Wallace, S. v. Penn Central Corp. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STEPHEN P. WALLACE, JR. IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
PENN CENTRAL CORPORATION A/K/A
AMERICAN PREMIER UNDERWRITERS,
INC. AND CONSOLIDATED RAIL
CORPORATION
Appellees No. 111 EDA 2021
Appeal from the Order Entered November 23, 2020
In the Court of Common Pleas of Philadelphia County
Civil Division at No: 200101648
BEFORE: BOWES, J., STABILE, J., and MCCAFFERY, J.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 10, 2022
Appellant, Stephen P. Wallace, Jr., appeals from an order granting the
motion filed by Appellees, Penn Central Corporation a/k/a American Premier
Underwriters, Inc. (“American Premier”) and Consolidated Rail Corporation
(“Conrail”) (collectively “Appellees”) to dismiss Appellant’s complaint filed in
the Court of Common Pleas of Philadelphia County based on the doctrine of
forum non conveniens, for re-filing in a more appropriate forum. After careful
review, we affirm.
The factual and procedural history is as follows: on January 15, 2020,
Appellant, a lifelong resident of New York, instituted this action pursuant to
the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60, against
American Premier, which is incorporated in Pennsylvania with a principal place
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of business in Cincinnati, Ohio, and Conrail, which is incorporated in
Pennsylvania with a principal place of business in Philadelphia. On March 25,
2020, Appellant filed an amended complaint alleging that he worked for
Appellees as a carman and car foreman at Selkirk Yard and Croton Yard in
New York and the Thompson Yard and Conway Yard in Pennsylvania. The
amended complaint alleged that Appellant’s employment with Appellees
exposed him to harmful carcinogens that caused him to develop lung cancer.
In answers to interrogatories, Appellant stated that he worked in the
Conway Yard in Pennsylvania in the 1980’s, but he was unsure of the exact
dates or names of witnesses who worked with him there, and he did not
provide any documentation supporting his claim that he worked in
Pennsylvania. During discovery, Appellant did not identify any co-workers or
supervisors at the Thompson Yard. Nor did he provide any information about
the dates or amount of time he purportedly worked at that location.
Also in response to interrogatories, Appellant identified two supervisors
during his entire employment with Appellees, both of whom he claimed worked
at the Selkirk Yard in New York. Additionally, Appellant identified four former
co-workers who witnessed his alleged exposures to toxic substances, all of
whom, according to Appellant, worked at the Selkirk Yard in New York.
Conrail’s last known addresses for five of these individuals were all in New
York, but Conrail no longer employs any of them.
On September 22, 2020, Appellees filed a motion to dismiss based on
forum non conveniens. In support of their motion, Appellees provided the
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affidavit of Conrail’s risk manager, who identified five of Appellant’s former
supervisors, all of whom have last known addresses in New York and none of
whom was still employed by Conrail. Conrail did not have any records for an
employee identified by Appellant named Joe Watozicz. The risk manager
further averred that none of Conrail’s files relating to Appellant are located in
Pennsylvania. Appellees also attached Appellant’s admissions that he does
not reside in Pennsylvania, never resided in Philadelphia, never owned
property in Pennsylvania, never worked for Appellees in Philadelphia, and was
not diagnosed or treated for any injuries arising from this lawsuit in
Pennsylvania. Appellees attached Appellant’s responses to interrogatories in
which he identified thirteen addresses at which he has lived, all of which are
in New York. These responses also listed his medical providers, all of whom
are located in New York. Finally, Appellees attached Conrail’s responses to
interrogatories, which named sixty-nine individuals Conrail has identified as
former co-workers or supervisors of Appellant that may be called as witnesses
at trial; sixty-seven of them have last known addresses in New York, one
individual’s last known address is in Massachusetts, and one individual’s last
known address is in Matamoras, Pike County, Pennsylvania.
Appellees stipulated that they would not object on the basis of venue or
personal jurisdiction if this case was dismissed and refiled in Albany County,
New York. Although Appellees did not waive the statute of limitations defense,
they stipulated that so long as the action was refiled within ninety days of the
dismissal order, the filing date to be used for statute of limitations purposes
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in the refiled action would be January 15, 2020, the date on which Appellant
filed his original complaint.
