Wright, S. v. CSX Transportation, Inc.

J-A07037-19
2019 Pa. Super. 222SAMUEL WRIGHT : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CONSOLIDATED RAIL CORPORATION :
AND CSX TRANSPORTATION, INC. :
: No. 1186 EDA 2018
Appellants :
Appeal from the Order Entered December 19, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 170206086
BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED JULY 19, 2019
Consolidated Rail Corporation (“Consolidated Rail”) and CSX
Transportation, Inc. (“CSX Transportation”) (collectively “Appellants”) appeal
from the denial of their motion to dismiss the 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 a careful review,
we are constrained to reverse and remand for further proceedings.
The relevant facts and procedural history are as follows: On February
23, 2017, Samuel Wright (“Mr. Wright”), a non-resident of Pennsylvania,
instituted the instant action pursuant to FELA1 against Consolidated Rail, which
is incorporated in Pennsylvania with a principal place of business in
Philadelphia, and CSX Transportation, which is incorporated in Virginia with
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1 Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60.
____________________________________
* Former Justice specially assigned to the Superior Court.
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an address for service in Harrisburg, Pennsylvania. Mr. Wright averred
Appellants conduct business in and have substantial contacts with
Philadelphia. He specifically averred Appellants conduct business in
Philadelphia “as an interstate common carrier of freight for hire by rail into
and from the various states[.]” Mr. Wright’s Complaint, filed 2/23/17, at 3.
Mr. Wright alleged that, since 1974, he had been employed by
Appellants as a car inspector at the Dewitt Train Yard in East Syracuse, New
York, and as a direct result of his job duties, he suffered repetitive stress
injuries to both shoulders.
On November 3, 2017, Appellants filed a joint motion to dismiss under
42 Pa.C.S.A. § 5322(e) and the doctrine of forum non conveniens. Therein,
pointing to Mr. Wright’s answers to interrogatories, Appellants indicated Mr.
Wright had been a long-time resident of New York; however, in 2016, Mr.
Wright relocated from East Syracuse, New York, to South Carolina. He was
employed by Consolidated Rail and worked at the train yard in East Syracuse,
New York, from July 9, 1974, to May 31, 1999. He was employed by CSX
Transportation and worked at the train yard in East Syracuse, New York, from
June 1, 1999, to September 24, 2014.2
____________________________________________
2 According to sworn affidavits submitted by Appellants, in 1998, CSX
Transportation and Norfolk Southern Corporation acquired Consolidated Rail
through a joint stock purchase, and they took administrative control of
Consolidated Rail in 1998. CSX Transportation acquired the New York facility
at issue as part of these business dealings.
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Mr. Wright neither worked nor was injured in Pennsylvania, and he
neither lived nor owned property in Pennsylvania. All of Mr. Wright’s treating
physicians and medical files related to the alleged injury are located in
Syracuse, New York. Mr. Wright admitted all of his fact witnesses are former
or current railroad workers who reside outside of Pennsylvania.
Moreover, pointing to affidavits filed in support of their motion,
Appellants averred that all of their witnesses who might have knowledge of
Mr. Wright’s employment with Appellants reside outside of Pennsylvania and
it is likely that any yet-to-be identified co-workers who could potentially serve
as witnesses reside outside of Pennsylvania. Appellants indicated Mr. Wright’s
supervisors currently live in Syracuse, New York, and Fisherville, Kentucky.
They further indicated that all employment records related to Mr. Wright are
stored outside of Pennsylvania. Furthermore, Appellants averred it would be
a greater hardship and inconvenience to Appellants’ employees, as well as
greater business disruption and costs to Appellants, if the trial is held in
Pennsylvania, as opposed to New York.
Accordingly, Appellants averred Mr. Wright’s action has no bona fide
connection to Pennsylvania. They reasoned the only alleged connections
between Pennsylvania and the instant matter are that CSX Transportation
conducts rail operations in Philadelphia, which are totally unrelated to Mr.
Wright’s claim of injury, and Consolidated Rail is incorporated in Pennsylvania
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with headquarters in Philadelphia, which is totally unrelated to Mr. Wright’s
claim of injury.
