J-A21035-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GREGORY BURNS 

Appellant

v.

KAITLYN FAHRNER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 733 EDA 2022

Appeal from the Order Entered February 17, 2022

In the Court of Common Pleas of Montgomery County Civil Division at 

No(s): 2021-18123

BEFORE: LAZARUS, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED SEPTEMBER 30, 2022

Gregory Burns (Appellant) appeals from the order entered in the 

Montgomery County Court of Common Pleas dismissing his defamation action 

against Kaitlyn Fahrner (Appellee) pursuant to the doctrine of forum non 

conveniens, without prejudice to him to refile the action in the state of Nevada. 

On appeal, Appellant contends the trial court erred when it dismissed his 

complaint because the court misstated certain evidence and ignored relevant 

evidence, made unwarranted factual and legal presumptions, and failed to 

follow procedural rules. Additionally, Appellee requests that we award her 

attorney fees pursuant to Pa.R.A.P. 2744. For the reasons below, we affirm 

the order on appeal, and deny Appellee’s request for attorney fees.

I. Facts & Procedural History

The trial court aptly summarized the relevant facts and procedural 

history as follows:
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On or about September 21, 2019, the parties met at the 

Omnia nightclub in Caesars Palace, Las Vegas, Nevada. Appellee

left the nightclub with Appellant, and spent the night at his 

condominium at the Panorama Towers in Las Vegas, Nevada. On 

September 25, 2019, Appellee underwent a sexual assault 

examination at the Emergency Department at the University 

Medical Center in Nevada. On September 27, 2019, Appellee filed 

a police report and gave a statement to the Las Vegas 

Metropolitan Police Department (“LVMPD”) alleging Appellant 

sexually assaulted her on September 22, 2019.

On or about June 8, 2021, Appellant received a demand 

from Appellee to pay her a monetary sum of money based on her 

allegation that he placed a date rape drug in her drink. In August 

of 2021, the parties attended an unsuccessful voluntary mediation 

session with [a] retired federal judge . . . at the Las Vegas Office 

of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) in 

Nevada. On August 26, 2021, Appellant advised Appellee that any

destruction of evidence or disposal of documents could subject her 

to criminal penalties for spoliation of evidence pursuant to Nevada 

Revised Statute 199.220.

On September 1, 2021, Appellee filed a Civil Complaint in 

the District Court of Clark County, Nevada against Appellant 

seeking damages for Sexual Battery and Intentional Infliction of 

Emotional Distress. [Appellee identified herself in the complaint 

as “Jane Doe” and averred that Appellant “knows the name and 

identity of Plaintiff.”1] On September 3, 2021, Appellee filed an 

Amended Civil Complaint alleging Battery, Negligence, and 

Negligent/Intentional Infliction of Emotional Distress. The 

pending Nevada lawsuit alleges that Appellant had sexual 

intercourse with her on September 22, 2019[,] at a time when she 

was incapable of consent. Appellee alleged that she was [24] 

years old at the time she met Appellant who was over [50] years 

old. Appellee alleges that Appellant mixed an alcoholic drink for 

her. She has no memory after the alcohol drink was mixed, until 

waking up in Appellant[’]s condominium wearing only her bra and 

feeling really out of it. Appellee alleges that Appellant does not 

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1 Appellee’s Petition to Dismiss Appellant’s Complaint (Without Prejudice) 

Based Upon the Doctrine of Forum Non Conveniens (Appellee’s Petition to 

Dismiss), 10/19/21, at Exhibit C, Jane Doe v. Burns, Case No. A-21-840435-

C, Dept. 5, Amended Complaint, 9/3/21 (Amended Nevada Complaint), at ¶ 

6.
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dispute that he engaged in sexual intercourse with Appellee. 

Appellee’s lawsuit is based upon her claim that he had sexual 

intercourse with her while she was passed-out, unconscious 

and/or otherwise incapable of consenting to sexual intercourse

with him. Appellee called the Rape Crisis Hotline and confided 

with her close friend and sister about her belief that she had been 

sexually assaulted. She also asked “T.J.” who also lived at 

Panorama Towers in Las Vegas, Nevada if video surveillance 

footage of the early morning hours on September 22, 2019[,] 

could be obtained.

One day after Appellee filed the civil action in Nevada, on 

September 2, 2021, Appellant[ ] filed a Praecipe for Summons in 

[the Pennsylvania Montgomery County Court of Common Pleas] 

alleging a Slander/Libel/Defamation action. On September 9, 

2021, Appellant filed the Complaint against Appellee alleging 

Defamation based upon a false allegation that he placed a date 

rape drug in her drink at a nightclub years before. Appellant 

alleges that he learned on August 18, 2021, that Appellee 

published this alleged false statement years before, and the 

following individuals heard this information: (1) Thasin Jaigirdar 

[also known as T.J.], (2) Adrian Arellano, (3) Jen Hahn, (4) Arthur 

Chung, (5) Appellee’s sister Jonalee Shappley, (6) Appellee’s 

friend Danielle Snajder, and (7) Appellee’s former co-worker 

Claudia.[2]. . .

Trial Ct. Op., 3/31/22, at 1-3 (record citations omitted). Appellant’s complaint 

listed his residence as Las Vegas, Nevada, and Appellee’s residence as

Hatfield, Montgomery County, Pennsylvania.