Appellant filed a response in opposition to Appellees’ motion to dismiss
for forum non conveniens, as well as a supporting memorandum. Appellant
pointed out that six of the sixty-seven individuals from New York whom
Appellees named as potential witnesses were deceased, but he did not furnish
any evidence relating to the remaining sixty-one individuals. Appellant
claimed that Pennsylvania was a convenient forum because he had worked for
part of his career in Pennsylvania, and because both Appellees were
Pennsylvania corporations headquartered in Philadelphia.
Appellant also asserted that he would call four fact witnesses who lived
in Pennsylvania as witnesses:
[Appellant] intends to call to testify four former corporate
employees who worked at Conrail’s headquarters in Philadelphia.
[Appellant] intends to call Marcia Comstock, M.D., Conrail’s former
medical director, who worked for Conrail in Philadelphia and lives
in Wayne, PA. [Appellant] intends to call William Barringer,
Conrail’s former safety director, who worked for Conrail in
Philadelphia. Barringer now lives in Naples, FL. [Appellant]
intends to call Ramon Thomas, Conrail’s former industrial
hygienist, who worked for Conrail in Philadelphia and lives in the
Philadelphia area. [Appellant] intends to call Paul Kovac, Conrail’s
occupational claims manager, who worked for Conrail in
Philadelphia, PA and lives in Hatboro, PA.
Appellant’s Response In Opposition To Appellees’ Motion To Dismiss, at ¶ 26.
Appellant did not explain the matters to which Comstock or Kovac would
testify. With regard to Barringer and Thomas, Appellant attached transcripts
of their testimony in September 2019 in another FELA case in Philadelphia
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County, Nouse vs. Penn Central Corporation, Consolidated Rail
Corporation and Norfolk Southern Railway Company, and briefly
described the substance of their testimony without citing the transcripts.
Appellant’s Memorandum In Opposition To Appellees’ Motion To Dismiss, at
15-16. Appellant then argued it was proper to litigate this case in Philadelphia
because Thomas “had a significant influence in the development, or lack
thereof, of policies and procedures affecting railroad workers,” and Barringer
“was specifically aware of the dangerous work conditions and toxic exposures
of these workers.” Id. at 16.
On November 23, 2020, the trial court entered an order granting
Appellees’ motion to dismiss without prejudice to refiling this action in Albany
County, New York, or another appropriate jurisdiction. The order stated that
if this action was refiled within ninety days of the entry of its order, the filing
date to be used for statute of limitations purposes in the re-filed action shall
be January 15, 2020. On December 23, 2020, Appellant filed a timely appeal
to this Court. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises three questions in this appeal:
1. Whether the Trial Court abused its discretion in finding that
weighty reasons existed to support dismissal under the doctrine
of forum non conveniens.
2. Whether the Trial Court abused its discretion by granting
[Appellees’] Motion to Dismiss on the basis of forum non
conveniens where the negligent actions, inactions, and decisions
made in Philadelphia by Philadelphia-based corporate employees
ultimately failed to provide [Appellant] with a reasonably safe
workplace that he was entitled to under the FELA.
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3. Whether the Trial Court abused its discretion by granting
[Appellees’] Motion to Dismiss on the basis of forum non
conveniens in considering the alleged inconvenience of sixty-nine
(69) witnesses who are not known to have relevant testimony to
[Appellant’s] case, if they are still alive, over the actual
inconvenience of [Appellant’s] three named fact witnesses which
reside in the Philadelphia area and have relevant testimony about
[Appellant’s] theory of liability.
Appellant’s Brief at 2-3. We review these questions together because they
ultimately require that we address a single issue: whether the trial court
abused its discretion by dismissing Appellant’s action under the doctrine of
forum non conveniens.
FELA affords the plaintiff a “substantial right” to select the forum in
which to file his or her FELA claims. 45 U.S.C. § 56. Notwithstanding this
right, the doctrine of forum non conveniens permits the trial court to dismiss
a case in whole or in part if it “finds that in the interest of substantial justice
the matter should be heard in another forum[.]” 42 Pa.C.S.A. § 5322(e); see
also Hovatter v. CSX Transp., Inc., 193 A.3d 420, 425-26 (Pa. Super.
