J-A24033-16

2016 PA Super 272

GEORGE BOCHETTO, AS 

ADMINISTRATOR OF THE ESTATES OF

ANDREW MILLER, DECEASED, DENNIS 

FALIZE, DECEASED AND

JAVIER TERRON SANCHO, DECEASED

 AND

MARK MILLER AND SUSAN MARIE 

MILLER, DIRK JAN FALIZE, 

KARIN DEN TURK AND JOSE M. TERRON 

SANCHO

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

DIMELING, SCHREIBER & PARK,

 AND

AMERICAN CAPITAL STRATEGIES, LTD,

 AND

CONTINENTAL MOTORS, INC., F/K/A 

TELEDYNE 

CONTINENTAL MOTORS,

 AND

TELEDYNE TECHNOLOGIES, INC., 

 AND

TDY INDUSTRIES, INC.,

 AND

ALLEGHENY TECHNOLOGIES, INC.,

 AND

ALLEGEHENY TELEDYNE, INC., 

 AND

PIPER AIRCRAFT CORPORATION,

 AND

HONEYWELL INTERNATIONAL, INC., 

F/K/A

ALLIED-SIGNAL, INC.

Appellees No. 313 EDA 2016

Appeal from the Order Dated December 23, 2015

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 04911, August Term, 2011
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BEFORE: BOWES, J., OTT, J., and SOLANO, J.

OPINION BY SOLANO, J.: FILED DECEMBER 05, 2016

The estates and family members of three victims of a fatal air crash in 

Portugal appeal the December 23, 2015, order of the Court of Common 

Pleas of Philadelphia that, for the second time, dismissed their case with 

prejudice on grounds of forum non conveniens. We affirm.

This case was initially before this Court on an appeal from the trial 

court’s first dismissal on forum non conveniens grounds. We refer the reader 

to our opinion in that appeal, Bochetto v. Piper Aircraft Co., 94 A.3d 1044 

(Pa. Super. 2014) (“Bochetto I”), appeal denied, 112 A.3d 648 (Pa. 

2015), for a more complete statement of facts.

The plane crash occurred on September 15, 2009, near Castro Verde, 

Portugal, during a nighttime flight training exercise being conducted by the 

Aeronautical Academy of Evora (“AAE”). All three occupants of the plane 

died: Javier Terrón Sancho, a Spanish citizen who was the AAE flight 

instructor; and two student pilots — Dennis Falize, a Dutch citizen, and 

Andrew Miller, who had dual Dutch and Australian citizenship. 

The aircraft was manufactured by Piper Aircraft Co. in Florida in 1998. 

It was initially sold to Northern Air Inc. (located in Grand Rapids, Michigan), 

later sold to S & S Aviation, Inc. (located in Sylvania, Ohio), and finally sold 

to the Ben-Air Flight Academy (located in Belgium) in 2001. On June 18, 

2009, Ben-Air leased the aircraft to AAE, a flight school located in Portugal 
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and operated by its parent company CAE Global Academy (“CAE”). 

Bochetto I, 94 A.3d at 1045 (citing Trial Court Opinion, 9/27/12, at 1-3).

The Plaintiffs brought this wrongful death and survival action in the 

Court of Common Pleas of Philadelphia on September 2, 2011. The named 

Plaintiffs include George Bochetto, who was appointed by the Philadelphia 

Orphans’ Court to be administrator for the estates of the decedents in 

Pennsylvania1; Dutch citizens Mark Miller and Susan Miller, the parents of 

Andrew Miller; Dutch citizens Dirk Falize and Karin den Turk, the parents of 

Dennis Falize; and Spanish citizen José Terrón Sancho, the brother of Javier 

Terrón Sancho. Plaintiffs’ Response to Defendants’ Motion to Dismiss, 

4/2/12, ¶ 7. They named as Defendants fourteen companies involved in the 

manufacture of the aircraft, and alleged that the Defendants were liable 

under theories of strict products liability, negligence, breach of express and 

implied warranties, fraud, and civil conspiracy. Bochetto I, 94 A.3d at 

1045-46.2 The parties agree that all Defendants are located in the United 

States. See Civil Action Complaint, 9/9/11, ¶ 9-36.

____________________________________________

1 The court originally appointed Robert C. Daniels, who, after his death, was 

replaced by Mr. Bochetto.

2

The original Defendants included Piper, the Florida-based company that 

designed, manufactured, and sold the aircraft; Dimeling, Schreiber, & Park, 

a Philadelphia entity that allegedly oversaw and directed the activities of 

Piper; American Capital Strategies Ltd., a West Conshohocken company that 

allegedly worked with Dimeling to direct the activities of Piper; Continental 

Motors, Inc., the company responsible for the engine assembly in the 

aircraft; Teledyne Technologies Incorporated; TDY Industries, LLC; 

(Footnote Continued Next Page)
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On February 24, 2012, Defendants Piper Aircraft Co., American Capital 

Strategies, Ltd., and Dimeling, Schrieber, & Park filed a Motion to Dismiss 

with Prejudice for Forum Non Conveniens pursuant to 42 Pa.C.S. § 5322(e).3

These Defendants argued that dismissal was appropriate because: 

The aircraft was maintained in Portugal, the pilot was trained in 

Portugal, the underlying accident occurred in Portugal, the 

Portuguese government conducted the accident investigation, 

and all of the nonparty witnesses and relevant documents are in 

Portugal. All of the decedents are from Europe, and the real 

parties in interest in this case are from Europe. 