3

On October 19, 2021, Appellee filed a petition to dismiss the complaint 

based upon the doctrine of forum non conveniens. See Appellee’s Petition to 

Dismiss. Appellee averred that while she is temporarily residing in 

____________________________________________

2 Claudia’s last name is not included in the record.

3

It is undisputed that both parties were living in Nevada at the time of their 

encounter in September of 2019. See Trial Ct. Op. at 3.
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Montgomery County, Pennsylvania, she “maintains a current Nevada Driver’s 

License[,] considers Nevada her permanent home/domicile[,] and intends to 

return there[.]”4 Id. at 1-2. Moreover, Appellee stated that the parties “are 

litigants” in a pending civil action she filed earlier in Nevada, and that both 

suits are “related to, and arising from, the same set of operative facts, 

transactions, and occurrences[;] namely their encounter with each other on 

September 22, 2019 at a nightclub in Las Vegas, Nevada.” Id. at 2 (emphasis 

omitted). She averred that, in August of 2021, she and Appellant “participated 

in a voluntary mediation” in Nevada concerning her lawsuit. Id. Appellee 

further insisted Appellant filed this “retaliatory lawsuit” against her in 

Pennsylvania — which stripped her of her “Jane Doe” status in the Nevada 

action — in an attempt to find a “more favorable jurisdiction in which to attack 

his victim.”5 Id. at 3-4 (emphasis omitted). In asserting that Pennsylvania 

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4

In an attached affidavit, Appellee explained that she began a nursing 

program in Montgomery County, Pennsylvania, in May of 2020. Appellee’s 

Petition to Dismiss, Exhibit A, Affidavit of Kaitlyn M. Fahrner, 10/15/21, at 1. 

After she graduated in May of 2021, she began a six-month internship at a 

hospital in Quakertown, Pennsylvania, which she was due to complete in 

February of 2022. Id. She further averred that if she successfully completes 

her internship, she will have “a two-year ‘on-the-job training work 

commitment’ with” that hospital. Id. Appellee stated she intends to return 

to Nevada either after her internship, should she not successfully complete it, 

or after her two-year training. Id.

5

Indeed, Appellee asserts her statement that Appellant drugged and 

assaulted her, made during a police investigation, may be “privileged and 

subject to protection under [Nevada’s] ‘anti-SLAPP’ law codified at Nevada 

Revised Statute 41.637.” Appellee’s Petition to Dismiss at 3. Nevada’s AntiSLAPP law provides that “[a] person who engages in a good faith 

(Footnote Continued Next Page)
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is an inconvenient forum for the defamation lawsuit, Appellee emphasized the 

following: (1) “[t]he primary events giving rise to both [the] Nevada and 

Pennsylvania Cases occurred in . . . Nevada[;]” (2) six of the witnesses 

Appellant listed in his lawsuit live in Nevada, and the seventh lives in 

Connecticut; (3) Appellee filed a police report in Las Vegas, Nevada; and (4) 

Pennsylvania has “no legitimate interest in this lawsuit . . . involving Nevada 

facts.” Id. at 6-7. 

On November 15, 2021, Appellant filed an answer and accompanying 

brief in response to Appellee’s petition. Appellant asserted: (1) he is now 

domiciled in Tennessee, and has not been served with Appellee’s Nevada 

lawsuit; (2) “one of the key individuals identified in the Complaint — Mr. 

Thasin Jaigirdar — lives in Philadelphia[, as do Appellee] and another 

witness[;]” (3) Appellee failed to identify an alternative forum for the 

defamation action; (4) to the extent she implies Nevada is an available forum, 

Appellee “failed to state that she will waive any . . . defenses” that may 

foreclose review; (5) because Appellee acknowledges she has been living in 

Pennsylvania since May 2020, “it is reasonable to conclude that” she made 

defamatory statements in Pennsylvania; (6) his lawsuit is based on her 

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communication in furtherance of . . . the right to free speech in direct 

connection with an issue of public concern is immune from any civil action for 

claims based upon the communication.” Nev.Rev.Stat. § 41.650. Section 

41.637 defines a “good faith communication” as, inter alia, any 

“[c]ommunication made in direct connection with an issue of public interest in 

a place open to the public or in a public forum, which is truthful or is made 

without knowledge of its falsehood.” Nev.Rev.Stat. § 41.637(4). 
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“statements to other individuals — not the encounter in a Las Vegas 

nightclub[;]” and (7) to the extent Appellant can show Appellee made 

defamatory statements while in Pennsylvania, “it cannot be said that 

Pennsylvania has no relation to this matter.” Appellant’s Brief in Support of 

Answer in Opposition to Appellee’s Petition to Dismiss the Complaint Based 

Upon Forum Non Conveniens, 11/15/21, at 6-11. Alternatively, if the court 

did not deny Appellee’s petition “outright,” Appellant requested “sufficient 

time to seek discovery” concerning the alleged defamatory statements. See 

id. at 11-12. 

Just over a month later, on December 17, 2021, Appellant filed a 

supplemental answer to Appellee’s petition, in which he claimed Appellee’s 

“recently answered delinquent discovery requests” undermined the claims in 

her petition to dismiss. Appellant’s Supplemental Answer in Opposition to 

Appellee’s Petition to Dismiss Appellant’s Complaint Based Upon the Doctrine 

of Forum Non Conveniens (Appellant’s Supplemental Answer), 12/17/21, at 

1-2. Appellant averred that Appellee admitted she made the “alleged 

defamatory statements to three different Pennsylvania residents.” Id. at 2. 

Accordingly, he argued, the Montgomery County Court of Common Pleas “is 

the only court that should address [his] Pennsylvania law[-]based claims 

concerning defamatory statements in Pennsylvania made by a defendant who 

intends to remain a resident of Pennsylvania until at least February 2024.” 

Id. at 3. 
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Three days later, Appellant filed another motion, this one seeking a court 

order to compel Appellee to respond to his First Set of Requests for Production, 

which he had served on September 22nd. On January 7, 2022, Appellee filed 

both an answer in opposition to Appellant’s motion to compel, and a motion 

for a protective order requesting the court stay all discovery until her 

preliminary objections6 and petition to dismiss were decided. See Appellee’s 

Motion for Protective Order Staying All Discovery until Appellee’s Preliminary 

Objections & Petition to Dismiss are Decided (Appellee’s Motion for Protective 

Order), 1/7/22. The trial court granted the motion for protective order on 

February 8th, and stayed all discovery until it ruled on Appellee’s preliminary 

objections and petition to dismiss. It also scheduled argument on Appellant’s 

petition to dismiss for February 17th. See Orders, 2/8/22. 