2018) (FELA does not heighten deference afforded to plaintiff’s choice of forum
in context of forum non conveniens). The party seeking dismissal bears the
burden of proof. Failor v. FedEx Ground Package System, Inc., 248 A.3d
527, 535 (Pa. Super. 2021). Our courts lack the authority to transfer matters
to courts of our sister states; rather, when appropriate, our courts should
dismiss the action to permit re-filing in another state. Rahn v. Consolidated
Rail Corporation, 254 A.3d 738, 747 n.6 (Pa. Super. 2021).
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The forum non conveniens doctrine “provides the court with a means of
looking beyond technical considerations such as jurisdiction and venue to
determine whether litigation in the plaintiff’s chosen forum would serve the
interests of justice under the particular circumstances.” Id. at 747. Two main
factors guide the determination on whether the plaintiff has chosen a proper
forum. Id. at 248. One is whether the plaintiff has an available alternative
forum to refile claims if they are dismissed. Id. Appellant does not claim that
New York’s statute of limitations bars him from refiling this action in New York,
so we need not analyze this factor further.
The second factor, which the parties dispute, is whether “weighty
reasons” justify the court’s decision to altering the plaintiff’s choice of forum.
Id. The plaintiff’s choice of forum must be given a high degree of deference,
but to a lesser extent where the plaintiff chooses a foreign forum in which to
litigate his claims. Id. The assessment of “weighty reasons” implicates both
public and private interests. Id. Private interests include:
the 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 actions; 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 a fair trial.
Id. Public interests include:
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
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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. “It is within the trial court’s discretion to weigh some of these factors
more heavily than others,” because “weighing the factors is not an exercise in
counting numbers.” Lyndes v. Penn Central Corporation, 254 A.3d 725,
738 (Pa. Super. 2021).
Analysis of forum non conveniens requires the court to consider the
relative convenience of the forum state and the state proposed by the
defendant as the proper forum. Failor, 248 A.3d at 537 (in personal injury
action brought in Philadelphia by plaintiff who resided in Hagerstown,
Maryland, determination of forum non conveniens required court to consider
relative convenience of Pennsylvania and Maryland, not Philadelphia and
Hagerstown; court abused its discretion by dismissing case on ground that
Philadelphia was inconvenient forum).
We review orders on motions to dismiss under forum non conveniens
for abuse of discretion. Rahn, 254 A.3d at 747. “This standard applies even
where jurisdictional requirements are met. Moreover, if there is any basis for
the trial court’s decision, the decision must stand.” Id. “An abuse of
discretion occurs if, inter alia, there was an error of law or the judgment was
manifestly unreasonable. When reviewing for errors of law, the appellate
standard of review is de novo and the scope of review is plenary.” Id. “An
abuse of discretion occurs if, inter alia, there was an error of law or the
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judgment was manifestly unreasonable. When reviewing for errors of law, the
appellate standard of review is de novo and the scope of review is plenary.”
Id.
In recent years, this Court has decided multiple appeals concerning
whether forum non conveniens applies to FELA cases brought by out-of-state
plaintiffs in Pennsylvania against railroad companies (mostly Conrail and Penn
Central). In all of these cases, the plaintiffs identified the same four witnesses
from Pennsylvania that would testify on their behalf that Appellant has
proffered in this case: Comstock, Barringer, Thomas and Kovac. In the vast
majority of these cases, we held that the trial court acted within its discretion
by dismissing the actions on the ground of forum non conveniens. See Rahn,
supra; Lyndes, supra; Stevens v. Penn Central Corporation, 251 A.3d
798 (Pa. Super. 2021); DeAngelis for Estate of Bloom v. Penn Central
Corporation, 251 A.3d 432 (Pa. Super. 2021); Burnett v. Penn Central
Corporation, 250 A.3d 1240 (Pa. Super. 2021); Hurt for Estate of Jones
v. Penn Central Corporation, 250 A.3d 1227 (Pa. Super. 2021); Sacco v.