Appellants averred the fact the instant matter was initiated under FELA
does not alter the forum non conveniens analysis in Pennsylvania. Appellants
argued that since Mr. Wright worked exclusively outside of Pennsylvania and
suffered alleged injuries as a result of conduct that occurred exclusively
outside of Pennsylvania, the matter should be dismissed with leave for Mr.
Wight to re-file in an appropriate state. Appellants agreed to waive the statute
of limitations if Mr. Wright re-filed his action in a new forum within 120 days
of the dismissal of the suit in Philadelphia, as well agreed to not object on the
basis of venue or personal jurisdiction if the matter was re-filed in New York.
On November 27, 2017, Mr. Wright filed a response in opposition to
Appellants’ motion to dismiss for forum non conveniens. Therein, Mr. Wright
argued that, since he brought his action under FELA, he has a “substantial
right” to choose his forum, he is permitted to bring an action in any district
where Appellants conduct business, and the trial court should give “notable
deference” to Mr. Wright’s choice of forum. With regard to Appellants’
assertion all employee and medical files are located outside of Pennsylvania,
Mr. Wright responded the location of the documents is immaterial since
modern conveniences make it easy so that the documents may be accessed
by the parties. Further, Mr. Wright averred Appellants are in a “better financial
condition” to litigate at a distance than is Mr. Wright.
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On December 8, 2017, Appellants filed a reply to Mr. Wright’s response
wherein they presented substantially similar arguments as they presented in
their motion to dismiss.
By order entered December 19, 2017, the trial court denied Appellants’
motion to dismiss. Appellants filed a motion to amend the order to allow for
an interlocutory appeal, and the trial court denied the motion. Appellants then
filed a petition for review with this Court. We granted the petition and
transferred the matter to the instant docket number.
On August 10, 2018, the trial court filed a Pa.R.A.P. 1925(a) opinion in
which it set forth its reasoning.3 Initially, the trial court indicated it did not
consider the law under FELA regarding a plaintiff’s choice of forum. Trial Court
Opinion, filed 8/10/18, at 4 n.1. The trial court acknowledged New York is an
available forum; however, the trial court indicated it was required to examine
the “private” and “public” factors in order to determine whether “weighty
reasons” exist to overcome Mr. Wright’s choice of forum. Id. at 4-5. In
denying Appellants’ motion to dismiss, the trial court relevantly indicated the
following:
[It] [i]s undisputed that [Consolidated Rail] is incorporated
in Philadelphia, Pennsylvania[,] and that [CSX Transportation],
which owns part of [Consolidated Rail], is headquartered in Florida
and was served process in Pennsylvania. It is further undisputed
that [Mr.] Wright is currently a resident of South Carolina, [Mr.]
Wright does not and nor ever has either worked or lived in
____________________________________________
3The trial court did not order Appellants to file a Pa.R.A.P. 1925(b) statement,
and therefore, no such statement was filed.
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Pennsylvania. He owns no property in the Commonwealth. His
injuries were not sustained in Pennsylvania and none of his
witnesses reside in Pennsylvania. Further, his medical treatment
occurred in New York.
It is also undisputed that jurisdiction is proper in
Pennsylvania, resting as it does on [Consolidated Rail’s] corporate
residence in Pennsylvania.
In support of their motion to dismiss the matter and grant
[Mr. Wright] leave to re-file in New York, [Appellants] appended
two affidavits. In her affidavit on behalf of [CSX Transportation,]
[Lauren] Lamp stated that she is employed as Manager of Field
Investigations and that she works in Tonawanda, New York. Her
review of the corporate records shows that while employed with
[CSX Transportation], [Mr.] Wright never worked in any [of CSX
Transportation’s] facilities in Pennsylvania. She makes the same
or similar statements in her affidavit on behalf of [Consolidated
Rail], with whom [Mr.] Wright was employed between 1974 and
1999, when [CSX Transportation] assumed administrative control
of [Consolidated Rail]; she avers that [Mr.] Wright had no work-
related connection with Pennsylvania.