During the February 17th argument, Appellant’s counsel explained that 

while “Nevada, obviously, has some connection [to the matter] in the sense 

that the events that underlie these issues occurred in Nevada[,] the crux of 

[Appellant’s] lawsuit . . . has to do with . . . false statements that [Appellee] 

made in Pennsylvania to other Pennsylvania residents as well as [to] people 

in other states.” N.T., 2/17/22, at 3. Counsel emphasized that Appellee has 

“a long-term residency” in Pennsylvania and has been living there “for an 

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6 Appellee filed preliminary objections to Appellant’s complaint on October 18, 

2021, in which she raised, inter alia, the legal insufficiency of the pleadings 

and the pendency of a prior action, i.e., the Nevada civil suit. See Appellee’s 

Preliminary Objections to Appellant’s Complaint, 10/18/21, at 3-4 

(unpaginated).
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extended period of time.” Id. at 4. Although Appellant’s counsel conceded 

that several of the proposed witnesses live in Nevada and one lives in 

Connecticut, they insisted that the two arguably most important witnesses —

Appellee and Mr. Jaigirdar — live in Pennsylvania.

7

 See id. at 5-8. Further, 

Appellant’s counsel argued that Appellee provided “absolutely no analysis . . . 

on [Nevada] even being an appropriate forum.” Id. at 12-13. 

Appellee’s counsel responded by emphasizing Appellant subpoenaed 

eight witnesses in Nevada, including individuals from the Las Vegas Police 

Department, “undoubtably, one of the most crucial witnesses in either case[,]”

and “request[ed] the release of medical record for facilities in Nevada.” N.T. 

at 14. Counsel also noted the Pennsylvania action, which identified Appellee

by name, undermined her ability to “bring the Nevada action as a Jane Doe 

Plaintiff[.]” Id. at 15. Counsel argued: “There is a severe chilling effect on 

a victim of alleged sexual assault if the accused can simply turn around, run 

to another jurisdiction, [and] publicly out that person[.]” Id. Lastly, counsel 

for Appellee asserted that because “the defense of truth will be resolved” in 

both actions, there is a possibility of “inconsistent results.” Id. at 18.

That same day, the trial court entered an order granting Appellee’s 

petition to dismiss based upon forum non conveniens, without prejudice to 

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7 Appellant’s counsel pointed out that Appellee’s sister, Jillie Wimmer, and 

Appellee’s current boyfriend, Matthew Posteraro, also live in Pennsylvania. 

N.T. at 7. 
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Appellant to refile the defamation action in Nevada. Order, 2/17/22. This 

timely appeal follows.8

II. Issue on Appeal

Appellant raises a single issue on appeal:9

Whether the [t]rial [c]ourt erred when it dismissed [Appellant’s] 

action based on forum non[ ]conveniens by misstating or ignoring 

the record evidence, failing to follow the proper procedural 

requirements on the Petition, and by making unwarranted factual 

and legal presumptions?

Appellant’s Brief at 5.

III. Standard of Review & Relevant Law

We review a trial court’s order dismissing an action based upon the 

doctrine of forum non conveniens for an abuse of discretion. Lyndes v. Penn 

Central Corp., 254 A.3d 725, 732 (Pa. Super. 2021) (citation omitted). It is 

well-established that “[a]n abuse of discretion occurs if the law is overridden 

or misapplied, or the judgment exercised is manifestly unreasonable, or the 

result of partiality, prejudice, bias, or ill will.” McConnell v. B. Braun Med. 

Inc., 221 A.3d 221, 228 (Pa. Super. 2019) (citation & quotation marks 

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8 Appellant complied with the trial court’s directive to file a Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal. The court then filed a 

responsive opinion on March 31, 2022.

9 Although Appellant listed 17 separate issues in his Rule 1925(b) statement, 

they are merely sub-claims relating to his challenge to the court’s dismissal of 

his complaint. See Appellant’s Concise Statement of Errors Complained of on 

Appeal, 3/21/22, at 1-3. 
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omitted). Moreover, “[a] trial court’s decision will stand if there is any basis 

in the record to support it.” Id.

The doctrine of inter-jurisdictional forum non conveniens is codified at 

42 Pa.C.S. § 5322:10

(e) Inconvenient forum. — When a tribunal finds that in the 

interest of substantial justice the matter should be heard in 

another forum, the tribunal may stay or dismiss the matter in 

whole or in part on any conditions that may be just.

42 Pa.C.S. § 5322(e). The burden is on the party seeking to dismiss the action 

to establish that the matter should be heard in another jurisdiction. 

McConnell, 221 A.3d at 228.

When considering whether dismissal is warranted pursuant to Section 

5322(e),

[t]he two most important factors the trial court must apply . . . 

are [1] the plaintiff’s choice of forum should not be disturbed 

except for weighty reasons, and [2] there must be an alternate 

forum available or the action may not be dismissed.

Hovatter v. CSX Transportation, Inc., 193 A.3d 420, 424 (Pa. Super. 

2018). “A plaintiff’s choice of forum is entitled to deference, but to a 

somewhat lesser degree when the plaintiff’s residence and place of injury are 

located somewhere else.” McConnell, 221 A.3d at 227. See Wright, 215

A.3d at 992 (“[W]hen the home forum has been chosen, it is reasonable to 

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10 “When the matter involves a request to transfer venue from one county to 

another county in Pennsylvania based on forum non conveniens, Pa.R.C.P. 

1006(d)(1) controls.” Wright v. Consolidated Rail Corp., 215 A.3d 982, 

992 (Pa. Super. 2019). Under Rule 1006(d)(1), the “defendant bears a 

heavier burden” and must establish that the “plaintiff’s choice of forum is 

oppressive and vexatious for the defendant.” Id.
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assume that this choice is convenient[; w]hen the plaintiff is foreign, however, 

this assumption is much less reasonable.”) (citation omitted). 

To determine if “weighty reasons” overcome the deference 

afforded to a plaintiff’s choice of forum, the trial court must 

examine both the private and public interest factors involved in 

the case. The private factors include:

the relative ease of access to sources of proof; availability 

of compulsory process for attendance for unwilling, and the 

cost of obtaining attendance of willing, witnesses; possibility 

of view of the premises, if view would be appropriate to the 

action; and all other practical problems that make trial 

of a case easy, expeditious and inexpensive.