Penn Central Corporation, —A.3d—, 2021 WL 4305876 (Pa. Super. 2021)
(unpublished); Favire v. Consolidated Rail Corporation, —A.3d—, 2021
WL 4279772 (Pa. Super. 2021) (unpublished); Chatman v. Consolidated
Rail Corporation, —A.3d—, 2021 WL 4167787 (Pa. Super. 2021)
(unpublished). In another decision, Ficarra v. Consolidated Rail
Corporation, 242 A.3d 323 (Pa. Super. 2020) (consolidating nine cases for
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purposes of disposition), we vacated orders denying motions to dismiss in
eight cases, and we denied dismissal in one case because it was trial-ready
due to completion of discovery and the selection of a trial term. In only one
case did we hold that the trial court properly denied the railroad companies’
motion to dismiss. Robbins for Estate of Robbins v. Penn Central
Corporation, 212 A.3d 81 (Pa. Super. 2019).
In the present case, the trial court began its analysis by comparing
Robbins with Ficarra. We, too, find it instructive to compare Robbins and
Ficarra, since Ficarra is representative of the decisions in which we have
held that forum non conveniens warranted dismissal of FELA actions filed in
Pennsylvania.
Robbins involved a decedent who exclusively worked in Indiana and
featured out-of-state witnesses related to his previous employment. After the
defendants moved to dismiss on forum non conveniens grounds, the plaintiff
named Comstock, Barringer, Thomas, and Kovac as witnesses, stating that
“although the decedent worked at the train yard in Indiana, the policies and
procedures related to [his] exposure to chemicals and cancer-causing
substances were determined at [Conrail’s] headquarters in Philadelphia.” Id.,212 A.3d at 85-86. The plaintiff also discounted the necessity to view the
work site as “extremely dangerous.” Id. at 86. Ultimately, the defendants’
motion to dismiss was denied.
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On appeal, this Court held that the court did not abuse its discretion in
finding that weighty reasons did not exist to dismiss that case. With regard
to the private factors, the trial court concluded there was no evidence that
Indiana would provide easier access to the decedent’s employment records,
which are housed in New Jersey and/or Florida. With regard to the cost of
obtaining the attendance of willing witnesses and the availability of
compulsory process for obtaining the attendance of unwilling witnesses, the
trial court noted that the railroad companies identified two former employees
as potential witnesses, one who resided in Illinois and another who resided in
Indiana. The plaintiff, on the other hand, identified the four fact witnesses
referenced above, all of whom resided in Pennsylvania and were former
Conrail employees. Additionally, the trial court noted the railroad companies’
concession that it is unlikely any party would seek a request to view the train
yard at issue. With regard to public factors, the plaintiff averred that although
he worked in Indiana, the policies and procedures related to his exposure to
chemicals and cancer-causing substances were determined at Conrail’s
headquarters in Philadelphia, thus establishing Pennsylvania’s relation to the
litigation. Having analyzed the court’s assignment of weight to both private
and public factors, we ascertained that the railroad companies did not meet
the necessary burden to establish forum non conveniens. Robbins, 212 A.3d
at 90.
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In Ficarra, the nine plaintiffs all resided outside of Pennsylvania and
were never employed by the defendants in Pennsylvania. In their motion to
dismiss, the defendants averred that there was a lack of both fact witnesses
and sources of proof in Pennsylvania; the defendants would be “unable to avail
themselves of compulsory process for attendance of unwilling witnesses”; the
fact-finder would be unable to view the plaintiffs’ work premises; and there
would be burdens on taxpayers as well as the Philadelphia court system,
generally. Id., 242 A.3d at 327. The plaintiffs responded by indicating their
intention to call Comstock, Barringer, Thomas, and Kovac as fact witnesses.
The trial court found that: (1) only one of the four witnesses proposed
by the plaintiffs irrefutably lived in Pennsylvania; (2) all of the plaintiffs’ former
coworkers and supervisors lived outside of Pennsylvania; (3) the plaintiffs’
injuries all occurred outside of Pennsylvania; and (4) all medically relevant
information, as well as the medical staff who performed work on these
plaintiffs, existed outside of Pennsylvania. The court initially denied the
motion to dismiss as to all but one plaintiff, but it later concluded in its
Pa.R.A.P. 1925 opinion that it abused its discretion by denying the motion.
