New Guidance from Pennsylvania’s Superior Court for Establishing Factual Basis to Transfer Venue

Marshall Dennehey
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Since the Supreme Court of Pennsylvania’s August 25, 2022, order changed the venue rules in medical malpractice cases—from requiring that cases be filed “only in a county in which the cause of action arose” to applying the same venue standards that apply to all other types of cases—motions to transfer due to forum non conveniens have taken a much more prominent position in medical malpractice litigation. Now that the new venue rule has been in effect since January 1, 2023, defense practitioners must place more emphasis on what needs to be established factually in order to transfer a case from one county to another.

The Superior Court’s October 11, 2023, opinion in Tranter v. Z&D Tour, Inc., 2023 Pa.Super. 200, --- A.3d --- (Pa. Super. Oct. 11, 2023) once again reaffirmed what practitioners are required to do in order to support a forum non conveniens motion. The Tranter case arises out of a bus accident that occurred in Westmoreland County, Pennsylvania. After the bus rolled over and became disabled, it was hit by multiple tractor trailers, which resulted in five fatalities and multiple other injured parties. The scene following the crash included multiple EMS personnel and first responders who came to attend to those involved in the accident.

A civil action lawsuit was eventually filed in Philadelphia County. Certain defendants filed motions to transfer venue based upon forum non conveniens. In support of these motions, “eleven affidavits from first responders and others who lived and worked in and around Westmoreland County” were included with the motions. Additionally, the parties conducted depositions of the affiants, which provided another opportunity to develop a sufficient record for the motion to transfer venue. The trial court granted the motion to transfer venue, concluding that, because the potential witnesses would have to travel over 200 miles if called to testify at trial, the defendants established that Philadelphia County was an “oppressive and vexatious venue.”

On appeal, however, the Superior Court reversed. In so doing, the court commented that there was no on-the-record discussion or other evidence to establish the significance of these proposed witnesses that was relied upon for the transfer to the defense of the case. Without establishing why the proposed witnesses were significant to the defense of the case, the court said that there was no reason to even examine the potential hardship.

Accordingly, moving forward, when defense practitioners attempt to transfer venue based upon forum non conveniens, the first step is to determine the “key witnesses” to the defense. Once those witnesses are identified, an affidavit must be procured that first sets forth how each witness is relevant and necessary to establish or refute a specifically enumerated claim and/or defense. Second, after the affiant’s relevance to the defense has been established, specific facts that prove a hardship for the witness should also be set forth. The Superior Court has warned that “nearly identical claims of oppressiveness” are not viewed favorably. Thus, to the extent that the various affidavits set forth different facts showing hardship, it will serve to strengthen the motion to transfer. Finally, as demonstrated by the Tranter case, do not miss out on an opportunity to develop witnesses’ significance to the defense and hardships/oppression through deposition. Should the trial court allow depositions to take place, use them to further develop the record in support of the motion to transfer venue. 

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Marshall Dennehey
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