Bochetto I, 94 A.3d at 1047 (citing Motion to Dismiss for Forum Non 

Conveniens, 2/24/2012, ¶2). The Defendants claimed that a Portuguese 

investigation revealed that CAE/AAE conducted poor aircraft maintenance 

and pilot training and established that those entities were the “most 

culpable” for the accident; but, according to the Defendants, CAE/AAE could 

not be party to Plaintiffs’ suit because it was not subject to personal 

jurisdiction in Pennsylvania. See Motion to Dismiss for Forum Non 

Conveniens, 2/24/12, ¶ 5-7, 9, 16. 

Plaintiffs opposed the motion, countering that the United States has 

compelling connections with this case, all of the evidence related to the 

(Footnote Continued) _______________________

Allegheny Technologies, Inc.; Allegheny Teledyne Incorporated; Honeywell 

International, Inc., a company responsible for the aircraft's auto-pilot 

system; McCauly Propeller Systems; Textron, Inc.; and Cessna Aircraft, Co. 

See Bochetto I, 94 A.3d at 1046. Plaintiffs settled their claims with some of 

these Defendants. Id. at 1046 n.3.

3 Defendant Honeywell joined the motion on July 19, 2012.
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design and manufacture of the aircraft is located in the United States, the 

negligence claims against the foreign defendants are untenable, and CAE has 

a strong presence in the United States. See Plaintiff’s Response to 

Defendant’s Motion to Dismiss, 4/2/12. ¶ 1-9.

The trial court granted the motion to dismiss on December 10, 2012, 

after all Defendants submitted written stipulations “(1) accepting service of 

process in a subsequent action brought in Portugal alleging the same injuries 

and damages as set forth in the within action; (2) admitting jurisdiction in 

Portugal; and (3) waiving the statute of limitations defense in the 

subsequent action to be filed in Portugal.” Bochetto I, 94 A.3d at 1047 

(quoting Trial Court Opinion, 9/27/12, at 1).4

Plaintiffs appealed on December 27, 2012, arguing that the trial court 

misapplied the law when analyzing the forum non conveniens factors.5 This 

Court agreed, and held that the trial court erred when it “limited its 

discussion to those forum non conveniens factors that were specific to 

Pennsylvania, and did not address the network of connections to the United 

States as a whole.” Bochetto I, 94 A.3d at 1053. In remanding the case, 

____________________________________________

4

The trial court entered a conditional order and opinion granting the motion 

on September 27, 2012.

5

Plaintiffs also contended that the trial court abused its discretion in failing 

to give proper deference to the Plaintiffs’ choice of forum and improperly 

shifting the burden of proof on the motion to Plaintiffs. We did not address 

those grounds in our disposition of Plaintiffs’ first appeal.
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we instructed the trial court to consider “factors which connect the case 

generally to the United States, and not merely to Pennsylvania.” Bochetto 

I, 94 A.3d at 1056 (citing Aerospace Finance Leasing, Inc. v. New 

Hampshire Ins. Co., 696 A.2d 810, 815-16 (Pa. Super. 1997)); see also

Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257-58 (1981) (one of the 

leading Supreme Court precedents in this area).

We also held that the trial court abused its discretion by rendering a 

one-sided discussion which did not “fully consider and discuss the factors 

weighing both against, and in favor of, an appellant’s choice of forum.” 

Bochetto I, 94 A.3d at 1055 (citing Wright v. Aventis Pasteur, Inc., 905 

A.2d 544, 552 (Pa. Super. 2006), appeal denied, 916 A.2d 1103 (Pa. 

2007)); see also Bochetto I at 1056 (citing Plum v. Tampax, Inc., 160 

A.2d 549, 553 (Pa. 1960)). We specifically listed several private6and public 

____________________________________________

6 We stated that the following private factors weigh in Plaintiffs’ favor: 

(1) evidence relating to the design, manufacture and testing of 

the aircraft is located in the United States; (2) all of the 

witnesses regarding [Plaintiffs'] claims of design defect and 

products liability are located in the United States; (3) evidence 

relating to the aircraft's two previous American owners, and 

documentation of maintenance and upkeep of the aircraft during 

that time period, are located in the United States; (4) two of the 

remaining defendant-corporations (Dimeling and American 

Capital) are registered Pennsylvania corporations; (5) two of the 

remaining defendant corporations maintain principal places of 

business in Pennsylvania (Allegheny Technologies, Inc., and 

Allegheny Teledyne, Inc.); (6) three of the remaining defendant-

(Footnote Continued Next Page)
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factors7favoring Plaintiffs’ choice of forum in this case. Bochetto I, 94 A.3d 

at 1055. We remanded “for the trial court to conduct a complete and 

thorough analysis of all relevant forum non conveniens factors in this case” 

and cautioned the court against placing central emphasis on any one factor. 

Id. at 1056, n.11 (emphasis in original) (citing Reyno, 454 U.S. at 249-50).

Upon remand, the trial court ordered the parties to conduct discovery 

and file supplemental briefs in light of the directives of this Court. Trial Court 

Opinion, 12/23/15, at 2. After oral argument, the lower court again 

dismissed the case on forum non conveniens grounds by the order dated 

December 23, 2015. Id.

