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Alexander Bratic and Joseph Proko v. Charles W. Rubendall

April 23, 2012


Appeal from the Order entered July 9, 2009 in the Court of Common Pleas of Philadelphia County Civil Division at February Term, 2009, No. 003418

The opinion of the court was delivered by: Mundy, J.

J. E03001/11



Appellants, Alexander Bratic and Joseph Proko, appeal from the order entered July 9, 2009 granting Appellees' petition to transfer the case to Dauphin County on the grounds of forum non conveniens pursuant to Pa.R.C.P. 1006(d)(1). We reverse and remand for further proceedings.

The pertinent factual and procedural background, as gleaned from the certified record, follows. On February 23, 2009, in the Court of Common Pleas of Philadelphia County, Appellants filed a complaint against Appellees, Charles W. Rubendall, II, Esq. (Rubendall), Keefer, Wood, Allen & Rahal, LLP (the Keefer Firm), Residential Warranty Corporation of Pennsylvania (Residential), and Integrity Underwriters, Inc. (Integrity). Appellants' complaint alleged causes of action sounding in wrongful use of civil proceedings and abuse of process. On April 17, 2009, Appellees filed preliminary objections challenging venue in Philadelphia County as improper. Appellants filed an amended complaint on April 29, 2009, whereupon Appellees renewed their preliminary objections challenging venue in Philadelphia County. In addition, on May 20, 2009, Appellees alternatively filed a petition for transfer of venue on the grounds of forum non conveniens. On July 9, 2009, the trial court granted Appellees' alternative petition and ordered venue transferred to Dauphin County on the basis of forum non conveniens.*fn1 Thereafter, Appellants filed a timely notice of appeal.*fn2 Pursuant to Pa.R.A.P. 1925(a), on October 13, 2009, the trial court filed an opinion in support of its order transferring venue to Dauphin County.*fn3

On January 14, 2011, a panel of this Court affirmed the trial court, with one member of the panel dissenting. In reaching this decision, the majority held the trial court did not abuse its discretion in determining that Appellees met their burden to show that Appellants' choice of venue was vexatious and oppressive. The dissent contended that the trial court abused its discretion in applying the law to the facts in this case and that Appellees failed to meet the heavy burden imposed on a party challenging venue on the basis of forum non conveniens. On January 28, 2011, Appellants filed an application for reargument en banc, which this Court granted on March 21, 2011.

On appeal, Appellants raise the following question for our review.

Did the trial court abuse its discretion and/or misapply the law when it transferred the instant matter from Philadelphia County to Dauphin County based on forum non conveniens, despite the fact that [Appellees'] general, unspecified allegations of inconvenience for witnesses who probably will not testify at trial failed to meet the heavy burden of providing detailed information of record that [Appellants'] choice of venue was oppressive or vexatious to [Appellees]?

Appellants' Brief at 5.

In an appeal from an order transferring venue on the basis of forum non conveniens, our standard of review is "whether the trial court committed an abuse of discretion." Catagnus v. Allstate Ins. Co., 864 A.2d 1259, 1263 (Pa. Super. 2004).

If there exists any proper basis for the trial court's decision to transfer venue [pursuant to Rule 1006(d)(1)], the decision must stand. An abuse of discretion is not merely an error of judgment, but occurs only where the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record.

Zappala v. Brandolini Property Management, 909 A.2d 1272, 1284 (Pa. 2006) (citations omitted). "[A] trial court's failure to hold the defendant to the proper burden constitutes an abuse of discretion." Catagnus, supra at 1264.

The issue of whether to transfer venue between counties within Pennsylvania on the ground of forum non conveniens is governed by Pa.R.Civ.P. 1006(d)(1), which states as follows. "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.Civ.P. 1006(d)(1). Our Supreme Court has carefully outlined the relative burdens and the relevant considerations to be weighed by a trial court when entertaining a petition under Rule 1006(d)(1).

[T]he plaintiff's choice of forum should rarely be disturbed by the grant of a Rule 1006(d)(1) petition. We cannot overemphasize ...: a trial court, even if congested, must give deference to the plaintiff's choice of forum in ruling on a petition to transfer venue.

[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.

Thus, ... the defendant may meet its burden of showing that the plaintiff's choice of forum is vexatious to him by establishing with facts on the record that the plaintiff's choice of forum was designed to harass the defendant, even at some inconvenience to the plaintiff himself. Alternatively, the defendant may meet his burden by establishing on the record that trial in the chosen forum is oppressive to him; for instance, that trial in another county would provide easier access to witnesses or other sources of proof, or to the ability to conduct a view of premises involved in the dispute. But, we stress that the defendant must show more than that the chosen forum is merely inconvenient to him.

Cheeseman v. Lethal Exterminator Inc., 701 A.2d 156, 162 (Pa. 1997) (citations and footnotes omitted) (emphasis added); see also Walls v. Phoenix Ins. Co., 979 A.2d 847 (Pa. Super. 2009); Hunter v. Shire US, Inc., 992 A.2d 891, 896-897 (Pa. Super. 2010).

In the instant matter, the trial court found as follows.

In the present case, the facts of the record establish that continuing this action in Philadelphia County is both vexatious and oppressive. The earlier claim, upon which the present Complaint is in regard to, took place in Dauphin County. All [Appellees] are from Dauphin County. None of the [Appellants] are from Philadelphia County. The main legal question the [trial c]court is faced with is one of "probable cause" for which there are eight key witnesses. All eight of these witnesses are in Dauphin County. All eight of these witnesses are engaged in business activities which make their ability to appear at trial in Philadelphia County far more of a burden than a trial in Dauphin County. The sole connection with Philadelphia County is the fact that all [Appellees] occasionally conduct business in Philadelphia.

Trying this case in Dauphin County would provide better access to all potential witnesses and other sources of proof such as court documents from the prior Dauphin County action. Accordingly, the facts of record clearly establish that [Appellants'] choice of forum ...

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