The Supreme Court of Pennsylvania’s recent decision in Tranter v. Z&D Tour Inc. is likely to ease the burden on defendants seeking dismissal based on forum non conveniens. The Tranter decision is a significant win for defendants who are often harmed by plaintiff forum-shopping to unfriendly defense venues in Pennsylvania.
Case Background
After a multi-vehicle collision in Westmoreland County, in western Pennsylvania, the plaintiffs brought suit in Philadelphia County, a notoriously plaintiff-friendly venue almost 300 miles away from the site of the accident. The defendants, using the doctrine of forum non conveniens, petitioned to transfer the case to Westmoreland County, where the vast majority of the collision’s witnesses resided. In support of their petition, the defendants produced affidavits in which witnesses to the collision stated travel to Philadelphia would be both expensive and disruptive. The Philadelphia Court of Common Pleas granted the petition.
But the Superior Court reversed, stating that a forum non conveniens transfer must include a finding that the plaintiff’s chosen venue is either oppressive or vexatious. Here, the Superior Court reasoned, the plaintiffs did not file in Philadelphia County to harass the defendants or impose hardship on them, nor was there a finding that the chosen venue was oppressive under the existing “key witness” framework from Petty v. Suburban General Hospital, a 1987 Superior Court decision. The Superior Court indicated that the defendants’ lists of witnesses located in Westmoreland County and their corresponding affidavits and supporting briefing, which explained the difficulty of attending a trial in Philadelphia, was insufficient to show those witnesses were “key” for the defense.
Appeal to the Pennsylvania Supreme Court
The defendants appealed to the Supreme Court of Pennsylvania and argued the “key witness” requirement from Petty imposed an unreasonably difficult burden. The key witness standard required the party claiming oppressiveness to 1) produce a statement of testimony the witness will generally provide and 2) establish the witness is “key” to the defense. Petty defined “key” as being relevant and necessary to the defense.
The Supreme Court agreed with the defendants and disposed of the “key witness” test. According to the Supreme Court, the “key witness” requirement placed an “excessively high burden upon the defense.” The Court instead implemented a two-factor test based on relevance and hardship. A petitioner demonstrates relevance by providing the trial court with “a ‘general statement’ of what the witness’ testimony may be expected to entail.” As to hardship, the Court declined to establish a brightline rule. However, the Court suggested that 100 miles between a witness and the trial venue is “a valuable benchmark for distinguishing between oppressiveness and mere inconvenience.” Notably, the Court explained that distance was not the deciding factor but is always a part of the decision.
Here, the Court held that the trial court did not abuse its discretion in transferring the case to Westmoreland County. The Supreme Court, considering that most of the witnesses were located more than 300 miles away from Philadelphia County, reasoned that the defendants made a sufficient showing of both relevance and hardship to warrant granting their petition to transfer the case.
The Supreme Court’s Consideration of Remote Testimony
Importantly, the Supreme Court rejected the plaintiffs’ contention that the distance between a witness and the chosen venue is irrelevant because of remote testimony. First, the Court emphasized that virtual hearings and appearances are not authorized by the Pennsylvania Rules of Civil Procedure. Second, the Court reasoned that remote testimony, which is not a true substitute for a witness testifying live in the courtroom, should be reserved for emergencies. According to the Court, virtual hearings and appearances are “not an adequate substitute in the ordinary course,” and that permitting the unlimited use of “virtual litigation” would end the doctrine of forum non conveniens.
Looking Ahead: Impact on Future Cases
The Tranter decision is a notable victory for defendants who are plagued by plaintiff forum shopping, an especially popular strategy in Pennsylvania. Now, the burden on a defendant seeking a venue transfer under forum non conveniens is much lighter than the old “key witness” standard established by Petty. A defendant who seeks to transfer venue based on forum non conveniens must make a showing of relevance and hardship of a witness who would be burdened by venue transfer instead of the antiquated “key witness” standard.
The fact that the Supreme Court condemned the concept of remote testimony, which plaintiffs typically rely on to justify litigation in venues either unrelated to the underlying case or far away from the location of witnesses (or both), represents a notable shift towards fairness. Forum non conveniens motions in which a defendant shows the relevance and hardship imposed on a witness due to venue transfer will be valuable tools in defending any personal injury litigation in Pennsylvania. Defendants should consider a motion to transfer venue based on forum non conveniens if a case is filed in Pennsylvania more than 100 miles from witnesses.
