### J - A06030 - 15

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 LARRY A. LYTLE IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v. CONSOLIDATED RAIL CORPORATION AND NORFOLK SOUTHERN RAILWAY COMPANY No. 1952 EDA 2014

Appeal from the Order Entered June 3 , 2014 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): April Term, 2013 No. 04215 BEFORE: PANELLA, J., OTT, J., and JENKINS, J. MEMORANDUM BY OTT, J.: FILED MARCH 24, 2015 Larry A. Lytle appeals from the order entered June 3, 2014, in the Court of Common Pleas of Philadelphia County, transferring the action to Blair County pursuant to forum non conv eniens . In this timely appeal, Lytle argues the trial court erred as a matter of law or manifestly abused its discretion in determining his choice of venue was oppressive and vexatious to Defendants Consolidated Rail Corporation and Norfolk Southern Railw ay Company (collectively “Conrail”). After a thorough review of the submissions by the parties, the relevant law, and the certified record, we affirm on the basis of the sound reasoning of the trial judge, the Honorable Mark I. Bernstein.

### J - A06030 - 15

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Briefly, Lytle w orked for Conrail for more than 30 years, during which time he claims he was exposed to dangerous chemicals and toxins, all or some of which caused him to contract colorectal and liver cancer. At all times relevant to this matter, Lytle worked in Blair Co unty and never worked in Philadelphia County. All known medical providers to Lytle are from Blair County. Fact witnesses from Conrail are all from Blair County or adjoining counties. Additionally, certain Conrail employees who are expected to testify an d attend the trial are subject to 24
- hour
- a - day call, which would be impossible to maintain if the trial took place in Philadelphia. Our standard of review is well
- settled. In an appeal from an order transferring venue on the basis of forum non conven iens , our standard of review is “whether the trial court committed an abuse of discretion.” If there exists any proper basis for the trial court's decision to transfer venue [pursuant to Pa.R.C.P. 1006(d)(1)], the decision must stand. An abuse of discreti on is not merely an error of judgment, but occurs only where the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record. Stoner v. Penn Kleen, Inc. , 59 A.3d 612, 614 (Pa. Super. 2012) appeal denied , 101 A.3d 787 (Pa. 2014) (citations omitted). The standards for transferring a case based upon forum non conveniens were announced in Cheeseman v. Lethal Exterminator, Inc. , 701 A.2d 156 (Pa. 1997). Relevantly, the party seeking change of venue

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must demonstrate with particularity, that plaintiff’s choice of forum is either oppressive or vexatious. 1 

### Id . at 162. Application of the Cheeseman standard has recently been clarified by our Supreme Court in Bratic v. Rubendall , 99 A.3d 1 (Pa. 2014). Bratic emphasizes the fairness and practicality goals of forum non conveniens 2 

### and reiterates that the trial court decision must be reasonable in light of the peculiar facts of the case. 3 

### Bratic further recognizes that “interference with one’s business and personal life caused by the participatory demands of a distant trial is patent,” and requires no extra detail. Id . at 9. Essentially, Bratic provides for a practical rather than formula ic approach to the determination to transfer a case based upon inconvenient forum. With the Cheeseman standard, as applied by Bratic , as our touchstone, our review of the certified record demonstrates to us that the trial court’s decision to transfer this matter to Blair County is supported by the record. 4 

### The trial court considered relevant matters and determined trial

_______________

_____________________________ 1 

### The oppressive or vexatious language was first used in Scola v. AC & S, Inc. , 657 A.2d 1234, 1241 (Pa. 1995), but Cheeseman formally adopted oppres sive or vexatious as the standard.
2 

### Bratic , 99 A.3d at 6. 3 

### Bratic , 99 A.3d at 7.
4 

### Factual determinations and conclusions found in the Pa.R.A.P. 1925(a) opinion are supported by proper citations to the record.