On the claim of forum non conveniens, namely,
[Appellants’] difficulties and costs associated with litigating [Mr.]
Wright’s case in Philadelphia, [Ms.] Lamp had the following to say:
 “Mr. Wright’s supervisors and co-workers may be
potential trial witnesses.”
 Mr. Wright’s…supervisors in New York were: Scott
T. Neidl (Neidl) and Tyson D. Hill (Hill). Neidl lives
in New York; Hill lives in Kentucky.
 “Ordinarily” his…supervisors and co-workers
“would not be expected to have worked, been
based, or lived in Pennsylvania.”
 None of the “potential supervisors” and none of his
co-workers live in Pennsylvania.
 Referring to the relative inconvenience to
[Appellants’] employees of traveling to
Philadelphia, [Ms.] Lamp avers that “[b]ased on
the time needed for travel, trial preparation and
trial attendance, such employees would be
expected to be out of service for a minimum of
three to four days for a trial in Philadelphia.”
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 Taking such employees out of operation “will result
in…greater operational disruption and
inconvenience” than a trial in New York.
 Similarly, hotel and travel expenses for each
employee, and inconvenience to employees and
their families will be much less if the case were
tried in New York.
 Finally, [Appellants’] employment records are
maintained in either New York,…New Jersey, or
in…Florida, [but] not [in] Pennsylvania.
***
[T]he court concludes that [Appellants] have failed to
create a record showing that weighty reasons either require or
permit dismissing [Mr.] Wright’s case. [Appellants] rely
principally on two affidavits consisting of unsupported conclusory
statements that, taken at face value, present a case of mere
inconvenience. The affidavits lack any iteration of facts showing
that [Appellants] or [Appellants’] employees, its putative
witnesses, are faced with costs and inconvenience beyond what is
ordinary in corporate litigation practice. There is no record to
support the affiant’s assertion that most or all of [Appellants’]
witnesses reside “primarily, if not exclusively” in New York. While
[Mr. Wright] has admitted that his fact witnesses are outside of
Pennsylvania, the record contains no information about where
they do in fact reside. Since [Appellants’] bare assertions cannot
be credited without a record, the court is unable to find that [Mr.
Wright’s] choice is “seriously inappropriate” and that weighty
reasons require dismissing [Mr.] Wright’s case.
Private Factors
[Appellants’] treatment of “private factors” falls short in the
following ways:
 “access to sources of proof” (namely
documents) presents nothing more than an
inconvenience to both parties. [Appellants] assert
that whatever documents they have relevant to
[Mr.] Wright’s case may be in any one of three
locations: New York, New Jersey, and Florida.
Therefore, wherever the case is tried, the parties
necessarily will rely, as litigants customarily do, on
tools such as mail, fax, thumb drives, courier
services, and electronic transfers.
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 “the cost of obtaining witnesses” only two of
whom are actually identified (one in Kentucky [and
one in New York]) is supported by no detail, nor do
[Appellants] demonstrate what costs it will bear or
how those costs and inconvenience to its employee
or interruption of their operations present
hardships disproportionate to the same burdens
they will bear litigating the case in Philadelphia.
 “availability of compulsory services” for
unidentified, unwilling witnesses is a claim
unsupported by anything other than speculation.
 “possibility of a review of the premises,” like
access to documents, is amendable to the
advantages of modern technology that obviates
the need for site visits, and [Appellants] have
presented no evidence or argument to the
contrary.
 “practical problems that make trial of a case
easy, expeditious, and inexpensive” are
alluded to but not specifically identified in
[Appellants’] motion, nor can th[e] court discern
any that are likely to present anything more than
mere inconvenience to [Appellants].
Thus, while litigating this matter in Philadelphia presents
inconveniences to both parties, none demonstrably weigh in favor
of [Appellants’] preference.
Public Factors
As with its review of the public factors under consideration,
the court finds that [Appellants’] case falls short:
 “congestion” in Philadelphia courts is not
demonstrated persuasively by a single news article
about changes in the rate of complaints filed in the
court’s mass tort program.
 the court finds that the community’s “relation to
the litigation” in Philadelphia is strong:
[Consolidated Rail] is a signature local name and
the company has maintained a public presence as
an active corporate citizen and employer in the
Philadelphia region for many years.
