Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 1667 October Term, 1986.
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.
Cirillo, President Judge, and Wieand and Olszewski, JJ.
[ 370 Pa. Super. Page 317]
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.*fn1 In response to a petition filed by Amtrak for transfer of venue pursuant to Pa.R.C.P. 1006(d)(1),*fn2 the trial court transferred venue to Lancaster
[ 370 Pa. Super. Page 318]
County. This appeal followed.*fn3
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 ...