Ray, N. v. Penske Logistics

J-A09008-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
NATALI S. RAY, INDIVIDUALLY AND : IN THE SUPERIOR COURT OF
AS THE ADMINISTRATRIX OF THE : PENNSYLVANIA
ESTATE OF RIVER RUSSELL, :
DECEASED AND JOSEPH B.
RUSSELL, INDIVIDUALLY AND AS
THE ADMINISTRATOR OF THE
ESTATE OF RIVER RUSSELL,
DECEASED
No. 1636 EDA 2021
Appellants
PENSKE LOGISTICS LLC AND
PHILLIP JAMES ANTOINE
Appeal from the Order Entered July 14, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 200601803
BEFORE: NICHOLS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED JUNE 22, 2022
Appellants, Natali S. Ray and Joseph B. Russel, both individually and as
the administrators of the estate of Decedent, River Russell (collectively,
Appellants), appeal from the order granting the motion to dismiss filed by
Appellee, Penske Logistics LLC.!_ Appellants contend that the trial court erred
* Retired Senior Judge assigned to the Superior Court.
1 Although Appellants named Phillip James Antoine as a defendant, and while
Antione’s name remains in the caption, the trial court concluded that Antoine
was never properly served and is, therefore, not a party. Trial Ct. Op.,
(Footnote Continued Next Page)
J-A09008-22
in concluding that Penske established forum non conveniens.?
based on the trial court’s opinion.
We affirm
The trial court summarized the relevant facts of this case as follows:
This case arises out of a hit and run in the early morning hours of
June 24, 2019 in League City, Texas.!"“1] At approximately 3:40
A.M., a Penske truck struck nineteen-year-old River Russell as he
skateboarded on Farm-to-Market Road 270. The driver of the
truck did not stop. Approximately twenty minutes later, a passing
motorist noticed Russell lying on the shoulder of the road and
summoned authorities. Russell passed away at the hospital two
days later, on June 26, 2019. The Penske truck’s dashboard
camera recorded the entire incident. After an extensive
investigation, the League City Police Department arrested the
driver of the Penske truck, [Phillip Antoine (Antoine)], and
charged him with various crimes, including leaving the scene of
the accident. Antoine pled guilty and is currently incarcerated in
Texas.
[FN1] League City is a suburb of Houston, located on
Interstate 45 between Houston and Galveston.
K K K
On July 8, 2019, [Appellants] filed suit in the District Court of
Harris County, Texas (hereinafter “the Texas action”). The Texas
action named four defendants — Antoine, Penske Truck Leasing
Co., L.P., Penske Leasing and Rental Company, and Renaissance
Food Group.!FN2] The Texas action alleged Penske Truck Leasing
Co., L.P. and Penske Leasing and Rental Company were liable 1)
under the doctrine of respondeat superior, and 2) for negligent
hiring, negligent training, negligent supervision, and negligent
entrustment. [Appellants] voluntarily dismissed the Texas action
without prejudice on February 24, 2020.
9/22/21, at 12-13, n.6. Appellants have not argued this point or challenged
this finding.
2 An order declining to proceed in a matter on the basis of forum non
conveniens is an interlocutory order appealable as of right. See Pa.R.A.P.
311(c).
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[FN2] There are multiple corporate entities that incorporate
the Penske name. To avoid confusion, this [cJourt will use
“Penske” to refer to Penske Logistics LLC; any time this
[clourt refers to a different Penske corporate entity, it will
use the corporate entity’s full name.
On February 7, 2020, [Appellants] filed a complaint in this [c]ourt
(hereinafter the “February action”). The February action named
a single defendant, Penske Logistics LLC, and sounded in
negligence, intentional spoliation of evidence, wrongful death, and
survival. The negligence claim in the February action did not
sound in vicarious liability or in negligent hiring, retention, or
supervision; rather, it alleged Penske was liable for failing to enact
and enforce corporate policies. According to the complaint in the
February action, these policy failures emanated in Penske’s
corporate headquarters in Reading, Berks County, Pennsylvania.
On February 11, 2020, Penske removed the February action to the
Eastern District of Pennsylvania because there was complete
diversity of citizenship between the parties. Two days later, on
February 13, 2020, [Appellants] voluntarily dismissed the
February action without prejudice. The notice of dismissal stated
[Appellants] dismissed the case for the purpose of refiling to add
an additional defendant.
On June 29, 2020, [Appellants] commenced the instant action by
filing a Complaint. [Appellants] filed an amended complaint on
August 17, 2020. The amended complaint named two defendants,
[Penske and Antoine]. With respect to Antoine, the amended
complaint alleged he is a citizen and resident of Texas (thereby
resulting in a lack of complete diversity among the parties)[. |
The amended complaint sounded in negligence, vicarious liability,
wrongful death, survival, and_ intentional spoliation of
evidence.!FN3]1 In addition to alleging Penske was vicariously liable
for Antoine’s actions, the instant action averred Penske was liable
for failing to enact and enforce corporate policies, and these policy
failures originated in Penske’s corporate headquarters in Berks
County. By Order dated October 13, 2020, the Honorable
Giovanni Campbell sustained Penske’s preliminary objections to
the amended complaint in part and dismissed the request for
punitive damages without prejudice. Penske filed an answer with
new matter and cross-claim against Antoine, and [Appellants]
filed a reply to new matter.
J-A09008-22
[FN3] The spoliation claim relates to the alleged destruction
and/or altering of the video captured by the _ truck’s
dashboard cameras.
K K K
On April 16, 2021, Penske filed a motion to dismiss pursuant to
42 Pa.C.S. § 5322(e). In its motion, Penske argued weighty
reasons justify the dismissal of this case because the underlying
accident occurred in Texas, the accident investigation occurred in
Texas, Decedent Russell received all of his care in Texas, and
Decedent Russell never resided in Pennsylvania.
Penske argued all of the sources of proof for this case are in Texas.
The twenty-four members of the League City Police department
who investigated the accident reside in Texas, as do the League
City EMS personnel and Clear Lake Hospital personnel who treated
Decedent Russell, the coroner who performed Decedent Russell’s
autopsy, the five physicians and/or counselors who have been
treating Decedent Russell's parents and siblings in the aftermath
of the accident, Antoine’s former coworkers, and at least fourteen
other people or entities who possess evidence relating to this case
and Penske’s defenses. In total, Penske’s Motion identified sixty-
five potential third-party witnesses, including medical
professionals and public servants, who reside in Texas.
Additionally, Antoine is currently incarcerated in Texas as a result
of this incident. Finally, Penske argued [Appellants’] identification
of four high-level corporate witnesses who work at Penske’s Berks
County headquarters — 1) Jeff Stoicheff, Penske Executive Vice
President for Human Resources, 2) Jason Herr, Penske Vice
President for Safety, 3) Bill Horack, Penske Manager of
Implementations, and 4) Rob Helstrom, Penske Director of Safety
and Training — was illusory because these executives were not
personally involved in the hiring or termination of Antoine.
Rather, the managers who were involved in the hiring and
termination of Antoine are located in Texas and/or the mid-
western United States, and there were multiple, overlapping,
layers of local and regional management between Antoine and
these executives.
Penske argued other private factors also justified the dismissal of
this case. Sixty-five of the third-parties witnesses Penske
identified are not subject to compulsory process in Pennsylvania
because they reside in Texas. Holding trial in Pennsylvania would
prevent a jury view of the accident scene in Texas. Finally, trying
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this case in Pennsylvania would cause undue disruption in the
personal lives of current and former Penske employees who will
be witnesses in this case, the vast majority of whom are located
1,500 miles away in Texas.[FN5]
[FN5] Penske also briefly argues this case should be tried in
Texas to minimize the need for travel during the COVID-19
Pandemic, and notes Texas courts, like Texas businesses,
are fully reopened as a result of a March 2, 2021 executive
order issued by the Governor of Texas.
According to Penske, the public factors also weighed heavily in
favor of dismissal. Penske argued the Philadelphia Court of
Common Pleas has a backlog of cases as a result of the 2019
malware attack and closures related to the 2020 COVID-19
Pandemic. Penske argued the Texas courts have less congestion
because they have fully reopened following Pandemic closures. To
support this conclusion, Penske cited the fact the Philadelphia
Court of Common Pleas empaneled six juries per week in April of
2021, while the Harris County courts empaneled sixty jury panels
per week. Next, Penske argued Philadelphia has little relationship
to the controversy at issue and the citizens of Philadelphia should
not be burdened with jury duty involving a dispute that arose in
Texas. Finally, Penske argued this case should be dismissed
because Texas law applies and the judges of the Philadelphia
Court of Common Pleas should not be burdened with interpreting
and applying the law of Texas when there is no connection
between this case and Philadelphia County.
