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05/30/97 AEROSPACE FINANCE LEASING v. NEW HAMPSHIRE

May 30, 1997

AEROSPACE FINANCE LEASING, INC., A DELAWARE CORPORATION, APPELLEE
v.
NEW HAMPSHIRE INSURANCE CO., A PENNSYLVANIA CORPORATION, APPELLANT



Appeal from the ORDER dated October 1, 1996 in the Court of Common Pleas, Civil Division, Allegheny County, at No. GD95-20184. Before McGOWAN, J.

Before: Cirillo, P.j.e., Johnson, J., and Cercone, P.j.e. Opinion BY Cirillo, P.j.e.

The opinion of the court was delivered by: Cirillo

OPINION BY CIRILLO, P.J.E.:

FILED: MAY 30, 1997

New Hampshire Insurance Company appeals from the certified amended order of the Court of Common Pleas of Allegheny County denying appellant's preliminary objections on the basis of forum non conveniens. We affirm.

On July 18, 1992, Appellant New Hampshire Insurance Company ("New Hampshire") *fn1 issued a one-year "Aviation Hull All Risks and Legal Liability" policy *fn2 to its assured, Appellee Aerospace Financing Leasing, Inc. ("Aerospace"), a Delaware corporation. *fn3 AIG Europe (UK) Limited, a broker with its business address in England, placed the policy for Aerospace and handled any claims made under the policy. The policy, which was valid worldwide, covered one of Aerospace's aircrafts, a Lockheed Jetstar 731 ("Jetstar"). On November 27, 1992, the Jetstar was damaged while landing at the Southhampton Airport in Hampshire, England.

After the accident, New Hampshire authorized Avco Aviation ("Avco") to repair the damaged aircraft. *fn4 Months after it was hired, but before completion of the job, Avco liquidated. New Hampshire then employed Osprey Aviation Limited ("Osprey") to complete the repairs on the damaged jet. In late 1994, purporting to have finished the necessary repairs to make the jet "airworthy," Osprey released the aircraft for a test flight. After the flight, the pilots concluded that the craft was not airworthy and additional repairs were undertaken by Osprey. Following two more failed test flights, New Hampshire advised Aerospace that the repairs were completed and that the jet was "airworthy." In response, Aerospace retained an aeronautical engineer to evaluate the aircraft. The engineer concluded that the Jetstar was in need of further repairs in order to return it to its pre-accident condition and that Avco and Osprey's repair work was unacceptable.

On December 14, 1995, Aerospace filed a complaint in the Court of Common Pleas of Allegheny County alleging breach of contract, negligence and violation of Pennsylvania's Bad Faith Act, 42 Pa.C.S.A. § 8371, *fn5 against New Hampshire. The complaint, seeking over $3,250,000.00, plus interest and punitive damages, *fn6 alleged that New Hampshire had failed to return the Jetstar to its pre-accident condition, had failed to properly maintain, preserve and protect the aircraft during the almost two years of repairs, and had refused to pay Aerospace the agreed value of the Jetstar. *fn7 All of these instances, Aerospace contends, amounted to a breach of the insurance contract between the parties. At the time the complaint was filed in Allegheny County, New Hampshire was incorporated in Pennsylvania. *fn8 New Hampshire filed preliminary objections, based on the doctrine of forum non conveniens, asserting that England is a more appropriate forum for the resolution of the parties' underlying claims. The preliminary objections were denied. Subsequently, the trial court entered an order amending its original order and certifying the issue for our review pursuant to Pa.R.A.P. 311 (b) (2). *fn9 New Hampshire now appeals from this amended and certified order, raising the following issues for our consideration:

(1) In an action on an insurance policy, is dismissal based on forum non conveniens appropriate where the policy was solicited, brokered, and issued in England to two insureds which listed their address in England, and where the incident giving rise to coverage occurred in England and where the insurance claim was presented and adjusted in England and where repairs were undertaken in England?

(2) In an action on an insurance policy, is dismissal based on forum non conveniens appropriate where the only nexus between the defendant insurance company and Pennsylvania is the fact that the insurer changed its place of incorporation from a foreign state to Pennsylvania after the expiration of the policy at issue, and after the incident giving rise to coverage?

(3) In an action on an insurance policy, is the proximity of counsel and designated expert witnesses insufficient to make a chosen forum county appropriate, especially because no fact witnesses are located in the forum county? *fn10

A trial Judge has great discretion in reviewing petitions to change venue based upon forum non conveniens ; on appeal the superior court must determine whether the trial Judge abused that discretion. Shears v. Rigley, 424 Pa. Super. 559, 623 A.2d 821 (1993). In order to demonstrate that the trial court has abused its discretion, "an appellant must show that 'in reaching a Conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will.'" McCrory v. Abraham, 441 Pa. Super. 258, 261, 657 A.2d 499, 501 (1995) (quotation omitted). *fn11

As noted in this court's decision in Page v. Ekbladh, 404 Pa. Super. 368, 590 A.2d 1278 (1991), the proper analysis of a forum non conveniens issue "involves an evaluation of the appropriateness of the two [forums]," Pennsylvania (United States) and England (The United Kingdom). Id. at 373, 590 A.2d at 1280. The case before us today, however, presents an issue of first impression for this court: namely, what analysis should guide us in the resolution of the issue of forum non conveniens in the context of an international setting? Rule 1006(d) explicitly applies to intrastate transfer -- i.e. county to county. Furthermore, we have found that 42 Pa.C.S.A. § 5322 applies in the analysis of an interstate forum dispute. See Shears, (supra) . In Shears, however, our court astutely observed that because both Rule 1006 and 42 Pa.C.S.A. § 5322 are derived from the common law doctrine of forum non conveniens, both interstate and intrastate cases apply the doctrine similarly. Due to the fact that the doctrine of forum non conveniens is based upon a common law notion, we will remain consistent in employing the standard used by our state courts with regard to inter/intrastate dismissal for forum challenges in the context of this international setting.

The doctrine of forum non conveniens was employed as "a necessary counterbalance to insure fairness and practicality." Okkerse v. Howe, 521 Pa. 509, 518, 556 A.2d 827, ...


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