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[U] Jones v. Morey's Pier, Inc.

Superior Court of Pennsylvania

March 10, 2014



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




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.[1]

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, ...

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