J-A26012-23
2024 PA Super 17
ELAINE JAMES : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WAL-MART DISTRIBUTION CENTER, :
BETHLEHEM COMMERCE CENTER, :
LLC, WALMART, INC., WAL-MART : No. 856 EDA 2023
STORES EAST, L.P., JOHN CECCATO :
AND JOHN DOE ELAINE JAMES :
:
:
v. :
:
:
WALMART, INC., WAL-MART STORES :
EAST, L.P., JOHN CECCATO, ABM :
INDUSTRY GROUPS, LLC, :
WALMART.COM USA, LLC, JOHN DOE :
AND JANE DOE :
:
:
APPEAL OF: ELAINE JAMES :
Appeal from the Order Entered March 1, 2023
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 220602184,
220901304
ELAINE JAMES : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WAL-MART DISTRIBUTION CENTER, :
BETHLEHEM COMMERCE CENTER, :
LLC, WALMART, INC., WAL-MART : No. 857 EDA 2023
STORES EAST, L.P., JOHN CECCATO :
AND JOHN DOE ELAINE JAMES :
:
J-A26012-23
:
v. :
:
:
WALMART, INC., WAL-MART STORES :
EAST, L.P., JOHN CECCATO, ABM :
INDUSTRY GROUPS, LLC, :
WALMART.COM USA, LLC, JOHN DOE :
AND JANE DOE :
:
:
APPEAL OF: ELAINE JAMES :
Appeal from the Order Entered March 1, 2023
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 220602184,
220901304
BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.
OPINION BY DUBOW, J.: FILED FEBRUARY 2, 2024
Appellant Elaine James (“Ms. James”) seeks review of the order
transferring venue of this slip-and-fall case from Philadelphia County to Lehigh
County based on forum non conveniens, as provided in Pa.R.Civ.P. 1006(d).
After careful review, we are constrained to reverse.
On September 17, 2020, Ms. James, while working for a contractor at
the Walmart Distribution Center, slipped and fell on a slippery substance. As
a result, she sustained injuries to her back and neck that required surgery and
extensive medical care. The accident occurred in Bethlehem and she received
her medical care in Lehigh County.
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On June 23, 2022, and September 15, 2022, Ms. James filed negligence
actions in the Philadelphia Court of Common Pleas 1 against Appellees
Walmart, Inc., Walmart Stores East, Walmart.com USA, the Walmart
Distribution Center (collectively, “Walmart”) and Mr. John Ceccatto, the
Walmart area manager for the warehouse in Bethlehem.2
The defendants filed Answers. In particular, Appellees Walmart and
Ceccato alleged in their Answer and New Matter/Affirmative Defenses that
they “had no notice of the condition which allegedly caused plaintiff’s
damages” and that the “damages claimed were caused by the acts and/or
omission of third parties over which [Walmart] and [Appellee] Ceccato
exercised no control.”
On November 21, 2022, Appellees filed a Motion to Transfer Venue
based on forum non conveniens, arguing, inter alia, that Ms. James’ choice of
forum in Philadelphia was oppressive because the case had no connection to
Philadelphia County and litigating in Philadelphia would create a hardship for
Mr. Ceccato and others.
____________________________________________
1 The trial court granted Appellant’s Motion to Consolidate her two actions on
October 20, 2022.
2 Appellant also filed suit against the following defendants: ABM, a company
with which the Walmart Distribution Center contracts for its cleaning services;
the Bethlehem Commerce Center, LLC; John Doe; and Jane Doe. These
parties did not file a Motion for Change of Venue based on Forum Non
Conveniens with the trial court, although ABM filed a brief in support of the
Motion filed by Walmart and Mr. Ceccato. The non-filing parties are not
participating in this appeal.