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 “conflict of laws” is not a consideration in this
litigation.
 the “enforceability of a judgment” is not a
factor in this litigation.
 “familiarity with the law” of FELA by courts in
Philadelphia is undisputed.
In short, there is scant basis on this record for [Appellants’]
contention that public factors require the dismissal of [Mr.]
Wright’s claim.
***
[Appellants] have failed to show that the inconvenience and
costs to them in litigating in Pennsylvania are so great as to meet
the “weighty reasons” standard[.]
Id. at 2-8 (citations omitted) (emphasis in original) (some bold omitted).
On appeal, Appellants contend the trial court erred in denying their
motion to dismiss Mr. Wright’s complaint under 42 Pa.C.S.A. § 5322(e) and
the doctrine of forum non conveniens. Specifically, Appellants contend that,
in deciding the motion, the trial court utilized an incorrect standard similar to
the “plaintiff-friendly ‘oppressive or vexatious’ standard applicable solely to
intrastate transfer motions under Pa.R.C.P. 1006(d).” Appellants’ Brief at 20.
Further, Appellants contend the trial court held Appellants to an
erroneous evidentiary burden as it relates to sworn affidavits. Moreover,
Appellants contend this Court’s recent decision in Hovatter v. CSX
Transportation, Inc., 193 A.3d 420 (Pa.Super. 2018), is indistinguishable
from and controlling in the instant matter as it relates to the “weighty reasons”
requiring dismissal of Mr. Wright’s Pennsylvania complaint.
Initially, we note the following relevant principles:
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Orders on motions to dismiss under the doctrine of forum
non conveniens are reviewed for an abuse of discretion. 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.
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.
In Pennsylvania, the doctrine of forum non conveniens,
which originated in Common Law, has been codified by statute:
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.A. § 5322(e).
Hovatter, 193 A.3d at 424 (quotations and citations omitted).4
The doctrine of forum non conveniens “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.” Alford, 531 A.2d at
794 (citation omitted). The doctrine addresses the issue of plaintiffs bringing
“suit in an inconvenient forum in the hope that they will secure easier or larger
recoveries or so add to the costs of the defense that the defendant will take a
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4 Our courts lack the authority to transfer matters to courts of our sister
states; but rather, when appropriate, our courts should dismiss the action to
permit re-filing in another state. See Alford v. Philadelphia Coca-Cola
Bottling Co., Inc., 531 A.2d 792 (Pa.Super. 1987).
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default judgment or compromise for a larger sum.” Hovatter, 193 A.3d at
424 (quotation marks and quotation omitted).
The two most important factors the trial court must apply
when considering whether dismissal is warranted are that “1.) the
plaintiff’s choice of forum should not be disturbed except for
‘weighty reasons,’ and 2.) there must be an alternate forum
available or the action may not be dismissed.”[5]
***
[W]ith respect to the initial factor, we note that “a court may
find that the presumption in favor of a plaintiff’s choice of forum
may be less stringently considered when the plaintiff has chosen
a foreign forum to litigate his or her claims.” Furthermore,
To determine whether such “weighty reasons”
exist as would overcome the plaintiff’s choice of
forum, the trial court must examine both the private
and public interest factors involved. Petty v.
Suburban General Hospital, 525 A.2d 1230, 1232
(Pa.Super. 1987). The Petty Court reiterated the
considerations germane to a determination of both the
plaintiff’s private interests and those of the public as
defined by the United States Supreme Court in Gulf
Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct. 839(1947). They are:
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
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5With regard to the second factor, in light of Appellants’ stipulations, there is
no dispute that an alternate forum (New York) is available for the instant
action. See Hovatter, supra. Therefore, the second factor is not at issue.
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weigh relative advantages and obstacles
to a fair trial.
***
Factors of public interest also have
place in applying the doctrine.
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 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 is
some other forum untangle problems in
conflict of laws, and in law foreign to itself.