[Appellants’] response in opposition focused on Penske’s
corporate headquarters in Berks County and explained in exacting
detail how the actions, and alleged failures, of employees at
Penske’s corporate headquarters relate to this case. Gerald
McNamara, Penske’s regional Health and Safety Manager, testified
a Penske executive based in Berks County, Jason Herr, reviewed,
and had the ultimate authority to approve, all Penske safety
policies. McNamara testified another Berks County-based
executive, Jeff Stoicheff, had the ultimate authority to keep and/or
modify human resources policies at Penske relating to drivers.
[Appellants] further cited the depositions of Penske employees
Beth Cramb and Kelli Courreges, Director of Human Resources for
Distribution Center Management, to support their averment that
Penske’s safety policies and human resources policies were
deficient and two Berks County based executives, Stoicheff and
Herr, were the individuals who had the ability to modify these
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deficient policies. Additionally, [Appellants] cited deposition
testimony showing staff at Penske’s Berks County headquarters
coordinated the investigation of this incident by pulling GPS data
to determine the truck involved in this accident and seeking out
potential witnesses.
In addition to focusing on Penske’s employees in Berks County,
[Appellants] responded to the substantive arguments raised by
Penske. [Appellants] sought to downplay the significance of any
testimony offered by Penske’s Texas-based employees, and
argued the existence of Texas-based first responders and medical
personnel does not require this case to be tried in Texas. Next,
[Appellants] challenged Penske’s assertion that a view of the
accident location would be necessary. [Appellants] argued
Antoine’s incarceration in Texas should not be a factor in deciding
the motion to dismiss. Likewise, [Appellants] argued this Court
should not take the COVID-19 pandemic into consideration.
Finally, throughout their response, [Appellants] argue the
Superior Court’s decisions McConnell v. B. Braun Med. Inc.,
221 A.3d 221 (Pa. Super. 2019)[,] and Vaughan v. Olympus
America. Inc., 208 A.3d 66 (Pa. Super. 2019)[,] require the
denial of Penske’s Motion. On May 10, 2021, this [c]ourt issued a
rule to show cause why the motion to dismiss should be granted.
The [c]ourt permitted the parties to conduct discovery relevant to
the issue of forum non conveniens and scheduled oral argument
for July 7, 2021.
[Appellants] filed a supplemental memorandum on July 1, 2021,
which cited extensively from the depositions of Stoicheff, Herr,
Courreges, and William Horack to support their arguments that
Penske initiated its investigation of this incident from its Berks
County headquarters and that executives at the Berks County
headquarters controlled Penske’s safety policies and human
resources policies. Penske filed a reply brief which 1) identified
additional Texas-based individuals as possible witnesses, 2)
distinguished the Superior Court’s decisions in McConnell and
Vaughn, and 3) argued the evidence of record shows weighty
reasons exist to dismiss this case for forum non conveniens.
Trial Ct. Op., 9/22/21, at 1-9 (formatting altered).
The trial court held a hearing on the rule to show cause on July 7, 2021.
On July 14, 2021, the trial court granted Penske’s motion and dismissed
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Appellants’ amended complaint without prejudice to Appellants to refile in
Texas. Appellants filed a timely appeal. Both the trial court and Appellants
complied with Pa.R.A.P. 1925.
On appeal, Appellants present the following issues:
1. Whether, in light of [the Superior] Court’s reversals of forum
non conveniens dismissals under nearly _ identical
circumstances in [Vaughan and McConnell], the trial court’s
forum non conveniens dismissal in this case should similarly be
reversed because it was predicated on legal error and
otherwise constituted a reversible abuse of discretion?
2. Whether the extensive factual record that [Appellants]
amassed and presented to the trial court in opposing [Appellee]
Penske’s motion to dismiss for forum non _ conveniens,
demonstrating the centrality to [Appellants’] liability and
causation claims of the human resources and safety policies
and practices adopted, maintained, and controlled by
Pennsylvania-residing supervisory employees working at
[Appellee] Penske’s Pennsylvania-based headquarters, as well
as the fact that Penske conducted its investigation of the fatal
collision event from its Pennsylvania-based headquarters,
establishes that the trial court erred as a matter of law and
otherwise abused its discretion in ordering the dismissal of this
case for forum non conveniens?
3. Whether the trial court erred as a matter of law or otherwise
abused its discretion in ordering that this suit must be refiled
in Texas within 90 days from the date of its dismissal in order
for “the filing date to be used for statute of limitations in the
re-filed action shall be July 8, 2019,” because a Pennsylvania
trial court does not have the authority to tell a Texas trial court
what filing date to use, the order fails to reflect an
unconditional waiver of the statute of limitations defense by
Penske in Texas, and the trial court’s order necessitated the re-
filing of this suit in Texas before plaintiffs could obtain the
appellate review of the trial court’s dismissal order that is
available as-of-right under Pennsylvania Rule of Appellate
Procedure 311(c)?
J-A09008-22
Appellants’ Brief at 2-4 (some formatting altered).
Appellants’ first and second issues are interrelated, and we address
them concurrently. Appellants contend that the trial court committed an error
of law or abused its discretion in dismissing the matter for forum non
conveniens. Appellants maintain that they established a basis whereby trial
in this matter was proper in Pennsylvania, and that Vaughan and McConnell,
support reversal of the trial court’s order. Appellants’ Brief at 15-17, 25.
Penske responds that the trial court concluded correctly that the private
and public interests support dismissal. Penske’s Brief at 25-42. Additionally,
Penske contends that McConnell and Vaughan are distinguishable and
provide no basis upon which to disturb the trial court’s exercise of discretion.
Id. at 45.
We conduct our review bearing in mind the following principles:
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.
Lyndes v. Penn Central Corporation, 254 A.3d 725, 732 (Pa. Super. 2021)
(citation omitted).
The doctrine of forum non conveniens allows the dismissal of a
case when the evidence shows that another forum would be more
appropriate:
J-A09008-22
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.
A2 Pa.C.S. § 5322(e).
A plaintiff's choice of forum is entitled to deference, but to a
somewhat lesser degree when the plaintiff’s residence and place
of injury are located somewhere else. In any event, the trial court
may grant a motion to dismiss on the grounds of forum non
conveniens only if weighty reasons support disturbing a plaintiff’s
choice of forum and ané alternative forum is_ available.
Furthermore, a court will. . . not dismiss for forum non conveniens
unless justice strongly militates in favor of relegating the plaintiff
to another forum.
To determine if “weighty reasons” overcome the deference
afforded to a plaintiff's choice of forum, the trial court must
examine both the private and public interest factors involved in
the case. The private factors include:
the relative ease of access to sources of proof; availability
of compulsory process for attendance for unwilling, and the
cost of obtaining attendance of willing, witnesses; possibility
of view of the premises, if view would be appropriate to the
action; and all other practical problems that make trial of a
case easy, expeditious and inexpensive.
As to the public factors, trial courts must take into account several
circumstances, including that:
administrative difficulties follow for courts when litigation is
piled up in congested centers instead of being handled at its
Origin. Jury duty is a burden that ought not to be imposed
upon the people of a community which has no relation to
the litigation. There is an appropriateness, too, in having
the trial... in a forum that is at home with the state law
that must govern the case, rather than having a court in
some other forum untangle problems in conflict of laws, and
in law foreign to itself.
With respect to these factors, a defendant must show that the
plaintiff’s chosen forum is inconvenient to the defendant. A
defendant cannot merely assert that dismissal is warranted
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because the chosen forum is inconvenient to the plaintiff in some
way. Accordingly, it is difficult for a defendant to show that
convenience is a factor that weighs in favor of dismissal where it
is headquartered in the chosen forum, even if the plaintiff resides
elsewhere.
McConnell, 221 A.3d 221, 227-28 (formatting altered and some citations
omitted).
After reviewing the briefs of the parties, the certified record, and
applicable legal authority, we agree with the trial court’s rationale and adopt
it as our own. The trial court aptly addressed Section 5322, the private and
public factors, distinguished this matter from McConnell and Vaughn, and
detailed the weighty reasons required for grating Penske’s motion.
Accordingly, on this record, we conclude that Appellants are not entitled to
relief on their first and second issues.? See Trial Ct. Op., 9/22/21, at 13-24.
