Court of Common Pleas abused its discretion when it dismissed the action on the ground of forum non conveniens. Because the court acted prematurely, we reverse and remand for further proceedings.

This dispute arose out of an automobile accident that occurred on December 20, 1985, in Cape May County, New Jersey. An automobile driven by Ms. Alford, a resident of Cape May County, collided with an automobile owned by the Philadelphia Coca-Cola Bottling Company. Greg Baker, an employee of the Bottling Company and also a resident of Cape May County, was driving the Bottling Company automobile at the time. As a result of this mishap, Ms. Alford filed an action in Philadelphia County against the Bottling Company. In response, the Company filed a petition to dismiss the complaint pursuant to 42 Pa.C.S. § 5322(e).*fn1

[ 366 Pa. Super. Page 512]

Ms. Alford answered the petition, and the trial court decided the issue on petition and answer alone. By order of November 18, 1986, the court granted the petition to dismiss "without prejudice to plaintiff's right to refile in New Jersey and on the condition that defendant corporation shall accept service of plaintiff's complaint in New Jersey." This appeal followed.

The parties agree that the courts of Philadelphia County can exercise jurisdiction over Ms. Alford's action. They also appear to recognize that venue is proper in Philadelphia. Their disagreement focuses upon the doctrine of forum non conveniens, as embodied by section 5322(e) of the Uniform Interstate and International Procedure Act, 42 Pa.C.S. § 5322(e). Section 5322(e) enables a court to dismiss an action, even though jurisdiction and venue are proper, if the court finds that "in the interest of substantial justice the matter should be heard in another forum." Dismissal under section 5322(e) differs substantially from transfer under Pa.R.C.P. 1006(d). Rule 1006(d)(1) enables the court to transfer an action to another county within the Commonwealth "for the convenience of parties and witnesses." A Rule 1006(d) transfer does not extinguish the litigation. The plaintiff need not refile his or her action in the transferee county. Instead, the Prothonotary of the transferor county simply forwards to the Prothonotary of the transferee county "copies of the docket entries, process, pleadings, depositions and other papers filed in the action." Pa.R.C.P. 1006(d)(3). The action thus continues as if the plaintiff had filed it initially in the transferee county. A section 5322(e) dismissal, on the other hand, terminates the litigation in the courts of this Commonwealth. Unlike the

[ 366 Pa. Super. Page 513]

    intra-jurisdiction transfer of Rule 1006(d), section 5322(e) applies when a tribunal of this jurisdiction determines that a tribunal in another jurisdiction would offer a more convenient and appropriate situs for the action. Because our courts lack authority to transfer cases to the courts of our sister states, dismissal of the action is the only permissible result. See Schachtel v. Bloche, 272 Pa. Super. 32, 414 A.2d 654 (1979); Norman v. Norfolk and Western Railway Co., 228 Pa. Super. 319, 323 A.2d 850 (1974).

Despite the drastic difference in effect between transfer under rule 1006(d) and dismissal under section 5322(e), both remedies derive from the common law doctrine of forum non conveniens. See Petty v. Suburban General Hospital, 363 Pa. Super. 277, 525 A.2d 1230 (1987) (discussing Rule 1006(d) transfer in terms of forum non conveniens); Beatrice Foods Co. v. Proctor & Schwartz, Inc., 309 Pa. Super. 351, 455 A.2d 646 (1982) (discussing section 5322(e) dismissal in terms of forum non conveniens). This court has therefore applied to both interstate and intrastate cases the principles long ago recognized by our supreme court in Plum v. Tampax, Inc., 399 Pa. 553, 160 A.2d 549 (1960). See, e.g., Petty v. Suburban General Hospital, supra (intrastate); Korn v. Marvin Fives Food Equip. Corp., 362 Pa. Super. 559, 524 A.2d 1380 (1987) (intrastate); Beatrice Foods Co. v. Proctor & Schwartz, Inc., supra (interstate); Norman v. Norfolk and Western Railway Co., supra (interstate). In both the interstate context under section 5322(e) and the intrastate context under Rule 1006(d), the doctrine of forum non conveniens serves the same essential purpose. It provides the court with a means of looking beyond technical considerations such as jurisdiction and venue to determine whether litigation in the ...


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