Pittsburgh, PA and Harrisburg, PA
Few concepts are more steeped in Pennsylvania law than the doctrine of forum non conveniens. Memorialized in Pennsylvania Rule of Civil Procedure 1006, the doctrine provides defendants a “necessary counterbalance to a plaintiff’s choice of forum to insure [sic] fairness and practicality.” Bratic v. Rubendall, 99 A.3d 1, 6 (Pa. 2014) (cleaned up). Historically, to establish forum non conveniens, a defendant had to show the plaintiff’s chosen forum is either oppressive or vexatious without any particular form of proof. Through a series of recent decisions, however, the Pennsylvania Superior Court has sown uncertainty in the once-settled area of the law, subjecting some litigants to new, more rigid requirements and others to the traditional, flexible standard that has existed under Pennsylvania law for over a quarter century. With each new decision, the intermediate appellate court reveals another piece of the puzzle. But as a fragmented image takes shape, litigants and trial courts are looking to the Pennsylvania Supreme Court to solve the puzzle.
Forum non conveniens was once a reliable tool for defendants to transfer a case to a more appropriate forum in the Commonwealth if litigating in the plaintiff’s chosen forum would be oppressive or vexatious. In applying the doctrine, the Pennsylvania Supreme Court has consistently emphasized the necessity of a fact-specific assessment, refusing to impose a specific standard of proof and instead focusing on the totality of the circumstances with considerable discretion granted to trial courts. Bratic, 99 A.3d at 6-8; Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156 (Pa. 1997).
But at least two Superior Court panels have imposed new, more rigid requirements holding defendants to a specific level of proof for a forum non conveniens challenge. Ehmer v. Maxin Crane Works, L.P., 296 A.3d 1202 (Pa. Super. Ct. 2023); Tranter v. Z&D Tour, Inc., 303 A.3d 1070 (Pa. Super. Ct. 2023). The heightened standard requires movants to establish that potential witnesses claiming burden or hardship are “key witnesses” possessing testimony “relevant and necessary” to the defense. Yet, the Superior Court subsequently issued two additional decisions on this subject, both of which fail to acknowledge the purported change in law or to clarify when one standard applies over the other. See Smith v. CMS W., Inc., 1002 EDA 2022, 2023 WL 7119812 (Pa. Super. Ct. Oct. 30, 2023); Austin v. Amazon.com, Inc., 756 EDA 2023, 2023 WL 7273842 (Pa. Super. Ct. Nov. 3, 2023). A recent article summarized the issue as a “war of words” in which trial courts are asked to decide whether the plaintiff’s selected forum is vexatious or oppressive, or merely inconvenient to the defendant. “Forum Selection—Forum Non ‘Convenience’: No Need for ‘Corrective Action,’” The Legal Intelligencer (Dec. 1, 2023). But without consistency or a clear standard, the bench and the bar are deprived of uniform guidance as to how a case may be transferred out of an oppressive venue.
The Ehmer-Tranter Standard
Parties seeking a change of venue bear a heavy burden to justify the request under the new Ehmer–Tranter standard—a burden which includes the need to demonstrate their claimed hardships on the record when applied. In Ehmer, for example, the site of the relevant accident, the fact witnesses expected to be called at trial, all records related to the plaintiff’s medical treatment, and the plaintiff himself were all located more than 100 miles from Philadelphia County where the case was filed. The trial court transferred the case but the Superior Court reversed, finding the trial court erred by not first determining whether the testimony from the affiants and potential witnesses were “relevant and necessary” to the defense. Ehmer, 296 A.3d at 1207-08. Without recognizing the novel standard that it announced or its break from precedent, the panel proclaimed that a transfer request based on an allegation of witness hardship must (1) identify the allegedly encumbered witness and (2) make a general statement of what testimony that witness will provide. “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,” the panel held.
The Superior Court augmented the new standard further in Tranter. There, the accident giving rise to the claims occurred over 250 miles from Philadelphia County; none of the plaintiffs reside in or received medical care there; none of the defendants reside or maintain a principal place of business in Philadelphia County; and of the dozens of potential witnesses, including emergency, medical, police, and investigating officers, none work or reside there and many reside no closer than 240 miles from Philadelphia County. The only arguable connection with Philadelphia is the fact that some of the defendants conduct business there—but that is irrelevant to a forum non conveniens analysis. The trial court agreed and granted the petitions to transfer to Westmoreland County.