3 In their reply brief, Appellants cite the non-precedential decision in Parrent
v. Penske Logistics LLC, 2021 WL 6110308 (Pa. Super. filed Dec. 27, 2021)
(unpublished. mem.), aS persuasive support for their argument that Penske
failed to establish that Pennsylvania is an inconvenient forum. Appellants’
Reply Brief at 17. In Parrent, the plaintiffs were residents of Illinois, and filed
suit against Penske in Pennsylvania for injuries caused in a motor-vehicle
accident that occurred in Indiana. The plaintiffs’ claims included negligent
hiring, training, and supervision of the driver, a Penske employee. The trial
court in that case granted Penske’s motion to dismiss based on forum non
conveniences, however, on appeal, this Court reversed and concluded that it
was reasonable to conclude that the relevant witnesses and documents related
to these factors would be located at Penske’s headquarters in Reading,
Pennsylvania. Id. at *3.
Parrent is distinguishable from the case at bar for several reasons. First, the
Parrent Court found that it could not conclude that any public factors
supported dismissal because the trial court did not identify any public-interest
factors that supported its findings. Id. Moreover, the Parrent Court
(Footnote Continued Next Page)
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In the remaining issue on appeal, Appellants contend that the trial court
erred in dismissing Appellants’ amended complaint because no alternate
forum is available. See Appellants’ Brief at 28-29. Ancillary to this claim,
Appellants contends that Pennsylvania trial courts do not have authority over
Texas courts and that the trial court erred when it concluded that Penske
agreed to waive the statute of limitations defense because Penske’s language
was conditional, and therefore not a valid waiver of the statute of limitations.
Id. at 29-34. After review, we conclude that no relief is due.
concluded that there was no evidence in the record of any witnesses in
Indiana, an alternate forum, with relevant information concerning claims of
negligent supervision and training, and therefore the private-interest factors
militated against dismissal of the case in Pennsylvania. Additionally, although
the defense in Parrent noted that there were two medical professionals
located in Indiana, the record did not establish that these potential witnesses
were relevant. Id. at *4.
In the case at bar, the trial court found that Penske named Texas-based
witnesses with specificity, identified sixty-five third-party witnesses who may
be relevant to the defense, and Penske summarized the relevance of these
witnesses and their testimony. Trial Ct. Op., 9/22/21, at 22. The trial court
further considered the location of these witnesses and the trial court’s lack of
authority to compel the testimony of the witnesses residing in Texas. The trial
court also balanced the import of the sixty-five Texas-based witnesses with
the three Pennsylvania-based witnesses, and it found that the Pennsylvania
witnesses, who were employed by Penske, “represented a narrow sliver of the
witnesses expected to be called at trial and [these Penske employees] could
all be compelled to appear if this case was tried in Texas, while none of the
sixty-five third-party witnesses identified by Penske could be compelled to
appear in a Pennsylvania court.” Id. For these reasons, we conclude that
Parrent is readily distinguishable, and we do not conclude that it requires
reversal of the order in the instant case.
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As the trial court pointed out, Appellants never presented this issue to
the trial court, and they failed to raise it in their Rule 1925(b) statement.*
Trial Ct. Op., 9/22/21, at 12. Accordingly, the trial court concluded this issue
was waived. Id. Upon review, we are constrained to agree. See, e.g., Linde
v. Linde, 220 A.3d 1119 (Pa. Super. 2019) (providing that issues that are not
raised in a court-ordered Rule 1925(b) statement are deemed waived on
appeal); see also Pa.R.A.P. 302(a) (stating that issues not raised in the trial
court are waived and cannot be raised for the first time on appeal).
In any event, were we to reach the merits, we would conclude that no
relief is due. Appellants state that a Pennsylvania trial court has no authority
over Texas courts and cite Farley v. McDonnell Douglas Truck Services,
Inc., 638 A.2d 1027 (Pa. Super. 1994), as support. Appellants’ Brief at 29-
30. Although Appellants are correct in pointing out that Pennsylvania courts
have no power to direct the proceedings in a separate state, we note that the
Farley Court further explained as follows:
4 We note that one aspect of Appellants third issue, wherein they claim that
the trial court’s order required Appellants to simultaneously litigate this action
in Texas before the completion of appellate review in Pennsylvania, see
Appellants’ Brief at 29, was in fact presented in their Rule 1925(b) statement.
Rule 1925(b) Statement, 9/2/21, at 7. However, as the trial court concluded,
see Trial Ct. Op., 9/22/21, at 23, this issue is meritless because Appellants
never sought a supersedeas or stay. See, e.g., Pennsylvania Public Utility
Com'n v. Process Gas Consumers Group, 467 A.2d 805 (Pa. 1983);
Pa.R.A.P. 1732, 1733. Moreover, this limited question does not preserve or
support Appellants’ overarching claim that there was no alternate forum.
Rather, because Appellants could have pursued the action in Texas, there was
an alternate forum.
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We note that the trial court’s order permits the appellants to file
the complaint within thirty days in the proper court in New York
State. Our courts lack the authority to transfer matters to courts
of our sister states. Therefore, a Pennsylvania court cannot give
appellants permission to proceed with their case in a sister state
regardless of whether the statute of limitations has run in the
sister state. Rather, the trial court should either retain
jurisdiction or dismiss on the condition that the defendants
will accept service and not invoke the statute of limitations
when the case is brought in the new forum.
Id. at 1032 n.2. (citations omitted) (emphasis added).
Here, the trial court did not direct a Texas court to take any particular
course of action. Rather, the trial court dismissed Appellants’ complaint on
the condition that Penske would accept service and not invoke the statute of
limitations defense if the case is brought in the new forum. See Order,
7/14/21. The trial court’s procedure in this instance follows the directive from
Farley. On this record, were we to reach this issue, we would find no error
of law or abuse of discretion.
Moreover, Appellants’ argument that there was no forum apart from
Pennsylvania is misplaced. Although a trial court is not permitted to dismiss
an action for forum non conveniens where there is no alternate forum, see
Plum v. Tampax, Inc., 160 A.2d 549, 553 (Pa. 1960) (stating that there is
not an alternate forum if plaintiff’s cause of action would elsewhere be barred
by the statute of limitations unless the court is willing to accept defendant’s
stipulation that it will not raise this defense), in the instant case, there was an
alternate forum in Texas. See Trial Ct. Op., 9/22/21, at 12-13. As stated
previously, the trial court accepted Penske’s stipulation that Penske would
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accept service in Texas and not raise the defense of statute of limitations, and
this stipulation supported the trial court’s conclusion that there was an
alternate forum.
For these reasons, we conclude that there was no error or an abuse for
discretion in the trial court granting Penske’s motion to dismiss for forum non
conveniens. On this record, we affirm based on the trial court’s opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Est
Prothonotary
Date: 6/22/2022
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Circulated 05/27/2022 12:42 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CIVIL TRIAL DIVISION
NATALIS. RAY, Individually and as : JUNE TERM 2020
the Administratrix of the Estate of :
RIVER RUSSELL, Deceased, et al. : NO. 1803
1636 EDA 2021
Vv
. OPFLD-Russell Etal Vs Penske Logistics Lic Etal
PENSKE LOGISTICS LLC and :
PHILLIP AMES ANTOINE MCA
20060180
OPINION 700096
NEW, J. September, |, 2021
For the reasons set forth below, this Court respectfully requests the Superior Court affirm
its Order dated July 14, 2021 dismissing this case under the doctrine of forum non conveniens.
FACTUAL HISTORY
This case arises out of a hit and run in the early morning hours of June 24, 2019 in
League City, Texas.! At approximately 3:40 A.M., a Penske truck struck nineteen year-old
River Russell as he skateboarded on Farm-to-Market Road 270. Amended Complaint at {{ 10-
11. The driver of the truck did not stop. Id. at 11. Approximately twenty minutes later, a
passing motorist noticed Russell lying on the shoulder of the road and summoned authorities. Id.
at § 12. Russell passed away at the hospital two days later, on June 26, 2019. Id. The Penske
truck’s dashboard camera recorded the entire incident. Id. at JJ 13-17. After an extensive
investigation, the League City Police Department arrested the driver of the Penske truck,
Defendant Phillip Antoine, and charged him with various crimes, including leaving the scene of
the accident. Id. Defendant Antoine pled guilty and is currently incarcerated in Texas. Motion
to Dismiss at { 97.
| League City is a suburb of Houston, located on Interstate 45 between Houston and Galveston.
