J-A01021-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAVID W. HOVATTER, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
CSX TRANSPORTATION, INC.
Appellant No. 3379 EDA 2016
Appeal from the Order Entered July 20, 2016
in the Court of Common Pleas of Philadelphia County
Civil Division at No.: 1507-3680
EDWARD M. WILSON, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
CSX TRANSPORTATION, INC.
Appellant No. 631 EDA 2017
Appeal from the Order Entered October 20, 2016
in the Court of Common Pleas of Philadelphia County
Civil Division at No.: 151102678
BEFORE: LAZARUS, J., OTT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 27, 2018
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A01021-18
In these consolidated appeals, Appellant, CSX Transportation, Inc.,
appeals from the denials of its motions to dismiss based on the doctrine of
forum non conveniens in these actions brought under the Federal Employers’
Liability Act (“FELA”), 45 U.S.C. §§ 51-60. For the reasons discussed below,
we reverse and remand.
We take the underlying facts and procedural history in this matter from
the trial court’s May 18, and June 27, 2017 opinions and our independent
review of the certified record.
Appellee, David W. Hovatter, is a resident of Frostburg, Maryland. He
worked for Appellant as a machinist in Cumberland, Maryland. On July 30,
2015, he instituted the instant action pursuant to the FELA for injuries to his
knee and leg he alleges he sustained when descending a metal ramp at
Appellant CSXT’s facility in Cumberland. Appellant filed preliminary objections
on September 22, 2015. The trial court sustained the preliminary objections,
in part, on November 30, 2015. On December 15, 2015, Appellee Hovatter
filed an amended complaint alleging that he suffered an injury on August 3,
2012, when descending a metal ramp at work. (See Amended Complaint,
12/15/15, at ¶¶ 7-8). Appellant filed an answer and new matter on January
4, 2016. On May 9, 2016, Appellant filed a motion to dismiss based on the
doctrine of forum non conveniens. Appellee Hovatter filed an answer on May
31, 2016. The trial court denied the motion on July 1, 2016. On July 20,
2016, Appellant filed a motion to amend the order of July 1, 2016, to allow for
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an interlocutory appeal. The trial court granted this request on July 20, 2016.
The instant, timely appeal followed. The trial court did not order Appellant to
file a concise statement of errors complained of on appeal. See Pa.R.A.P.
1925(b). On May 18, 2017, the trial court filed an opinion. See Pa.R.A.P.
1925(a).
Appellee, Edward M. Wilson, is a resident of Worthville, Kentucky. He
worked for Appellant in a variety of locations in Kentucky, Ohio, and Indiana.
On November 18, 2015, he instituted the instant action pursuant to the FELA.
Appellant filed preliminary objections on January 19, 2016. The trial court
sustained, in part, the preliminary objections on February 18, 2016. On March
8, 2016, Appellee Wilson filed an amended complaint alleging that he suffered
from cumulative trauma injuries caused by his employment with Appellant.
(Amended Complaint, 3/08/16, at ¶¶ 5-12). Appellant again filed preliminary
objections, which the trial court overruled. Appellant filed an answer and new
matter on June 13, 2016. On July 29, 2016, Appellant filed a motion to dismiss
based on the doctrine of forum non conveniens. Appellee Wilson filed an
answer on August 22, 2016. The trial court denied the motion on October 20,
2016. Appellant filed a motion to amend the order of November 4, 2016, to
allow for an interlocutory appeal. The trial court denied this request on
January 12, 2017. On December 19, 2016, Appellant filed a petition for review
in this Court. On February 23, 2017, this Court granted the petition for
review. The instant, timely appeal followed. The trial court did not order
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Appellant to file a concise statement of errors complained of on appeal. See
Pa.R.A.P. 1925(b). On June 27, 2017, the trial court filed an opinion adopting
its earlier opinion of May 18, 2017. See Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following questions for our review.
1. Whether Pennsylvania courts may give heightened deference
to a plaintiff’s choice of forum in applying the doctrine of forum
non conveniens in a FELA case?
2. Whether the requisite “weighty” reasons for dismissal 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[?]
(Appellant’s Brief, at 4-5).
On appeal, Appellant challenges the trial court’s denial of its motion to
dismiss based on the doctrine of forum non conveniens pursuant to 42
Pa.C.S.A. § 5322(e).1, 2 Our standard of review is an abuse of discretion. See
____________________________________________
1 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. See 42 Pa.C.S.A. §
5322(e).
2 We emphasize that this matter does not involve an intrastate request to
transfer venue based upon forum non conveniens pursuant to Pa.R.C.P.
1006(d)(1). In cases where there is a request to transfer a case to another
state, 42 Pa.C.S.A. § 5322(e) applies. See Pisieczko, infra at 1262 n. 3
(“42 Pa.C.S.A. § 5322(e) controls when the alternative venue is out-of-state.