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in Philadelphi a County would prove unduly burdensome upon the defense and their witnesses. The trial court determined said burden would be substantially reduced by conducting the trial in Blair County. 5 

### Accordingly, the order transferring this matter to Blair Count y for trial is affirmed. The parties are directed to attach a copy of the trial court’s July 9, 2013, Pa.R.A.P. 1925(a) opinion in the event of further proceedings. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary
Date: 3/24/2015

_______________

_____________________________ 5 

### We note that in Bratic , the initial choice of venue was 100 miles distance for the defense, which weighed heavily in favor of the trial court’s decision to transfer the case. Instantly, the record reveals Philadelphia is 230 miles from Blair County. Not only is this 2.3 times further than in Bratic , for reference, we note it is more than twice the distance from Philadelphia to New York, New York, and almost 100 miles further than Philadelphia to Washington, D.C.Circulated 03/03/2015 10:32 AM



### , \ 

### LARRYA. LYTLE Plaintiff. v. 

### IN TIlE COURT OF COMMON PLEAS OF PHlLADELPHlA COUNTY CIVIL TRIAL 

### DIVISION
APRIL TERM,201l


### NO. 04215 

### CONSOLIDATED RAIL CORPORATION, and NORFOLK SOUT H ERN RAIL WAY COMPANY Defendants. OPINION On April 29, 20 1 3 Larry A. Lytle filed a complaint against Consolidated Rail 

### Corporation and Norfolk Southern Railway Company pursuant to 

### the Federal Emp l oyers' LiabiJity Act, (FELA) Tide 4S U.S.C. §§SJ-60,' On May 7, 2014 defendants 

### filed amotion to uansfer ven ue to Blair County. Pennsylvania on the basis of 

### Forum Non Conveniens pursuant to 

### PaR.c.p. JO06(d)(J). 2 

### On June 

### J, 2014 that 

### motion was granted? 

### On June 18,2014 Plaintiff 

### filed a timely appeal. 4 

### Plaintiff. a resident of Blair 

### Counti, 

### was employed by defendant railroads and alleges th at h e contracted illnesses while 

### he was working 

### as an emp lo yee of the defendants through hi s 

### exposure to 

### various toxins. 6 

### Plaintiffalleges that this exposure lasted abo u t 34 years. from the beginning of his employment on or about June i, 

### 1976 through September 3, 20]0. 7 

### Unlil further 

### discovery is 

### completed it is 

### impossible 10 

### know how many wilnesses will be 

### needed.

1 .Plaintiff's Complaint 11 1-4
. 1 Motion [() Transfer. May 7. 2014 1 Ordu: Filed. June 6. 20 14
. • Notice of Appeal: June 18.2014.
. j Plaintiff's Complaint 

### 1 1
. Cambria County is adjacent 10 Blair County a nd is over four hours aWilY from Philadelphia County.

, Pliint;ffs Complaint 116- 1 2. 7 PlalntJlrs Complaint UO. 1 

# II

COP IE S SENT PURSUANT TO Pa.R.C.P. 236{b) T. TAYLO R 07/11/2014 

### R,811aCirculated 03/03/2015 10:32 AM

Plaintiff alleges that such exposure caused him to develop colorectal canc er and liver cancer.' Plaintiff further aUeges that defendants were engaged in interstate commerce as a common carrier railroad. 9 When plaintiff 

### was employed by defendants h e wo r ked exclusively in Blair County. Pennsylvania. 10 Plaintiff has never worked for defendants in**Phil~elphia** County. Penn sy lvania
. " Jon Freas is a former superv i sor of pla i ntiff and will be used as a witness to " t estify as t o the job duties and requirements of electric i ans and regardi n g thejob and safety training received by electricians
. .. 12 Freas resides iii Bla ir County, 230 mil es 

### from the Philade l phia Court of Common Pleas. I) F r eas testified that it wou l d take him four hours to conunute to Philade l phia and that his ' employer would incur substantial expense and hardship due to his trave l expenses and absenee from work. 

# I. Frea s testified t hat a trial conducted in Blair County would reduce this burden considerab l y. IS None oftbe known supervisors that plaint i ffhad throughout his railroad career reside in Philadelphia County. P eMsylv ania. 1oS Plaintiff's co-workers and s u pervisors who are expected to testify are aJllocated in and around B l air County.17 If these employees are required to spend an extended amount of time i n Phi l adelphia as witnesses, the i r absences would be UJ)duty burdensome to their employer. 11 Peets. assistant manager of claims for Nonolk Souther n Corporati?n, testified t h at this bUrden and disrupt i on 10 employers would 

### be reduced

I Plaintiff's Complainl1! I. I Plainlirrs Comp l aint 15
. III Plaintifrs Responses to Defendant's request for Admission s ,,1-3. May 7, 20 14
. II Plam t iff's Responses to Defendant's request for Admissions at 

### 11. II Affidavit of Jon Freas t14-5. IJ Affidav i t of}OfI F r eas 16. I. Affidavit ofJon Freas 17. IJ Affidavit of Jon Freas 1 8. 