1
PROCEDURAL HISTORY
On July 8, 2019, Plaintiffs filed suit in the District Court of Harris County, Texas
(hereinafter “the Texas action”). See Motion to Dismiss at Ex. “1.” The Texas action named
four defendants — Defendant Antoine, Penske Truck Leasing Co., L.P., Penske Leasing and
Rental Company, and Renaissance Food Group.” Id. The Texas action alleged Penske Truck
Leasing Co., L.P. and Penske Leasing and Rental Company were liable 1) under the doctrine of
respondeat superior, and 2) for negligent hiring, negligent training, negligent supervision, and
negligent entrustment. Id. at | 5.3, 5.4, 8.2. Plaintiffs voluntarily dismissed the Texas action
without prejudice on February 24, 2020. See Motion to Dismiss at Ex. “2.”
On February 7, 2020, Plaintiff filed a Complaint in this Court (hereinafter the “February
action”). See Motion to Dismiss at Ex. “3” (Complaint in the February action). The February
action named a single defendant, Penske Logistics LLC, and sounded in negligence, intentional
spoliation of evidence, wrongful death, and survival. Id.; see also Ray, et al. v. Penske Logicstic
LLC, February Term 2020 No. 787 (Phila. Ct. Com. Pl. 2020). The negligence claim in the
February action did not sound in vicarious liability or in negligent hiring/retention/supervision;
rather, it alleged Penske was liable for failing to enact and enforce corporate policies. Id. at [J
28-35. According to the complaint in the February action, these policy failures emanated in
Penske’s corporate headquarters in Reading, Berks County, Pennsylvania. Id. at J 6(b).
On February 11, 2020, Penske removed the February action to the Eastern District of
Pennsylvania because there was complete diversity of citizenship between the parties. See
? There are multiple corporate entities that incorporate the Penske name. To avoid confusion,
this Court will use “Penske” to refer to Penske Logistics LLC; any time this Court refers to a
different Penske corporate entity, it will use the corporate entity’s full name.
Motion to Dismiss at Ex. “4.” Two days later, on February 13, 2020, Plaintiffs voluntarily
dismissed the February action without prejudice. See Motion to Dismiss at Ex. “5.” The Notice
of Dismissal stated Plaintiff dismissed the case “for the purpose of refiling to add an additional
defendant.” Id. at § 2.
On June 29, 2020, Plaintiffs commenced the instant action by filing a Complaint.
Plaintiffs filed an Amended Complaint on August 17, 2020. The Amended Complaint named
two defendants, Penske Logistics LLC and Phillip Antoine. With respect to Defendant Antoine,
the Amended Complaint alleged he is “a citizen and resident of Texas (thereby resulting in a
lack of complete diversity among the parties)... .” Amended Complaint at { 7 (emphasis
added).
The Amended Complaint sounded in negligence, vicarious liability, wrongful death,
survival, and intentional spoliation of evidence.> In addition to alleging Penske was vicariously
liable for Defendant Antoine’s actions, the instant action averred Penske was liable for failing to
enact and enforce corporate policies, Amended Complaint at {§ 31-44, and these policy failures
originated in Penske’s corporate headquarters in Berks County. Id. at { 6(b). By Order dated
October 13, 2020, the Honorable Giovanni Campbell sustained Penske’s Preliminary Objections
to the Amended Complaint in part and dismissed the request for punitive damages without
prejudice. Penske filed an Answer with New Matter and Cross-claim against Defendant
Antoine, and Plaintiffs filed a Reply to New Matter.
> The spoliation claim relates to the alleged destruction and/or altering of the video captured by
the truck’s dashboard cameras. Amended Complaint at 4] 51-56.
3
THE PARTIES’ THEORIES OF THE CASE
Plaintiffs and Penske agree Defendant Antoine drove the Penske truck that struck
Decedent Russell, see Amended Complaint at {J 11-17, Motion at Ex. 46, Penske Supplemental
Answers to Request for Admissions, at Nos. | and 2 (admitting Defendant Antoine was
employed by Penske at the time of the accident and was operating the Penske truck that struck
Decedent Russell); however, the issues of liability and damages remain hotly contested.
As set forth more fully in the Amended Complaint and in their Response to the Motion to
Dismiss, Plaintiffs’ theory of negligence against Penske is two-fold. F irst, Plaintiffs alleged
Penske is liable for the actions of their employee, Defendant Antoine, under the doctrine of
respondeat superior. Amended Complaint at [J 39 — 44. Second, Plaintiffs averred Penske
failed to enact proper policies related to screening prospective drivers and failed to enforce
existing policies. Amended Complaint at §{ 30-38; see also Plaintiffs’ Response, “Preliminary
Statement” at pp. 6-24.* Penske’s policies prohibit the hiring or retention of felons. When he
was hired by Penske in 2018, Defendant Antoine was awaiting trial on criminal charges and he
was subsequently convicted of felony arson. Id. Defendant Antoine failed to inform Penske of
this subsequent conviction and Penske failed to perform any post-hiring follow-up related to the
* Over the past few years, this Court has noticed a growing trend in which parties include a
“preliminary statement” in their pleadings and motions. These “preliminary statements,” which
are not contemplated by the relevant Rules of Civil Procedure, are often used as a soapbox to air
grievances about an opponent’s perceived shortcomings (whether procedural, substantive, or
personal) or to improperly influence the Court through emotionally charged rhetoric.
In this case, Plaintiffs’ Response to the Motion to Dismiss contains a “Preliminary Statement”
comprising seventy-six pages of the one-hundred page Response. Since the numbered
paragraphs of Plaintiffs’ Response refer to, and incorporate by reference, the “Preliminary
Statement,” this Court reluctantly cites the “Preliminary Statement” for ease of reference;
however, this Court’s citation to the “Preliminary Statement” should not be viewed as this
Court’s approval of its inclusion.
pending charges. Id. According to Plaintiffs, if Penske engaged in post-hiring follow-up, they
would have discovered Defendant Antoine’s conviction for felony arson and terminated his
employment prior to the date of the accident. Id.
Penske’s defense challenged both liability and damages. First, Penske argued Decedent
Russell may have committed suicide. To support this theory, Penske pointed to Decedent
Russell’s shoes, which contained the handwritten inscription “kill me.” Penske’s New Matter at
{] 2, 11-12; Motion to Dismiss at 9] 44, 51. Second, Penske asserted the defense of comparative
negligence based Decedent Russell’s blood alcohol content (BAC) of 0.19% when he arrived at
the hospital. New Matter at {| 12; Motion to Dismiss at {J 46, 50, 147. Finally, Penske sought to
minimize any pain and suffering damages by citing medical records which suggest Russell died
instantly. Motion to Dismiss at 56, Ex. “12” (Clear Lake Hospital records dated June 26, 2019
showing an admitting diagnosis of “brain death”).
THE MOTION TO DISMISS
On April 16, 2021, Penske filed a Motion to Dismiss pursuant to 42 Pa. C.S. § 5322(e).
In its Motion, Penske argued weighty reasons justify the dismissal of this case because the
underlying accident occurred in Texas, the accident investigation occurred in Texas, Decedent
Russell received all of his care in Texas, and Decedent Russell never resided in Pennsylvania.
Motion to Dismiss at {[{] 34 — 46.
Penske argued all of the sources of proof for this case are in Texas. The twenty-four
members of the League City Police department who investigated the accident reside in Texas, as
do the League City EMS personnel and Clear Lake Hospital personnel who treated Decedent
Russell, the coroner who performed Decedent Russell’s autopsy, the five physicians and/or
counselors who have been treating Decedent Russell’s parents and siblings in the aftermath of
the accident, Defendant Antoine’s former coworkers, and at least fourteen other people or
entities “who possess evidence relating to this case and Penske’s defenses.” Motion to Dismiss at
(148-71. In total, Penske’s Motion identified sixty-five potential third-party witnesses,
including medical professionals and public servants, who reside in Texas. Id. at § 97, Ex. “10,”
Ex. “11.” Additionally, Defendant Antoine is currently incarcerated in Texas as a result of this
incident. Id. at ] 96. Finally, Penske argued Plaintiff's identification of four high-level corporate
witnesses who work at Penske’s Berks County headquarters — 1) Jeff Stoicheff, Penske
Executive Vice President for Human Resources, 2) Jason Herr, Penske Vice President for Safety,
3) Bill Horack, Penske Manager of Implementations, and 4) Rob Helstrom, Penske Director of
Safety and Training ~ was illusory because these executives were not personally involved in the
hiring or termination of Defendant Antoine. Rather, the managers who were involved in the
hiring and termination of Defendant Antoine are located in Texas and/or the mid-western United
States, and there were multiple, overlapping, layers of local and regional management between
Defendant Antoine and these executives. §§ 110-118.