Hovatter, 193 A.3d at 424-25 (quotations and citations omitted) (footnote
added).
In the case sub judice, Appellants first contend the trial court applied an
erroneous standard, which was similar to the “plaintiff-friendly ‘oppressive or
vexatious’ standard applicable solely to intrastate transfer motions under
Pa.R.C.P. 1006(d).” Appellants’ Brief at 20. Appellants contend the trial court
erroneously gave heightened deference to Mr. Wright’s choice of forum. Id.
at 24.
As indicated supra, Section 5322(e) of the Judicial Code controls when
there is a request to transfer a case to another state based on forum non
conveniens. See Hovatter, supra. When the matter involves a request to
transfer venue from one county to another county in Pennsylvania based on
forum non conveniens, Pa.R.C.P. 1006(d)(1) controls. See Pisieczko v.
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Children’s Hosp. of Philadelphia, 73 A.3d 1260, 1262 n.3 (Pa.Super.
2013).
This distinction is significant since a defendant bears a heavier burden
under Pa.R.C.P. 1006(d)(1), which permits forum transfers only when the
defendant establishes that a plaintiff’s chosen forum is oppressive and
vexatious for the defendant. See Bratic v. Rubendall, 626 Pa. 550, 99 A.3d
1 (Pa.Super. 2014). Under Pa.R.C.P. 1006(d)(1), “the defendant must show
more than that the chosen forum is merely inconvenient to him.” Cheeseman
v. Lethal Exterminator, Inc., 549 Pa. 200, 701 A.2d 156, 162 (1997)
(footnote omitted). Further, under Pa.R.C.P. 1006(d)(1), the trial court must
give great weight and deference to the plaintiff’s choice of forum, and the
defendant seeking a change of venue bears a heavy burden in justifying the
request. Id. See Bratic, supra; Wood v. E.I. du Pont de Nemours and
Co., 829 A.2d 707 (Pa.Super. 2003).
However, as indicated supra, under Section 5322(e) of the Judicial
Code, the trial court must determine whether “weighty reasons” exist as would
overcome the plaintiff’s choice of forum. Hovatter, supra. Under Section
5322(e), transfer should be permitted if “there is a more convenient forum
where the litigation could be conducted more easily, expeditiously, and
inexpensively.” Id. at 427 (citation omitted). Further, it is well settled that
“the presumption in favor of a plaintiff’s choice of forum may be less
stringently considered when the plaintiff has chosen a foreign forum to litigate
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his or her claims.” Aerospace Finance Leasing, Inc. v. New Hampshire
Ins. Co., 696 A.2d 810, 814 (Pa.Super. 1997) (citation omitted). “[W]hen the
home forum has been chosen, it is reasonable to assume that this choice is
convenient. When the plaintiff is foreign, however, this assumption is much
less reasonable.” Id. (quotation marks and quotation omitted).
Instantly, we agree with Appellants that, in determining whether
“weighty reasons” exist, the trial court erred in giving great deference to Mr.
Wright’s (the plaintiff’s) choice of forum and incorporating “plaintiff-friendly”
Pa.R.C.P. 1106(d) standards into its analysis. For example, in the case sub
judice, the trial court examined the matter with an eye towards whether the
factors showed “[Appellants] or [Appellants’] employees, its putative
witnesses, are faced with costs and inconvenience beyond what is ordinary in
corporate litigation practice.” Trial Court Opinion, filed 8/10/18, at 5-6.
Further, the trial court sought to determine whether Mr. Wright’s choice of
forum was “merely inconvenient” to Appellants. Id.
Inasmuch as there is no dispute that interstate transfer was sought in
this case under Section 5322(e), the trial court should have given less
deference to Mr. Wright’s choice of Pennsylvania as a forum and should have
sought to determine whether “there is a more convenient forum where the
litigation could be conducted more easily, expeditiously, and inexpensively.”
Hovatter, 193 A.3d at 427 (citation omitted). Determining whether Mr.
Wright’s chosen forum was “merely inconvenient” to Appellants was not the
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proper standard for the trial court in ruling on Appellants’ interstate forum non
conveniens motion. See Humes v. Eckerd Corp., 807 A.2d 290 (Pa.Super.