As to the public factors, trial courts must take into account several 

circumstances, including that:

administrative difficulties follow for courts when litigation is 

piled up in congested centers instead of being handled at its 

origin. Jury duty is a burden that ought not to be imposed 

upon the people of a community which has no relation 

to the litigation. There is an appropriateness, too, in 

having the trial . . . in a forum that is at home with the state 

law that must govern the case, rather than having a court 

in some other forum untangle problems in conflict of laws, 

and in law foreign to itself.

With respect to these factors, a defendant must show that the 

plaintiff’s chosen forum is inconvenient to the defendant. A 

defendant cannot merely assert that dismissal is warranted 

because the chosen forum is inconvenient to the plaintiff in some 

way. . . .

McConnell, 221 A.3d at 227–28 (citations & footnote omitted; some 

emphases added). 

Furthermore, we emphasize that even if the trial court determines the 

private and public factors establish the chosen forum is inconvenient, 

“dismissal of the action is not permitted if it is barred in the alternative forum.” 
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Poley v. Delmarva Power & Light Co., 779 A.2d 544, 547 (Pa. Super. 2001)

(vacating order dismissing action based on forum non conveniens; although 

trial court found Philadelphia County was inconvenient forum, action could not 

be refiled in Maryland because non-waivable statute of limitations period had 

expired).

IV. Trial Court Opinion

With this background in mind, we first consider the trial court’s decision. 

The court found that both the private and public factors weighed in favor of 

dismissal of Appellant’s defamation action without prejudice to be refiled in 

Nevada. See Trial Ct. Op. at 10-12. 

With regard to private factors, the trial court emphasized that “[t]he 

encounter between the parties” occurred at a nightclub in Las Vegas, Nevada, 

“[a] criminal investigation was conducted by the Las Vegas . . . Police 

Department, and Appellee received a sexual assault examination at the 

Nevada University Medical Center.” Trial Ct. Op. at 10. Accordingly, all of the 

police officers and medical providers with whom Appellee discussed the 

allegations are in Nevada. Id. Moreover, the fact witnesses, who are “mostly 

Appellee’s close family and friends, . . . primarily reside in Nevada.” Id. The 

court discounted Appellant’s argument that Mr. Jaigirdar was a significant 

witness, whose presence in Pennsylvania “tip[ped] the scales.” Id. at 10-11. 

Rather, it noted that Appellee “did not admit to making any statements to 

him” concerning her belief that Appellant had drugged her in both her Nevada 

lawsuit, and her belated responses to Appellant’s interrogatories. Id. Further, 
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the court found that there was no evidence Appellee made any purported 

defamatory statements in Pennsylvania. Id. at 11. Moreover, because the 

truth of the alleged defamatory statements is a defense, the court also 

determined there was a “potential for inconsistent results if the matters were 

heard by fact finders in two different jurisdictions.” Id. Thus, the trial court 

concluded that “[p]ractical considerations exist [in] having one jurisdiction 

hear both civil actions which arise from the parties[’] encounter with each 

other in Las Vegas, Nevada[,]” and involve the same witnesses and same 

factual dispute. Id. 

With regard to public factors, the trial court again emphasized the 

“appropriateness of having one forum decide both civil actions[,]” noting 

“[t]he State of Nevada is where the incident took place, a criminal 

investigation was conducted, and a sexual assault examination was 

performed.” Trial Ct. Op. at 11. Further, the court emphasized that the 

parties “previously attended mediation . . . [and] retained attorneys” in 

Nevada. Id. at 12. Finally, the court acknowledged Appellee’s argument that 

“Appellant brought this defamation claim in Pennsylvania as a means of 

avoiding Nevada’s Anti-SLAPP law that protects statements that are 

privileged[.]” Id.

Lastly, the trial court determined the state of Nevada provides an 

alternate forum for Appellant’s action. See Trial Ct. Op. at 12. First, the court 

recognized a defamation claim in Nevada is subject to a two-year statute of 

limitations; thus, if Appellee made the purported defamatory statements in 
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2019, Appellant’s claim would now be time-barred. See id. Nevertheless, 

the court noted that that Nevada “adopted the common law discovery rule” so 

that the limitations period “does not begin to run until the date on which a 

claimant actually discovers an injury or loss rather than the date when the 

wrongful act . . . took place.” Id. Citing an unpublished Nevada Appeals 

Court decision, the trial court observed “the Nevada courts [have] held that 

the discovery rule could apply to defamation and false light claims.” Id., citing

Jackson v. Las Vegas Review Journal, 2018 WL 4173192 (Nev. App. 

2018). Consequently, because Appellant alleged in his complaint that he “first 

became aware of the defamatory statements on August 18, 2021[,]” the 

court concluded Appellant could file a defamation action in Nevada before the 

expiration of the statute of limitations; thus, an alternate forum was available. 

Id. (emphasis added).

V. Analysis

On appeal, Appellant challenges the trial court’s determinations that 

both the public and private factors weigh in favor of dismissal of his action 

filed in Pennsylvania, and maintains that the trial court failed to follow proper 

procedure pursuant to Pa.R.C.P. 206.7. Appellant also contends Appellee 

failed to establish an alternate forum for his defamation action is available. 

a) Private Factors

With regard to the private factors, Appellant first challenges the trial 

court’s findings that there was no evidence showing (1) Appellee made any 

defamatory statements in Pennsylvania, and (2) Appellee made any 
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defamatory statements to Mr. Jaigirdar. Appellant’s Brief at 27-29. Rather, 

he claims both findings are refuted by the record. Id. In support, he points 

to Appellee’s belated responses to his discovery requests, and the failure of 

her attorney to contest both his attorney’s and the trial court’s 

characterizations at the hearing. See id. Indeed, Appellant emphasizes that, 

in Appellee’s response to his request for admissions, she admitted the 

following: “You told Thasin Jaigirdar that [y]ou believed [Appellant] drugged 

[y]ou after [y]ou encountered [Appellant] at the Omnia Nightclub in Las Vegas 

Nevada[.]” See Appellant’s Answer in Opposition to Appellee’s Petition to 

Dismiss Appellant’s Complaint Based Upon the Doctrine of Forum Non 

Conveniens (Appellant’s Answer), 11/15/21, at Exhibit 2, Appellant’s First Set 

of Requests for Admission to Appellee (Appellant’s Request for Admission), at 

¶ 4; Appellant’s Supplemental Answer at Exhibit A, Appellee’s Responses to 

Appellant’s First Set of Requests for Admission (Appellee’s Response to 

Request for Admission), at ¶ 4 (“Factual admitted, but denied insofar as the 

Request seeks an admission of any legal conclusion that [Appellant] is 

attempting to draw therefrom.”). Thus, Appellant maintains the court’s 

determination that Mr. Jaigirdar’s proposed testimony did not “tip the scales” 

in favor of proceeding in Pennsylvania is based upon a false premise. See

Appellant’s Brief at 29. 