Penske argued other private factors also justified the dismissal of this case. Sixty-five of
the third-parties witnesses Defendant Penske identified are not subject to compulsory process in
Pennsylvania because they reside in Texas. Motion to Dismiss at {| 132-135. Holding trial in
Pennsylvania would prevent a jury view of the accident scene in Texas. Id. at JJ 146-150.
Finally, trying this case in Pennsylvania would cause undue disruption in the personal lives of
current and former Penske employees who will be witnesses in this case, the vast majority of
whom are located 1,500 miles away in Texas.) Id, at $9151-152.
* Penske also briefly argues this case should be tried in Texas to minimize the need for travel
during the COVID-19 Pandemic, and notes Texas courts, like Texas businesses, are fully
6
According to Penske, the public factors also weighed heavily in favor of dismissal.
Penske argued the Philadelphia Court of Common Pleas has a backlog of cases as a result of the
2019 malware attack and closures related to the 2020 COVID-19 Pandemic. Motion to Dismiss
at {] 166-176. Penske argued the Texas courts have less congestion because they have fully
reopened following Pandemic closures. To support this conclusion, Penske cited the fact the
Philadelphia Court of Common Pleas empaneled six juries per week in April of 2021, while the
Harris County courts empaneled sixty jury panels per week. Id. at {| 176-181. Next, Penske
argued Philadelphia has little relationship to the controversy at issue and the citizens of
Philadelphia should not be burdened with jury duty involving a dispute that arose in Texas. Id, at
{ 184-197. Finally, Penske argued this case should be dismissed because Texas law applies and
the judges of the Philadelphia Court of Common Pleas should not be burdened with interpreting
and applying the law of Texas when there is no connection between this case and Philadelphia
County. Id. at ff] 198-200.
Plaintiffs’ Response in Opposition focused on Penske’s corporate headquarters in Berks
County and explained in exacting detail how the actions, and alleged failures, of employees at
Penske’s corporate headquarters relate to this case. Gerald McNamara, Penske’s regional Health
and Safety Manager, testified a Penske executive based in Berks County, Jason Herr, reviewed,
and had the ultimate authority to approve, all Penske safety policies. See Plaintiffs’ Response,
“Preliminary Statement” at pp. 10-11. McNamara testified another Berks County-based
executive, Jeff Stoicheff, had the ultimate authority to keep and/or modify human resources
policies at Penske relating to drivers. Id. at p. 11. Plaintiffs further cited the depositions of
reopened as a result of a March 2, 2021 executive order issued by the Governor of Texas. Motion
to Dismiss at Jf] 153-165.
Penske employees Beth Cramb and Kelli Courreges, Director of Human Resources for
Distribution Center Management, to support their averment that Penske’s safety policies and
human resources policies were deficient and two Berks County based executives, Stoicheff and
Herr, were the individuals who had the ability to modify these deficient policies. Id. at pp. 12-24.
Additionally, Plaintiffs cited deposition testimony showing staff at Penske’s Berks County
headquarters coordinated the investigation of this incident by pulling GPS data to determine the
truck involved in this accident and seeking out potential witnesses. Id. at pp. 34-43.
In addition to focusing on Penske’s employees in Berks County, Plaintiffs responded to
the substantive arguments raised by Penske. Plaintiffs sought to downplay the significance of
any testimony offered by Penske’s Texas-based employees, Response, Preliminary Statement, at
pp. 49-63, and argued the existence of Texas-based first responders and medical personnel does
not require this case to be tried in Texas. Id. at pp. 63-70. Next, Plaintiffs challenged Penske’s
assertion that a view of the accident location would be necessary. Id, at pp. 70-72. Plaintiffs
argued Defendant Antoine’s incarceration in Texas should not be a factor in deciding the motion
to dismiss. Id. at pp. 73-74. Likewise, Plaintiffs argued this Court should not take the COVID-
19 pandemic into consideration. Id. at pp. 74-76. Finally, throughout their Response, Plaintiffs
argue the Superior Court’s decisions McConnell v. B. Braun Med. Inc., 221 A.3d 221 (Pa. Super.
Ct. 2019) and Vaughan v. Olympus America, Inc., 208 A.3d 66 (Pa. Super. Ct. 201 9) require the
denial of Penske’s Motion. See id. at pp. 5-6, 24-34.
On May 10, 2021, this Court issued a Rule to show cause why the Motion to Dismiss
should be granted. The Court permitted the parties to conduct discovery relevant to the issue of
forum non conveniens and scheduled oral argument for July 7, 2021.
Plaintiffs filed a Supplemental Memorandum on July 1, 2021, which cited extensively
from the depositions of Stoicheff, Herr, Courreges, and William Horack to support their
arguments that Penske initiated its investigation of this incident from its Berks County
headquarters and that executives at the Berks County headquarters controlled Penske’s safety
policies and human resources policies. See Plaintiffs’ Supplemental Memorandum. Penske filed
a Reply Brief which 1) identified additional Texas-based individuals as possible witnesses, 2)
distinguished the Superior Court’s decisions in McConnell and Vaughn, and 3) argued the
evidence of record shows weighty reasons exist to dismiss this case for forum non conveniens.
See Penske’s Reply.
At the Rule hearing on July 7, 2021, the parties’ arguments highlighted the arguments set
forth in their respective briefs. By Order dated July 14, 2021, this Court granted Penske’s
Motion and dismissed this case without prejudice. Plaintiffs appealed to the Superior Court.
Plaintiffs Statement of Errors filed pursuant to Pa.R.A.P. 1925(b) avers this Court
committed seven errors:
1)
2)
The trial court erred and/or otherwise abused its discretion in
ordering the dismissal of this suit for forum non conveniens, to be
re-filed in Texas.
In holding that ‘weighty reasons’ existed to override plaintiffs’
choice to sue a Pennsylvania-based company in its home state of
Pennsylvania, the trial court misapplied the law and rendered a
manifestly unreasonable decision, especially given the centrality to
plaintiffs’ liability and causation claims implicating [Penske’s]
human resources and safety policies and practices which were
adopted, maintained, and controlled by department heads at
[Penske] who are Pennsylvania residents based at [Penkse’s]
Pennsylvania-based headquarters.
In concluding that the relevant private and public interests weighed
strongly against plaintiffs’ chosen forum of Pennsylvania,
notwithstanding the arguments and evidence that Plaintiffs
presented to the contrary, the trial court erred as a matter of law
4)
5)
6)
7)
and otherwise abused its discretion.
The trial court’s order dismissing this case for forum non
conveniens should be vacated or reversed as legally erroneous and
an abuse of discretion pursuant to the Pa. Superior Court’s rulings
in McConnell y. B. Braun Med. Inc., 221 A.3d 221 (Pa. Super. Ct.
2019), Vaughan v. Olympus America, Inc., 208 A.3d 66 (Pa.
Super. Ct. 2019), and Robbins v. Consolidated Rail Corp., 212
A.3d 81 (Pa. Super. Ct. 2019).
The extensive factual record that plaintiffs amassed and presented
to the trial court in opposing defendant [Penske’s] motion to
dismiss for forum non conveniens, demonstrating the centrality to
plaintiffs’ liability and causation claims implicating the human
resources and safety policies and practices adopted, maintained
and controlled by Pennsylvania-residing supervisory employees
working at defendant [Penske’s] Pennsylvania—based headquarters,
as well as the fact that [Penske] conducted its investigation of the
fatal collision event from its Pennsylvania-based headquarters
(including but not limited to having Pennsylvania-based employees
of [Penske] track down and identify the specific vehicle involved
in the collision from Pennsylvania, and having a Pennsylvania-
based employee of [Penske] obtain, via work performed in
Pennsylvania, the [video recording] of the collision event that was
captured by on-vehicle [video recording] equipment) establishes
that the trial court erred as a matter of law and otherwise abused its
discretion in ordering the dismissal of this case for forum non
conveniens.
The trial court erred as a matter of law and otherwise abused its
discretion to the extent that it relied on meritless positions
advanced by Penske including but not limited to the location of
irrelevant and/or nominal witnesses, a purported need for a site
inspection years after the incident even though the collision which
happened years ago was captured on [video recording] devices
installed on the Penske vehicle involved in the collision, and a
purported need for this case to be litigated in Texas due to alleged
COVID-19 issues.