Distinguishing Robbins, this Court agreed that the initial denial of the
motion to dismiss was an abuse of discretion. Whereas the plaintiff in
Robbins “set forth a specific argument that Conrail developed policies and
procedures in its Philadelphia office that created the conditions leading to
plaintiff's injuries,” the plaintiffs in Ficarra “presented scant argument” as to
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those employees’ relevance. Ficarra, 242 A.3d at 336. Moreover, there was
also ambiguity in the record over the residency of three of the four
Philadelphia-connected proposed witnesses. In summation:
All of [p]laintiffs’ former co-workers, supervisors, and diagnosing
and treating physicians reside outside Pennsylvania. The work
sites are outside Pennsylvania. The only connection to
Pennsylvania relevant to [p]laintiffs’ claims is that four individuals
who used to work in Philadelphia were allegedly involved in the
drafting and implementation of procedures that led to [p]laintiffs’
injuries. However, on the records before the trial court, only one
of those witnesses undisputedly resides in Pennsylvania currently.
Moreover, [p]laintiffs largely failed to explain the relevance of the
former employees’ testimony. Weighing the private and public
interest factors using the correct evidentiary burden, the trial
court here ultimately concluded [in its Pa.R.A.P. 1925 opinion]
that [r]ailroad [d]efendants presented sufficient weighty reasons
to warrant dismissal for forum non conveniens in these eight
cases. We discern no abuse of discretion by the trial court in
reaching this conclusion.
Id. at 337.
The trial court herein began its analysis by summarizing Ficarra and
Robbins. It then held that private factors justified the dismissal of the
present case:
In the case sub judice, the private factors weigh heavily in favor
of dismissal. New York offers far easier access to the sources of
proof in this case. [Appellant’s] career with Conrail and Penn
Central was centered in New York—that is where [Appellant] lived,
where the Selkirk Yard and Croton Yard are located, where
[Appellant’s] medical providers are located, and the location of the
last known addresses for the vast majority of the former co-
workers and supervisors identified by both [Appellant] and
[Appellee] . . . [Appellant’s] employment records are not located
in New York; however, they are not located in Philadelphia, either.
[Appellant] relied on his identification of Comstock, Barringer,
Thomas, and Kovac as potential witnesses to show Philadelphia
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also offers ease of access to witnesses. However, just as in
Ficarra, [Appellant] offered scant evidence concerning these four
witnesses or the relevance of their testimony to any theories of
liability. Initially, [Appellant] admitted Barringer lives in Florida;
accordingly, Barringer’s status as a potential witness did not affect
this Court’s evaluation of the ease of access to sources of proof.
With respect to Comstock, Thomas, and Kovac, [Appellant] did
not identify the relevance of any testimony they may provide.
[Appellant’s] failure to identify the relevance of Comstock,
Thomas, and Kovac’s testimony was particularly egregious in light
of [Appellees’] averment that [Appellant] “does not describe who
any of these witnesses are, or what testimony they may possess
relevant to his claims.” In light of [Appellant’s] failure to explain
the relevance of their testimony, the identification of Comstock,
Thomas, and Kovac as potential witnesses is insufficient to justify
keeping this case in Philadelphia.
Trial Court Opinion, 3/19/21, at 11-12. In a footnote, the trial court declined
to review the transcript of Thomas’s testimony in the Nouse case that
Appellant attached to his response:
[Appellant] attached a transcript of Thomas’s trial testimony from
a prior FELA case as Ex. 23; however, his Response in Opposition
[to Appellees’ Motion to Dismiss] does not reference Thomas’
intended testimony or Ex. 23. The final substantive page of
[Appellant’s] Memorandum of Law discussed Thomas’s proposed
testimony in general terms but did not cite any specific testimony
from the transcript or explain how Thomas’s prior testimony
related to the injuries suffered by [Appellant]. Contra Robbins,
212 A.3d at 85-86 (finding the naming of Comstock, Barringer,
Thomas and Kovac established a connection to Philadelphia
because the [Appellant] alleged “although the decedent worked at
the train yard in Indiana, the policies and procedures related to
the decedent’s exposure to chemicals and cancer-causing
substances were determined at [Conrail’s] headquarters in
Philadelphia”). This Court will not sift through Thomas’s prior
testimony and attempt to discern its relevance to the case at
hand. It is the parties’ obligation to cite any law or references to
the record to support their argument. See, e.g., Roverano v.