Appellant further argues the trial court failed to consider all relevant 

private factors — include the willingness of potential witnesses to testify and 

a comparison of the costs to obtain attendance of all potential witnesses —
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and ignored the fact that two additional fact witness (Appellee’s sister, 

Wimmer, and boyfriend, Posteraro) to whom Appellee admitted making 

defamatory statements, both live in Pennsylvania. See id. at 29, 37. 

Lastly, Appellant criticizes the trial court’s “unwarranted presumptions” 

concerning the necessity of police and medical evidence located in Nevada, as 

well as the relevance of Appellee’s Nevada lawsuit to his defamation action. 

See Appellant’s Brief at 34-35. Appellant insists that Appellee’s response to 

his request for interrogatories acknowledges she has no “documentary 

evidence — in Nevada or anywhere else — which would establish or suggest 

that she was in fact drugged.” Id. at 36. Moreover, he emphasizes that, in 

her Nevada lawsuit, Appellee did not assert that he drugged her. Id. at 34. 

Thus, “the alleged ‘truth’ of the defamatory statement” — that Appellant

drugged Appellee — would not be determined in the Nevada action, and 

accordingly, there was no “risk of inconsistent results between the two 

forums[.]” Id. 

Upon our review, we detect no abuse of discretion in the trial court’s 

consideration of the private factors supporting its determination that “weighty 

reasons” exist to disturb Appellant’s choice of forum. See Hovatter, 193 A.3d 

at 424.
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First, we agree with Appellant that Appellee admitted in her discovery 

response that she told Mr. Jaigirdar she believed Appellant drugged her.11 See

Appellee’s Response to Request for Admission at ¶ 4. Nevertheless, this 

admission does not undermine the trial court’s ruling, nor “tip the scales” in 

favor of venue in Pennsylvania. As the trial court opined: “This case involves 

fact witnesses who are mostly Appellee’s close family and friend, and 

primarily reside in Nevada.” Trial Ct. Op. at 10 (emphases added). While 

Appellant emphasizes that two additional witnesses — Ms. Wimmer and Mr. 

Posteraro — live in Pennsylvania, he ignores the fact that the majority of 

witnesses he himself intended to subpoena live in Nevada. See Appellee’s 

Motion for Protective Order at Exhibit C (Appellant’s notice of intent to serve 

subpoenas to following witness with Nevada addresses: Las Vegas 

Metropolitan Police Department, Adrian Arellano, Arthur Chung, Jason Hahn, 

Jennifer Hahn, Jonalee Shappley, Judith Fahrner, Timothy Fahrner, and 

William Tell Shappley, IV).

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11 The trial court’s confusion appears to be based on Appellee’s response to 

Appellant’s request for interrogatories. Appellant requested Appellee 

“[i]dentify all individuals with whom [she] discussed [her] Allegations with and 

provide a brief description of each of these discussions.” Appellant’s 

Supplemental Answer at Exhibit B, Appellee’s Answer to Appellant’s First Set 

of Interrogatories (Appellee’s Answer to Interrogatories) at Responses ¶ 1. 

Appellee responded, inter alia: “Generally, I asked questions about the events 

of September 21, 2021 or September 22, 2021 to Thaisin Jaigirdar.” Id. 

However, as Appellant asserts, Appellee did concede, in her response to 

Appellant’s request for admission, that she told Mr. Jaigirdar she believed 

Appellant drugged her. See Appellant’s Request for Admission at ¶ 4; 

Appellee’s Response to Request for Admission at ¶ 4.
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Next, our review of the record reveals no evidence or admission by 

Appellee that she made any defamatory statements in Pennsylvania. 

Indeed, Appellant attempts to create a fact out of inferences — he reasons 

that because (1) Appellee has lived in Pennsylvania since 2020, and (2) at 

least three people with whom she admits she discussed her belief that 

Appellant drugged her live in Pennsylvania, then (3) she must have made 

these statements while in Pennsylvania. However, he ignores the fact that 

there is no evidence or admission by Appellee that she did so. In his discovery 

requests, Appellant never inquired “where” or “when” Appellee made the 

alleged defamatory statements about him — thus, he merely speculates that 

she did so only after she moved to Pennsylvania. Indeed, in his own brief, 

Appellant asserts that it “could be inferred” Appellee made defamatory 

statements in Pennsylvania. See Appellant’s Brief at 31. Accordingly, 

Appellant’s reliance on this non-fact to support his argument is misplaced. 

We also reject Appellant’s claim that Appellee’s failure to object to 

characterizations of the evidence made by his own attorney and the trial 

court during the hearing constitutes proof that Appellee made defamatory 

statements in Pennsylvania. See N.T., 2/17/22, at 3 (Appellant’s attorney 

arguing “the crux of [Appellant’s] lawsuit . . . has to do with . . . false 

statements that [Appellee] has made in Pennsylvania to other Pennsylvania 

residents as well as people in other states”), 13-14 (trial court asking 

Appellee’s counsel “why, in light of the fact that statements were made in 

Pennsylvania and [Appellee] has lived here since 2020 . . . should [the case] 
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not proceed forward in this jurisdiction?”). Appellee’s counsel was under no 

obligation to object to these inferences, and Appellant presents no authority 

to the contrary.

Next, although Appellant criticizes the trial court for failing to address 

certain private factors, we emphasize that “it is within the trial court’s 

discretion to weigh some factors more heavily than others and weighing the 

factors is not an exercise in counting numbers.” Burnett v. Penn Cent.

