Ficarra, D. v. Consolidated Rail Corp.

J-A15019-20, J-A15020-20, J-A15021-20, J-A15022-20, J-A15023-20,
J-A15024-20, J-A15025-20, J-A15026-20, J-A15027-20
2020 PA Super 260DONALD M. FICARRA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CONSOLIDATED RAIL CORPORATION, :
:
Appellant : No. 2420 EDA 2018
Appeal from the Order Entered June 6, 2018
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): September Term, 2017 No. 001077
JAMES KLINE, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CONSOLIDATED RAIL CORPORATION, :
:
Appellant : No. 296 EDA 2019
Appeal from the Order Entered November 21, 2018
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 171203034
WILLIAM BROWN, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CONSOLIDATED RAIL CORPORATION, :
:
Appellant : No. 298 EDA 2019
Appeal from the Order Entered December 6, 2018
J-A15019-20, J-A15020-20, J-A15021-20, J-A15022-20, J-A15023-20,
J-A15024-20, J-A15025-20, J-A15026-20, J-A15027-20
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 171102640
BARBARA MOORE, PERSONAL : IN THE SUPERIOR COURT OF
REPRESENTATIVE FOR THE ESTATE : PENNSYLVANIA
OF DERWOOD MOORE, :
:
Appellee :
:
v. :
:
PENN CENTRAL CORPORATION A/K/A :
AMERICAN PREMIER UNDERWRITERS, :
INC. & CONSOLIDATED RAIL :
CORPORATION, :
:
Appellants : No. 469 EDA 2019
Appeal from the Order Entered December 6, 2018
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 171000750
ROBERT BZINAK, SR., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PENN CENTRAL CORPORATION A/K/A :
AMERICAN PREMIER UNDERWRITERS, :
INC. AND CONSOLIDATED RAIL :
CORPORATION, :
:
Appellant : No. 540 EDA 2019
Appeal from the Order Entered October 25, 2018
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 170901094
ANNE MASON, PERSONAL : IN THE SUPERIOR COURT OF
REPRESENTATIVE FOR THE ESTATE : PENNSYLVANIA
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OF JOHN T. MASON, :
:
Appellee :
:
v. :
:
CONSOLIDATED RAIL CORPORATION, :
:
Appellant : No. 583 EDA 2019
Appeal from the Order Entered November 27, 2018
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 02942 September Term, 2017
WILLIAM R. ANDERSON, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CONSOLIDATED RAIL CORPORATION, :
:
Appellant : No. 1748 EDA 2019
Appeal from the Order Entered March 5, 2019
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 170801984
GARY S. DELORETO, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
PENN CENTRAL CORPORATION A/K/A :
AMERICAN PREMIER UNDERWRITERS, :
INC., CONSOLIDATED RAIL :
CORPORATION, AND CSX :
TRANSPORTATION, INC. :
:
APPEAL OF: CSX TRANSPORTATION, :
INC. AND CONSOLIDATED RAIL :
CORPORATION AND AMERICAN :
PREMIER UNDERWRITERS, INC. : No. 1808 EDA 2019
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J-A15019-20, J-A15020-20, J-A15021-20, J-A15022-20, J-A15023-20,
J-A15024-20, J-A15025-20, J-A15026-20, J-A15027-20
Appeal from the Order Entered April 29, 2019
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 171203297
DAVID P. GARCEAU, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CONSOLIDATED RAIL CORPORATION, :
:
Appellant : No. 1840 EDA 2019
Appeal from the Order Entered March 5, 2019
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 171202371
BEFORE: LAZARUS, J., KING, J. and STRASSBURGER, J.*
OPINION BY STRASSBURGER, J.: FILED OCTOBER 27, 2020
By per curiam orders, this Court granted the petitions for review filed
by appellants, Consolidated Rail Corporation (Conrail), Penn Central
Corporation a/k/a American Premier Underwriters, Inc. (Penn Central), and
CSX Transportation, Inc. (CSX) (collectively, Railroad Defendants), in nine
cases then pending against Railroad Defendants in the Court of Common
Pleas of Philadelphia County. The underlying cases involve complaints filed
against Railroad Defendants by former employees (collectively, Plaintiffs)
under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60, based
upon injuries allegedly sustained while Plaintiffs worked for Railroad
* Retired Senior Judge assigned to the Superior Court.
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Defendants on sites outside of Pennsylvania.1 Railroad Defendants filed a
motion to dismiss each of the nine complaints based on the doctrine of
forum non conveniens, 42 Pa.C.S. § 5322(e), to allow for re-filing in a more
appropriate forum. The trial court denied all nine motions to dismiss.2 Upon
review, we reverse the orders denying the motions to dismiss at 2420 EDA
2018, 296 EDA 2019, 298 EDA 2019, 469 EDA 2019, 540 EDA 2019, 583
EDA 2019, 1808 EDA 2019, and 1840 EDA 2019, and remand for
proceedings consistent with this opinion. We affirm the order denying the
motion to dismiss at 1748 EDA 2019.
Because the parties are familiar with the underlying procedural and
factual histories of these nine cases, we summarize briefly the relevant
portions thereof for purposes of this appeal. Briefly, Plaintiffs sued their
respective former employers, which are various Railroad Defendants,
1 Actions under FELA
may be brought in a district court of the United States, in the
district of the residence of the defendant, or in which the cause
of action arose, or in which the defendant shall be doing
business at the time of commencing such action. The jurisdiction
of the courts of the United States under this chapter shall be
concurrent with that of the courts of the several States.