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Appellees annexed to their motion the affidavits of Appellee Ceccato and
David Sampson, the corporate representative of Walmart. The affidavits
asserted that the four-hour round-trip commute to Philadelphia from their
homes in Northampton County “is oppressive because it will severely affect
my personal life and my ability to perform my job.” See Ceccato Aff., ¶¶ 4,
9; Sampson Aff., ¶¶4, 9. Most notably, the affidavits did not identify
Appellees’ defense and the evidence that these two witnesses would provide
that was key to its defense.
The parties engaged in discovery that focused on the venue issue.
Messrs. Ceccato and Sampson provided deposition testimony.
Following the depositions, Ms. James filed a supplemental brief, to which
she annexed the transcripts from the depositions of Messrs. Ceccato and
Sampson.
The court held a hearing and on February 27, 2023, entered an order
granting the motion based on forum non conveniens and transferred the case
to Lehigh County.
Ms. James timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
Statement. The trial court filed a Rule 1925(a) Opinion.
Ms. James raises the following issues for our review:
1. Whether the lower court committed error of law and abuse of
discretion when it granted Appellee’s Motion to Transfer from
Philadelphia to Lehigh County for Forum Non Conveniens using
the incorrect legal standards?
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2. Whether the lower court committed error of law and abuse of
discretion in reaching a manifestly unreasonable outcome in
granting Appellee’s Motion to Transfer for Forum Non Conveniens,
where the two subject witnesses would experience, at most,
inconvenience, if trial were to be held in Philadelphia County
requiring them to slightly adjust their schedules and travel 64
miles each way?
Appellant’s Br. at 4.
A.
In her interrelated issues, which we address together, Ms. James argues
that Appellees failed to meet their “heavy burden to show that Philadelphia is
an oppressive or vexatious forum” and that the trial court, in transferring the
case based on forum non conveniens, misapplied the holdings in Cheeseman
v. Lethal Exterminator, Inc., 701 A.2d 156 (Pa. 1997), and Bratic v.
Rubendall,
99 A.3d 1 (Pa. 2014). Appellant’s Br. at 13-14.
We review a trial court’s decision granting a motion for a change of
venue based on forum non conveniens for an abuse of discretion. Walls v.
Phoenix Ins. Co., 979 A.2d 847, 850 n.3 (Pa. Super. 2009). “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 of record.” Ritchey v. Rutter’s Inc.,
286 A.3d 248, 254 (Pa.
Super. 2022) (citation omitted), reargument denied (Dec. 30, 2022). Notably,
“the trial court’s failure to hold the defendant to the proper burden constitutes
an abuse of discretion.” Catagnus v. Allstate Ins. Co.,
864 A.2d 1259, 1264
(Pa. Super. 2004). Along the same lines, the trial court, in considering a
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motion based on forum non conveniens, shall give the plaintiff’s choice of
forum great weight and deference. Powers v. Verizon Pa., LLC, 230 A.3d
492, 496 (Pa. Super. 2020).
Pa.R.Civ.P. 1006(d)(1) authorizes the trial court to decide a motion to
transfer venue based on forum non conveniens and provides that “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.” Courts have interpreted and
applied Rule 1006(d)(1) to require, as a threshold matter, that the defendant
identify its defense and provide a general statement that identifies the
witnesses who will be inconvenienced by traveling for trial to the plaintiff’s
chosen forum and the relevancy of those witnesses’ testimony to the
defendant’s defense. Tranter v. Z&D Tour, Inc., 303 A.3d 1070, 1075 (Pa.
Super. 2023).
This Court applied this principle in Petty v. Suburban Gen. Hosp., 525
A.2d 1230 (Pa. Super. 1987), where the plaintiff filed a malpractice complaint
in Philadelphia County. The defendant filed a motion to transfer venue based
solely on forum non conveniens, alleging that since the hospital was located
in Montgomery Court and the doctors worked there, the trial court should
transfer the case to Montgomery County. The only evidence that the
defendant provided to support its motion, however, was deposition testimony
from one witness that merely addressed the defendant’s business contacts
with Montgomery County. The defendants did not present any evidence
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identifying the allegedly inconvenienced witnesses and summarizing their
testimony. The trial court granted the motion and transferred the case to
Montgomery County.