Corp., 250 A.3d 1240, 1253 (Pa. Super. 2021) (citation & quotation marks

omitted). Here, it is evident the court considered primarily the “ease of access 

to sources of proof[,]” since most of the potential witnesses live in Nevada, 

and the “practical problems” of litigating an action in Pennsylvania, when a 

previously filed suit in Nevada involves the same facts. See McConnell, 221 

A.3d at 227 (citation omitted). 

Lastly, Appellant’s attempt to distinguish the factual predicate of the 

Nevada action from the factual predicate of this action is specious. Appellant 

emphasizes his defamation claim is based upon Appellee’s statements to 

others that he drugged her — a “fact” she does not aver in her Nevada action. 

See Appellant’s Brief at 34. Therefore, he claims “the Nevada actions does 

not require a determination of the alleged ‘truth’ of the defamatory statement 

that is the focus of this defamation action.” Id. 

While it is true Appellee did not explicitly aver Appellant “drugged” her 

in her Nevada complaint, she did aver the following: (1) after being left alone 

with Appellant in a nightclub, Appellant “mixed an alcoholic drink for” her; (2) 
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Appellant told her he does not drink; (3) “[a]fter having drinks mixed by 

[Appellant, Appellee] had no memory of leaving” the nightclub with him or 

going to his condominium; (4) Appellee woke up the next morning in 

Appellant’s bed, wearing only her bra; (5) she was “really out of it[,]” and “felt 

a bodily sensation she had never previously experienced[;]” and (6) Appellant 

does not deny they had sexual intercourse. See Amended Nevada Complaint 

at ¶¶ 22-23, 27-28, 30-31 (quotation marks omitted). Thus, she insists 

Appellant had sex with her while she was incapable of consenting. See id. at 

¶¶ 31-33. Appellee clearly implies that Appellant slipped something into the

drink that he mixed for her and she imbibed, which caused her to lose 

consciousness. Moreover, Appellant’s focus on Appellee’s claim that he 

drugged her, without any reference to her claim that he raped her, appears 

to be solely to distance the defamation claim from the sexual assault claim. 

It is evident, however, that both lawsuits rest upon the parties’ actions on the 

night of September 21-22, 2019. Thus, Appellant’s attempt to distinguish the 

Nevada action fails.

Similarly, Appellant downplays the necessity of witnesses from the Las 

Vegas Police and Nevada medical providers by noting that Appellee 

acknowledged she has no documentary evidence to support her allegation that 

he drugged her. Appellant’s Brief at 36, citing Appellee’s Answer to 

Interrogatories at Responses ¶ 9 (when asked to identify documents or 

communications that suggest she was drugged, Appellee responded, “I base 

the truthfulness of my allegations . . . on what I believe and remember to 
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have occurred that evening and my knowledge of myself, my own body, based 

on my experiences.”). Nevertheless, Appellant ignores the fact that he filed 

a notice of intent to subpoena the Las Vegas Police Department. See

Appellee’s Motion for Protective Order at Exhibit C. Whether or not there 

exists any evidence that Appellant drugged Appellee, her statements to the 

police, as well as her medical records from the sexual assault exam, are clearly 

relevant. 

Accordingly, we conclude the trial court did not abuse its discretion in 

weighing the private factors supporting dismissal of the action in 

Pennsylvania.

b) Public Factors

With regard to the relevant public factors supporting a change of venue, 

Appellant similarly argues the trial court misstated evidence, made 

unwarranted presumptions, and ignored certain factors. See Appellant’s Brief 

at 38-41. First, Appellant insists the court ignored the fact that Appellee 

currently lives in Pennsylvania, and intends to work here for the “foreseeable 

future.” Id. at 38. Although Appellee claims she will eventually return to 

Nevada, Appellant emphasizes that a person “can have multiple residences[.]” 

Id. He argues: “There simply was no reason for the [t]rial [c]ourt to award 

more weight to the location where [Appellee] plans to be years from now than 

to where she resides now and will be residing for the foreseeable future . . . , 

especially considering that there was no record evidence suggesting that the 

Pennsylvania matter would not conclude before she left.” Id. at 39. 
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Appellant also summarily rejects the trial court’s determination that it is 

more appropriate to decide both actions in Nevada because “judicial resources 

and a jury will be called on in the Nevada Action that will determine facts that 

are outcome determinative [in] the Pennsylvania Action[.]” Appellant’s Brief 

at 39. He insists the Nevada action should not be used as a “public interest 

factor” favoring dismissal, “[f]or the same reasons [it] was not appropriate to 

consider [the Nevada action] as a private factor favoring dismissal[.]” Id. 

He also points out that the trial court did not consider which state law would 

apply. See id. at 40. However, he concedes that because Appellee made 

statements in different states, there would always be a conflict of law analysis

regardless of where the action is litigated. See id. at 41.

Lastly, Appellant maintains the trial court improperly relied on Appellee’s 

policy argument that he filed the action in Pennsylvania to avoid Nevada’s 

Anti-SLAPP law. See Appellant’s Brief at 40. He emphasizes there is no 

evidence he filed the Pennsylvania action to avoid the statute, or that the 

statute would even apply to the facts alleged in his complaint. Id. 

Again, we conclude the trial court did not abuse its discretion in 

determining the relevant public factors supported dismissal of the action in 

Pennsylvania. The trial court clearly focused on the community’s relation to 

the litigation, noting that the underlying incident between the parties, the 

ensuing criminal investigation, and the sexual assault examination all took 

place in Nevada. See McConnell, 221 A.3d at 227. Moreover, the parties 

attended a mediation in Nevada concerning Appellee’s lawsuit — which was 
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when Appellant claims he first learned of the alleged defamatory statements. 

The fact that Appellee, and a few other witnesses, currently live in 

Pennsylvania is not dispositive.12 

Appellant also repeats his claim that the issues raised in the Nevada 

action are not “outcome determinative” of the Pennsylvania action. See 

Appellant’s Brief at 39. However, for the reasons discussed supra, we 

conclude that the two actions are factually related, so that resolution of the 

Nevada action may be dispositive with regard to Appellant’s defamation claim. 