45 U.S.C. § 56. Instantly, it is undisputed that Railroad Defendants do
business in Pennsylvania and that venue is proper in Philadelphia County.
2 In each case, Railroad Defendants filed a motion to amend the order
denying the motion to dismiss to allow for an interlocutory appeal. The trial
court denied those motions. As noted infra, Railroad Defendants then filed
petitions for review with this Court, which we granted pursuant to 42 Pa.C.S.
§ 702(b). Accordingly, we have jurisdiction to consider these appeals.
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asserting that under FELA Railroad Defendants failed to provide a safe
workplace in the past. All Plaintiffs worked at sites managed by Railroad
Defendants between the years of 1953 and 2012. All Plaintiffs worked
outside of Pennsylvania. None of Plaintiffs resides in Pennsylvania.
Railroad Defendants filed motions to dismiss in each case based on
forum non conveniens and attached affidavits in support. Specifically,
Railroad Defendants listed the following private and public interest factors:
(1) none of the potential fact witnesses or sources of proof resides in
Pennsylvania; (2) Railroad Defendants will be unable to avail themselves of
compulsory process for attendance of unwilling witnesses; (3) high cost of
obtaining attendance of willing out-of-state witnesses; (4) inability for the
fact-finder to view easily Plaintiffs’ work premises; and (5) burden on
Philadelphia courts, taxpayers, and jury pool. E.g., Conrail’s Motion to
Dismiss (Ficarra), 3/20/2018, at 7-8.3
3 While we cite solely to Conrail’s motion in Donald Ficarra’s case here,
Railroad Defendants’ motions to dismiss raise the same private and public
interest concerns, and therefore this motion is representative of the reasons
proffered in the remaining eight cases. Additionally, with the exception of
1748 EDA 2019, the trial court opinions in these cases are practically
identical, with minor changes relative to the individual procedural and factual
histories. Similarly, the briefs filed by the parties are substantially similar
with regard to the underlying issues. Accordingly, when citing the trial
court’s analysis in 2420 EDA 2018, 296 EDA 2019, 298 EDA 2019, 469 EDA
2019, 540 EDA 2019, 583 EDA 2019, 1808 EDA 2019, and 1840 EDA 2019,
we will refer to only one trial court opinion when it is representative of the
other seven. We will do the same with party briefs and motions where
appropriate. When doing so, we will preface the citation with “E.g.”
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Plaintiffs argued in response that they intended to call Marcia
Comstock, William Barringer, Ramon Thomas, and Paul Kovac, all of whom
used to work at Conrail’s headquarters in Philadelphia, to provide “evidence
regarding related business activities that were made in Philadelphia at
Conrail’s headquarters.”4 E.g., Ficarra’s Response to Motion to Dismiss,
4/9/2018, at ¶ 14; see also id. at ¶¶ 7-8, 13, 30(a); Memorandum of Law
in Support of Ficarra’s Response, 4/9/2018, at 8 (stating that Ficarra intends
to call Comstock, who lives in Wayne, PA and worked in Philadelphia, as well
as Barringer, Thomas, and Kovac, who worked in Philadelphia, as fact
witnesses).5 Railroad Defendants assailed Plaintiffs’ invocation of these
witnesses as an attempt to connect their cases to Pennsylvania without
stating the relevance or need for the witnesses’ testimony. The trial court
held hearings on some of the motions to dismiss, and ultimately denied all
nine motions. In denying the motions to dismiss, the trial court found that
Railroad Defendants did no more than offer “bare assertions” about potential
witnesses who lived exclusively in the states where Plaintiffs lived and
worked, i.e., not in Pennsylvania, which did not constitute sufficient “weighty
reasons” to alter Plaintiffs’ choices of forum.
4 Plaintiffs allege that Conrail employed Comstock as a medical director,
Barringer as a safety director, Thomas as an industrial hygienist, and Kovac
as an occupational claims manager. E.g., Ficarra’s Response to Motion to
Dismiss, 4/9/2018, at ¶ 7.
5 We note some Plaintiffs mentioned these four witnesses for the first time in
their responses to Railroad Defendants’ motions to dismiss, and some listed
them previously in response to Railroad Defendants’ interrogatories.
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These appeals by Railroad Defendants followed.6 In light of Wright v.
Consol. Rail Corp., 215 A.3d 982 (Pa. Super. 2019), a case decided by this
Court after the entry of the orders denying the motions to dismiss and
discussed infra, the trial court now believes that it erred in how it considered
Railroad Defendants’ evidentiary burden. Following a re-evaluation in light of
Wright, the trial court believes that Railroad Defendants presented
sufficient weighty reasons to alter Plaintiffs’ choices of forum in 2420 EDA
2018, 296 EDA 2019, 298 EDA 2019, 469 EDA 2019, 540 EDA 2019, 583
EDA 2019, 1808 EDA 2019, and 1840 EDA 2019, and asks us to remand
those cases for dismissal on the grounds of forum non conveniens, and to
allow Plaintiffs to re-file in an appropriate forum.7 E.g., Trial Court Opinion
(Garceau), 9/20/2019, at 1. In 1748 EDA 2019, the trial court asks us to
affirm its order denying the motion to dismiss, despite re-evaluation under
Wright, because that case is trial-ready.
2420 EDA 2018, 296 EDA 2019, 298 EDA 2019, 469 EDA 2019,
540 EDA 2019, 583 EDA 2019, 1808 EDA 2019, 1840 EDA 2019
We begin with the eight cases where the trial court requests remand in
order to grant Railroad Defendants’ motions to dismiss. Plaintiffs oppose
remand, arguing that it is an attempt to control where railroad employees
6 Railroad Defendants complied with Pa.R.A.P. 1925(b) either by filing
concise statements as ordered, or not filing one because none was ordered.
