Key Witnesses and Critical Distance: Tranter Reaffirms Venue Transfer Standards

You know the emergency response is not good when you get a call at 4:30 a.m. telling you to turn on CNN. On January 5, 2020, a Z&D Tour Bus carrying 59 passengers on board rolled over on the Pennsylvania Turnpike in Westmoreland County, blocking both westbound lanes. The bus was then struck by a FedEx/Sioux Trucking tractor trailer, which was then struck by a UPS tractor trailer. Unfortunately, this accident resulted in the deaths of five people – the bus driver, two bus passengers, and two UPS drivers – and most of the other passengers sustained injuries of varying degrees. The accident scene was tended to by no fewer than five different volunteer fire departments and 10 EMS agencies. The NTSB investigated and issued a comprehensive report two years later.

Numerous suits were filed in late 2021 and early 2022. Even though the accident occurred in Westmoreland County, which is in the western part of the state, four of the lawsuits were filed in Philadelphia, which is located in the southeastern corner of the state. None of the plaintiffs were from Philadelphia. Westmoreland County is more than 250 miles from Philadelphia. All of the corporate defendants conduct business nationwide. FedEx/Sioux Trucking filed preliminary objections seeking to transfer the case. The Court directed the parties to conduct limited discovery on the issues of venue and forum non conveniens. During discovery, the parties obtained statements, affidavits, and deposition testimony of numerous first responders and other potential fact witnesses. These individuals detailed the personal and professional hardships that they would face if they were required to travel to Philadelphia. The defendants then filed and/or joined in petitions to transfer the suit from Philadelphia County to Westmoreland County pursuant to the doctrine of forum non conveniens.

The Trial Court’s Decision & PA Superior Court’s Ruling

The trial court concluded that the defendants met the burden, previously imposed by the Superior Court, of specifying the key witnesses to be called and a providing a general statement of what their testimony will address. In particular, it was noted that the police, investigators, medical providers, and first responders could provide testimony about weather and road conditions, vehicle conditions and positions, passenger positions and conditions, conditions of the commercial motor vehicle drivers, statements, and any investigations and/or accident reconstructions. Also noting that these witnesses would have to travel more than 200 miles to Philadelphia, the trial court transferred the case to Westmoreland County.

The plaintiffs appealed to the Superior Court, which addressed its own precedent concerning the burden of the moving parties. In particular, the Superior Court stated that a claim of witness hardship requires “a general statement of what testimony that witness will provide” and the statement must “establish that the potential witness is ‘key’ to the defense.” The Superior Court required the defense to show that the testimony of the identified witness will be “critical” to the defense. The Court also suggested that the requirements must be established within a witness affidavit in which the witness must explain how their testimony would “benefit the defense.” The Superior Court concluded that the 11 affidavits and 32 unnotarized statements submitted detailing the hardships of traveling from Westmoreland County to Philadelphia failed to “indicate how the individuals were ‘key witnesses’ for the defense.”

The Superior Court reversed the trial court, remanding case back to Philadelphia County.

Appeal to the PA Supreme Court

Defendants UPS, FedEx, and Penske each separately petitioned the Pennsylvania Supreme Court to review the Superior Court’s decision. The Supreme Court, in Tranter v. Z&D Tour, Inc., reversed the Superior Court, sending the case back to Westmoreland County. There are three main results from the Pennsylvania Supreme Court decision, all of which are helpful to the defense.

• First, the Supreme Court held that the Superior Court’s reliance upon a “key witness” standard was beyond the basic requirement that the defense provide the court with a general statement of the identity of potential witnesses and some sense of their anticipated testimony. The Supreme Court was particularly critical of the Superior Court’s declaration “that defendants categorically fail to meet their burden if they do not establish that the testimony” of the witnesses will be “necessary” or “critical” to their defenses via an affidavit from the witness. The Supreme Court did not understand why the Superior Court would require disinterested non-lawyer fact witnesses to offer legal opinions as to how their testimony would “benefit the defense.” Moreover, as the Supreme Court noted, affidavits are not even required to meet the burden to obtain a transfer of venue based upon the doctrine of forum not conveniens.
• Second, the Supreme Court reaffirmed its prior opinions in Cheesman v. Lethal Exterminator, Inc., 701 A.2d 156 (Pa. 1997) and Bratic v. Rubendall, 99 A.2d 1 (Pa. 2014). The Court noted that in Bratic, it was deemed obvious that forcing witnesses to travel one hundred miles to participate in a litigation was “manifestly troublesome.” In Tranter, the Court reaffirmed this sentiment by stating “[a] distance of one hundred miles provides a valuable benchmark for distinguishing between oppressiveness and mere inconvenience.” While distance is not intended to be dispositive, “as a general rule … a distance of one hundred miles is a reasonable line.”
• Finally, the Supreme Court declined to adopt the plaintiff’s argument that with technology, witnesses can appear remotely. The reliance upon remote testimony in not supported by the law. Moreover, the Court noted that “as one of the only avenues available to challenge the plaintiffs’ [forum] selection, it is essential that the doctrine of forum non conveniens remains viable as a ‘necessary counterbalance to [e]nsure fairness and practicality.’”

This decision was a major win for defendants who do business in Pennsylvania. The Supreme Court ruling is an important milestone in the litigation of forum non conveniens issue in Pennsylvania because defendants now have the ability to transfer lawsuits that have no relationship to Philadelphia, a notoriously pro-plaintiff jurisdiction venue with disproportionately liberal jury pools, to a venue where the underlying cause of action occurred.

UPS was represented by Gary N. Stewart, Diane B. Carvell, and Inder D. Paul of Weber Gallagher Simpson Stapleton Fires & Newby LLP.