Plaintiffs filed a notice of appeal to this Court on January 8, 2016. In 

their brief, they raise the following issues: 

(Footnote Continued) _______________________

corporations maintain registered agents in Pennsylvania 

(Continental, Teledyne Technologies, Inc., and Honeywell).

Bochetto I, 94 A.3d at 1055 (paragraphing, footnotes and citations 

omitted).

7 We pointed out that Portugal has less of an interest in this case than 

Scotland did in Reyno (where the aircraft accident took place in Scotland 

and the victims/plaintiffs were from Scotland), because, “In this case, none 

of the decedents/pilots, plaintiffs, defendants or parties-in-interest are 

Portuguese.” Bochetto I, 94 A.3d at 1055. We also mentioned that the trial 

court should have discussed the general interest that the United States has 

“in ensuring that American manufacturers are deterred from producing 

defective products.” Id. (citing Reyno, 454 U.S. at 260). We note that 

Bochetto I mentions the deterrence factor twice — as both a public and 

private factor. In this opinion, we address it in our discussion of the public 

factors.
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1. Did the lower court abuse its discretion by failing to afford the 

appropriate deference or “solicitude” due to Plaintiffs' choice of 

forum? 

2. Did the lower court's failure to accord any deference to 

Plaintiffs' choice of forum necessarily result in a misapplication of 

the law, which is evident from the lower court's failure to find 

that even one private or public factor weighed in favor of 

Plaintiffs?

3. Did the lower court commit reversible error when it accorded 

dispositive weight to Defendants' purported inability to join nonparties CAE and AAE, and improperly shifted the burden of proof 

to Plaintiffs[]?

4. Did the lower court abuse its discretion by disregarding this 

Court's instruction to consider the substantial United States 

interest in ensuring that American manufacturers are deterred 

from producing defective products?

Appellants’ Brief at 5-6 (emphasis in original; suggested answers omitted).

A trial court’s decision to dismiss based on forum non conveniens will 

not be disturbed absent an abuse of discretion. Cinousis v. Hechinger 

Dep't Store, 594 A.2d 731, 731 (Pa. Super. 1991). Appellants challenging a 

trial court’s discretionary decision face a “heavy burden”: “It is not sufficient 

to persuade the appellate court that it might have reached a different 

conclusion if, in the first place, charged with the duty imposed on the court 

below; it is necessary to go further and show an abuse of the discretionary 

power.” Id. at 731-32 (citations omitted). A trial court will have abused its 

discretion when “in reaching [its] conclusion the law is overridden or 

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

result of partiality, prejudice, bias, or ill will.” Aerospace, 696 A.2d at 812 
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(citation omitted). If there is any valid basis for the trial court's decision, the 

decision will not be disturbed. Cinousis, 594 A.2d at 732 (citation omitted).

As we explained in Bochetto I, a motion for dismissal based on 

interstate forum non conveniens is governed by Section 5322(e) of the 

Judicial Code, which reads:

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) (emphasis in original). A court deciding such a motion 

must consider that (1) a plaintiff's choice of forum should not be disturbed 

except for weighty reasons, and (2) an action shall not be dismissed unless 

an alternative forum is available to the plaintiff. Humes v. Eckerd Corp., 

807 A.2d 290, 293-94 (Pa. Super. 2002) (citing Poley v. Delmarva Power 

& Light Co., 779 A.2d 544, 546 (Pa. Super. 2001)).

To determine whether “weighty reasons” exist, a trial court must 

examine both the private and public factors announced by Gulf Oil Corp. v. 

Gilbert, 330 U.S. 501 (1947). See Bochetto I, 94 A.3d at 1048-1050; 

Humes, 807 A.2d at 294-95. The private factors include:

[T]he relative ease of access to sources of proof; availability of 

compulsory process for attendance of unwilling, and the cost of 

obtaining attendance of willing, witnesses; possibility of view of 

premises, if view would be appropriate to the action; and all 

other practical problems that make trial of a case easy, 

expeditious and inexpensive. There may also be questions as to 

the enforceability of a judgment if one is obtained. The court will 

weigh relative advantages and obstacles to fair trial.
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Gilbert, 330 U.S. at 508. With respect to public factors, the Supreme Court 

advised:

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.

Id. at 508-09. 

Here, the trial court concluded that Plaintiffs’ choice of forum was 

entitled to some deference, but not overwhelming deference. Trial Court 

Opinion, 12/23/15, at 19-21. The trial court then weighed both private and 

public factors for and against Plaintiffs’ choice of forum.

In discussing the private factors, the trial court found that access to 

most of the evidence was evenly weighted between the parties:

Evidence relating to the aircraft's original and subsequent 

American owners, and documentation of maintenance and 

upkeep before the 2001 sale of the aircraft are located in the 

United States. The more relevant evidence, however, is the 

documentation of maintenance and upkeep after the aircraft was 

sold to the Belgium company and then leased to the Portuguese 

academy. None of that evidence is in the United States.

Trial Court Opinion, 12/23/15, at 21 (emphasis in original). However, the 

trial court stated that access to the witnesses weighed in favor of Portugal: 

while neither a court in the United States nor Portugal could compel 

attendance by overseas witnesses, most of Plaintiffs’ witnesses are party-
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Defendants who have agreed to submit to Portuguese jurisdiction. Id. at 21-

22.