The trial court filed Pa.R.A.P. 1925(a) opinions.
7 We “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.” Wright, 215 A.3d at 991 n.4 (citation omitted).
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may file FELA cases, and that Railroad Defendants offered insufficient facts
for this Court to determine the trial court initially abused its discretion. E.g.,
Ficarra’s Brief at 8, 10. At the crux of these cases is Plaintiffs’ intent to call
as fact witnesses four former Conrail employees who worked in Conrail’s
Philadelphia office: Comstock, Barringer, Thomas, and Kovac. E.g., id. at
14. On appeal, Plaintiffs claim that Comstock, Thomas, and Kovac reside in
Pennsylvania. E.g., id. Additionally, Plaintiffs argue forum is proper because
Philadelphia courts have experience with FELA matters. E.g., id. Contrarily,
Railroad Defendants claim Philadelphia courts are overburdened with FELA
cases where the alleged injuries occurred outside Pennsylvania, and that
only Comstock undisputedly resides in Pennsylvania. E.g., Conrail’s Brief
(Ficarra) at 20, 27-28. Notably, based on the records before it, as
established by Plaintiffs8 and Railroad Defendants, the trial court concluded
that only Comstock undisputedly resides in Pennsylvania. E.g., Trial Court
Opinion (Ficarra), 8/22/2019, at 7 n.3.
We begin with our standard of review.
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
8 As will be discussed infra, Anderson is the only plaintiff who averred below
that Kovac also lived in Pennsylvania. Accordingly, that averment was not
part of the trial court records in these eight cases.
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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.[] § 5322(e).
Application of the forum non conveniens doctrine in an interstate
context solves the “problem ... that plaintiffs may bring the 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.” Norman v. Norfolk & W. Ry. Co., [] 323 A.2d
850, 854 ([Pa. Super.] 1974).
Hovatter v. CSX Transp., Inc., 193 A.3d 420, 424 (Pa. Super. 2018)
(some citations and quotation marks omitted).
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 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.
Robbins for Estate of Robbins v. Consol. Rail Corp., 212 A.3d 81, 87
(Pa. Super. 2019) (footnote, citation, and quotation marks omitted).
Instantly, Railroad Defendants have “stipulated that they will accept
service of process in an appropriate forum [and] will not plead the defense
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of statute of limitations in the new action.” E.g., Trial Court Opinion
(Ficarra), 8/22/2019, at 5 n.2. Accordingly, because there is an alternate
forum available,9 the second factor is not at issue. We instead focus on the
“weighty reasons” factor in the trial court’s analysis of Railroad Defendants’
motions to dismiss for forum non conveniens.
“[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.” Robbins, 212 A.3d at 87
(citation omitted).
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. …
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 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
9 Specifically, the trial court posits that dismissal would allow Plaintiffs to re-
file in Indiana (296 EDA 2019), Massachusetts (583 EDA 2019), Michigan
(469 EDA 2019), New York (2420 EDA 2018, 298 EDA 2019, 540 EDA 2019,
1840 EDA 2019), and Rhode Island (1808 EDA 2019).
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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 in some other forum untangle
problems in conflict of laws, and in law foreign to
itself.
Hovatter, 193 A.3d at 425 (citations omitted).
In its Rule 1925(a) opinions, the trial court explained its initial
reasoning for denying the motions to dismiss as follows.
The basis for th[e trial] court’s denial of [Railroad Defendants’]
motion[s] to dismiss was because the court found that [Railroad
Defendants] had not provided sufficient “weighty reasons” to
alter Plaintiff[s’] chosen forum. This was, in part, when
considering the private factors, the listed witnesses would not be
any more inconvenienced if the trial was held in Pennsylvania or
[elsewhere]. Furthermore, we found [Railroad Defendants] did
not do any more than offer “bare assertions” about other
potential witnesses who live exclusively [outside Pennsylvania].
Likewise, due to Conrail having a strong, local connection to
Philadelphia, there were not enough other public factors that met
the “weighty reasons” standard.
E.g., Trial Court Opinion (Ficarra), 8/22/2019, at 2 (unnecessary
capitalization omitted).
As noted above, the trial court now believes this initial analysis to be
in error following our Court’s decision in Wright. While Wright did not
present a new standard for reviewing motions to dismiss, it clarified the type
of evidence to be considered in determining whether a movant has met the
“weighty reasons” standard. Specifically, in Wright, this Court reviewed the
denial of a motion to dismiss for forum non conveniens an action brought
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under FELA against Conrail and CSX in the Philadelphia Court of Common
Pleas. Like Plaintiffs herein, “Wright neither worked nor was injured in
Pennsylvania, and he neither lived nor owned property in Pennsylvania. All
of [his] treating physicians and medical files related to the alleged injury”
were located outside Pennsylvania, and “all of his fact witnesses [we]re
former or current railroad workers who reside outside of Pennsylvania.” 215
A.3d at 986-87. Conrail and CSX had filed a motion to dismiss for forum non
conveniens, arguing that “the only alleged connections between
Pennsylvania and [Wright’s] matter are that CSX [] conducts rail operations
in Philadelphia, which are totally unrelated to [] Wright’s claim of injury, and
[Conrail] is incorporated in Pennsylvania with headquarters in Philadelphia,
which is totally unrelated to [] Wright’s claim of injury.” Id. at 987. In
response, Wright argued that he had a substantial right to choose his forum
by virtue of having brought the action under FELA. As to Conrail and CSX’s
argument that “all employee and medical files [we]re located outside of
Pennsylvania, [] Wright responded the location of the documents [wa]s
immaterial since modern conveniences make it easy so that the documents
may be accessed by the parties.” Id. Finally, he averred the railroad
companies were “in a ‘better financial condition’ to litigate at a distance than
[was] Wright.” Id.