John Crane, Inc., 177 A.3d 892, 896 n.2 (Pa. Super. 2017)
(“Appellant Crane also argues in one paragraph that we should
reverse the trial court because its errors are cumulative. Since
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Appellant does not develop this argument or cite any law or
references to the record to support this argument, we find this
argument waived”) affirmed in part, reversed in part on other
grounds, 226 A.3d 526 (Pa. 2020).
Id. at 12 n.3. The court went on to hold that other private factors favored
dismissal:
The remaining private factors also weigh in favor [of] dismissal.
The Uniform Interstate Depositions and Discovery Act, which has
been adopted by both Pennsylvania and New York, see 42
Pa.C.S.[A.] §§ 5331-5337; 31 C.P.L.R. 3119, minimizes any
difficulty in obtaining discovery from third-parties; however, if this
case was to go to trial in Philadelphia, this Court lacks the ability
to compel the attendance of unwilling witnesses, the majority of
whom live in New York. Finally, to the extent either party seeks
a view of [Appellant’s] former work locations, Philadelphia is not
convenient to any of the four work locations identified by
[Appellant].
Id. at 12-13.
The trial court rejected Appellees’ arguments that public factors justified
dismissal:
[Appellees] made two arguments concerning the public factors: 1)
Philadelphia’s courts are congested, as illustrated by a 2017 Legal
Intelligencer article appended to their Motion and will become
more congested due to the cancellation of jury trials due to
COVID-19, and 2) Philadelphia juries should not be burdened by
the claims of out-of-state plaintiffs who suffered injury in a foreign
location.
With respect to the issue of court congestion, the evidence
presented by [Appellees], a 2017 Legal Intelligencer article which
referenced an increase in filings in the Court’s Complex Litigation
Center, is of minimal value. As can be expected, an article from
2017 does not accurately reflect the current status of this Court’s
dockets; for example, in the three years since that article was
published, the Complex Litigation Center disposed of more than
four thousand pharmaceutical products liability cases.
Furthermore, the instant case was not assigned to the Complex
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Litigation Center, it was assigned to the Day Forward 2020
program; accordingly, any perceived congestion in the Complex
Litigation Center is irrelevant to the instant matter.
[Appellees] also argue this case should be transferred to alleviate
congestion caused by the cancellation of jury trials due to COVID-
19. This argument is not persuasive; civil jury trials have already
resumed in Philadelphia and this Court expects more civil jury
trials will occur as vaccination rates increase and COVID-19 cases
decrease. Additionally, COVID-19 is a global pandemic; therefore,
it’s entirely reasonable to believe COVID-19 is affecting the New
York courts as well. As to the burden imposed on a Philadelphia
jury to hear this case, the Court remains cognizant of the fact
[Appellees] are Pennsylvania citizens and [Appellee] Conrail is
headquartered in Philadelphia. Accordingly, the public factors in
this case are, at best, equivocal.
Id. at 14.
Weighing all private and public factors “qualitatively,” the court
determined that weighty reasons justified dismissal of this case. Id. at 14.
We conclude that the trial court acted within its discretion by dismissing
the present case. Although the court found that public factors cited by
Appellees did not support dismissal, the court properly determined that the
private factors weighed heavily in favor of dismissal. The court had the
authority to dismiss this case solely on the basis of private factors in view of
its discretion to weigh some factors more heavily than others. Lyndes, 254
A.3d at 738.
