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12/17/97 HARRY CHRIS JOHNSON AND REBECCA JANE

December 17, 1997

HARRY CHRIS JOHNSON AND REBECCA JANE JOHNSON, H/W, APPELLANTS
v.
HENKELS & MCCOY, INC. AND WESTERN STRESS, INC. AND GENERAL ELECTRIC COMPANY IN ITS OWN RIGHT AND D/B/A GE NUCLEAR ENERGY, E.H. HINDS, DIVISION OF ATLANTIC PLANT MAINTENANCE, INC.; HARRY CHRIS JOHNSON AND REBECCA JANE JOHNSON, H/W V. HENKELS & MCCOY, INC. AND WESTERN STRESS, INC. AND E.H. HINDS, DIVISION OF ATLANTIC PLANT MAINTENANCE, INC. AND GENERAL ELECTRIC COMPANY IN ITS OWN RIGHT AND D/B/A GE NUCLEAR ENERGY



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, Nos. 2200 April Term 1996 and 01661 August Term, 1996. Before ASHEPPARD, J.

Before: Cirillo, P.j.e., Cercone, P.j.e., Montemuro*, J. Opinion BY Montemuro, J. Cirillo, P.j.e. filed a Concurring and Dissenting Opinion.

The opinion of the court was delivered by: Montemuro

OPINION BY MONTEMURO, J.:

Filed December 17, 1997

Appellant/Plaintiffs, Harry and Rebecca Johnson, appeal the January 3, 1997 Order of the Philadelphia County Court of Common Pleas granting the petition of Appellee/Defendant, Henkels & McCoy, Inc., to transfer venue to Montgomery County based on the doctrine of forum non conveniens. *fn1 For the reasons set forth below, we reverse.

The underlying action arose from an accident at the Bergen Fossil Generating Station construction site in Ridgefield, New Jersey. Appellant Harry Johnson alleged that he was working at the site as an employee of General Electric Company, when he fell fifteen feet from a thirty-two inch pipe and sustained serious injuries. On April 17, 1996, Mr. Johnson and his wife filed a complaint in Philadelphia County against Appellees, Henkels & McCoy, Inc. and Western Stress, Inc. Appellants then filed a second action in Philadelphia County on August 19, 1996 against the above two defendants, as well as E.H. Hinds, Division of Atlantic Plant Maintenance, Inc. On September 16 and September 24, 1996, Appellee Henkels & McCoy joined General Electric Company as an additional defendant in both cases.

Appellants filed a petition to consolidate the two actions on November 6, 1996, which the trial court granted on January 3, 1997. On November 27, 1996, Appellee Henkels & McCoy filed a petition to transfer the actions to Montgomery County pursuant to Pa.R.C.P. 1006(d)(1), based on the doctrine of forum non conveniens. By Order dated January 3, 1997, the trial court granted the petition and transferred the consolidated actions to Montgomery County. Appellants filed this timely appeal wherein they raise the sole claim that the trial court abused its discretion in transferring the present action to Montgomery County. We agree.

Pennsylvania Rule of Civil Procedure 1006(d)(1) permits a defendant to petition for a change of venue even though the original venue chosen by the plaintiff is proper:

for the convenience of 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). In the present case, original venue in Philadelphia County was proper since two of the defendants, Appellee Henkels & McCoy and E.H. Hinds, regularly conduct business in that county. See Pa.R.C.P. 2179(a)(2)(permitting an action to be brought against a corporation in the county where it "regularly conducts business"). Appellee Henkels & McCoy, however, petitioned for a transfer of venue to Montgomery County, where it has its principal place of business and where Appellants reside. See Pa.R.C.P. 2179(a)(1)(permitting an action to be brought against a corporation in the county where its "principal place of business is located"). Since Appellants could have originally filed the lawsuit in Montgomery County, the petition was proper; thus we must consider whether the trial Judge erred when he transferred the action.

Rule 1006(d)(1) gives a trial Judge considerable discretion in granting a change of venue based on forum non conveniens; absent an abuse of that discretion, we will not disturb his decision. Keuther v. Snyder, 444 Pa. Super. 468, 471, 664 A.2d 168, 169 (1995). An abuse of discretion occurs when the Judge misapplies the law or exercises his judgment in a manner that is manifestly unreasonable or the result of bias, prejudice, or ill will. Id. Moreover, "'if the trial court has not held the defendant to the proper burden[,] . . . the equivalent of an abuse of discretion has been demonstrated.'" Petty v. Suburban General Hosp., 363 Pa. Super. 277, 282, 525 A.2d 1230, 1232-33 (1987)(quoting Reyno v. Piper Aircraft Co., 630 F.2d 149, 160 (3d Cir. 1980)).

Recently, in Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156 (E.D. Pa. 1997), *fn2 the Pennsylvania Supreme Court clarified the appropriate standard a trial court should utilize when considering a defendant's petition to transfer venue pursuant to Pa.R.C.P. 1006(d)(1):

a petition to transfer venue should not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiff's chosen forum is oppressive or vexatious to the defendant.

1997 Pa. LEXIS 1713 at *19 (emphasis added). The Court emphasized that trial courts may not consider their own "private and public interest factors," including "court congestion," in determining whether venue should be transferred. Id. Therefore, although two prior Supreme Court decisions, Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989) and Scola v. AC & S, Inc., 540 Pa. 353, 657 A.2d 1234 (1995), included both the "oppressive or vexatious" test and the "private and public interest factors" test, the Cheeseman Court concluded that the inclusion of the second ...


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