On appeal, this Court concluded that the trial court in Wright abused
its discretion twice in denying the motion to dismiss. First, “in determining
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whether ‘weighty reasons’ exist, the trial court erred in giving great
deference to [Wright’s] choice of forum and incorporating ‘plaintiff-friendly’
Pa.R.C.P. 1[0]06(d) standards into its analysis.” Id. at 992.10 Second, we
held that the trial court erred in concluding that Conrail and CSX’s “affidavits
were insufficient since the affidavits consisted ‘of unsupported conclusory
statements’ and ‘bare assertions [that] cannot be credited without a
record[.]’” Id. at 993 (citation omitted).11 This Court explained as follows.
The trial court specifically held that, while sworn affidavits
submitted by [Conrail and CSX] asserted that “most or all of
[their] witnesses ‘reside primarily, if not exclusively’ in New
York[,]” there was “no record” to support the affiant’s assertions.
Further, the trial court concluded the allegations made in [the]
affidavits related to greater costs, 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.
Our Supreme Court has held that, while petitions to transfer
venue must be supported by information on the record, no
10 As the Wright Court noted,
a defendant bears a heavier burden under Pa.R.C.P. 1006(d)(1),
which permits [intrastate] forum transfers only when the
defendant establishes that a plaintiff’s chosen forum is
oppressive and vexatious for the defendant. Under Pa.R.C.P.
1006(d)(1), “the defendant must show more than that the
chosen forum is merely inconvenient to him.” 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.
215 A.3d at 992 (citations omitted).
11 Plaintiffs ignore this holding from Wright in their briefs. E.g., Brown’s
Brief at 16.
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particular form of proof is required. All that is required is that the
moving party present a sufficient factual basis for the petition.
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.
Here, inasmuch as the trial court determined there is no dispute
that [] Wright worked for [Conrail and CSX] exclusively in New
York, [the] assertion in [their] affidavits that most or all of
[their] witnesses reside primarily, if not exclusively, in New York
does not require additional record support. Additionally, with
regard to [their] assertion in [their] 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 li[ves] and [their] business, as our Supreme Court held
in Bratic [v. Rubendall, 99 A.3d 1 (Pa. 2014)]:
[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 disruption from the
allegations in the affidavit, sufficiently to rule on the
issue.
Bratic, [] 99 A.3d at 9.
Accordingly, we conclude the trial court erred as it pertains to
consideration of [Conrail and CSX’s] affidavits and evidentiary
burden.
Wright, 215 A.3d at 993-94 (citations, some quotation marks, and original
brackets omitted).
Instantly, the trial court contends that it did not ascribe any
heightened deference to Plaintiffs based on the actions being brought under
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FELA. E.g., Trial Court Opinion (Ficarra), 8/22/2019, at 6.12 Nevertheless,
after applying the appropriate evidentiary burden as clarified by Wright, the
trial court concluded that it should have granted the motions to dismiss for
forum non conveniens in these cases, explaining as follows.
[Railroad Defendants] argue[] that since [Plaintiffs’] claims
allegedly rose entirely outside of Pennsylvania and have no bona
fide connection to Pennsylvania that the court must dismiss the
instant matter for the purpose of allowing Plaintiff[s] to re-file
the instant matter in [an] appropriate jurisdiction. [Railroad
Defendants] cite[] a list of connections to [other states in each
case,] including but not limited to, Plaintiff[s’] working, residing
and seeking medical treatment exclusively [outside
Pennsylvania,] as well as all co-workers, supervisors and doctors
also living or working [outside Pennsylvania].
In Plaintiff[s’] answer[s] to [Railroad Defendants’]
motion[s], the private factors cited in favor of keeping the case
in Philadelphia County consisted of four named fact witnesses 3
who used to work for [] Conrail in their Philadelphia corporate
headquarters. Furthermore, Plaintiff[s] cite to the fact that
[Railroad Defendants] only reference[] “unnamed supervisors
alleged in [an affidavit] who may have to travel from [another
state] to Philadelphia, PA.” As long as the motion to transfer
venue is supported by information on the record, it does not
matter which form of proof is used. “All that is required is that
the moving party present a sufficient factual basis for the
petition.” Bratic, 99 A.3d at 9.
______
3 It is not undisputed that the four named witnesses reside
in Pennsylvania, only that they once worked in Conrail’s
12 Although Railroad Defendants raised the issue of heightened deference in
some of their Pa.R.A.P. 1925(b) statements and briefs, they noted in their
briefs that the trial court did not address this issue because it re-evaluated
its analysis and the trial court now posits that it should have granted
Railroad Defendants’ motions to dismiss in eight out of the nine cases. See,
e.g., Railroad Defendants’ Brief (Ficarra) at 17-18. In light of our
disposition, and because we agree with the trial court’s conclusion that it did
not provide Plaintiffs heightened deference in any event, we do not address
this claim further herein.
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J-A15019-20, J-A15020-20, J-A15021-20, J-A15022-20, J-A15023-20,
J-A15024-20, J-A15025-20, J-A15026-20, J-A15027-20
Philadelphia Office. Only one of the four witnesses
undisputedly resides in Pennsylvania (Wayne, PA).