The trial court erred as a matter of law and otherwise abused its
discretion in ordering that this suit must be refiled in Texas within
90 days from the date of its dismissal in order for “the filing date to
be used for statute of limitations in the re—filed action shall be July
8, 2019,” because that aspect of the trial court’s order in effect
requires the re—filing of this suit in Texas before plaintiffs can
obtain the appellate review of the trial court’s dismissal order that
10
is available as of right under Pennsylvania Rule of Appellate
Procedure 311(c).
Plaintiffs’ Statement of Matters at pp. 1-2.
STANDARD OF REVIEW
When ruling on a motion to dismiss under 42 Pa.C.S.A. § 5322(e), trial courts are vested
with the discretion to determine whether “substantial justice” requires the dismissal of the action;
therefore, appellate courts will only reverse the trial court if it abused its discretion. Vaughan,
208 A.3d at 75 (Pa. Super. Ct. 2019). “An abuse of discretion occurs if, inter alia, there was an
error of law or the judgment was manifestly unreasonable.” Wright v. Consolidated Rail
Corporation, 215 A.3d 982, 990 (Pa. Super. Ct. 2019). “{I]f there is any basis for the trial court's
decision, the decision must stand.” Id. (emphasis added). “Merely because an appellate court
would have reached a different result than the trial court does not constitute a finding of an abuse
of discretion.” Mader v. Duquesne Light Co., 241 A.3d 600, 607 (Pa. 2020); see also Bratic v.
Rubendall, 99 A.3d 1, 10 (Pa. 2014) (“Although the Superior Court may have reached a
conclusion different than the trial court, this does not justify disturbing the ruling; the Superior
Court effectively substituted its judgment for that of the trial court, which it may not do”).
ANALYSIS
Section 5322(e) provides: “When a tribunal finds that in the interest of substantial justice
the matter should be heard in another forum, the tribunal may stay or dismiss the matter in whole
or in part on any conditions that may be just.” 42 Pa. C.S. § 5322(e). (citation and internal
quotations omitted).
In determining whether to dismiss a suit based on forum non conveniens, the court must
consider two important factors: 1) a plaintiff's choice of forum will not be disturbed except for
weighty reasons; and 2) no action will be dismissed unless an alternative forum is available to
11
the plaintiff. E.g. Engstrom v. Bayer Corp., 855 A.2d 52, 55 (Pa. Super. 2004). In addressing
whether an alternative forum exists, our Supreme Court explained:
Because of [this] factor, the suit will be entertained, no matter how
inappropriate the forum may be, if defendant cannot be subjected
to jurisdiction in other states. The same will be true if plaintiff s
cause of action would elsewhere be barred by the statute of
limitations, unless the court is willing to accept defendant’s
stipulation that he will not raise this defense in the second state.
Plum yv. Tampax, Inc., 160 A.2d 549, 551 (Pa. 1960). In this case, an alternate forum exists
because Penske expressly agreed to submit to personal Jurisdiction in Harris County, Texas, or
Galveston County, Texas, and to use July 8, 2019 as the filing date for statute of limitations
purposes if Plaintiffs refile this action in Texas within ninety days. Motion to Dismiss at {{] 75-
76.
To the extent Plaintiffs argue an alternate forum does not exist because Defendant
Antoine has not made similar stipulations, Plaintiffs’ argument fails because Plaintiffs did not
raise this issue in their Statement of Matters; therefore, this issue is waived. Commonwealth v.
Lord, 719 A.2d 306, 309 (Pa. 1998)(‘‘from this date forward... Appellants must comply
whenever the trial court orders them to file a Statement of Matters Complained of on Appeal
pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived”).°
° Tf the issue has not been waived, Plaintiffs’ argument still fails because Defendant Antoine was
not properly served. The Affidavit of Service shows Defendant Antoine was purportedly served
by certified mail in Houston, Texas; however, the certified mail “green card” contains no
signature from the recipient. See Affidavit of Service filed September 24, 2020. Since the “green
card” attached to the Affidavit of Service contains no signatures, Plaintiffs failed to serve
Defendant Antoine under the applicable Rules of Civil Procedure. See ANS Associates, Inc. v.
Gotham Ins. Co., 42 A.3d 1074, 1076 (Pa. Super. Ct. 2012) (holding an out of state defendant
was not properly served by mail under Pa.R.C.P. 403 — 405 because the receipt attached to the
affidavit of service did not contain a signature of the recipient). Plaintiffs did not properly serve
Defendant Antoine under Texas law either. See Tex. R. Civ. P. 107(c) (“When the citation was
served by registered or certified mail as authorized by Rule 106, the return by the officer or
12
Since an alternate forum exists, this Court shifts its focus to whether “weighty reasons”
exist to disturb Plaintiffs’ chosen forum. At the outset, this Court notes Plaintiffs are residents of
Texas, and the accident occurred in Texas. “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.” Horvatter v. CSX Transportation, Inc., 193 A.3d 420,
424 (Pa. Super. Ct. 2018). However, this does not mean a plaintiff's chosen forum is not entitled
to any deference. See Bochetto v. Piper Aircraft Co., 94 A.3d 1044, 1056 (Pa. Super. Ct. 2014)
(stating “While foreign plaintiffs enjoy ‘less deference’ with regard to their choice of forum,
their choice is still entitled to solicitude.”) (internal citation omitted). Bearing this in mind, the
Court must examine whether Penske established the existence of weighty reasons to dismiss this
case.
“(T]he trial court must examine both the private and public interests involved” to
determine whether weighty reasons exist to overcome a plaintiff's chosen forum. J essop v. ACF
Indus., LLC, 859 A.2d 801, 803 (Pa. Super. 2004). “These two sets of factors are not mutually
exclusive but rather supplement each other.” Plum, 160 A.2d at 562. To justify dismissal on the
basis of forum non conveniens, “the private and public factors must be strongly in favor of the
party moving for dismissal.” Jessop, 859 A.2d at 804.
The private factors the trial court must consider include:
the relative ease of access to sources of proof; availability of the
compulsory process for attendance of unwilling, and the cost of
obtaining attendance of willing, [sic] witnesses; possibility of a
view of the premises, if a view would be appropriate to the action;
and all other practical problems that make trial of a case easy,
expeditious and inexpensive.
authorized person must also contain the return receipt with the addressees signature”) (emphasis
added).
13
Jessop, 859 A.2d at 803 (quoting D’ Alterio v. N.J. Transit Rail Operations. Inc., 845 A.2d 850,
852 (Pa. Super. 2004)). Here, the private factors favor dismissal. The accident giving rise to this
case occurred in Texas, Decedent Russell was a resident of Texas, and all of Decedent Russell’s
medical care occurred in Texas.
Trying this case in Texas provides demonstrably easier access to the necessary sources of
proof. Twenty-four members of the League City Police Department investigated the accident
giving rise to this case. See Motion to Dismiss at 4 49, Ex. 10, Ex. 11. Three members of the
League City Emergency Medical Services treated Decedent Russell at the scene and transported
him to this hospital. Id. at Ex. 50. The medical staff at Clear Lake Hospital treated Decedent
Russell, and Dr. Francis Welsh pronounced his death. Id. at Ex. 12. A forensic investigation was
conducted by the Harris County Institute of Forensic Sciences, id. at Ex. 49, and an autopsy was
completed by Assistant Medical Examiner Garrett Phillips, M.D. Id. at Ex. 34. In total, Penske
identified over sixty-five third-party witnesses located in Texas who may be called as witnesses
at trial. Id. at Ex. 11. While all of these individuals may not testify at trial, each of the Texas
public servants and front-line medical workers possess information which may be relevant to
Penske’s defenses. Holding trial in Texas would provide easier access to these witnesses.
Additionally, Defendant Antoine is incarcerated in Texas. Motion to Dismiss at | 96;
Response, Preliminary Statement at pp. 73-74. To the extent Defendant Antoine participates in
this case, either as a party or as a witness, special arrangements will need to be made with the
Texas prison system for Antoine to appear at trial. A Texas court has jurisdiction to issue any
orders necessary to permit Antoine’s appearance at trial, either in person or virtually. This
Court, on the other hand, has no jurisdiction over the Texas prison system. Accordingly, trial in
Texas provides easier access to Defendant Antoine.