We agree with the trial court that this case is more similar to Ficarra
and not Robbins. As in Ficarra, the sources of proof in this case are virtually
all outside of Pennsylvania. Appellant lives, and has always lived, in New York,
and the last known addresses of the vast majority of former co-workers and
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supervisors identified by Appellant and Appellees are in New York. Although
Appellant argues that several of the individuals identified by Appellees are
deceased, Appellants fail to rebut the fact that most of them are still alive or
that any of them reside in Pennsylvania. The diagnosis of his injuries and his
medical treatment has been entirely in New York, and his medical providers
reside in New York. Appellant admitted that he worked in two New York
railroad yards, and while he also claimed that he worked in Pennsylvania for
part of the 1980’s, he failed to provide documentary support for this point.
Thus, the trial court correctly concluded that most of his career was in New
York. Trial Ct. Op. at 11 (Appellant’s career was “centered in New York”).
Like the plaintiffs in Ficarra and the other cases gathered above,
Appellant insists that forum non conveniens does not apply based on four
individuals—Comstock, Thomas, Kovac and Barringer—who allegedly used to
work in Philadelphia and were involved in the drafting and implementation of
procedures that led to his injuries. The trial court acted within its discretion
by rejecting this argument.
First, the court reasoned that Philadelphia does not offer easy access to
Barringer because he lives in Florida. Pennsylvania is plainly an inconvenient
forum for Florida residents such as Barringer. See Rahn, 254 A.3d at 747
(“if there is any basis for the trial court’s decision” for finding forum non
conveniens, “the decision must stand”).
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Next, Appellant totally failed, in his response to the motion to dismiss,
to describe the substance or relevance of Comstock’s or Kovac’s testimony.
Finally, the trial court pointed out that although Appellant attached a
transcript of Thomas’s testimony in the Nouse case to his response to the
motion to dismiss, Appellant failed to provide any citations to specific
testimony in the transcript, let alone explain how this testimony was relevant
to Appellant’s action. This was a proper exercise of discretion. We have held
that in appeals to this Court, when the appellant fails to provide citations to
the record, “it is not [this Court’s] duty to scour the record and act as the
appellant’s counsel.” Hayward v. Hayward, 868 A.2d 554, 558 (Pa. Super.
2005). We also have held that when trial courts decide summary judgment
motions, “[its] failure to scour the record for every conceivable ground on
which to deny summary judgment cannot serve as a basis for appellate
review.” Harber Philadelphia Center City Office Ltd. v. LPCI Ltd.
Partnership, 764 A.2d 1100, 1105 (Pa. Super. 2000). Although we have not
found any decision applying “scouring” precepts to forum non conveniens
motions, we think it clear that it applies with equal force in this context.
Appellant cannot simply attach the transcript of testimony by a proposed
witness to his response to a forum non conveniens motion, neglect to cite
relevant portions of the transcript in his response, and assume that the trial
court will scour it for evidence that supports his position. The court had the
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discretion to decline this task on the ground that it would cross the line from
serving as neutral factfinder to acting as surrogate counsel for Appellant.1
In short, the trial court carefully weighed a private and public factors,
and although it found that the public factors did not support dismissal of
Appellant’s case, the private factors did. Consistent with Lyndes, the court
had the discretion to weigh some factors more heavily than others. In our
view, the court acted within its discretion by determining that the private
factors were weighty enough to justify dismissal of this case with leave to
refile it in New York or some other appropriate jurisdiction. Accordingly, we
affirm the court’s order dismissing this case without prejudice.
Order affirmed.
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1Not only did Appellant’s opposition papers in the trial court lack citations to
Thomas’s testimony, but its description of Thomas’s testimony was wholly
unpersuasive. According to Appellant, in Nouse, Thomas testified that in his
capacity as Conrail’s hygiene manager, he developed respiratory protection
and hazard communication programs in 1998. Memorandum In Opposition
To Appellee’s Motion To Dismiss For Forum Non Conveniens, at 15-16.
Appellant claimed that this was “too little, too late” because Conrail was in
existence since 1976, and its failure to develop programs until 1998 “is
negligence under FELA.” Id. at 16. This assertion fell short of demonstrating
how Conrail’s policies related to Appellant’s FELA claim or to undermine
Appellees’ forum non conveniens argument.
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J-A26017-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2022
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