The undisputed facts in [these cases], admitted by
Plaintiff[s], support the idea that the majority of potential
witnesses with any connection to the underlying matter reside
[outside Pennsylvania]. All of the supervisors and co-workers
who worked with Plaintiff[s] and may have knowledge about the
facts giving rise to Plaintiff[s’] claim[s] reside [outside
Pennsylvania]. All of Plaintiff[s’] doctors who played a role in []
diagnosis and medical treatment reside [outside Pennsylvania].
All of Plaintiff[s’] alleged injuries took place while [] working
[outside Pennsylvania]. Furthermore, none of the relevant
documentary evidence is located or maintained in Pennsylvania.4
Plaintiff[s’] admission to these facts will suffice when analyzing
the burden needed to prove the “weighty reasons” factor,
serving as more than just a mere “bare assertion.”
______
4 It is noted that Plaintiff[s] claim[ Plaintiffs’] attorneys
have “copies” of [the] medical records in their Philadelphia
office[s]. However, the originals are located [outside
Pennsylvania].
Plaintiff[s] cite[] public factors as well, such as Philadelphia
County having both the judicial resources and experience with
FELA matters to ensure a just trial and because [] Conrail is both
headquartered in and has trains run[ning] through Philadelphia.
For those reasons, Plaintiff[s] believe[] it is appropriate for a
Philadelphia jury to decide whether [Railroad Defendants] failed
to provide Plaintiff[s] with a reasonably safe place to work.
Conrail having its headquarters in Philadelphia does support
venue being proper, but it does not ultimately preclude a
dismissal when taking all factors into consideration.
Conversely, [Railroad Defendants] raise[] public interest
factors that support dismissal. Even though Conrail has its
headquarters in Philadelphia, Plaintiff[s’] claim[s have] no
relation to Philadelphia. The only connection a Philadelphia jury
would have to this case is due to Conrail having business in
Philadelphia. When the chosen forum bears no relation to a
plaintiff’s claim, there is more weight given to transferring a case
under § 5322 than imposing jury duty and costs of litigation on
the chosen forum.
- 17 -
J-A15019-20, J-A15020-20, J-A15021-20, J-A15022-20, J-A15023-20,
J-A15024-20, J-A15025-20, J-A15026-20, J-A15027-20
There are enough weighty reasons supporting the fact that
a more proper venue is located [outside Pennsylvania in eight of
the cases] to overcome Plaintiff[s’] choice of forum. [Railroad
Defendants] provided enough facts that make it clear that [a
state other than Pennsylvania] would serve as a more
convenient forum where “litigation could be conducted more
easily, expeditiously, and inexpensively” than if held in
Pennsylvania. Hovatter, 193 A.3d at 427.
Accordingly, we recommend the Superior Court remand
with guidelines for dismissal on the grounds of forum non
conveniens for the purpose of re-filing [in an appropriate forum].
E.g. Trial Court Opinion (Ficarra), 8/22/2019, at 6-8 (emphasis,
unnecessary capitalization, and some citations omitted).
Contrarily, Plaintiffs argue that Robbins13 controls the outcome in
these eight cases. In Robbins, another case originating in the Philadelphia
Court of Common Pleas, this Court affirmed the denial of a motion to dismiss
a FELA case brought against Conrail and Penn Central based on, inter alia,
the plaintiff’s intent to call the same former Conrail employees invoked by
Plaintiffs herein. Specifically, Plaintiffs argue that
[j]ust like in Robbins, the trial court in weighing the private and
public factors considered that Conrail was incorporated in
Pennsylvania and its corporate headquarters were located in
Philadelphia. Additionally, as it was in Robbins, it is appropriate
for a trial court to consider Plaintiff[s’] intention of calling former
corporate witnesses who worked in Philadelphia at trial.
E.g., Ficarra’s Brief at 18-19.
13 In the interim between the trial court denying the motions to dismiss and
filing its Pa.R.A.P. 1925(a) opinions, this Court issued Robbins (May 2019)
and Wright (July 2019).
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J-A15019-20, J-A15020-20, J-A15021-20, J-A15022-20, J-A15023-20,
J-A15024-20, J-A15025-20, J-A15026-20, J-A15027-20
Railroad Defendants, on the other hand, distinguish Robbins from the
instant cases as follows.
Because the trial court recognized that only one of the four
ostensible witnesses might reside in Pennsylvania and was fully
aware that [Plaintiffs] had adduced no evidence that the
testimony of any of these witnesses would be relevant, this
Court’s decision in Robbins [] is of no assistance to [Plaintiffs].
In Robbins, the trial court expressly (albeit erroneously)
accepted that all four witnesses reside in Pennsylvania and found
the convenience of these witnesses to outweigh that of the two
out-of-state witnesses identified by the defendants. This Court
held only that the trial court did not abuse its discretion “in
weighing the private and public factors,” explaining that “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.” That observation is equally true here and
supports upholding the trial court’s conclusion that “[t]here are
enough weighty reasons supporting the fact that a more proper
venue is located in [another state] to overcome Plaintiff[s’]
choice of forum.”
E.g., Railroad Defendants’ Brief (Ficarra) at 20 n.3 (emphasis in original;
citations omitted). The trial court did not address Robbins in its Pa.R.A.P.
1925(a) opinions.