14
In the highly unlikely event the Texas prison system permits Defendant Antoine to
appear in-person at trial in Pennsylvania, practical considerations weigh heavily in favor of
dismissal. Arrangements would need to be made for Defendant Antoine to be accepted into, and
housed by, Pennsylvania’s penal system. There would be significant costs for Texas prison
system employees to escort Defendant Antoine to and from Pennsylvania. The court system
would incur costs to transport Defendant Antoine between the courthouse and the prison each
day for trial. In contrast, if this case was tried in Texas, Defendant Antoine could be transferred
utilizing established procedures to a facility within the Texas prison system that is located near
the courthouse in which this trial is occurring. Accordingly, trying this case in Texas would
alleviate many of the practical considerations associated with Defendant Antoine appearing in-
person at trial.
The existence of over sixty out-of-state witnesses also weighs heavily on the second
Jessop factor — the availability of compulsory process for unwilling witnesses, and the costs of
attendance for willing witnesses. Texas has not passed the Interstate Deposition and Discovery
Act, see McConnell, 221 A.3d at 226 n5; therefore, Pennsylvania courts lack the ability to
compel discovery from Texas residents. Pennsylvania’s inability to compel discovery from a
third-party Texas resident has already been demonstrated once in this contentious litigation. See
Motion to Quash, filed on June 22, 2021 (Non-party Jose Medrano, a resident of Texas, sought to
quash Plaintiffs’ subpoena to attend a deposition because the subpoena was issued bya
Pennsylvania Court and not a Texas Court); July 13, 2021 Order of the Honorable Karen
Shreeves-Johns granting the Motion to Quash. Similarly, Pennsylvania courts lack jurisdiction
to compel the attendance of Texas residents at trial. See 42 Pa. C.S. § 5905 (“Every court of
record shall have power in any civil or criminal matter to issue subpoenas to testify ... into any
15
county of this Commonwealth to witnesses to appear before the court or any appointive judicial
officer”). The costs of attendance for willing witnesses also weighs in favor of dismissal because
any willing witnesses will necessarily incur substantial travel costs, including airfare and
lodging, as a result of the 1,500 mile trip from Texas to Pennsylvania. Accordingly, holding trial
in Pennsylvania will significantly hamper Penske’s ability to defend this case.
Finally, to the extent any party seeks a view of the accident location, the courts of Harris
County and Galveston County provide far easier access than this Court. ’
Plaintiffs devoted a substantial portion of their Response, and the entirety of their
Supplemental Brief, to show executives and employees in Penske’s Berks County headquarters
possess information relevant to Plaintiffs’ claims. The deposition testimony cited by Plaintiffs
showed, with respect to safety policies and human resources policies, the proverbial “buck” stops
in the Berks County offices of Messrs. Herr and Stoicheff. Likewise, the evidence adduced by
Plaintiffs showed Penske employees from Berks County assisted in the investigation of this
incident. However, the existence of this evidence does not, ipso facto, compel the denial of the
Motion to Dismiss.
The evidence relating to Penske’s Berks County activities represents a very narrow
portion of the totality of the evidence. All of the evidence cited by Plaintiffs in their Response
and Reply relates to a small handful of Pennsylvania residents, all of whom are Penske
employees and executives. If this case goes to trial in Texas, Plaintiffs could secure the
’Penske’s Motion states “a site visit to the location where this incident occurred will likely be
helpful to a jury and will be important to Penske’s comparative negligence defense.” Motion at {|
148. Plaintiffs respond to this assertion with mockery and derision. See Plaintiffs’ Response,
“Preliminary Statement” at pp. 71-72. While this Court disapproves of the tenor of Plaintiffs’
argument, this Court notes that in its thirty years on the bench, a defendant has never requested a
view during a trial.
16
testimony of each of these employees and executives by serving them with notices to attend.
Conversely, trying this case in Pennsylvania would deprive Penske of the ability to compel the
attendance at trial of any of the sixty-five third-party witnesses that may provide evidence
relevant to Penske’s defenses.
Plaintiffs’ argument the Motion to Dismiss must be denied because the sixty-five third-
party witnesses will have scant relevant evidence to offer in light of the fact this incident was
recorded by the truck’s dashboard camera is not persuasive. Although Plaintiffs may have
determined these witnesses are not necessary to prosecute their case, it is not for Plaintiffs to
determine who the defense witnesses will be. Penske must be afforded the opportunity to make
its own judgment as to what probative value these sixty-five witnesses’ testimony may have for
their defense. Here, Penske produced evidence of record to support its theory of the case and its
defenses, including comparative negligence. While this Court takes no position on whether
Penske’s strategy will be successful, a review of the pleadings, the Motion to Dismiss, and the
exhibits appended to the Motion to Dismiss suggest to this Court that Penske’s strategy and
arguments are not frivolous.
In addressing the public interest factors, the Pennsylvania appellate courts recognize:
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 that has no relation to the litigation. There is an
appropriateness, too, in having the trial in a forum that is at home
with the state law that must govern the case, rather than having a
court in some other forum untangle the problems in conflict of
laws, and in law foreign to itself.
Jessop, 859 A.2d at 803-804.
The public factors also favor dismissal. At the outset, Pennsylvania has an interest in
regulating Penske’s conduct because Penske is a Pennsylvania corporation. Contrary to
17
Plaintiffs’ argument, the fact Penske is a Pennsylvania corporation does not ipso facto require the
denial of Penkse’s Motion to Dismiss.
Unquestionably, Pennsylvania has an interest in how Herr and Stoicheff formulate
policies at Penske’s Berks County headquarters because these policies have an impact statewide
and nationwide. However, Plaintiffs’ negligence claim is not based solely on the promulgation
of certain policies. Plaintiffs argue Penske’s negligence stems from both their enactment of
deficient policies and their failure to properly implement existing policies. E.g, Amended
Complaint at § 32 (“Defendant [Penske] was responsible for implementing and enforcing
relevant company policies ...”). Pennsylvania has considerably less interest, compared to
Texas’ interest, in how Penske’s Texas employees enforced existing company policies in Texas.
Next, the burden of jury duty should not be imposed on Philadelphia citizens when
Philadelphia’s relationship with this litigation is tenuous. The parties have not identified any
Philadelphia-based Penske employees as witnesses in this case. Philadelphia County’s only
connection to this case is that Penske conducts business in Philadelphia. Penske’s corporate
headquarters sit in the shadow of the Berks County Courthouse, not Philadelphia City Hall. The
decision-makers who work at Penske’s corporate headquarters do not live and work in
Philadelphia; they live and work in Berks County. Philadelphia County’s interest in, and
relationship to, this litigation is the same as that of Allegheny County, Potter County, York
County, or any other county in this Commonwealth where Penske operates but is not
headquartered; yet, the citizens of Philadelphia alone bear the burden of Jury duty in this case.
Pennsylvania’s interest in regulating the conduct of a Pennsylvania corporate citizen is
therefore tempered by the burden of imposing jury duty upon the citizens of Philadelphia based
solely on the fact Penske does business in Philadelphia. See Engstrom, 855 A.2d at 57 (holding
18
the Philadelphia Court of Common Pleas did not abuse its discretion when determining the
citizens of Philadelphia should not be burdened with jury duty involving products liability cases
against a Pittsburgh-based corporation when Philadelphia’ s only relationship with the cases was
the Pittsburgh-based corporation’s products were sold nationally, including in Philadelphia).
The issues concerning court congestion and the COVID-19 pandemic are, at best,
equivocal. Penske argued the Philadelphia Court of Common Pleas is congested due to
cancellations related to the COVID-19 pandemic. This is simply not the case. The Court’s
electronic filing system operated continuously throughout the COVID-19 Pandemic, see
President Judge Administrative Order 29 of 2020 (Philadelphia Court of Common Pleas, April 8,
2020), and the Philadelphia Court of Common Pleas Civil Trial Division has been deciding non-
emergency motions since April of 2020. Cf. Administrative Governing Board Order No. 31 of
2020 (Philadelphia Court of Common Pleas, April 22, 2020) (permitting alternate methods of
signing of orders by judges). The Philadelphia Court of Common Pleas resumed civil jury trial
in March of 2021 and each month tries more cases than the preceding month. As it relates to
safety issues concerning COVID-19, this Court is confident neither the Philadelphia County
Court of Common Pleas nor the Texas courts would take any action to endanger the health or
safety of the litigants, witnesses, jurors, or court staff.
