J.A31046/13
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PAUL R. BLACK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
:
CSX TRANSPORTATION, INC., :
:
Appellant :
: No. 3058 EDA 2012
Appeal from the Order Entered September 4, 2012
In the Court of Common Pleas of Philadelphia County
Civil Division No(s).: January Term, 2012, No. 1897
BEFORE: BENDER, P.J., LAZARUS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 12, 2014
Appellant, CSX Transportation, Inc., a Virginia corporation, appeals
from the order entered in the Philadelphia County Court of Common Pleas in
favor of Appellee, Paul R. Black, a Kentucky resident allegedly injured in
ral
1
forum non
conveniens. This is an interlocutory appeal by permission. We vacate and
remand to have the trial court address all of the relevant factors for
interstate forum non conveniens.
*
Former Justice specially assigned to the Superior Court.
1
45 U.S.C. §§ 51-60.
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opinion.2 See Trial Ct. Op., 4/24/13, at 1-3. On July 18, 2012, the trial
filed a motion for reconsideration, which the court denied on September 5,
2012. On October 3, 2012, Appellant filed a petition for review with this
Court, which we granted on November 13, 2012. See generally Pa.R.A.P.
1513. The trial court did not order Appellant to comply with Pa.R.A.P.
1925(b), but filed a Pa.R.A.P. 1925(a) decision.
Appellant raises the following issues:
Whether Pennsylvania courts may give heightened
doctrine of forum non conveniens in a FELA case.
under the doctrine of forum non conveniens exist when an
out-of-state plaintiff who had no connection to
Pennsylvania sues an out-of-state defendant to recover for
injuries allegedly suffered outside of Pennsylvania and all
known witnesses reside outside of Pennsylvania.
-3.
Appellant argues the trial court failed to heed the edict of Missouri ex rel.
S. Ry. v. Mayfield, 340 U.S. 1 (1950), and thus improperly gave
2
For purposes of our disposition, given the procedural posture, we view the
facts in the light most favorable to Appellee. We acknowledge that the trial
pleadings.
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Appellant contends that dismissal is warranted because Appellee, a Kentucky
resident purportedly exposed to asbestos in Kentucky, has no connection
with Pennsylvania. Appellant observes that all witnesses are located in
Kentucky. For the reasons set forth below, we vacate the order and remand
for further proceedings.
of
interstate forum non conveniens for an abuse of discretion.3 See Jessop v.
ACF Indus., LLC, 859 A.2d 801, 803 (Pa. Super. 2004). To establish an
abuse of discretion,
it is not sufficient to persuade the appellate court that it
might have reached a different conclusion if, in the first
place, charged with the duty imposed on the court below;
it is necessary to go further and show an abuse of the
discretionary power. If there is any basis for the . . .
decision, the decision must stand.
In re Mackaru , 246 A.2d 661, 666-67 (Pa. 1968) (citation and
footnote omitted); Brown v. Del. Valley Transplant Program, 538 A.2d
889, 891-92 (Pa. Super. 1988) (affirming intrastate transfer because record
3
An order dismissing for forum non conveniens
there has been a clear abuse of discretion; where the court has considered
all relevant public and private interest factors, and where its balancing of
these factors is reasonable, its decision d
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981) (citations omitted).
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In Shears v. Rigley, 623 A.2d 821 (Pa. Super. 1993),4 this Court
distinguished between intrastate and interstate forum non conveniens:
A [42 Pa.C.S. §] 5322(e) dismissal [for interstate
forum non conveniens] terminates the litigation in the
courts of this Commonwealth unlike the intra-jurisdictional
transfer between counties embodied under Pennsylvania
Rule of Civil Procedure 1006(d). Rule 1006(d)(1) provides
in relevant part:
For the convenience of the parties and
witnesses the court upon petition from any
party may transfer an action to the appropriate
court of any other county where the action could
originally have been brought.
Pa.R.C.P. 1006(d)(1). Because our courts lack the
authority to transfer matters to courts of our sister states,
dismissal of the action is the only permissible result.
Alford v. Phil. Coca-Cola Bottling, 366 Pa. Super. 510,
513, 531 A.2d 792, 794 (1987). Section 5322(e) of the
Judicial Code provides as follows:
When a tribunal finds that in the interest of
substantial justice the matter should be heard in
another forum, the tribunal may stay or dismiss
the matter in whole or in part on any conditions
that may be just.
42 Pa.C.S.A. § 5322(e). Regardless of the differences
between a transfer of venue under Rule 1006 and
dismissal under section 5322, both remedies are derivative
of the common law doctrine of forum non conveniens.
Alford, supra; . . . . This court has recognized that the
application of the principles of the doctrine of forum non
4
Unlike intrastate forum non conveniens, which involves the application of
Pa.R.C.P. 1006, few Pennsylvania cases discuss interstate forum non
conveniens, which invokes 42 Pa.C.S. § 5322(e). Our research revealed no
Supreme Court jurisprudence interpreting Section 5322(e). Accord Humes
v. Eckerd Corp., 807 A.2d 290, 292 n.4 (Pa. Super. 2002).
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conveniens in both intrastate and interstate cases serves
the same essential purpose:
It provides the court with a means of looking
beyond technical considerations such as
jurisdiction and venue to determine whether
serve the interests of justice under the
particular circumstances.
Alford, 366 Pa. Super. at 513, 531 A.2d at 794. As such,
those decisions addressing the application of the doctrine
equally apply to dismissal of the instant action pursuant to
section 5322. Id.
Shears, 623 A.2d at 823-24 (some citations omitted). Further, application
of the forum non conveniens doctrine in an interstate context solves the
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
Norman v. Norfolk & W. Ry. Co., 323 A.2d
850, 854 (Pa. Super. 1974).