Writing on the heels of Ehmer, the Superior Court panel held that, to satisfy the forum non conveniens standard, a defendant must establish that the potential witness is “‘key’ to the defense.” The panel then proceeded to apply a de novo standard of review and probe the facts relied upon by the trial court. The result was the panel vacating the transfer orders and discounting 11 affidavits and 32 statements from potential witnesses who worked and resided 240 or more miles from Philadelphia County, on the basis that the movants failed to establish these witnesses were “key” witnesses whose testimony is “relevant and necessary” to the case.
Ehmer and Tranter mark a clear departure from precedent, which makes clear that no particular form of proof is required to establish that a forum is oppressive under forum non conveniens. Rather, “[a]ll that is required is that the moving party present sufficient factual basis for the petition.” Bratic, 99 A.3d at 9. These holdings also diverge from other Superior Court decisions affirming transfer, including two subsequent decisions (Smith and Austin) that make no attempt to reconcile the inconsistent standards. Petitions for allowance of appeal are currently pending before the Pennsylvania Supreme Court in both Ehmer and Tranter.
The notable lack of consistency among recent Superior Court decisions on forum non conveniens leaves litigants to grapple with an unpredictable standard at a time when forum non conveniens has become increasingly vital. Earlier this year, the U.S. Supreme Court rejected a due-process challenge to Pennsylvania’s consent-by-registration statute in Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023), where a nonresident brought a lawsuit against an out-of-state corporation. Although other potential challenges to that statute remain pending, as it currently stands, corporate defendants who are not “at home” in Pennsylvania now face the real prospect of suit in the Commonwealth for claims arising in any jurisdiction by a plaintiff with no ties to Pennsylvania. Then, in Hangey v. Husqvarna Professional Products, 278 A.3d 301 (Pa. 2023), the Pennsylvania Supreme Court held that venue could lie over a defendant who does only 0.005% of its annual business in forum. Thus, a corporation may be sued in a venue even if they have a de minimis amount of business in the county. When read together, Mallory and Hangey make forum non conveniens a defendant’s last line of defense (no pun intended) against forum shopping. But where forum non conveniens once operated as a safety net to protect defendants from oppressive or vexatious forum shopping, the Ehmer–Tranter standard makes it even more likely that Pennsylvania disputes will be adjudicated wherever they are filed—regardless of the burden on the parties and witnesses—exacerbating the Commonwealth’s burgeoning forum-shopping problem. Mallory, 600 U.S. at 153-54 (Alito, J., concurring in part and concurring in the judgment) (noting that Philadelphia is a venue that is “reputed to be especially favorable to tort plaintiffs”).
The irony of the new, heightened standard is it will harm Pennsylvania’s busiest trial court by causing more cases to remain in the Philadelphia County Court of Common Pleas at a time when it is already overburdened with an influx of cases resulting from the repeal of Pennsylvania’s medical malpractice venue rule. Caseload issues aside, meeting the “key witness” requirement is practically impossible for litigants. Forum non conveniens is raised on a petition to transfer at the preliminary stages of litigation—before discovery and before the parties have fully developed their claims and defenses for trial. Even when venue discovery occurs, inquiry into the lawsuit’s merits is often precluded or limited, so it is difficult if not impossible to establish a witness’s relevance at such a preliminary stage. It is therefore unreasonable, unworkable, and inefficient to mandate at this early stage that defendants establish certain witnesses (including third-party witnesses) as key witnesses and identify with precision the relevance and necessity of each witness’s testimony for purposes of forum non conveniens. Indeed, if the defendants in Tranter cannot satisfy the Ehmer–Tranter standard, it is difficult to imagine any set of facts that could, making plaintiff’s chosen forum virtually unassailable.
Carla Castello is a shareholder at Babst Calland. She focuses her practice on complex commercial litigation and class actions. Carla is a former law clerk to the Honorable Nora Barry Fischer of the U.S. District Court for the Western District of Pennsylvania. Contact her at 412-394-6516 or firstname.lastname@example.org.
Casey Alan Coyle is a shareholder at Babst Calland and Co-Chair of the firm’s Litigation Group. He focuses his practice on appellate law and complex commercial litigation. Casey is a former law clerk to Chief Justice Emeritus Thomas Saylor of the Pennsylvania Supreme Court. Contact him at 267-939-5832 or email@example.com.
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Reprinted with permission from the January 24, 2024 edition of The Legal Intelligencer© 2024 ALM Media Properties, LLC. All rights reserved.