In Robbins, Conrail and Penn Central filed a motion to dismiss for
forum non conveniens because the decedent’s injuries occurred in the state
of Indiana and all of the proposed witnesses were located outside
Pennsylvania. In response to the motion to dismiss, plaintiff averred, inter
alia, that he intended to call the same above-mentioned former Conrail
employees: Comstock, Barringer, Thomas, and Kovac. Additionally, plaintiff
argued that “although the decedent worked at the train yard in Indiana, the
policies and procedures related to the decedent’s exposure to chemicals and
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J-A15019-20, J-A15020-20, J-A15021-20, J-A15022-20, J-A15023-20,
J-A15024-20, J-A15025-20, J-A15026-20, J-A15027-20
cancer-causing substances were determined at [Conrail’s] headquarters in
Philadelphia.” Robbins, 212 A.3d at 85-86. Moreover, in support of denying
the motion to dismiss, plaintiff contended that “a viewing of the premises in
this case would not be desirable and, in fact, it ‘would be...extremely
dangerous [for the jury].’” Id. at 86 (citation omitted). Following a hearing
where the parties presented legal argument, the trial court denied the
motion to dismiss.
On appeal, Conrail and Penn Central argued, inter alia, that the trial
court abused its discretion in weighing the public and private factors, and
thus erred in concluding there were insufficient weighty reasons to grant the
motion to dismiss. This Court disagreed.
With regard to the private factors, the trial court relevantly
concluded there was no evidence that Indiana would provide
easier access to the decedent’s employment records, which are
housed in New Jersey and/or Florida. Further, with regard to the
cost of obtaining the attendance of willing witnesses and the
availability of compulsory process for obtaining the attendance of
unwilling witnesses, the trial court noted [Conrail and Penn
Central] identified two potential witnesses, both of whom were []
former employees: [] Mason, who resides in Illinois, and []
Toney, who resides in Illinois. [] Robbins, on the other hand,
identified four fact witnesses, all of whom reside in
Pennsylvania and were former [Conrail] employees.
Additionally, the trial court noted [Conrail and Penn Central]
conceded that it is unlikely any party would seek a request to
view the train yard at issue.
With regard to the public factors, and Pennsylvania’s connection
to the lawsuit, it is noteworthy that [] Robbins averred that,
although he worked at the train yard in Indiana, the
policies and procedures related to his exposure to
chemicals and cancer-causing substances were
determined at [Conrail’s] headquarters in Philadelphia.
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J-A15019-20, J-A15020-20, J-A15021-20, J-A15022-20, J-A15023-20,
J-A15024-20, J-A15025-20, J-A15026-20, J-A15027-20
Thus, as the trial court concluded, Pennsylvania citizens have a
relation to the litigation.
Based on the aforementioned, we conclude the trial court did not
abuse its discretion in weighing the private and public factors.
We note 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).
Because [Conrail and Penn Central] have not met their burden,
we affirm.8
______
8 To the extent [Conrail and Penn Central] aver the facts of
this case are indistinguishable from Hovatter, supra, we
disagree. In Hovatter, this Court held the trial court erred
in failing to dismiss the plaintiff’s action, which was filed in
Pennsylvania, under the doctrine of forum non conveniens.
However, in the instant matter, unlike in Hovatter, there
were Pennsylvania witnesses identified by a party
and a viewing of the site was not at issue. Further, we
note in the case sub judice, unlike in Hovatter, [] Robbins
specifically averred the policies and procedures
related to the decedent’s exposure to alleged
chemical/cancer-causing substances were
developed by [Conrail] at its headquarters in
Philadelphia. There was no such allegation made in
Hovatter as to CSX [] (the sole defendant in Hovatter).
Robbins, 212 A.3d at 90 (emphases added).
Although at first glance Plaintiffs’ cases strikingly resemble Robbins,
there are two important differences, which factored heavily into this Court’s
conclusion that the trial court in Robbins did not abuse its discretion in
denying the motion to dismiss for forum non conveniens in that case.
First, the plaintiff in Robbins set forth a specific argument that Conrail
developed policies and procedures in its Philadelphia office that created the
conditions leading to plaintiff’s injuries. Contrarily, the majority of Plaintiffs
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J-A15019-20, J-A15020-20, J-A15021-20, J-A15022-20, J-A15023-20,
J-A15024-20, J-A15025-20, J-A15026-20, J-A15027-20
herein presented scant argument before the trial court as to the relevance of
the former Conrail employees’ testimony in these eight cases. Of the eight
cases, only Bzinak, Mason, and Garceau arguably raised a theory of liability
regarding the four employees remotely resembling that raised in Robbins.14
Specifically, Bzinak averred, without elaboration, that the four witnesses had
knowledge “relevant to the practices employed by Conrail during the time of
exposure that ultimately led to [Bzinak’s] injury.” Bzinak’s Response to
Motion to Dismiss, 9/4/2018, at ¶ 17. Mason likewise averred, without
elaboration, that the four witnesses would “testify to policies crafted and
implemented by [] Conrail[.]” Mason’s Response to Motion to Dismiss,
11/14/2018, at ¶ 116; Mason’s Memorandum in Opposition to Motion to
Dismiss, 11/14/2018, at 6 (unnumbered). Garceau provided more detail at
oral argument, averring that the purpose of calling the four former Conrail
employees “is to talk about what the railroads were doing [] in ’76 to ’84,
about things like cancer, because they are liability witnesses [and o]ne of
14 Insofar as some Plaintiffs raise the same argument as Robbins for the
first time in their appellate briefs, this argument was not presented to the
trial court and cannot be raised for the first time on appeal. Wilson v.