The trial court found that “[t]he inability of the Defendants to obtain 

proper service and jurisdiction over CAE and AAE in the United States weighs 

heavily in favor of dismissal.” Trial Court Opinion, 12/23/15, at 24. In 

making this determination, the trial court relied on Reyno, 454 U.S. at 259. 

In that case, the United States Supreme Court held that dismissal on 

grounds of forum non conveniens was appropriate where the American 

defendants wished to implead foreign third-parties. The Supreme Court 

affirmed the dismissal based in part on the convenience of resolving those 

claims in one trial, rather than holding a domestic trial against domestic 

defendants and a subsequent indemnity action abroad. If the case had not 

been dismissed, and if the plaintiffs had prevailed in the domestic suit, the 

defendants would have had to bring a subsequent indemnity action against 

the foreign third-parties. The district court in Reyno found that such a suit 

would be burdensome to the defendants, and the Supreme Court held that 

“[f]inding that trial in the plaintiff's chosen forum would be burdensome . . . 

is sufficient to support dismissal on grounds of forum non conveniens.” See

Reyno, 454 U.S. at 259.

Similarly, the trial court here observed:

In the instant case, the Defendants based their defense on 

the assertion that the cause of the accident was improper 

maintenance of the aircraft on the part of AAE and/or CAE, and 

not a design defect in the aircraft. The Defendants are unable to 
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obtain proper service or personal jurisdiction over either AAE or 

CAE in Pennsylvania or elsewhere in the United States. The 

Defendants' case will be severely inhibited by their inability to 

join AAE and CAE in a trial that occurs in the United States. This 

weighs very heavily in finding that Portugal, where service and 

jurisdiction may be had upon AAE and CAE, is a more 

appropriate forum.

In the event that the Defendants are found liable in a 

United States court, they would be forced to initiate duplicative 

contribution and indemnity actions against AAE and CAE in 

Portugal. This would result in the otherwise unnecessary burden 

of litigating the same issues in two separate trials under two 

separate legal systems. This strongly demonstrates that Portugal 

is a more appropriate and convenient forum in which to litigate 

all of the issues in the case in one trial.

This factor weighs heavily in favor of Portugal and is a 

“weighty reason” to disregard the Plaintiffs' choice of forum.

Trial Court Opinion, 12/23/15, at 26 (emphasis in original). The court 

therefore concluded that the private factors overall favor trial in Portugal.

The trial court also found that the public factors weighed in favor of 

litigation in Portugal. Regarding local interest, the trial court noted that 

“Pennsylvania bears only a tangential relation to the facts of this case and it 

would be improper to burden a Pennsylvania jury with a case in which the 

community holds virtually no interest.” Trial Court Opinion, 12/23/15, at 27-

28.8 Regarding national interest, the trial court acknowledged that the 

____________________________________________

8

In Bochetto I we instructed the trial court to consider Portugal’s limited 

interest in this case, considering that “none of the decedents/pilots, 

plaintiffs, defendants, or parties-in-interest are Portuguese.” Bochetto I, 94 

A.3d at 1055. In so doing, we contrasted this case with Reyno, where the 

case was dismissed to Scotland in part because “[t]he pilot and all of the 

(Footnote Continued Next Page)
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United States has an interest in regulating product manufacturers. Id. at 

30.9 The trial court placed this deterrence factor on an equal footing with 

Portugal’s national interest in regulating safe aircraft operations in its skies.

Id. at 30-31 (citing Reyno, 454 U.S. at 260-61; Dahl v. United 

Technologies Corp., 632 F.2d 1027, 1032-33 (3d Cir. 1980)). Finally, the 

trial court found that the Pennsylvania court’s obligation to apply Portuguese 

negligence law weighed in favor of litigation in Portugal. Id. at 29 (citing 

Tyro Industries v. James A. Wood, Inc., 614 A.2d 279, 282 (Pa. Super. 

1992)).

Plaintiffs contend that the trial court erred in several parts of this 

analysis. We discuss Plaintiffs’ arguments in turn.

(Footnote Continued) _______________________

decedents' heirs and next of kin were Scottish subjects and citizens.” 454 

U.S. at 235. Although the trial court here did not specifically address the lack 

of connection the decedents and their families have with Portugal when 

discussing the public factors, the court did consider that the decedents/

plaintiffs lack a connection with the United States, and therefore concluded 

that the burden the trial would impose on Pennsylvania’s court system would 

not have been justified. Trial Court Opinion, 12/23/15, at 27-28. We note 

that here, unlike in Reyno, the plaintiffs reside in different jurisdictions, 

none of which is where the accident occurred (though some, like Spain and 

the Netherlands, are in closer proximity to Portugal than to Pennsylvania and 

the United States). Neither party argues that the location of the nominal 

plaintiff, the American court-appointed administrator (Mr. Bochetto), should 

be given significant weight. 

9

In Bochetto I we stated that the trial court should have discussed the 

general interest that the United States has “in ensuring that American 

manufacturers are deterred from producing defective products.” Bochetto I, 

94 A.3d at 1055 (citing Reyno, 454 U.S. at 260).
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Deference to Plaintiffs’ Choice of Forum

Plaintiffs first argue that the trial court abused its discretion by failing 

to afford appropriate deference or “solicitude” to their choice of forum. 