2002).
Accordingly, we conclude the trial court improperly intermingled
standards of heightened deference afforded to plaintiffs under Pa.R.C.P.
1006(d)(1) into this interstate transfer matter, thus abusing its discretion. 6
Next, Appellants contend the trial court imposed an improper
evidentiary burden upon Appellants and erred in its consideration of
Appellants’ affidavits, which were submitted in support of their motion to
dismiss under Section 5322(e). Instantly, the trial court ruled Appellants’
affidavits were insufficient since the affidavits consisted “of unsupported
conclusory statements” and “bare assertions [that] cannot be credited without
a record[.]” Trial Court Opinion, filed 8/10/18, at 5-6.
The trial court specifically held that, while sworn affidavits submitted by
Appellants asserted that “most or all of [Appellants’] witnesses ‘reside
primarily, if not exclusively’ in New York[,]” there was “no record” to support
the affiant’s assertions. Id. at 6. Further, the trial court concluded the
allegations made in Appellants’ affidavits related to greater costs,
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6 This Court recently held that, under FELA, injured railroad workers are not
entitled to a heightened deference as to their choice of forum. Hovatter,
supra. We acknowledge the trial court indicated in its opinion that it did not
consider the “law under FELA” in ruling on Appellants’ motion to dismiss. See
Trial Court Opinion, filed 8/10/18, at 4 n. 1.
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inconvenience, hardship, and business disruption if the case is tried in
Pennsylvania, as opposed to New York, needed to be supported by detail in
the record. Id.
Our Supreme Court has held that, while petitions to transfer venue must
be supported by information on the record, no particular form of proof is
required. See Bratic, supra. “All that is required is that the moving party
present a sufficient factual basis for the petition.” Bratic, supra, 99 A.3d at
9 (quotation omitted). Moreover, in matters involving motions to transfer
venue, our Supreme Court has held the trial court must exercise “common
sense” in evaluating the allegations in affidavits. Id.
Here, inasmuch as the trial court determined there is no dispute that
Mr. Wright worked for Appellants exclusively in New York, Appellants’
assertion in its affidavits that most or all of its witnesses reside primarily, if
not exclusively, in New York does not require additional record support. See
id. Additionally, with regard to Appellants’ assertion in its affidavits that it will
be more costly to transport out-of-state witnesses for trial, as well as cause
greater inconvenience and interference with the witnesses’ personal life and
Appellants’ business, as our Supreme Court held in Bratic:
[Aside from allegations that such will occur,] [w]e are
unsure what extra detail must be enumerated—the interference
with one’s business and personal life caused by the participatory
demands of a distant lawsuit is patent. The witnesses need not
detail what clients or tasks will be postponed or opportunities lost
in order for the judge to exercise common sense in evaluating
their worth; indeed, no one can foretell such detail. One hopes a
judge may comprehend the existence of relevant general
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disruption from the allegations in the affidavit, sufficiently to rule
on the issue.
Bratic, supra, 99 A.3d at 9.
Accordingly, we conclude the trial court erred as it pertains to
consideration of Appellants’ affidavits and evidentiary burden.
Finally, Appellants contend this Court’s recent decision in Hovatter,
supra, is indistinguishable from and controlling in the instant matter as it
relates to the “weighty reasons” factor, which the trial court must consider in
ruling on a motion to dismiss under Section 5322(e). Consequently,
Appellants contend the trial court erred in concluding Mr. Wright’s choice of
forum should not be disturbed since there were no “weighty reasons.” We
agree with Appellants.7
In Hovatter, in concluding the appellant (defendant below) established
“weighty reasons” for dismissal of the appellees’ (plaintiffs below)
Pennsylvania complaints, this Court indicated the following:
The trial court found that [the] [a]ppellant[8] was doing
business in Philadelphia by virtue of its hauling freight through the
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7 We acknowledge it is within the trial court’s discretion to weigh some factors
more heavily than others and weighing the factors is “not an exercise in
counting numbers.” Bochetto v. Dimeling, Schreiber, & Park, 151 A.3d
1072, 1083 (Pa.Super. 2016). However, given the trial court’s errors as
indicated supra, combined with the similarities between Hovatter and the
instant case, we conclude the trial court erred in failing to find the requisite
“weighty reasons” for dismissal under the doctrine of forum non conveniens.