# I' Affidavit of Jacqu e line Peets 

### '14. 17 Affidavit of Jacque l me Peets 

### 14. 

# I' Affidavit of JaCflueJine Peets 15. 2



### R. 8 12a 

### •**-~** 

### G (':Circulated 03/03/2015 10:32 AM

considerably by conducting the trial 

### in Blair County.19 Peets also testified that Plaint i trs known medical providers, including those persons who provided treatment to Plaintiff regard i ng the instant alleged injury, are located in Blair County, Pennsylvania 20 A personal**actio~** against a corpo r at i on or simi l ar entity may be brought in the county where the cause of actio n arose. 2 ! Therefore, Blair County is a p r oper venue. ''The right of a p l aintiff t o choose a forum i s not absolute.'.n The Court,

### r the conven i ence of parties and witnesst:s may transfer an action to the appropr i ate court of any other county where th e action could originally have been brough t , upon petition of any party.21 The 

### trial court is vested 

### with discretion in detennining**whethe ~**  or not to grant a pet i t io n to transfer venue Wlder Pa .R.C.P. IOO6(d)." In Cheeseman v. Lethal Exterminator. I n c . 25 tbe Penn sy l vania Sup r eme Court sta led that
a petition to transfer venue pursuant to Rule l006(d)(I) shoul d not be gra nted unl e ss the**d~fendant** meets his burden of demonstrating, with detailed information on the record. that the pla i ntiff's chosen forum is oppressive or vexatious to the defeodanl.2b If the defe n dant can show, thro u gh detailed infonnation on th e r eco rd , that th e plaintiffs' cho i ce of forum is oppressive or vexatious, the case shou l d 

### be moved. "C l aims 

### by the defendant i n it s pet i tion th at no sign i ficant aspect of the case i nvolves the chosen forum, and that li t igating in another forum would be more convenient.
. . do not amolUltto
a showing that the chosen forom is oppressive or vexarious.'027 However, the defendant ''may

. 9 Affidavi! of Jacqueline Peets 

### 'fi 1·6. 10 Affidavit o f J acquehne Peets 17. 11 Pa.R.G.P. 2 179(a)(3). 21 Wi!ls V' Kaschak
. 420 Pa.Supu. 5 110 (1992)
. l:t Pa
. R .C.P. 10000dXI)
. N See. Hosiery Corp. of Amerjca. Inc
. y. Rich. 327 P.a..Suptr
. 4 72 (J 984)
. 11 5 4 9 P a. 200, 2J 4 (1997) 26 549 Pa.. 200,113 (1997). 2J 5 49 P a. 2M, 2 14 (1997 ) 3



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meet th is burden by establishing on the record that trial in the chosen forum is oppressive to him; for instance, rhat trial in another county would provide easier access t o witnesses and other
sources of proof.,,21 There is DO talismanic form of proof required. 

### "All that is required is 

### that the moving party present a sufficien t factual basis for 

### tbe petition
. ,,29 Blair County is where 

# the plaintiff worked for th e defendants and where the alleged exposure occurred for over 

### thirty years. Plaintiff resides 

### in Blair 

### County. In the present**~e** defendants have 

### shown through evidence on the record that
. tr i al in Philadelphia County would be unduly burdensome to their witnesses and their witnesses' emp loyer s. Defendams have also
s h

own thrpugh evidence on the record that trial in Blair County would substant iall y reduce the burden placed upon their witnesses and their witnesses' employers. This ev iden ce provides a sufficient factual basis for the petition to transfer the case to Blair County on the basis of 

### Forum NOH CQnveniens purstlant to P a.R.C.P. IOOS(d)(l). For Jhe reasons se t fortb above the judgment should be affirmed. 

### BY THE 

### COURT.

'
. ) 

### 1'M. :If W ood v. BJ du Pont de Nemours and Co., 829 A.2d 707, 714 (pa. Supe r . 2(03). 4 ()



### R.814a
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# . . '.



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