Appellants’ Brief at 41-42. Plaintiffs claim that the trial court should have 

concluded that because other factors were evenly weighted, deference 

tipped the scales in their favor. Id. at 45-46.

Plaintiffs argue that, in assessing the appropriate level of deference to 

give them, the trial court erred by (a) ignoring this Court’s decisions in 

Bochetto I and Aerospace, by “fail[ing] to recognize these two opinions as 

the primary precedential decisions on Pennsylvania’s forum non conveniens

law,” and by (b) relying on Reyno and In re W. Caribbean Crew 

Members, 632 F.Supp.2d 1193 (S.D. Fla. 2009). In the latter two cases, 

less deference was given to foreign plaintiffs’ choice to bring suit in the 

United States, rather than pursuing litigation in their home countries.

Appellants’ Brief at 43-44. Plaintiffs claim they are due greater deference in 

this case because “the choice was between Portugal, where no Defendant or 

Plaintiff is located, and the United States, where all of the Defendants reside, 

where the evidence supporting Plaintiffs’ claims is maintained, and where 

the misconduct causing the accident occurred.” Id. at 44-45 (emphasis in 

original). Plaintiffs state, “No party has suggested that Plaintiffs should have, 

or even could have, sued in the Decedents’ respective home fora (in Spain, 

the Netherlands, or Australia).” Id. at 44. 
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Contrary to Plaintiffs’ assertion, the trial court’s analysis was 

consistent with this Court’s decisions in Bochetto I and Aerospace. In 

Bochetto I, this Court held that, “[w]hile foreign plaintiffs enjoy ‘less 

deference’ with regard to their choice of forum, their choice is still entitled to 

solicitude.” 94 A.3d at 1056 (citations omitted). Here, the trial court gave 

Plaintiffs’ choice “some deference, but not overwhelming deference.” Trial 

Court Opinion, 12/23/15, at 19. 

In Aerospace, this Court held that it was not bound to assume that a 

Pennsylvania forum was unreasonably inconvenient for a Delaware plaintiff. 

696 A.2d at 814. This Court explained that “[a]ny state in our United States 

would, most likely, be significantly more convenient for the American 

plaintiff than trying its case in the defendant’s preferred forum, a foreign 

country.” Id. This case is factually distinguishable from Aerospace because 

it involves foreign plaintiffs.

The trial court did not err in holding that, under Reyno, a foreign 

plaintiff’s choice of an American forum is entitled to less deference than such 

a choice by an American plaintiff. See Trial Court Opinion, 12/23/15, at 19-

21. In Bochetto I, this Court cited Reyno for this same proposition. See 

Bochetto I, 94 A.3d at 1056. While we noted in Bochetto I that this Court 

is not bound by federal decisions such as In re W. Caribbean Crew 

Members, see Bochetto I, 94 A.3d at 1050, the trial court did not err in 

considering such decisions for their persuasive value. 
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Plaintiffs are correct in their assertion that their home countries of 

Spain, the Netherlands, and Australia may not present the most convenient 

forums for a suit; however, that does not mean Plaintiffs have free choice of 

any other available forum. In a global case such as this, no one jurisdiction 

may stand out as convenient. The trial court was not required to give 

overwhelming deference to Plaintiffs’ choice and was free to determine 

whether, despite the solicitude to which Plaintiffs were entitled, weighty 

reasons existed to favor suit somewhere else. We hold that the trial court 

accorded Plaintiffs’ choice of forum appropriate deference under 

Pennsylvania law.

Public and Private Factors

Plaintiffs next complain that the trial court misapplied the law and 

abused its discretion when it failed to find “even one” private or public factor 

weighed in their favor. See Appellants’ Brief at 49. Plaintiffs contend that if 

the factors were properly counted, they were, at least, evenly balanced, and 

the trial court then should have found in their favor. See id. at 48.

In part, this issue seems to be one of semantics. It is possible, for 

example, to say that at least six factors relating to the availability of 

witnesses and evidence weigh in favor of Plaintiffs, using the list on page 47 
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of Appellants’ brief that is taken from Bochetto I, 94 A.3d at 1055-56.10

Plaintiffs’ complaint apparently is that the trial court did not employ some 

sort of score card that gave these factors a total score of 6 in Plaintiffs’ 

favor. But the weighing of factors is not an exercise in counting numbers. As 

we pointed out in Petty v. Suburban Gen. Hosp., 525 A.2d 1230, 1234 

(Pa. Super. 1987):

The party seeking the transfer must clearly specify the key 

witnesses to be called and must make a general statement of 

what their testimony will cover. The emphasis must be on this 

showing rather than on numbers. One key witness may outweigh 

a great number of less important witnesses. 

525 A.2d at 1234 (quoted citation omitted). This principle applies not just to 

the location of the witnesses, but to each public and private factor, and to 

the weighing of the factors overall. A discerning analysis involves more than 

a simple tally.

