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04/21/97 RICHARD M. TECHTMANN AND MONICA TECHTMANN

April 21, 1997

RICHARD M. TECHTMANN AND MONICA TECHTMANN, H/W, APPELLANTS
v.
ROY J. HOWIE AND ROBERT GRAY'S SONS, INC., INDIVIDUALLY AND T/A GRAY TRUCKING AND GRAY TRUCKING AND SCANFORMS, INC. INDIVIDUALLY AND T/A SCANFORMS COMPANY AND SCANFORMS COMPANY AND MODERN HANDLING EQUIPMENT COMPANY, INDIVIDUALLY AND T/A MODERN GROUP, LTD. AND MODERN GROUP, LTD. AND ADVANCE LIFTS, INC.



Appeal from the ORDER DATED April 15, 1996. Docketed April 19, 1996. In the Court of Common Pleas, Civil Division, Philadelphia County, February Term, 1995, No. 1637. Before BERNSTEIN, J.

Before: Cavanaugh, Beck, And Johnson, JJ. Opinion BY Cavanaugh, J.

The opinion of the court was delivered by: Cavanaugh

OPINION BY CAVANAUGH, J.:

FILED APR 21 1997

This is an appeal from an order which granted appellees' petition to transfer venue from Philadelphia County to Bucks County based on forum non conveniens. The only issue raised on appeal is that the trial court erred in granting a change of venue based on forum non conveniens because the defendants did not meet their burden of proof in establishing that the instant suit should not be in the plaintiffs' venue of choice and because the defendants failed to establish a record which indicates that Philadelphia County is inconvenient for all parties involved. We affirm.

In reviewing an order transferring venue under the doctrine of forum non conveniens, we determine whether the trial court committed an abuse of discretion. Forman v. Rossman, 449 Pa. Super. 34, 38, 672 A.2d 1341, 1342 (1996) (en banc), allocatur granted, 680 A.2d 1162 (1996). It is well-established that a plaintiff's choice of forum is not unassailable. Id. Pa.R.C.P. 1006 provides:

(d) (1) For the convenience of the parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought.

Pa.R.C.P. 1006(d) (1). Nonetheless, a plaintiff will not be deprived of his choice of forum:

unless the defendant clearly adduces facts that "either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff's convenience . . . or (2) make trial in the chosen forum inappropriate because of considerations affecting the court's own private and public interest factors" [but] unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.

Okkerse v. Howe, 521 Pa. 509, 518, 556 A.2d 827, 832 (1989) (emphasis in original) (citations omitted). When seeking a transfer due to hardship, the burden is on defendant to demonstrate, on the record, how trial in plaintiff's chosen forum would prove oppressive and vexatious. Forman, supra at 40, 672 A.2d at 1343-44. Additionally, transfer may not be made from the chosen forum based solely upon public concern for the court's backlog. Id.

This case stems from an accident that occurred in Bristol, Pennsylvania, on March 23, 1993, in which appellant Richard M. Techtmann was allegedly injured when his hand was caught between a truck and the lift gate of a hydraulic lift platform. A thorough review of the record indicates that there are very few connections to Philadelphia County, none of which are significant. First, appellee Roy Howie, the operator of the hydraulic lift on the day of the accident, as well as one of the eyewitnesses to the accident, is a Philadelphia resident. Second, Mr. Techtmann received some of his medical care at a Philadelphia hospital. In addition, several of the defendants regularly conduct business in Philadelphia. However, these factors are not compelling in light of the significant amount of connections that the instant case has with Bucks County.

Mr. Techtmann is a resident of Bucks County and has been for over fifteen years. The accident occurred at the United States Post Office located in Bucks County, where Mr. Techtmann is employed. The hydraulic lift is installed as a fixture at the Post Office in Bucks County, and cannot be removed and transported to Philadelphia County for purposes of trial if that becomes necessary. Although one of the key eyewitnesses resides in Philadelphia, he works in Bucks County. The only other eyewitness to the accident both lives and works in Bucks County. Appellee Modern Handling Equipment, the distributor of the hydraulic lift, has its principal place of business in Bucks County.

Thus, it is evident that Bucks County is the more convenient forum for both parties as well as for the witnesses. See Okkerse, supra (trial court must find that a transfer is more convenient for both parties to the action or for the witnesses). As such, the petitioners did meet their burden of showing that the case should not be heard in appellants' venue of choice and the trial court did not err in so holding.

Appellants also contend that the appellees failed to meet their burden because they did not include a demonstration on the record of the claimed hardships. Specifically, appellants set forth the proposition that when transferring venue based upon forum non conveniens, the petitioner must establish on the record that it would be oppressive, vexatious and unduly burdensome to litigate the action in the forum of the plaintiff's choice. While this is a correct statement of the law, it is only one prong of the disjunctive forum non conveniens test set out in Okkerse, supra. *fn1 The second prong requires that the ...


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