March 10, 2014
TWANDA AND BYRON JONES, ADMINISTRATORS OF THE ESTATE OF ABIAH JONES, Appellees
MOREY'S PIER, INC., MOREY'S ATTRACTIONS, LLC, AND THE MOREY ORGANIZATION, LLC, Appellants
Appeal from the Order Dated June 29, 2012 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): July Term, 2011, No. 00470
BEFORE: BOWES, DONOHUE, and OTT, JJ.
Morey's Pier, Inc., Morey's Attractions, LLC, and The Morey Organization, LLC, ("Appellants") appeal from the June 29, 2012 order refusing their request to transfer this action to New Jersey. We reverse and remand with instructions that this case be dismissed without prejudice.
On July 7, 2011, Twanda and Byron Jones, in their capacities as co-adminstrators of the estate of Abiah Jones, instituted this wrongful death and survival action against Appellants in Philadelphia County, Pennsylvania. The action arose from the death of eleven-year-old Abiah, which occurred during a school field trip when she fell from a ferris wheel known as Giant Wheel. That structure was situated in Appellants' Wildwood, New Jersey amusement park facility. At the time of the incident, Abiah was a resident of New Jersey and attended school at PleasanTech Academy, which is situated in Pleasantville, New Jersey.
On July 28, 2011, Appellants filed preliminary objections based upon a lack of jurisdiction and improper venue. After those preliminary objections were denied, on March 2, 2012, Appellants moved to dismiss the case on grounds of forum non conveniens pursuant to 42 Pa.C.S. § 5322(e). That motion was denied, and this interlocutory appeal by permission followed. Appellants argue, "Did the lower court abuse its discretion when it denied Defendants' Motion to Dismiss for Forum Non Conveniens under 42 Pa.C.S. § 5322(e) where there is an alternative forum available and the private and public factors weigh heavily in favor of dismissing the case in Pennsylvania and re-filing in New Jersey?" Appellant's brief at 4.
Our pertinent standard of review "of a trial court's ruling on a Petition to Dismiss on the grounds of forum non conveniens" pursuant to § 5322(e) is abuse of discretion. Pisieczko v. Children's Hospital of Philadelphia, 73 A.3d 1260, 1262 (Pa.Super. 2013). We must affirm in this setting if there is any valid basis for the trial court's decision. Id. Before proceeding to the merits, we must stress that this matter does not involve an intrastate request to transfer venue based upon forum non conveniens pursuant to Pa.R.C.P. 1006(d)(1), which governs transfers among Pennsylvania counties. When there is a request to transfer a case to another state, 42 Pa.C.S. § 5322(e) applies. Pisieczko, supra at 1262 n.3 (Pa.Super. 2013) ("42 Pa.C.S.A. § 5322(e) controls when the alternative venue is out-of-state. When the alternative venue is in-state, Pa.R.C.P. 1006(d)(1) controls."). This distinction is significant since a defendant bears a heavier burden under Rule 1006(d)(1), which permits forum transfers only when the defendant establishes that plaintiff's chosen forum is oppressive and vexatious for the defendant. See Bratic v. Rubendall, 43 A.3d 497 (Pa.Super. 2012). In the Rule 1006(d)(1) context, concepts such as whether venue is convenient or a hardship are relevant; those factors are not at issue in a § 5322(e) analysis.
Rather, under § 5322(e), a case should be transferred to another state when "a tribunal finds that in the interest of substantial justice the matter should be heard in another forum[.]" The trial court is compelled to apply two factors when considering whether dismissal is warranted therein. Pisieczko, supra at 1262. Those components are: "1.) the plaintiff's choice of forum should not be disturbed except for 'weighty reasons,' and 2.) there must be an alternate forum available or the action may not be dismissed." Id. at 1263 (citation omitted).
In the present case, Appellants have agreed to waive any applicable statute of limitations and accept service of process in New Jersey. Appellant's brief at 11 ("Defendants will agree to accept service of process and waive the statute of limitations defense if this case is dismissed and Plaintiffs are permitted to refile in New Jersey."). Hence, New Jersey is an available alternative forum, and we proceed to analyze whether there are weighty reasons for disturbing Appellees' decision to pursue this action in Pennsylvania. Jessop v. ACF Industries, LLC, 859 A.2d 801, 803 (Pa.Super. 2004) (citation omitted) ("A stipulation made by a defendant that he or she will submit to service of process and not raise the statute of limitations as a defense has been accepted by the courts as eliminating the concern regarding the availability of an alternate forum."); see also Wright v. Aventis Pasteur, Inc., 905 A.2d 544 (Pa.Super. 2006) (where defendants agreed to accept service with respect to any subsequent action brought in Texas and to waive any statute of limitations defense in that forum, we accepted the existence of an alternate forum and proceeded to analyze first aspect of transfer test).