The trial court did consider that some items weighed in favor of an 

American forum. For example, the court found that the evidence relating to 

the aircraft’s design, original and subsequent American owners, and 

____________________________________________

10 These are: (1) evidence relating to design, manufacture, and testing of 

the aircraft is in the United States, (2) witness regarding design defect and 

products liability are in the United States, (3) evidence relating to prior 

American owners and their maintenance and upkeep of the aircraft is in the 

United States, (4) two defendants are Pennsylvania corporations, (5) two 

defendants maintain their principal places of business in Pennsylvania, and 

(6) three defendants maintain registered agents in Pennsylvania. Appellants’ 

Brief at 47 (¶¶ 1-6). We note that some of the items on this list are 

duplicative, and the items could validly be grouped together as one factor, or 

as some number of factors less than six, depending on how they are worded.
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maintenance prior to 2001 is located in the United States. See Trial Court 

Opinion, 12/23/15, at 21. But the court then concluded that these items, 

when compared to others relating to the availability of evidence (e.g., that 

evidence related to more recent aircraft maintenance and pilot error is in 

Portugal), resulted in an overall even “balance” between the two sides with 

respect to this factor. See id. Thus, instead of listing each point regarding 

availability of evidence on some sort of chart and then counting them up, 

the court assessed this category overall according to the importance of the 

different types of evidence at issue:

Evidence relating to the aircraft’s original and subsequent 

American owners, and documentation of maintenance and 

upkeep before the 2001 sale of the aircraft are located in the 

United States. The more relevant evidence, however, is the 

documentation of maintenance and upkeep after the aircraft was 

sold to the Belgium company and then leased to the Portuguese 

academy. None of that evidence is in the United States.

Id. (emphasis in original). By engaging in such a qualitative assessment of 

the evidence and its importance, rather than merely counting up items in a 

list, the court did not abuse its discretion. See Petty, 525 A.2d at 1234. 

See also Reyno, 454 U.S. at 249-50 (explaining that forum non conveniens

decisions need to retain flexibility and turn on the facts of each case). 

In sum, contrary to Plaintiffs’ assertion, the trial court did consider 

factors that were in Plaintiffs’ favor, as we instructed in Bochetto I. Rather 

than ignoring those factors, the trial court evaluated them along with 

countervailing factors and concluded that many of the private and public 
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factors were evenly divided between the parties. Again, the court did not 

abuse its discretion by engaging in that analysis.

Apart from their general compliant about how factors were counted, 

Plaintiffs challenge the trial court’s analysis and weighing of several specific 

private and public interest factors. In addressing this argument, we reiterate 

that our role is not to determine whether this Court, in the first instance, 

would have reached a different conclusion than the trial court, but rather to 

decide whether the trial court abused its discretion. See Cinousis, 594 A.2d 

at 731-32. With that standard in mind, we hold that the trial court did not

abuse its discretion in considering the specific public and private factors 

about which Plaintiffs complain.

Regarding the private factors, Plaintiffs claim that the trial court should 

not have considered that the Defendants had agreed to submit to foreign 

jurisdiction when considering their location. Appellants’ Brief at 51-52. We 

disagree. In Bochetto I, we noted that “[t]he locations of corporate offices 

and registered agents have been considered by Pennsylvania courts in 

assessing forum non conveniens claims, specifically with relevance to the 

ease of obtaining process on potential witnesses.” 94 A.3d at 1055 n.10. 

Where, as here, defendants stipulate to accepting service of process in the 

alternative forum, and “that they will make all necessary and relevant 

evidence and witnesses within their custody and control available for an 
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action in Portugal,” Appellees’ Brief at 38, their location in the United States 

is of diminished relevance in the forum non conveniens analysis.

Plaintiffs also complain that the trial court found the ability to view the 

premises both to have “no bearing” and to be “equally balanced.” Appellants’ 

Brief at 55-56. They argue, “Had the appropriate deference been given to 

the [Plaintiffs’] choice of forum, the lack of need to view the accident site 

visit in Portugal would have been considered a reason not to disturb

[Plaintiffs’] choice.” Appellant’s Reply Brief at 18 (emphasis in original). On 

this point, the trial court found that 

The physical condition of the [airfield] from which the 

doomed plane took off appears to have no bearing on any issue. 

The parties have not asserted that the condition of the airfield 

played any part in the fatal accident. Debris from the accident 

was photographed; it is unlikely that any useful debris remains 

at the airfield six year[s] later.

The remains of the aircraft are housed in a Portuguese 

university. The Portuguese government had no problem sending 

the engines to the United States for inspection by Teledyne and 

then having them returned to Portugal. If all or a portion of the 

aircraft is needed at a trial in the United States, there does not 

appear to be a major difficulty in shipping the remains to the 

United States.

This issue is equally balanced.

Trial Court Opinion, 12/23/15, at 22-23 (footnote omitted; emphasis in 

original). The trial court cited Walls v. Phoenix Ins. Co., 979 A.2d 847, 

852-53 (Pa. Super. 2009), for the proposition that it is unnecessary for a 

jury to view a scene if it is unlikely to be in substantially the same condition 

well after the event in question. 
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The trial court did not abuse its discretion in reaching the conclusion 

that the location of the airfield had no bearing on its analysis. The only law 

Plaintiffs cite for their argument is Aerospace, 696 A.2d at 814. We note 

that the court in Aerospace agreed that, “where defendant has not shown 

that a view of the premises will be necessary or helpful to its case, trial court 

did not abuse its discretion in denying defendant's motion to dismiss for 

forum non conveniens.” See id. (citing Beatrice Foods Co. v. Proctor & 

Schwartz, 455 A.2d 646 (Pa. Super. 1982), and finding that “proper 

documentary evidence of the condition of the jet has been sufficiently 

preserved — thus, abolishing the need to view the accident scene or the 

damaged aircraft during trial”). Where, as here, a trial court finds that 

Defendants have not shown that a view of the premises will be necessary or 

helpful to its case, Aerospace does not mandate that the court deny the 

motion, but rather that this factor not be considered as favoring dismissal.

