Wade Clark Mulcahy LLP

In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/06/Ehmer-v.-Maxim-Crane-Works-L.P.pdf">Ehmer v. Maxim Crane Works L.P.</a>,</em> the Pennsylvania Superior Court reversed a Philadelphia judge’s decision to transfer a personal injury case from Philadelphia to Columbia County.  Plaintiff John Ehmer was injured when he struck the rear of a tractor trailer owned and operated by Maxim Crane Work while traveling on I-80 in Columbia County.  The Maxim truck was traveling in the right lane below the posted speed limit.  Ehmer is a resident of Berwick, Columbia County, and received his medical treatment in that county.  Maxim is a Kentucky corporation with corporate office in Bridgeville, Allegheny County.  Ehmer filed a person injury lawsuit in Philadelphia County.  After the completion of discovery, Maxim filed a motion to transfer venue to Columbia County pursuant to <em>forum non conveniens</em>.  In support of its motion, Maxim alleged that trial in Columbia County would provide easier access to Ehmer’s medical records and the scene of the collision, and that trial in Philadelphia would pose a hardship to three witnesses, including a Pennsylvania State Trooper.  Maxim attached to its Motion written affidavits, signed by the witnesses, that compared the burden of appearing in Columbia County with the burden of appearing in Philadelphia County.  However, Maxim did not include in the affidavits a summary of the testimony of the three witnesses or an explanation of the relevancy of their testimony to Maxim’s defense.  The trial court granted the Moton to Transfer and Ehmer appealed.

The Superior Court reversed on appeal.  Since a plaintiff’s choice of forum is entitled to great weight and must be given deference by the trial court, a party seeking a transfer must prove “with detailed information on the record” that the plaintiff’s chosen forum was oppressive or vexatious.  There is a vast difference between a “finding of inconvenience and one of oppressiveness.”  The party seeking a change of venue bears a heavy burden in justifying the request, and that burden includes a demonstration <em>on the record</em> of the claimed hardships.  Here, the Superior Court held that Maxim failed to carry that burden.

When a transfer request is based on an allegation of witness hardship, the defendant must (1) identify the allegedly encumbered witness, and (2) make a general statement of what testimony that witness will provide.  The purpose of the general statement is to establish that the proposed witness is relevant to the defense.  Mere speculation that a witness possesses relevant information is not sufficient.  Maxim provided no general statement and merely alleged that the content of the witnesses’ testimony was obvious from their employment.  The Court also held that a need for a site visit must be supported by detailed information on the record.  The Court observed that with the state of modern technology site visits are rare, and there was “no reason to believe that photographs, videos, or even an internet transmitted webcast could not suffice.”  With regard to providing easier access to medical records stored in Columbia County, the Court held that because “technology allows the quick and easy transfer of medical records,” the initial locations of the records is not a factor that warrants a change in the Plaintiff’s choice of forum.

This case underscores the requirement a party seeking transfer based on <em>forum non conveniens </em>must support its applications with detailed information on the record to show that plaintiff’s chosen forum is oppressive or vexatious.  Doing so requires detailed affidavits from proposed witnesses, setting forth their proposed testimony and explaining how that testimony would be relevant to the Defendant’s case.  Thanks to James Scott for his assistance with this post.  Should you have any questions, please feel free to contact <a href="tbracken@wcmlaw.com">Tom Bracken</a>.