When determining whether weighty reasons exist so as to overcome the plaintiff's choice of forum, we "examine both the private and public interest factors involved." Engstrom v. Bayer Corp., 855 A.2d 52, 55 (Pa.Super. 2004). In Engstrom, we set forth the pertinent private and public factors:
[The private interests at play include] the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the actions; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to a fair trial.
Factors of public interest also have [a] place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. There is appropriateness, too, in having the trial in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in a law foreign to itself.
Id. at 56 (citation omitted).
In support of their motion for transfer, Appellants adduced the following. The two named plaintiffs and their decedent resided in New Jersey at the time of the incident. The Morey Organization, LLC is actually The Morey Organization, Inc. and was incorporated in New Jersey and its principal place of business is located in Cape May County, New Jersey. Morey's Attractions, LLC was formed in New Jersey and also has its principal place of business in Cape May County.
The accident occurred in Cape May County, and, when Abiah fell from the Giant Wheel, she was located in Wildwood, New Jersey. At that time, Abiah was engaged in a field trip with members of her school, which was PleasanTech Academy, in Pleasantville, New Jersey.
The first responders were: 1) nine police officers, including the police captain and two detectives, from the Wildwood Police Department; 2) five New Jersey residents who were members of the Wildwood Fire Rescue Team; and 3) two paramedics from Atlanti Care Paramedic. Abiah received treatment at a New Jersey hospital, and her autopsy was performed at Shore Memorial Hospital, Sommer's Point, New Jersey.
Various individuals "were onsite and investigated this matter, including inspecting the Giant Wheel and surrounding locations and interviewing witnesses." Defendants' Motion to Dismiss for Forum Non Conveniens, 3/2/12, at ¶ 10. Those people included three employees of the Cape May County Prosecutor's Office and sub-code official Gina Capalbo from the New Jersey Department of Community Affairs, Carnival Amusement Ride Safety Unit. Other individuals who investigated the incident were Department of County Affairs Acting Bureau Chief Michael Baier, Supervisor of Enforcement Michael Triplett, and Chief Inspector Dave Hewitt. All of the named individuals from the Wildwood Police Department, Wildwood Fire Rescue Team, Wildwood Beach Patrol Rescue, Altanti Care Paramedic, Cape May County Prosecutor's Office and the State Department of Community Affairs "participated in the investigation of the incident, including gathering evidence and interviewing witnesses." Id. at ¶ 14.
All of the first responders and the individuals involved in the investigation of the matter "are government or public service employees, whose duties tie them to their posts in New Jersey, and thus whose participation at trial in Philadelphia will be exponentially difficult, burdensome, and an unfair and unnecessary imposition to their municipal and emergency employers as well as the public at large in New Jersey." Id. at ¶ 15. As supported by affidavits attached to Appellants' § 5322(e) motion, many of the witnesses, all of whom possibly possess discoverable information, were unwilling to be deposed absent a subpoena. Accordingly, virtually all routine fact discovery in this case will require extensive motions in the court of common pleas of Philadelphia County as well as the opening of miscellaneous civil actions in the New Jersey courts. None of that would be necessary if the case were pending in New Jersey, "where the cause of action arose, and where all parties, all evidence, and all witnesses are" located. Id. at ¶ 25.
Affidavits presented by Appellants established that "absent subpoenas, the witnesses will not travel to Philadelphia for trial in this matter." Id. at 26. Since the courts of Pennsylvania cannot issue a subpoena to compel the attendance of New Jersey citizens to Pennsylvania for purposes of offering testimony, Appellants will be unable to present the live testimony of fact witnesses who were first responders and who initially investigated the accident.
Witnesses to the accident interviewed by police included: 1) Jill Leap, who was a chaperone on the field trip and resides in Linwood, New Jersey; 2)Andrew Eberhardy, a Giant Wheel operator who now resides in Wisconsin; 3) Mina Samaan, a Giant Wheel operator who resided in New Jersey when the accident occurred; and 4) an unnamed minor. The same burdens described above will be present in obtaining discovery from these eyewitnesses and they cannot be compelled to be present at trial due to the fact that they are not Pennsylvania residents. Employees of the Appellants in possession of discoverable material are not located in Pennsylvania.
In addition to these eyewitnesses examined by police just after the accident, there were other potential witnesses including other students, teachers, and chaperones on the field trip. All of these people are New Jersey residents, and the problems with discovery and compelling their presence at trial apply to them.