Plaintiffs also protest that the trial court did not give any weight to the 

location of their counsel in Pennsylvania. Appellants’ Brief at 56. Because of 

the complexity of this case, Plaintiffs claim they require specific counsel and 

that they will be deprived of their choice of counsel in Portugal, as there is 

no pro hac vice admission procedure there. Id. However, the trial court 

correctly declined to give “compelling” weight to this factor, noting that it is 

unsupported by any case law. Trial Court Opinion, 12/23/15, at 23. Indeed, 

we have approved in the past a trial court’s observation that “[t]he only 
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discernible contact that this case has with Pennsylvania is the location of 

plaintiff's counsel, and we refuse to recognize this as a compelling 

consideration.” Cinousis, 594 A.2d at 733 (quoted citation omitted). See 

also Hunter v. Bayer Corp., 65 Pa. D.&C. 4th 298, 322 (C.P. Phila. 2003) 

(location of attorneys not relevant in forum non conveniens analysis), aff’d 

sub nom Engstrom v. Bayer Corp., 855 A.2d 52 (Pa. Super. 2004)). 

Plaintiffs cite no law to the contrary, and we are told of no reason why 

Plaintiffs may not continue to benefit from the expertise of their chosen 

counsel by using him as a consultant if the litigation is outside of 

Pennsylvania.

Plaintiffs also complain that the trial court gave no weight to the 

location of 80 non-party witnesses who could testify regarding what they 

claim were 128 “substantially similar” in-flight accidents. Appellants’ Brief at 

55. In response, Defendants contend that the evidence of those separate, 

unrelated incidents is not relevant to whether this case would be more 

conveniently tried in another forum. Appellees’ Brief at 27-28.11

The trial court found the location of these witnesses to be irrelevant 

because of a lack of evidence that the 128 other accidents were sufficiently 

similar to the one in this case to be admissible at trial. Trial Court Opinion, 

____________________________________________

11 Defendants also point out that this Court, in Bochetto I, did not 

specifically list the evidence of other accidents as a factor in favor of 

Plaintiffs’ choice of forum. Appellees’ Brief at 27-28.
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12/23/15, at 21. We discern no abuse of discretion. The court was making a 

prediction about a complex evidentiary question. It did so on the basis of the 

limited information provided to it. Questions regarding the admissibility of 

evidence are themselves matters committed to a trial court’s discretion, and 

we generally are loathe to disturb them. See Smalls v. PittsburghCorning Corp., 843 A.2d 410, 413 (Pa. Super. 2004), appeal denied, 857 

A.2d 680 (Pa. 2004). At this very early stage of the case, on the limited 

record presented to a court on a forum non conveniens issue, the court 

could not have been expected to analyze this evidence question in any 

greater depth than it did. See generally Reyno, 454 U.S. at 258 (noting 

that motion does not require detailed submissions, but only “enough 

information to enable the [trial court] to balance the parties’ interests”); cf. 

Bratic v. Rubendall, 99 A.3d 1, 5 (Pa. 2014) (allowing, but not requiring, 

assumption of admissibility). The trial court stated a sound basis for failing 

to accord weight to evidence of the other accidents, and we therefore will 

not disturb its conclusion. See Cinousis, 594 A.2d at 732 (if there is any 

basis for the trial court’s decision, the decision will not be disturbed).

Regarding the public factors, Plaintiffs disagree with the trial court’s 

conclusion that Portuguese negligence law would apply in this case, and 

claim that “there was no record support for this finding; it was pure 

supposition.” Appellants’ Brief at 57. Plaintiffs assert they provided affidavits 

from European attorneys stating that U.S. law would apply. Id.
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A trial court deciding a motion to dismiss on forum non conveniens

grounds need not definitively discern what law would apply, but may 

surmise that foreign law might apply and recognize that the conflict of laws 

inquiry itself is burdensome to a domestic court. See, e.g., Engstrom v. 

Bayer Corp., 855 A.2d 52, 57 (Pa. Super. 2004) (affirming trial court’s 

dismissal where dismissal was based in part on the need to engage in a 

conflict of laws analysis); Cinousis, 594 A.2d at 733 (affirming dismissal 

where it was likely that foreign law would apply). Here, the trial court said it 

“may be true” that the product liability claims in the case will be governed 

by the law of some American jurisdiction and that Portuguese law will “likely 

apply” to other issues — a determination that, the court noted, this Court did 

not dispute in Bochetto I. See Trial Court Opinion, 12/23/15, at 29. The 

trial court’s prediction that Portuguese law might apply was not manifestly 

unreasonable, and the court did not abuse its discretion in making it. See

Aerospace, 696 A.2d at 812.12

Joinder of CAE and AAE

Plaintiffs next argue that the trial court improperly gave dispositive 

weight to Defendants’ purported inability to join non-parties CAE and AAE in 

the United States. They also claim the court shifted the burden of proof to 

____________________________________________

12 Plaintiffs also complain that the trial court did not recognize that general 

deterrence was a public factor that weighed in Plaintiffs’ favor. Appellants’ 

Brief 52-54. This issue will be discussed below, in connection with Plaintiffs’ 

fourth issue.
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Plaintiffs to show that CAE and AAE could be joined in a lawsuit in the United 

States and not in Portugal. Plaintiffs contend that the trial court’s error was 

“even more obvious” because Plaintiffs proved that AAE could not be sued in 

Portugal because it “has been out of business for years,” and that CAE has 

no known operations in Portugal, though it does have a presence in the 

United States. Appellants’ Brief at 60-61. We disagree with Plaintiffs’

assessment of the trial court’s findings.