8 We note CSX Transportation, who is one of the defendants/appellants in the
instant case, was the sole defendant/appellant in Hovatter. Also, Hovatter
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county on a regular basis. Furthermore, the court reasoned that
even though [the] [a]ppellant had waived objections to re-filing
in an alternate jurisdiction (on certain conditions), it had failed to
establish weighty reasons for dismissal on evaluation of the
private and public interest factors. We are constrained to
disagree.
[The] [a]ppellant maintains that “under generally applicable
Pennsylvania law, [its] unrelated business activity in Pennsylvania
is not a valid basis for denying [the appellant’s] [forum non
conveniens] motions.” Preliminarily, we observe that doing
business in Philadelphia supports venue. It does not preclude
dismissal based on forum non conveniens.
***
[The] [a]ppellant argues that these cases should be
dismissed. Neither [a]ppellee resides in Pennsylvania (Hovatter
resides in Maryland; Wilson, in Kentucky). Hovatter’s injury
allegedly occurred in Cumberland, Maryland; Wilson’s in
Kentucky, Ohio, and Indiana; Hovatter received his medical
treatment in Maryland; his witnesses are in Maryland.
Wilson received all of his medical treatment in Kentucky and
Ohio. All of his claims arise from alleged acts and omissions of
[the] [a]ppellant in Kentucky, Ohio, Indiana, or Florida. There are
no relevant witnesses to any of the working conditions in
Pennsylvania. There are no employment records or other
documents of relevance to either case in Pennsylvania. [The]
[a]ppellant states that all sources of proof in these matters are
located outside of Pennsylvania.
[The] [a]ppellant also argues that because all of the
witnesses it is likely to call reside outside of Pennsylvania, it will
be more difficult to compel their presence at trial, in particular,
unwilling witnesses. It contends that even if the [sic] some of the
witnesses are willing to attend, it will be more costly and
inconvenient.
Nevertheless, the trial court maintains that the private and
public factors do not favor dismissal. However, the trial court’s
conclusion is unreasonably and impermissibly dependent
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involved the consolidation of two plaintiffs/appellees’ cases: one involving
David Hovatter and the other involving Edward Wilson.
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on…suggestions on how to trim costs or work around other
objections.
These recommendations range from the court’s
encouragement of increased use of video technology, to its highly
impractical (and implausible) suggestion that in Horvatter’s case
[the] [a]ppellant could remove the ramp at issue, a twelve feet by
six fee construct of steel and concrete still in active use in the
Cumberland locomotive shop, for shipment to Philadelphia.
Similarly, the trial court dismissed the problem of
transporting witnesses from Cumberland, Maryland to
Philadelphia (a distance of about two hundred forty miles) by
reasoning that because [the] [a]ppellant is in the business of
hauling freight, it should be able to make arrangements for
employee (and other Maryland witnesses’) travel as well….
We are constrained to conclude the trial court abused its
discretion.
Hovatter, 193 A.3d at 427-28 (footnote added) (citations omitted).
In the case sub judice, the trial court found Mr. Wright has never
resided, worked, or owned property in Pennsylvania. Rather, he was a long-
time resident of New York who moved to South Carolina in 2016. Trial Court
Opinion, filed 8/10/18, at 2. Mr. Wright worked for Appellants exclusively in
New York. Id. The trial court found Mr. Wright’s injuries were not sustained
in Pennsylvania, his medical treatment occurred in New York, his medical
records related thereto are in New York, and none of Mr. Wright’s witnesses
reside in Pennsylvania. Id.