Transp. Ins. Co., 889 A.2d 563, 573 (Pa. Super. 2005) (“[A]s a general
rule, assuming there is an opportunity to do so, claims that have not
been raised during trial may not be raised for the first time on appeal.”).
Insofar as Plaintiffs submitted on appeal attachments of testimony by
two of the former Conrail employees in a separate matter from October
2019, those notes of testimony are not part of the certified trial court
records and cannot be considered by this Court. Brandon v. Ryder Truck
Rental, Inc., 34 A.3d 104, 106 (Pa. Super. 2011) (citation and quotation
marks omitted) (“It is black letter law in this jurisdiction that an appellate
court cannot consider anything which is not part of the record in this case.”).
- 22 -
J-A15019-20, J-A15020-20, J-A15021-20, J-A15022-20, J-A15023-20,
J-A15024-20, J-A15025-20, J-A15026-20, J-A15027-20
our theories of liability is th[e medical, safety, and industrial hygiene
departments at Conrail] d[id]n’t communicate.” N.T., 2/28/2019, at 14-15.
Second, the trial court in Robbins found based on the record in that
case that all four of the former Conrail employees resided in Pennsylvania.
Here, however, Plaintiffs averred, without supporting evidence, that
Comstock resided in Pennsylvania, and provided no evidence or averments
as to where Barringer, Thomas, or Kovac resided. In response to the
mention of these witnesses, Railroad Defendants attached affidavits and the
work biography of Barringer to establish that he resides in Florida. The
records contain no information as to the residencies of Thomas and Kovac.15
Based on the foregoing, we conclude that the trial court abused its
discretion in applying the wrong evidentiary burden in 2420 EDA 2018, 296
EDA 2019, 298 EDA 2019, 469 EDA 2019, 540 EDA 2019, 583 EDA 2019,
1808 EDA 2019, and 1840 EDA 2019. However, given the records before it
in these cases, we agree with the trial court’s re-analysis and find these
cases distinguishable from Robbins. All of Plaintiffs’ former co-workers,
supervisors, and diagnosing and treating physicians reside outside
Pennsylvania. The work sites are outside Pennsylvania. The only connection
to Pennsylvania relevant to Plaintiffs’ claims is that four individuals who used
to work in Philadelphia were allegedly involved in the drafting and
15Again, as noted supra in note 8, Anderson is the only plaintiff who averred
below that Kovac also lived in Pennsylvania. Accordingly, that averment was
not part of the trial court records in these eight cases.
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J-A15024-20, J-A15025-20, J-A15026-20, J-A15027-20
implementation of procedures that led to Plaintiffs’ injuries. However, on the
records before the trial court, only one of those witnesses undisputedly
resides in Pennsylvania currently. Moreover, Plaintiffs largely failed to
explain the relevance of the former employees’ testimony. Weighing the
private and public interest factors using the correct evidentiary burden, the
trial court here ultimately concluded that Railroad Defendants presented
sufficient weighty reasons to warrant dismissal for forum non conveniens in
these eight cases. We discern no abuse of discretion by the trial court in
reaching this conclusion. See Robbins, 212 A.3d at 90 (“[I]t 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.”) (citation and
quotation marks omitted). Accordingly, we vacate the orders denying the
motions to dismiss in 2420 EDA 2018, 296 EDA 2019, 298 EDA 2019, 469
EDA 2019, 540 EDA 2019, 583 EDA 2019, 1808 EDA 2019, and 1840 EDA
2019, and remand to the trial court to dismiss these cases to permit re-filing
in an appropriate jurisdiction.
1748 EDA 2019
We now turn to Anderson’s case. As with the previous eight cases, the
trial court, after Conrail appealed the order denying its motion to dismiss for
forum non conveniens, re-evaluated the private and public interest factors
using the correct evidentiary burden. Despite the similarities with the
previous eight cases, the trial court asked us to affirm its order denying
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J-A15024-20, J-A15025-20, J-A15026-20, J-A15027-20
Conrail’s motion to dismiss Anderson’s case, distinguishing Anderson’s case
as follows.
Although the facts are nearly identical, there are significant
differences in the procedural histories that distinguish the instant
matter from Wright and other similar cases. Similar to Wright,
the items on the docket prior to the filing of the motion to
dismiss for forum non conveniens solely dealt with preliminary
objections. The amount of court resources used before filing the
motion was limited. However, there is one significant and
controlling difference between Wright and the instant matter:
on June 6, 2019, Judge Massiah-Jackson indicated, in the
process of denying [Conrail’s] motion for reconsideration of the
court’s April 12, 2019 order denying a motion for summary
judgment, that the parties were ready for trial. In fact, a pre-
trial conference was scheduled for July 10, 2019[,] with the
intention of having the case go to trial in August of 2019.
Deciding whether to grant a motion to dismiss for forum
non conveniens is a discretionary matter. In the instant matter,
this court cannot ignore how close this case has come to going
to trial and the amount of court resources used up until the time
of this appeal. When the Superior Court made its decision in
Wright, the issue of extensive use of court resources was not
brought forth as an issue. In Wright, up until the filing of the
motion to dismiss, court resources were not used for anything
outside of the preliminary objection stage. Therefore, this court
is operating under the belief that ruling on preliminary objections
is not enough use of court resources to deny a motion to dismiss
for forum non conveniens when the facts are similar to those in
Wright.