All pertinent documents, including medical records, school records, insurance information, police and investigatory reports, and witness interviews are located in New Jersey. The Giant Wheel was inspected and regulated by the New Jersey Department of Community Affairs. New Jersey substantive law will be applicable to this action. At the time that the motion to dismiss was filed, the statute of limitations on Appellees' action had not yet run, so they had the ability to file suit in New Jersey. In the interim, the New Jersey statute of limitations expired, but Appellants have expressly agreed to waive any statute of limitations defenses.
As seen above, all relevant events, including the accident, the autopsy, and the investigation into the accident, occurred in New Jersey when both plaintiffs and their decedent were residents of that state. All the liability witnesses, with the exception of two people who were operating the device, are located in New Jersey. There may be other eyewitnesses from the school or the ride. This information must be ascertained through discovery that must be obtained from New Jersey residents.
The cause of this accident was investigated by numerous people employed by New Jersey public agencies who live in that venue. All of the people who were involved in the school trip, including teachers, students, and chaperones, reside in New Jersey. Appellants cannot, in Pennsylvania, obtain discovery from those witnesses. Rather, discovery will entail a cumbersome process whereby the parties must avail themselves of discovery through the New Jersey courts. There is no manner by which witnesses can be forced to provide live testimony at any trial. Appellants thus unequivocally proved that New Jersey will provide ease of access to sources of proof, which is the first private factor to weigh. This factor is particularly compelling herein and strongly warrants transfer.
There is a possibility of a view, another private factor, but it would require a Philadelphia jury to travel a significant distance to the New Jersey shore. There are no obstacles to a fair trial in New Jersey. Appellants unequivocally proved that a trial of this case in New Jersey will be easier, more expeditious, and less expensive. Hence, all of the above-discussed private factors compel transfer.
Similarly, all of the public factors weigh in favor of trying this action in New Jersey. New Jersey courts are less congested than those in Philadelphia County. Pisieczko, supra. There is no reason to impose jury duty on Pennsylvania citizens for a personal injury action that arose in New Jersey and involved citizens of New Jersey when it occurred. In this action, New Jersey principles of law will apply. It is appropriate for a New Jersey court familiar with those principles to resolve the matter, rather than a Pennsylvania court, which would have to struggle through a conflict of laws analysis.
We cannot find any basis upon which to distinguish this matter from the case of Pisieczko, supra. Therein, the Children's Hospital of Philadelphia ("CHOP") was named as a defendant in a negligence action instituted in the Court of Common Pleas of Philadelphia County by two New Jersey residents. Plaintiffs alleged that they sustained damages recoverable from CHOP when Mr. Pisieczko was injured while he was performing contracting work for CHOP in New Jersey. CHOP successfully had the case dismissed under § 5322(e) because the plaintiffs were residents of New Jersey and "many of the witnesses" resided and worked in New Jersey. Id. at 1262. The trial court analyzed the private factors and concluded that they supported dismissal since the "site of the accident and potential witnesses" were in New Jersey, trial in that venue "would facilitate attendance of the parties and witnesses," there was no indication that the costs of obtaining witnesses were greater in New Jersey, and "a potential view of the accident site would be less complicated logistically with a New Jersey jury." Id. at 1263. The trial court also found that the following public factors warranted dismissal under § 5322(e):
New Jersey courts are less congested than Philadelphia courts. Additionally, a Philadelphia jury has no relation to the litigation because the accident occurred in New Jersey, and the plaintiffs and witnesses to the accident are New Jersey residents. It would be expeditious, with fewer associated costs, to have an Atlantic County Judge familiar with New Jersey law issue the necessary orders and preside over a trial by a jury composed of New Jersey residents.
We affirmed the trial court's determination that these facts provided a sufficient basis for disturbing plaintiff's chosen forum in Pennsylvania and relied upon these facts in concluding the private factors supported transfer of the action to New Jersey: 1) "the cause of action arose from injuries sustained in New Jersey;" 2) the plaintiffs were New Jersey citizens"; 3) "presumably many of the witnesses also reside in that state;" and "a possible jury view of the accident site would be more convenient if the trial were held in New Jersey." Id. at 1263-64. This Court noted that plaintiffs had presented only two witnesses who would be burdened by having the case tried in New Jersey.