With respect to any choice of law issues, this Court has the utmost confidence in its
ability to apply Texas law, if necessary. Notwithstanding this Court’s confidence, as the briefing
in this case shows, this is a complex case involving complicated issues of negligence,
comparative negligence, and causation. The possibility exists resolution of this case will rest on
the interpretation and application of Texas law. In a case as complex as this one, it would be
prudent to have a Texas court address any novel issues arising under Texas law, and have Texas’
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appellate courts reviewing those applications of Texas law. See e.g. Plum, 160 A.2d at 553
(“There is an appropriateness, too, in having the trial .. . in a forum that is at home with the state
law that must govern the case, rather than having a court in some other forum untangle problems
in conflicts of laws and in law foreign to itself”) (citation and quotation omitted); Jessop, 859
A.2d at 803-04; Engstrom, 845 A.2d at 56.
In sum, although it has an interest in regulating the conduct of Pennsylvania’s corporate
citizens, the Philadelphia court system should not be burdened with a case in which Philadelphia,
and Philadelphians, played no role.
Contrary to Plaintiffs’ argument, the McConnell and Vaughan cases do not mandate the
denial of Penske’s Motion to Dismiss. In McConnell, the plaintiff, then a resident of Michigan,
was implanted with a medical device in 2003; twelve years later, while residing in Texas, the
plaintiff learned her medical device penetrated the wall of her inferior vena cava, thereby
requiring ongoing medical care and monitoring. McConnell, 221 A.3d at 224-25. The
McConnell plaintiff sued three defendants, one located in France, one located in the state of
Delaware, and one headquartered in Lehigh County, Pennsylvania. Id. at 225. According to the
pleadings, the French defendant designed and manufactured the medical device and the Lehigh
County defendant had exclusive rights to distribute the device in the United States; the Lehigh
County defendant transferred the rights to distribute the device to the Delaware defendant in
2007. Id. The defendants, citing the doctrine of forum non conveniens, filed a motion seeking to
dismiss the action to be refiled in Texas or, in the alternative, for the action to be transferred to
Lehigh County. The trial court granted the motion and dismissed the action to be refiled in
Texas. The Superior Court reversed.
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With respect to the private factors, the Superior Court held the trial court abused its
discretion when it accepted the defendants’ argument the plaintiff's medical providers would be
critical to establish liability and damages despite the fact the defendants did not specifically
identify any such witnesses or illustrate the import of these unidentified witnesses’ testimony.
McConnell, 221 A.3d at 229. Next, the McConnell Court faulted the trial court for not
considering the affidavits submitted by employees of the Lehigh County defendants which
showed these employees had relevant knowledge by virtue of the fact they were engaged in the
sale, distribution, and marketing of the medical device. Id. at 229-30. The trial court further
erred when it concluded Texas would provide easier access to the sources of proof when the
record showed the evidence necessary to establish the defendants’ defenses was located in
France. Id. at 230. Finally, the Superior Court faulted the trial court for “disregard[ing]
Pennsylvania’s interests and improperly focus[ing] on whether Philadelphia was a convenient
forum.” Id. at 231 (emphasis in original).
In Vaughan, the decedent, a resident of North Carolina, passed away after contracting an
infection from a contaminated duodenoscope. Vaughan, 208 A.3d at 69. The plaintiff filed suit
against three defendants; two of the defendants had their principal place of business in Center
Valley, Lehigh County, and the third defendant was a Japanese corporation headquartered in
Tokyo. Id. at 69-70. The defendants filed a motion to dismiss the case under § 5322, arguing
North Carolina provided a more appropriate forum. Id. at 75. The trial court granted the
defendants’ motion, and the Superior Court reversed. Id, at 75-78.
The Vaughan Court held the trial court abused its discretion for three reasons. F irst, the
trial court erred in determining the relevant evidence was located in North Carolina and J apan,
not Pennsylvania. Vaughan, 208 A.3d at 76-77. The Superior Court held “a plaintiff may
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establish a close connection with a forum based upon ‘relevant corporate actions’ that take place
there.” Id. at 76. In Vaughan, the corporate contacts with Pennsylvania included the corporate
headquarters in Lehigh County and the plaintiffs identification of 64 employees stationed at
corporate headquarters who may be able to provide relevant evidence. Id, at 77. Second, the
Superior Court found trial court improperly considered the convenience of the plaintiffs
witnesses. Id. Finally, the Superior Court held the trial court erred by ignoring Pennsylvania’s
interest in the case, despite the presence of Pennsylvania-based defendants. Id.
The McConnell and Vaughn decisions are distinguishable from the case sub judice.
Unlike the defendants in McConnell who did not identify any Texas-based witnesses with
specificity, Penske identified sixty-five third-party witnesses who may be relevant to their
defenses, and summarized the relevance of these witnesses’ testimony. E.g. Motion to Dismiss at
19 44, 46, 50-51, 56, 147, Ex. 10, Ex. 11. Additionally, as set forth above, this Court considered
Plaintiffs’ arguments as it relates to the importance of the testimony of Penske executives
Stoicheff, Herr, and Horack; however, after reviewing the record as a whole, this Court
determined these witnesses represented a narrow sliver of the witnesscs expected to be called at
trial and could all be compelled to appear if this case was tried in Texas, while none of the sixty-
five third-party witnesses identified by Penske could be compelled to appear in a Pennsylvania
court. In McConnell and Vaughan, the Superior Court emphasized the defendants would need to
rely on Pennsylvania witnesses to establish their defenses; whereas, in this case, the evidence to
support each of Penske’s three identified defenses is located in only one location — Texas.
Finally, unlike the trial courts in McConnell and Vaughan, this Court explicitly considered
Pennsylvania’s interest in regulating the conduct of its corporate citizens and weighed that
interest against the burden of imposing jury duty on the citizens of Philadelphia in a case in
which Philadelphia, and Philadelphians, play no role. For all of these reasons, the Superior
Court’s holding in McConnell and Vaughan are inapplicable to the case sub Judice.
To the extent Plaintiffs’ Statement of Errors suggests that this Court erred by “ordering
that this suit must be refiled in Texas within 90 days from the date of its dismissal in order for
the ‘the filing date to be used for statute of limitation in the re-filed action shall be J uly 8, 2019,’
because that aspect of [this Court’s] order in effect requires the re-filing of this suit in Texas
before plaintiffs can obtain the appellate review of [the July 14, 2021 Order],” Plaintiffs’
Statement at { 7, Plaintiffs argument is misplaced. This Court dismissed Plaintiffs case without
prejudice and the July 14'" Order incorporated Penske’s stipulation to not raise the statute of
limitation if this matter was timely refiled in Texas. See Plum, 160 A.2d at 551 (courts cannot
dismiss an action under § 5322(e) if the statute of limitation has run “unless the court is willing
to accept defendant’s stipulation that he will not raise this defense in the second state”). If they
are concerned Penske’s stipulation concerning the statute of limitations would prevent appellate
review of this Court’s July 14" Order or would require them to litigate this case in Texas while
appellate review is occurring in Pennsylvania, the applicable Rules permit Plaintiffs to seek
supersedeas from this Court or from the appropriate appellate court. Plaintiffs have made no
such application.
Finally, although it did not play a decisive role in the resolution of this matter, this Court
remains mindful of Plaintiffs’ blatant forum shopping. This is the third iteration of this matter.
First, Plaintiffs filed suit in Texas and named Antoine as a defendant. Plaintiffs then dismissed
the Texas action and filed the February action against only Penske. After Penske removed the
February action to federal court, Plaintiffs dismissed the F ebruary action, and filed this action.
In this action, Plaintiffs’ Amended Complaint explicitly stated Defendant Antoine was joined for
the purpose of defeating federal jurisdiction. Amended Complaint at { 7. Plaintiffs then failed to
effectuate proper service on Defendant Antoine. The inclusion of Defendant Antoine in this case
is nothing more than gamesmanship and improper forum shopping. If the inclusion of Antoine
as a defendant was due to Plaintiffs’ preference for the case to be tried in state court rather than
in federal court, Plaintiffs would have filed this case in Berks County, not Philadelphia County.
Motions to dismiss, such as the one filed by Penske, are the procedural counterbalance to such
forum shopping and provide this Court with a mechanism to ensure the procedural rules are not
abused to advantage of one party. Wright, 215 A.3d at 991 (“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 ... 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 default judgment or
compromise for a larger sum”).
Since an alternate forum exists and Penske met its burden of producing evidence to show
the public and private factors weighed in favor of dismissal, this Court granted Moving
Defendants’ Motion and dismissed this case.
WHEREFORE the above stated reasons, this Court’s Order dated J uly 14, 2021 should
BY THE COURT;3
io LZ,
wi
ARNOLD
be affirmed.
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