The trial court found Mr. Wright’s supervisors currently live in New York
and Kentucky. Appellants averred it is not expected that any of Mr. Wright’s
New York co-workers live in Pennsylvania. Appellants averred it would be a
greater hardship and inconvenience to Appellants’ employees, as well as a
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greater business disruption and costs to Appellants, if the trial is held in
Pennsylvania, as opposed to New York. As the trial court found, Appellants’
employment records pertaining to Mr. Wright are not stored in Pennsylvania,
but are in New York, New Jersey, or Florida.
Similar to Hovatter, we conclude the private and public factors favor
dismissal in the instant matter. See also Jessop v. ACF Industries, LLC,
859 A.2d 801 (Pa.Super. 2004) (affirming order dismissing case on basis of
forum non conveniens where plaintiff, events giving rise to cause of action,
relevant medical records, and all known witnesses were located outside of
Pennsylvania, as well as any additional witnesses would most likely reside
outside of Pennsylvania). Similar to the trial court in Hovatter, the trial court
in this case suggested solutions to trim costs and work around other
objections. For example, in the instant case, with regard to documentary
evidence, the trial court suggested the parties could utilize “mail, fax, thumb
drives, courier services, and electronic transfers.” Trial Court Opinion,
8/10/18, at 6. With regard to the viewing of the New York premises, the trial
court suggested “the advantages of modern technology…obviates the need for
site visits[.]” Id. at 6. However, such an approach has been rejected by this
Court in Hovatter.9
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9 Moreover, the trial court concluded Appellants’ claim that compulsory
process will be unavailable with regard to witnesses was “speculation.” Id.
However, as Appellants aver, since it is “undisputed that all of the potential
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Finally, it bears mentioning that Mr. Wright asserts the “vital difference”
between Hovatter and the instant case is that, in the former, only CSX
Transportation was a defendant whereas in the instant case both CSX
Transportation and Consolidated Rail are defendants. Mr. Wright’s Brief at 6.
He argues Consolidated Rail is headquartered in Philadelphia and, as the trial
court concluded, the name “Consolidated Rail” is a “signature local name” with
a “public presence.”
Preliminarily, we observe the fact Consolidated Rail’s headquarters are
in Philadelphia supports venue, but it does not preclude dismissal based on
forum non conveniens. See id. In considering the public interest as it relates
to a plaintiff’s choice of forum under Section 5322(e), our case law recognizes
that imposing jury duty and court costs on communities with no relation to
the plaintiff’s claim weighs in favor of transferring a case. Engstrom v. Bayer
Corp., 855 A.2d 52 (Pa.Super. 2004).
Here, the only connection a Philadelphia jury would have to this case is
that of, perhaps, being familiar with Consolidated Rail, which the trial court
concludes has a “signature local name” and maintains a “public presence.”
Trial Court Opinion, filed 8/18/18, at 7. However, the repetitive shoulder
injuries complained of by Mr. Wright were not caused in connection with any
____________________________________________
witnesses reside outside of Pennsylvania,...it is ‘patent’ and ‘common sense’
that this factor can only favor dismissal.” Appellants’ Brief at 38-39 (bold
omitted).
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of Consolidated Rail’s activities occurring in Philadelphia. As our Supreme
Court has pointed out, the private and public “factors are not mutually
exclusive but rather supplement each other.” Plum v. Tampax, Inc., 399 Pa.
553, 160 A.2d 549, 553 (1960).
In the case sub judice, for all of the foregoing reasons, we are
constrained to conclude the trial court abused its discretion. See Hovatter,
supra. Applying the appropriate standard of deference and evidentiary
burden, we conclude the trial court erred in failing to recognize Appellants
demonstrated “weighty reasons” exist as would overcome Mr. Wright’s choice
of forum. See id. Simply put, Appellants proved “there is a more convenient
forum where the litigation could be conducted more easily, expeditiously, and
inexpensively” than Mr. Wright’s chosen Pennsylvania forum. Id. at 427
(citation omitted).
Accordingly, we reverse the order in question and remand with
directions to the trial court to dismiss the underlying complaint without
prejudice to re-filing it, within the time limits previously stipulated, in a more
appropriate court.
Order Reversed. Case remanded with instructions. Jurisdiction
relinquished.
Judge Dubow has joined the Opinion.
Judge Olson concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/19
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