PA Superior Court Affirms Venue Transfer Out of Philadelphia County
March 6, 2013

Stoner v. Penn Kleen, Inc., et al., 2012 PA Super. 218 (10/5/12)

by Carl D. Buchholz, III

In a case of significant importance to a defendant’s ability to challenge the forum non conviens filing of a plaintiff’s lawsuit in Philadelphia County that has no connection with Philadelphia, and is only filed in Philadelphia for potential inflated settlement/verdict, the Pennsylvania Superior Court recently affirmed the trial court’s transfer of a case from Philadelphia County to rural, conservative Adams County, where the trial court had found that trial in Philadelphia County would be oppressive for one of the named defendants.

Plaintiff George Stoner was injured while disassembling a pressure washer for his employer, Swope Salvage, located in Adams County, Pennsylvania.  Plaintiff was severely burned after fuel and/or vapors that had been left in the pressure washer ignited.   Plaintiff sued Penn Kleen, Inc., on the ground that it had been instructed by Swope Salvage prior to the accident to empty all fluid from the pressure washer before delivering it to Swope Salvage for disassembly and salvage.  Plaintiff also sued several entities collectively referred to as the “Nilfisk defendants” entities located in Minnesota and Denmark, which had allegedly manufactured the pressure washer.  Rawle & Henderson represented the “Nilfisk defendants.”

The evidence of record showed the following with regard to the parties:
1) The plaintiff resided in York County, Pennsylvania;
2) Defendant Penn Kleen’s principal place of business was located in York County, Pennsylvania;
3) The “Nilfisk defendants” were entities located in either Minnesota or Denmark; and
4) Defendant Penn Kleen only had four employees, all of whom resided in York County, and all of whom had information relevant to the circumstances regarding plaintiff’s allegations.

Penn Kleen filed a forum non conviens motion to transfer the case from Philadelphia to Adams County.  Under Pennsylvania law, a defendant seeking transfer from the plaintiff’s chosen forum must establish that the chosen forum is oppressive or vexatious to that defendant.  In support of its motion, Penn Kleen submitted affidavits from its four employees which alleged that trial in Philadelphia, which would be more than two hundred and five miles round trip, would force Penn Kleen to shut down its business during the trial, resulting in a loss of income to the business, as well as each employee.

The trial court considered the evidence of record and concluded that defendant Penn Kleen “had established through detailed information on the record” that plaintiff’s chosen forum was oppressive and vexatious to Penn Kleen and its employees and granted Penn Kleen’s motion to transfer the case to Adams County.

On appeal to the Pennsylvania Superior Court, plaintiff’s counsel argued that the affidavits of Penn Kleen and its employees regarding the alleged hardship that trial in Philadelphia would present only established evidence of “inconvenience”, not oppressiveness or vexatious.  Plaintiff’s counsel also argued the trial in Adams County would also cause the same disruption to the business of Penn Kleen and result in the same economic hardships to Penn Kleen and its employees.  Lastly, plaintiff argued that Adams County would be more “oppressive and vexatious” to the representatives of the Nilfisk defendants who would be needed at trial since the airport they would fly into is located in Philadelphia, making travel and trial in Adams County vexatious and oppressive to employees.  Carl Buchholz, head of Rawle & Henderson’s Appellate Department represented the Nilfisk defendants in the appeal before the Superior Court.  Most of the prior recorded decisions from the Pennsylvania Supreme Court and Pennsylvania Superior Court regarding forum non conviens transfers dealt with cases where the appellate courts found that the evidence did not establish the requisite “oppressiveness and vexatious” required to disturb a plaintiff’s chosen forum; the prior appellate opinions did not set forth what evidence was necessary to establish the necessary “detailed information on the record” to establish oppressiveness and vexation.

Following oral argument, a three-judge panel of the Superior Court issued an opinion agreeing with the trial court that the defendants’ evidence constituted “detailed information on the record” to establish the oppressiveness standard required for a forum non conviens transfer.  The Superior Court also rejected plaintiff’s contention that the alleged inconvenience of Adams County as a forum to the Nilfisk defendants was a factor to be considered where the Nilfisk defendants made no such claim of inconvenience.

Although the Superior Court’s initial Opinion was issued as “Non-Precedential” the defendants filed a joint motion for the Superior Court to reissue its Opinion as “Published” so that it could be cited as precedential authority in future cases.

Carl D. Buchholz, III is Chair of the Maritime, Insurance Coverage and Appellate Sections of Rawle & Henderson LLP. His federal appellate practice includes an argument before the United States Supreme Court as well as numerous arguments before the U.S. Court of Appeals for the Third Circuit. His state appellate practice includes seven arguments before the Pennsylvania Supreme Court as well as numerous arguments before the Pennsylvania Superior Court and Commonwealth Court. In 2006, the Pennsylvania Supreme Court appointed Carl to the Disciplinary Board of the Supreme Court of Pennsylvania. In 2010, the Pennsylvania Supreme Court designated Carl as Chair of the Disciplinary Board. He graduated from Muhlenberg College in 1967 and Villanova Law School in 1970 where he was a member of the Villanova Law Review and graduated with honors.

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