This Court reversed, finding that mere allegations of party and witness
inconvenience are insufficient to support the transfer of venue. Id. at 1234.
Rather, the defendant must identify the allegedly inconvenienced witnesses
as key to its defense and provide a general statement of their testimony:
The party seeking the transfer must clearly specify the key
witnesses to be called and must make a general statement of what
their testimony will cover. The emphasis must be on this showing
rather than on numbers. One key witness may outweigh a great
number of less important witnesses. If a party has merely
made a general allegation that witnesses will be necessary,
without identifying them and indicating what their
testimony will be[,] the application for transfer will be
denied.[]
Id. (quoting from Reyno v. Piper Aircraft Co.,
630 F.2d 149, 160-61 (3rd
Cir. 1980) (emphasis added). See also Bochetto v. Dimeling, Schreiber
& Park,
151 A.3d 1072, 1085-86 (Pa. Super. 2016) (requiring detailed
evidence of the relevance of identified witness testimony to the defense in
order to transfer venue based on forum non conveniens claim); Ehmer v.
Maxim Crane Works, L.P.,
296 A.3d 1202, 1208 (Pa. Super. 2023) (“Only
after the defendant has placed detailed information on the record establishing
that the witness possesses information relevant to its defense should the trial
court proceed to consider the alleged hardship posed to the witness.”)
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In this case, after noting that the incident and Ms. James’ medical
treatment occurred in Lehigh County, the trial court found that “the defense
credibly argued and presented supporting facts through affidavit and
deposition that the hardship to Defendant Ceccato’s family and work life was
‘no mere inconvenience.’” Trial Ct. Op., 6/22/23, at 2 n.3, and 4. The trial
court, however, made its hardship analysis without even knowing Appellees’
defense and whether Mr. Ceccato and Mr. Sampson would testify at trial. The
record reflects that Appellees failed to provide a general statement identifying
their defense and thus, establishing that either witness “possesses testimony
that is relevant and necessary to the defense.” Trantor, 303 A.3d at 1075
(citation omitted). Without any information about the witness’ testimony, the
trial court cannot weigh the hardship factors and find that the defendant met
its burden of establishing a hardship.
Id.
We note that, although Appellees allege in their Answer and Affirmative
Defenses that someone else caused the spill and that they lacked notice of the
spill, these are mere allegations, and the affidavits and depositions do not
address the manner in which the testimony of these witnesses supports the
defense. Rather, Appellees’ affidavits merely address the hardship that they
would allegedly suffer if they had to travel to testify in Philadelphia. Without
information about the importance of the trial testimony of Mr. Sampson and
Mr. Ceccato to Appellees’ defense, the trial court erred in assuming that they
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were key witnesses and evaluating the hardship that they would suffer if they
had to testify in Philadelphia.3
Since the record does not indicate that Appellees satisfied the
requirement that they identify their defenses and the witnesses who support
the defenses, the trial court abused its discretion in failing to hold Appellees
“to the proper burden.” Catagnus, 864 A.2d at 1264. Consequently, the
court erred in overriding the deference which it was obligated to provide to
Ms. James’s choice of forum. Cheeseman,
701 A.2d at 162.
Accordingly, we reverse the order transferring venue based on forum
non conveniens.
Order reversed.
Date: 2/2/2024
____________________________________________
3 We note that we have found no legal authority for the proposition that Mr.
Ceccato’s status as a named defendant alone is sufficient to grant a motion
for forum non conveniens. If the case law supported this proposition, then a
defendant who lives in a county other than the one in which the plaintiff filed
the complaint could in all cases successfully have the case transferred to the
defendant’s home county and the plaintiff’s chosen forum would be
meaningless.
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