First, the trial court did not improperly shift the burden of proof to 

Plaintiffs to prove that CAE and AAE cannot be sued in Portugal and can be 

sued in Pennsylvania. The trial court appropriately recognized that “[t]he 

burden of proof and persuasion is on Defendants as the moving party.” Trial 

Court Opinion, 12/23/15, at 31. It was Defendants’ burden to convince the 

trial court that weighty reasons existed to overcome Plaintiffs’ choice of 

forum, and Defendants successfully carried that burden by showing, among 

other things, that potential parties CAE and AAE could not be sued in the 

United States,13 but that they are extant business entities in Portugal and 

____________________________________________

13 The court noted that CAE, Inc. is headquartered in Montreal, Canada, and 

maintains flight schools in over thirty countries. Each of the subsidiaries 

operating in America are separate corporate entities and not appropriate 

defendants in this suit. Trial Court Opinion, 12/23/15, at 8-9; Defendants’ 

Letter to Trial Court, 10/27/15. Neither party contends that AAE has a 

presence in the United States.
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may be joined to a lawsuit filed in that forum.14 Trial Court Opinion, 

12/23/15, at 3, 7-9, 24-26. We defer to the trial court’s broad discretion in 

its assessment of the evidence presented by both parties. 

Furthermore, the record demonstrates that the trial court carefully 

considered many public and private factors in reaching its conclusion, and 

did not, as Plaintiffs claim, have a “myopic focus” on the potential joinder of 

AAE and CAE. As noted above, when determining the proper weight to be 

afforded this particular factor, the trial court relied on Reyno, in which the 

Supreme Court held that dismissal on the grounds of forum non conveniens

was appropriate where the American defendants wished to implead foreign 

third-parties, because forcing American defendants to pursue a subsequent 

indemnity suit abroad would be burdensome to those defendants. See

Reyno, 454 U.S. at 259. Here, the trial court similarly found that denying 

the dismissal “would result in the otherwise unnecessary burden of litigating 

____________________________________________

14 While AAE ceased operating as a flight school in 2012, it is still a 

registered corporation with assets in Portugal. Trial Court Opinion, 12/23/15, 

at 8. The CAE subsidiary that Defendants wish to join is a Portuguese 

company with its head office in Portugal. See Appellees’ Brief in Support of 

Motion to Dismiss for Forum Non Conveniens, and Exhibits 1-20, 9/14/15, at

Exhibits 4 (CAE’s Portuguese Government Registration and Certificate, 

showing the address of the registered head office in Portugal), 5 (screenshot 

of website of CAE’s Portuguese subsidiary), 16 (declaration of Portuguese 

attorney Joao Taborda). However, we note that Defendants admit “CAE is 

nothing more than a holding company with a partial ownership interest in 

AAE. Thus, CAE’s connection to this lawsuit is, at best, remote.” Appellees’ 

Brief at 35 (citations to the record omitted). The more significant party is 

AAE.
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the same issues in two separate trials under two separate legal systems.” 

Trial Court Opinion, 12/23/15, at 26. The trial court did not abuse its 

discretion in concluding that joinder considerations weighed heavily against 

Plaintiffs’ choice of forum. 

American Interest in Deterrence

Plaintiffs claim in their fourth issue that the trial court neglected to 

consider the interest of the United States in deterring American 

manufacturers from producing defective products, thereby failing to follow 

this Court’s instruction from Bochetto I. As noted above, the trial court did 

consider the American deterrence factor, but found it to be on an equal 

footing with Portugal’s national interest in regulating safe aircraft operations 

within its borders. Trial Court Opinion, 12/23/15, at 30-31.15 The trial court 

therefore did not disregard this Court’s instruction or abuse its discretion.

* * *

In sum, the trial court properly considered our opinion in Bochetto I

and did not abuse its discretion in applying that opinion and granting 

____________________________________________

15 Plaintiffs argue that the trial court discounted the significance of the 

deterrence factor by relying on statements in Reyno, 454 U.S. at 260-61, 

and Dahl v. United Technologies Corp., 632 F.2d 1027, 1032-33 (3d Cir. 

1980), that deemphasized its importance. However, a close reading of the 

trial court’s opinion shows that it did not improperly weigh the American 

interest in deterrence. The court cited our opinion in Bochetto I

emphasizing the factor’s importance and then quoted what the federal cases 

said about the factor — in particular, that the factor “is not sufficient by itself 

to warrant retention of jurisdiction.” Trial Court Opinion, 12/23/15, at 30-31. 

The court’s statement was not inconsistent with our holding in Bochetto I. 
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Defendants’ motion to dismiss based on forum non conveniens. Accordingly, 

we affirm the order granting dismissal.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/5/2016