In the instant matter it would be inequitable to dismiss this
matter when it is ready for trial in order for it to begin in another
jurisdiction. The court acknowledges the bulk of the discovery is
completed and will not have to be repeated should the matter be
litigated in another jurisdiction. However, it is obvious to this
court that even if the case is “trial ready” it will not be tried as
expeditiously when it begins anew in another jurisdiction. The
parties are entitled to a speedy trial and it is on that factor that
this court distinguishes Wright from the instant matter. As
indicated in Plum[ v. Tampax, Inc., 160 A.2d 549, 561 (Pa.
1960)], the trial courts are also to consider “other practical
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J-A15019-20, J-A15020-20, J-A15021-20, J-A15022-20, J-A15023-20,
J-A15024-20, J-A15025-20, J-A15026-20, J-A15027-20
problems that make trial of a case easy, expeditious and
inexpensive” (emphasis added).
… In the instant matter, this case, if remanded, would be
ready for trial following a pre-trial conference. Contrarily, if this
matter is dismissed with the intention of re-filing in a different
state, it will likely not be ready for trial for some time, even with
the qualification that portions of the already completed discovery
could be transferable to another state.
While analyzing public factors, this court has invested
considerable time and resources into this matter to prepare for
the ensuing trial. Even though there could be an argument for
dismissing this case so as to alleviate the burden placed on the
Philadelphia court system and jury pool, it would undercut the
work this court has already endured. Plaintiff had the right to file
the instant matter in Philadelphia because venue is proper.
As stated in Alford [v. Philadelphia Coca-Cola Bottling
Co., Inc., 531 A.2d 792, 794 (Pa. Super. 1987)], the doctrine
“provides the court with a means of looking beyond technical
considerations such as jurisdiction and venue to determine
whether litigation in the plaintiff’s chosen forum would serve the
interests of justice under the particular circumstances.” In the
matter of justice, the Philadelphia court system has done
everything to prepare this matter for trial over the course of two
years. As we move further from the date in which this litigation
commenced, there is an inherent risk that those involved in this
litigation, whether it is potential witnesses or the actual parties,
may die or may have less of a recollection or ability to take part
in the trial. This is especially true when dealing with a plaintiff
who is suffering from a cancer diagnosis. Whereas if this decision
is affirmed, the instant matter will go to trial, most likely, within
a month of the denial of this appeal. The Philadelphia court
system has taken this case to the one-yard line[;] to dismiss it
now for purposes of re-filing in another jurisdiction would not be
in the interest of substantial justice. [Conrail has] not provided
enough “weighty reasons” to, on the eve of trial, take this
matter to another jurisdiction. Since this court’s decision to deny
[Conrail’s] motion to dismiss was not manifestly unreasonable,
we suggest this court’s order be affirmed.
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J-A15024-20, J-A15025-20, J-A15026-20, J-A15027-20
Trial Court Opinion (Anderson), 9/25/2019, at 5-8 (footnotes and
unnecessary capitalization omitted).
On appeal, Conrail raises five issues for review. Conrail’s Brief
(Anderson) at 5-6. Because they all challenge the trial court’s order denying
Conrail’s motion to dismiss for forum non conveniens, we address them
together. Essentially, Conrail argues that we may not affirm the trial court’s
order for a reason that did not exist at the time the order was entered, i.e.,
that the case is trial-ready. The case only became trial-ready after the order
was entered, and despite the trial-readiness, the private and public interest
factors still weigh in favor of dismissing Anderson’s action. Id. at 18.
As detailed hereinabove, we review orders disposing of motions to
dismiss for forum non conveniens for an abuse of discretion. Hovatter, 193
A.3d at 424. Upon review, it is apparent that contrary to Conrail’s claim, the
near-trial readiness of Anderson’s case was always a factor in ruling on
Conrail’s motion to dismiss. At the September 20, 2018 hearing, Anderson
opposed the motion to dismiss in part because the case was almost trial-
ready. Specifically, Anderson’s deposition was scheduled for September 28,
2018, discovery was to end November 5, 2018, and trial was set for March
2019.16 N.T., 9/20/2018, at 21-22. Additionally, unlike the other eight cases,
Anderson raised a similar argument to Robbins, claiming that the four
former Conrail employees’ testimony would be relevant to “notice and
16As noted hereinabove, the order denying the motion to dismiss was dated
December 2018, but was not filed until March 5, 2019.
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foreseeability” and as to what Conrail knew “about the dangers of the
exposure to asbestos [and diesel exhaust[, and] the dangers of cancer
relevant to the time [] Anderson worked for Conrail[.]” Id. at 17-18. Finally,
Anderson averred not only that Comstock lived in Pennsylvania, but that
Kovac also resided in Pennsylvania. Id. at 19.
Given this record, we discern no abuse of discretion in the trial court’s
weighing the private and public interest factors differently than the other
eight cases and concluding that “litigation in the plaintiff’s chosen forum
would serve the interests of justice under the particular circumstances.”
Robbins, 212 A.3d at 87 (citation and quotation marks omitted). See also
Hovatter, 193 A.3d at 424 (“[I]f there is any basis for the trial court’s
decision [on a motion to dismiss for forum non conveniens], the decision
must stand.”) (citation and quotation marks omitted). Accordingly, we affirm
the order denying Conrail’s motion to dismiss for forum non conveniens in
1748 EDA 2019.
Orders in 2420 EDA 2018, 296 EDA 2019, 298 EDA 2019, 469 EDA
2019, 540 EDA 2019, 583 EDA 2019, 1808 EDA 2019, and 1840 EDA 2019
vacated and cases remanded for proceedings consistent with this opinion.
Order in 1748 EDA 2019 affirmed. Jurisdiction relinquished.
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J-A15024-20, J-A15025-20, J-A15026-20, J-A15027-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2020
- 29 -