In ascertaining whether to grant Section 5322(e) relief, a trial court
must evaluate various factors. Shears, 623 A.2d at 824-25; see Plum v.
Tampax, Inc., 160 A.2d 549, 553 (Pa. 1960) (construing international i.e.,
interstate forum non conveniens doctrine prior to enactment of Section
5322(e)).5
5
Our Supreme Court has consistently employed the public and private factor
test in evaluating whether the trial court abused its discretion regarding
interstate forum non conveniens. Accord Rini v. N.Y. Cent. R.R., 240 A.2d
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The two most important
retention of the case. They are (1) that since it is for the
plaintiff to choose the place of suit, his choice of a forum
should not be disturbed except for weighty reasons, and
(2) that the action will not be dismissed in any event
unless an alternative forum is available to the plaintiff.
Because of the second 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
would elsewhere be barred by the statute of limitations,
that he will not raise this defense in the second state.
Plum, 160 A.2d at 553 (quotation marks and citation omitted); accord
Rini, 240 A.2d at 373-74 (applying Plum factors in FELA case and according
no special deference to, inter alia, Ohio plaintiffs).6
presumption in favor of a plaintiff
considered when the plaintiff has chosen a foreign forum to litigate his or her
Aerospace Fin. Leasing, Inc. v. New Hampshire Ins. Co., 696
A.2d 810, 814 (Pa. Super. 1997) (citing Piper Aircraft Co., supra, in
372, 373-74 (Pa. 1968) (plurality) (employing Plum factors in interstate
forum non conveniens case).
6
Rini addressed three lawsuits filed in Allegheny County: two involved Ohio
plaintiffs and one involved a Pennsylvania plaintiff. Rini, 240 A.2d at 373.
In affirming the dismissal of all three cases on the basis of forum non
conveniens, the Rini
the Commonwealth of Pennsylvania; [n]either the plaintiffs nor any of the
witnesses reside in or have any connection with Allegheny County, nor are
the witnesses within subpoena range of the Court of Common Pleas of
Id. at 374.
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resolving international, i.e., interstate, forum non conveniens issue).
this choice is convenient. When the plaintiff is foreign, however, this
assumption is much less reasona Id. (quotation marks and citation
omitted).
The remaining factors can best be grouped under the
two principal interest [sic] involved: those of the parties
and those of the public. . . .
If the combination and weight of factors requisite to
given results are difficult to forecast or state, those to be
considered are not difficult to name. An interest to be
considered, and one likely to be most pressed, is the
private interest of the litigant. Important considerations
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 action; 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 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.
These two sets of factors are not mutually exclusive but
rather supplement each other.
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Plum, 160 A.2d at 553 (quotation marks and citation omitted); accord
Jessop, 859 A.2d at 803-04 (affirming dismissal for forum non conveniens
because Kansas was more appropriate forum).
The Plum
has been substantially completed and the state of pre-trial preparation. See
Wright v. Aventis Pasteur, Inc., 905 A.2d 544, 552 (Pa. Super. 2006)
(reversing dismissal for forum non conveniens because, inter alia, discovery
was substantially complete);
Operations, Inc., 845 A.2d 850, 854 (Pa. Super. 2004) (reversing grant of
forum non conveniens motion because, among other reasons, pre-trial
preparation was complete). Substantial completion of discovery, however,
may be outweighed by a finding that discovery could be used in a new
forum. Jessop, 859 A.2d at 805. Timing of the motion to change venue
may be a salient factor. Beatrice Foods Co. v. Proctor & Schwartz, Inc.,
455 A.2d 646, 650 (Pa. Super. 1982). The trial court is barred from
forum non conveniens.
Humes, 807 A.2d at 292 (citation omitted), 295. The trial court must also
Plum, 160 A.2d at
554.
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Instantly, with respect to the two important Plum factors, we initially
observe that although the trial court ordinarily gives great deference to
a resident of Kentucky has chosen
Pennsylvania, a foreign forum, to litigate his claims against Appellant a
Virginia corporation. See Plum, 160 A.2d at 553; Aerospace Fin.
Leasing, 696 A.2d at 814. Thus, the instant trial court should give less
se of his
foreign, i.e., Kentucky, residence. See Aerospace Fin. Leasing, 696 A.2d
at 814; accord Piper Aircraft, 454 U.S. at 256. Regarding the second
Plum factor, the trial court failed to discuss the availability of any available
alternate forums, including the applicable statutes of limitations, if any. See
Plum, 160 A.2d at 553.
We next address the private interest factors. The trial court
acknowledges that relevant witnesses and other sources of proof are in
Kentucky. Trial Ct. Op. at 4. The court also acknowledges that Appellant
conducts business in Philadelphia. Id. The court, however, failed to address
the availability of compulsory process, cost of obtaining attendance of willing
nd all other
practical problems that make trial of a case easy, expeditious and
See Plum, 160 A.2d at 553. Appellee does not contend
discovery was substantially complete, the case was ready for trial, or that
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Appellant untimely filed the underlying motion. See, e.g., Wright, 905
A.2d at 552; , 845 A.2d at 854; Beatrice Foods, 455 A.2d at 650.
Because the trial court did not weigh all the pertinent factors, including
i.e., Kentucky, status, see Aerospace Fin. Leasing, 696
A.2d at 814, the trial court did not properly exercise its discretion. See
Piper Aircraft, 454 U.S. at 257; Plum, 160 A.2d at 553. Accordingly,
having discerned an error of law, we remand for the trial court to discuss
and weigh all the relevant interstate forum non conveniens factors. See 42
Pa.C.S. § 5322(e); Jessop, 859 A.2d at 803.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2014
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