We also determined that the trial court had not abused its discretion in its application of the public factors. Significantly, we observed that the "the lower court was correct in its conclusion that a Philadelphia jury has no relation to the litigation at hand. Appellants are New Jersey residents suing about an accident that took place in New Jersey; therefore, jury duty ought not to be imposed on the community of Philadelphia." Id. at 1264. We also ruled that "it would be more expeditious if the case were heard in Atlantic County since the judges there would have more experience applying New Jersey law than those of Philadelphia County." Id. See also Jessop, supra at 804 (transfer proper where "[a]ll pertinent events occurred outside of Pennsylvania, and all known and additional witnesses likely reside outside of Pennsylvania"); Cinousis v. Hechinger Dept. Store, 594 A.2d 731, (Pa.Super. 1991) (slip-and-fall case instituted in Philadelphia, where defendant owned a department store, was properly dismissed to be refiled in New Jersey since plaintiffs were residents of New Jersey and since fall occurred at defendant's New Jersey store); Cf. Hunter v. Shire US, Inc., 992 A.2d 891 (Pa.Super. 2010) (witnesses and documents relating to liability were located in Pennsylvania).
Each consideration at issue in Pisieczko is present herein. The cause of action arose in New Jersey. Both of the Appellees, neither of whom witnessed the incident, and their decedent were residents of New Jersey at the time of the accident. All of the liability witnesses, except two who are not Pennsylvania residents, live in that state. Appellants established unequivocally that there will be significant burdens associated with conducting discovery in New Jersey and that they will be unable to subpoena any of the New Jersey witnesses to provide live testimony at trial. A view of the structure may be warranted, and a Philadelphia County jury should not be taxed with travel to Wildwood. New Jersey courts are less congested, and a Philadelphia jury has no relation to this litigation. Finally, a Philadelphia trial judge will be burdened with ascertaining New Jersey law if the matter proceeds herein. All of the private and public factors support dismissal under § 5322(e).
We now examine the reasons that the trial court proffered for its refusal to transfer venue. None provides a valid basis upon which the trial court's action can be sustained. It first noted, "Most of Appellants' argument relies on the availability of certain witnesses for trial, specifically the first responders and the police officers. None of these witnesses, however, actually witnessed the incident." Trial Court Opinion, 1/18/13, at 4. The first statement is incorrect, and the second is irrelevant. Appellants' argument did not primarily rely upon the availability of the first responders and police officers. Their position was premised upon the fact that almost all of the witnesses involved in this action live in New Jersey, including New Jersey public officials who conducted a complete investigation of the accident. Appellants also noted that they needed to conduct discovery in New Jersey regarding the students, teachers, and chaperones of the field trip since they also may have viewed relevant events. New Jersey discovery will have to be conducted to ascertain the identity of eyewitnesses mentioned in the report authored by a first responder police officer. Thus, the fact that the first responder police officers did not see the accident is not the determinative inquiry. They conducted an initial investigation of the accident and will have significant information pertinent as to how it occurred, as well as knowledge of potential witnesses. Thus, they will possess discoverable information.
The trial court also inexplicably failed to consider the fact that any New Jersey witness is beyond the subpoena power of Pennsylvania, and he cannot be compelled to appear at trial. It discounted the possibility of a view of the premises and indicated that a videotape could serve as a substitute for a viewing. A videotape cannot provide an accurate assessment of the height or stability of the device that would be available to a person actually viewing the ferris wheel.
The trial court also rejected Appellants' position that they will not be able to conduct discovery in Pennsylvania with respect to school employees located in New Jersey and may not be able to produce them at trial. It found, based upon a representation that Appellees made oral argument on the transfer motion, that these witnesses "have shown willingness to avail themselves for trial purposes." Id. at 4. This finding is wholly unsupported by the record.
Appellants noted in their petition to transfer that school employees, students, and chaperones of the field trip will have to be located and deposed. At argument, Appellees acknowledged that "there is argument too, well, we may need witnesses from her school." N.T., 9/6/12, at 24. Appellees also conceded that the "school is defunct." Id. Appellees continued, "Who knows where the teachers are working, if they are working, whether they are. But certainly if we need to bring in teachers, we can do it. They would certainly cooperate with the family; that is not going to be [an] issue." Id. Hence, Appellees were unable to name any witnesses and admitted that they did not know where those witnesses were located. Their representation that these individuals would "certainly cooperate" was wholly unsupportable.
Finally, it is clear that the trial court premised its position partially on whether Philadelphia was a "convenient forum" for certain witnesses. It observed, "Officials from the Department of Community Affairs, who inspected the Great Wheel ride, are located in Trenton, New Jersey, which is much closer to Philadelphia than to Cape May." Trial Court Opinion, 1/18/13, at 5. It noted that two of the eyewitnesses, Andrew Eberhardy and Mina Samman, lived in other states and could more readily fly into Philadelphia. Finally, it observed that Philadelphia was "more convenient for the father and grandmother of the decedent[.]" Id.