Moreover, while the trial court acknowledged Appellee’s assertion that 

“Appellant brought this defamation claim in Pennsylvania as a means of 

avoiding Nevada’s Anti-SLAPP law[,]” the court did not rely on this claim in its 

analysis. See Trial Ct. Op. at 12. Upon our review, Appellant has not 

established the trial court abused its discretion when it determined the citizens 

of Nevada have a stronger connection to Appellant’s litigation than the citizens 

of Pennsylvania.

c) Pa.R.C.P. 206.7

Intertwined with his challenge to the trial court’s consideration of both 

the relevant private and public factors, Appellant contends that trial court 

____________________________________________

12 We decline to address Appellant’s “double negative” assertion that there is 

no evidence suggesting the Pennsylvania case “would not conclude before 

[Appellee] left” the jurisdiction. See Appellant’s Brief at 39 (emphasis added). 

Of course, the opposite is also true — there is no evidence the case would be 

resolved before she moved back to Nevada. 
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failed to adhere to the requirements of Pennsylvania Rule of Civil Procedure 

206.7. The Rule provides, in relevant part:

(c) If an answer is filed raising disputed issues of material fact, 

the petitioner may take depositions on those issues, or such other 

discovery as the court allows, within the time set forth in the order 

of the court. If the petitioner does not do so, the petition shall be 

decided on petition and answer and all averments of fact 

responsive to the petition and properly pleaded in the answer shall 

be deemed admitted for the purpose of this subdivision.

Pa.R.C.P. 206.7(c). 

Here, Appellant emphasizes that he filed an answer in opposition to 

Appellee’s petition to dismiss, in which he denied all Appellee’s averments of 

fact and made several factual averments himself. See Appellant’s Brief at 31. 

Because Appellee did not proceed to take depositions, Appellant insists that

the trial court should have deemed admitted all the denials and averments of 

fact in his answer pursuant to Rule 206.7(c). Id. He claims these 

“admissions” include the following: (1) that “it could be inferred” Appellee 

made defamatory statements about Appellant in Pennsylvania; (2) that the 

Pennsylvania and Nevada actions “do not relate to or arise from the same set 

of operative facts, transactions, and occurrences;” and (3) that he “did not

have sexual intercourse with [Appellee] while she as incapable of consent.” 

See id. at 31-32 (emphases added & quotation marks omitted). 

We conclude this argument has not been properly preserved for 

appellate review. In neither his response to Appellee’s motion for a protective 

order, nor during argument on the petition to dismiss, did Appellant assert 

that the trial court must deem his denials and averments of fact admitted 
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pursuant to Rule 206.7. Rather, he raised it for the first time in his Rule 

1925(b) statement. Thus, we conclude the claim is waived. See Pa.R.A.P. 

302(a) (“Issues not raised in the trial court are waived and cannot be raised 

for the first time on appeal.”).

Furthermore, even if this claim were not waived, we would conclude no 

relief is warranted. First, Appellant attempts to undermine the trial court’s 

ruling by insisting the court should have considered the “fact” that “it could 

be inferred” Appellee made some defamatory statements in Pennsylvania. 

See Appellant’s Brief at 31-32. However, the court did not make a finding to 

the contrary; rather, the court concluded there was no evidence Appellee 

made any defamatory statements in Pennsylvania. See Trial Ct. Op. at 5. 

Moreover, even if Appellee did make some statements in Pennsylvania, 

Appellant does not claim she made all of them while residing in Pennsylvania, 

or to Pennsylvania residents. Thus, Nevada still remains the more convenient 

forum. 

Second, to the extent Appellant insists the Nevada and Pennsylvania 

actions are not based on the same facts, we conclude the trial court was more 

than capable of reviewing the two lawsuits and making that determination 

itself. Thus, this “fact” is not really a “fact” at all. Lastly, Appellant’s assertion 

that he did not have sexual intercourse with Appellee while she was incapable 

of consent is the subject of the Nevada litigation. For purposes of the 

defamation action, it is not a “fact” that either supports or disputes Appellee’s 

claim that Nevada is a more convenient venue for the action. Accordingly, 
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even if Appellant’s Rule 206.7 claim were not waived, we would conclude he 

is entitled to no relief.

Therefore, we conclude Appellant has failed to establish the trial court 

abused its discretion when it determined the relevant private and public 

factors provided “weighty reasons” to disturb his choice of forum. See 

Hovatter, 193 A.3d at 424. We note, too, that Appellant downplays the fact 

that Pennsylvania is not his home forum; indeed, there is no evidence in the 

record that he has any connection to Pennsylvania. See Wright, 215 A.3d at 

992 (assumption that plaintiff’s choice of forum is convenient is “much less 

reasonable” when plaintiff is foreign to forum).

d) Availability of Alternate Forum

Appellant also argues that the trial court improperly dismissed the 

Pennsylvania action because Appellee failed to establish there was an 

alternate forum available. See Appellant’s Brief at 44-47. Indeed, he 

maintains Appellee neglected to address this issue at all in her petition or at 

oral argument — although it was her burden to do so — but instead, the trial 

court provided a post hoc argument in its opinion. Id. at 45. Although the 

court recognized that defamation actions are subject to a two-year statute of 

limitations in Nevada, Appellant claims the trial court improperly relied upon 

an unpublished decision of the Nevada Appeals Court which stated that “the 

discovery rule could apply to defamation and false light claims.” Id. at 46. 

Appellant refers to Nevada Rule of Appellate Procedure 36 which prohibits the 

citation of “unpublished dispositions issued by the Court of Appeals . . . for 
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any purpose.” Id., citing Nev.R.App.P. 36. Lastly, Appellant emphasizes 

that, unlike other movants in these types of inter-jurisdictional forum non 

conveniens appeals, Appellee did not enter a stipulation agreeing to waive 

any potential technical defenses (such as the statute of limitations) in Nevada. 

See id. at 47. Absent evidence that Nevada will provide an alternate forum 

for this action, Appellant insists the court erred in dismissing the Pennsylvania 

complaint.