Whether Philadelphia is more convenient overlooks the pertinent inquiry. Even if Trenton is closer to Philadelphia than Wildwood, the question is whether the New Jersey public officials can be deposed in Pennsylvania and presented as witnesses in Philadelphia. While they also may not willingly come to a court in New Jersey, the fact remains that the compulsory process will be available in New Jersey as to these New Jersey witnesses. Appellees adduced no proof that any New Jersey witness would be willing to come to Philadelphia for deposition and for trial, while Appellants presented affidavits from many witnesses who would not be amenable to discovery and appearance at trial in Philadelphia. The fact that Mr. Jones and his mother prefer to try this matter in Philadelphia, standing alone, cannot be grounds for retaining this litigation in that venue given the overwhelming evidence that discovery will be immeasurably more cumbersome here, and that compulsory process is not available for New Jersey witnesses in Philadelphia. Pisieczko, supra.
We now attempt to address Appellees' arguments, which are difficult to ascertain. They present scattershot, irrelevant, and misguided statements. For example, throughout their brief, Appellees rely upon inapplicable cases discussing intrastate transfers of actions under Pa.R.C.P. 1006(d)(1) rather than interstate venue transfers under § 5322(e). Concomitantly, Appellees often mention the fact that Philadelphia will be more convenient for some witnesses, and that Appellants did not establish that the New Jersey residents will suffer hardship by traveling here. E.g. Appellees' brief at 9, 11, 12, 40. Along the same vein, Appellees consistently mention that Appellants did not establish that this jurisdiction would be burdensome. E.g. Appellees' brief at 8, 9, 23.
Whether a venue is burdensome, a hardship, or a convenience is pertinent to the Pa.R.C.P. 1006(d)(1) test; not the test utilized under § 5322(e). Appellees have failed to address the key questions, which are whether discovery will be more difficult due to the fact that it will have to be conducted through the New Jersey courts, and whether New Jersey witnesses can be compelled to appear in Philadelphia, regardless of the convenience of that forum.
Appellees also repeatedly insist that Appellants have failed to establish that the myriad New Jersey witnesses possess "relevant, admissible information." E.g. Appellees' brief at 1, 9, 10. The argument itself is a non-sequitur because that is the purpose of discovery, which Appellants are hindered in conducting in Pennsylvania. More importantly, it is incorrect. It is untenable to maintain that people who responded to the scene, conducted interviews, and investigated the accident will not have information relevant to this matter. It is not contested that New Jersey state officials engaged in a complete investigation as to how this accident occurred. They will, in fact, have pertinent, discoverable information. Appellees cannot claim that New Jersey residents who were school employees, students and/or chaperones may not possess information of relevance herein.
Appellees also argue that a Philadelphia jury would have an interest in this matter because Appellants conducted sufficient business in that county to subject them to personal jurisdiction in this Commonwealth. Again, this argument fails to address the relevant issue, which is whether jury duty should be imposed upon the people of "a community which has no relation to the litigation." Philadelphia does not have a relation to a case involving the death of a New Jersey child and arising from an accident that occurred in New Jersey. The fact that Appellees conduct business in Philadelphia does not mean that the litigation at issue herein is related to Philadelphia; it merely established that Appellees were subject to personal jurisdiction in this Commonwealth. Jessop, supra (plaintiff did not prove Pennsylvania jury had relation to litigation, which involved activities that occurred in Kansas, based on the fact that the defendant did business in this Commonwealth and citizens of Pennsylvania might have an interest in the litigation). As to the other public factors, Appellees cannot avoid our acknowledgement last year that Philadelphia has a more congested court system than that of New Jersey. Pisieczko, supra. In that decision, we also agreed that it was better for the New Jersey court to decide a matter where New Jersey law applies than to force a Pennsylvania court to engage in a conflicts-of-law analysis.
In light of the Pisieczko, Jessop, and Cinousis decisions, we must reverse the order in question and remand with directions that the court enter an order dismissing the complaint without prejudice to the right of Twanda and Byron Jones, Administrators of the Estate of Abiah Jones, to refile the lawsuit in any appropriate court in New Jersey. In New Jersey, The Morey Organization, Inc. and Morey Attraction, LLC are to accept service, and are prohibited from asserting lack of personal jurisdiction in the state of New Jersey or the defense of the statute of limitations.
Order reversed with directions. Case remanded. Jurisdiction relinquished.
Judge Donohue Concurs in the Result.