Preliminarily, we note there is no dispute that a defamation claim is 

subject to a two-year statute of limitations in Nevada. See Nev.Rev.Stat. § 

11.190(4). However, the Supreme Court of Nevada has recognized that the 

discovery rule may operate to toll a limitations period until the injured party 

knew or, through reasonable diligence, should have known the “facts that 

would put a reasonable person on inquiry notice of his cause of action.” 

Massey v. Litton, 669 P.2d 248, 252 (Nev. 1983) (applying discovery rule in 

medical malpractice cases). Although we have not uncovered any published 

Nevada Supreme Court opinion applying the discovery rule to a defamation or 

false light claim, the Court has applied the discovery rule, generally, in tort 

actions, explaining “the time limits do not commence and the cause of action 

does not ‘accrue’ until the aggrieved party knew, or reasonably should have 

known, of the facts giving rise to the damage or injury.” See G & H Assocs.

v. Ernest W. Hahn, Inc., 934 P.2d 229, 233 (Nev. 1997) (citation & footnote 

omitted).
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Moreover, the Nevada Supreme Court explicitly stated in an unpublished 

disposition that “a cause of action [for defamation] does not arise until the 

party discovers it.” Lahren v. Nevada System of Higher Educ., 238 P.3d 

831, *1 (Nev. Sept. 8, 2008) (unpublished disposition) (reversing judgment 

on the pleadings in part and remanding because question of fact remained as 

to when plaintiffs discovered alleged defamatory statements). The federal 

district court in Nevada later relied on the holding in Lahren in two 

unpublished decisions. See Nutri Pharms. Rsch., Inc. v. Stauber

Performance Ingredients, Inc., 2021 WL 6773089, at *2 (D. Nev. 2021)

(denying defendant’s motion to dismiss defamation claim, as barred by statute 

of limitations, based on comment made more than two years earlier; 

concluding it was “possible that the alleged defamatory comment was 

published in a secretive manner, which would render the discovery rule 

applicable”); Grand Canyon Skywalk Dev., LLC v. Cieslak, 2014 WL 

2123255, at *2 & n.11 (D. Nev. 2014) (denying defendant’s motion to dismiss 

defamation claim, as barred by statute of limitations, based on memorandum 

issued more than two years earlier; complaint alleged, and defendants did not 

dispute, that plaintiffs did not learn of alleged defamatory publication until 

April 8, 2011, within two years of filing complaint).

As Appellant points out, the trial court relied on a different unpublished 

disposition of the Nevada Court of Appeals when it addressed this issue in 

its opinion. See Trial Ct. Op. at 12, citing Jackson, 2018 WL 4173192. As 

noted above, Nevada Rule of Appellate Procedure 36(c)(3) expressly prohibits
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the citation, “for any purpose,” of “unpublished dispositions issued by the 

Court of Appeals[.]” Nev.R.App.P 36(c)(3) (emphasis added). Thus, the 

court’s reliance on Jackson was misplaced. However, the case upon which 

we rely is an unpublished disposition of the Nevada Supreme Court.

We recognize that Rule 36 further provides that “[a]n unpublished 

disposition, while publicly available, does not establish mandatory precedent 

except in a subsequent stage of a case in which the unpublished disposition 

was entered[.]” Nev.R.App.P 36(c)(2). There is an exception to this general 

rule which permits “[a] party [to] cite for its persuasive value . . . an 

unpublished disposition issued by the Supreme Court on or after January 

1, 2016.” Nev.R.App.P. 36(c)(3) (emphasis added). Although the Lahren

disposition was issued prior to January of 2016, it was later cited, and relied 

upon, by two separate federal district court judges for the proposition that the 

discovery rule tolls the statute of limitations for defamation claims. Thus, 

based upon our research, we conclude Nevada provides an alternate forum 

for Appellant’s action.13 See Hovatter, 193 A.3d at 424 (“[I]f there is any 

____________________________________________

13 We recognize that unlike many of the other inter-jurisdictional forum non 

conveniens cases, Appellee did not stipulate that she would waive any statute 

of limitations defense in Nevada. See Lyndes, 254 A.3d at 730; McConnell, 

221 A.3d at 225; Hovatter, 193 A.3d at 422. Indeed, this Court has 

explained: “A stipulation made by a defendant that he or she will submit to 

service of process and not raise the statute of limitations as a defense has 

been accepted by the courts as eliminating the concern regarding the 

availability of an alternate forum.” Jessop v. ACF Indus., LLC, 859 A.2d 

801, 803 (Pa. Super. 2004). Nevertheless, there is no decision requiring a

defendant seeking change of venue to provide such a stipulation before 

(Footnote Continued Next Page)
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basis for the trial court’s decision, the decision must stand.”) (citation 

omitted).

VI. Appellee’s Request for Attorney Fees

Appellee requests that this Court award her attorney fees based upon 

Pa.R.A.P. 2744. The Rule permits an appellate court to award “a reasonable 

counsel fee . . . if it determines that an appeal is frivolous or taken solely for 

delay or that the conduct of the participant against whom costs are imposed 

is dilatory, obdurate or vexatious.” Pa.R.A.P. 2744(1). Further, “[i]n 

determining the propriety of such an award, we are ever guided by the 

principle that an appeal is not frivolous simply because it lacks merit[; r]ather, 

it must be found that the appeal has no basis in law or fact.” U.S. Claims,

Inc. v. Dougherty, 914 A.2d 874, 878 (Pa. Super. 2006) (citation omitted &

emphasis added). 

We decline to award counsel fees in this matter. While we conclude

Appellant is not entitled to relief, we do not agree his arguments have “no 

basis in law or fact.” See U.S. Claims, Inc., 914 A.2d at 878. Moreover, 

despite Appellee’s protestations, our review of the record does not reveal 

Appellant’s conduct to be “dilatory, obdurate or vexatious.” See Pa.R.A.P. 

2744(1). 

VII. Conclusion

____________________________________________

dismissal is granted, so long as there is “an alternate forum available.” See

Hovatter, 193 A.3d at 424 (citation omitted).
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Therefore, because Appellant has failed to establish the trial court erred 

or abused its discretion by dismissing his complaint without prejudice to refile 

in the state of Nevada based upon the doctrine of forum non conveniens, we 

affirm the order on appeal. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/30/2022