When the alternative venue is in-state, Pa.R.C.P. 1006(d)(1) controls.”). We
stress this distinction because a defendant bears a heavier burden under Rule
1006(d)(1), which allows forum transfers only when the defendant
demonstrates that plaintiff’s chosen forum is oppressive and vexatious for the
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Pisieczko v. Children's Hosp. of Phil., 73 A.3d 1260, 1262 (Pa. Super.
2013). If there is any valid basis for the trial court’s decision, we must affirm.
See id.
Pursuant to Section 5322(e), the court may stay or dismiss the matter
when “a tribunal finds that in the interest of substantial justice the matter
should be heard in another forum[.]” 42 Pa.C.S.A. § 5322(e). The trial court
must apply two factors when considering whether dismissal is warranted: “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.”3 Pisieczko, supra at 1263 (citation omitted).
In deciding whether weighty reasons exist so as to overcome the
plaintiff’s choice of forum, the trial court must “examine both the private and
public interest factors involved.” Engstrom v. Bayer Corp., 855 A.2d 52, 55
(Pa. Super. 2004), appeal denied sub nom., Weiding v. Bayer Corp., 887
____________________________________________
defendant. See Bratic v. Rubendall, 99 A.3d 1, 7 (Pa. 2014). Thus, in the
Rule 1006(d)(1) context, issues such as whether venue is convenient or a
hardship are relevant; those factors are not at issue in a § 5322(e) analysis.
3 In the present cases, Appellant has agreed to waive any applicable statute
of limitations and any objections on the basis of venue or personal jurisdiction.
(See Appellant’s Brief, at 6, 8). Thus, there are available alternative forums.
See Jessop v. ACF Industries, LLC, 859 A.2d 801, 803 (Pa. Super. 2004)
(“A stipulation made by a defendant that he or she will submit to service of
process and not raise the statute of limitations as a defense has been accepted
by the courts as eliminating the concern regarding the availability of an
alternate forum.”) (citation omitted).
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A.2d 1242 (Pa. 2005). In Engstrom, we set forth the pertinent private and
public factors thusly:
[The private interests at play include] the relative ease of
access to sources of proof; availability of compulsory process for
attendance of unwilling, and the cost of obtaining attendance of
willing, witnesses; possibility of view of premises, if view would be
appropriate to the actions; and all other practical problems that
make trial of a case easy, expeditious and inexpensive. There may
also be questions as to the enforceability of a judgment if one is
obtained. The court will weigh relative advantages and obstacles
to a fair trial. . . .
Factors of public interest also have [a] place in applying the
doctrine. Administrative difficulties follow for courts when
litigation is piled up in congested centers instead of being handled
at its origin. Jury duty is a burden that ought not to be imposed
upon the people of a community which has no relation to the
litigation. There is appropriateness, too, in having the trial in a
forum that is at home with the state law that must govern the
case, rather than having a court in some other forum untangle
problems in conflict of laws, and in a law foreign to itself.
Id. at 56 (citation omitted).
In its first issue, Appellant contends that the trial erred in applying a
heightened deference to Appellees’ choice of forum because they brought the
cases pursuant to the FELA. (See Appellant’s Brief, at 12-14; Trial Court
Opinion, 5/18/17, at 3). We agree.
In its decision, the trial court stated:
Specifically, pursuant to 45 U.S.C. § 56 of the FELA, [Appellees
have] the right to choose [their] forum to litigate [their] individual
FELA personal injury action[s]. Under the FELA, a plaintiff is
entitled to bring an action in any district where the defendant is
doing business at the time of commencing such action. In
pertinent part, 45 U.S.C. § 56, states:
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[U]nder this chapter, an action 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 . . .
45 U.S.C. § 56.
(Trial Ct. Op., at 3). However, in a decision issued approximately two weeks
after the trial court issued its opinion, the United States Supreme Court
addressed this issue and came to a contrary result. In BNSF Ry. Co. v.
Tyrrell, 137 S. Ct. 1549, 1553 (2017), like the instant matter, the plaintiffs
sued under the FELA in state court. See Tyrrell, supra at 1553. Again, as
in the instant matter, while the defendant did business in the state, it was not
incorporated there and its principal place of business was not there. See id.
The Montana Supreme Court held that it had personal jurisdiction over the
case under Section 56. See id. The United States Supreme Court disagreed,
holding that Section 56:
is a venue prescription governing proper locations for FELA suits
filed in federal court. The provision’s second relevant sentence,
using the term “concurrent” jurisdiction, refers to subject-matter
jurisdiction, not personal jurisdiction. It simply clarifies that the
federal courts do not have exclusive subject-matter jurisdiction
over FELA suits; state courts can hear them, too.
Id. (emphasis added). The Court stated that the mere fact that the case was
brought under the FELA was insufficient to vest personal jurisdiction in a state
where none of the events at issue occurred, none of the parties resided, and
the state was not the defendant’s place of incorporation or principal place of
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business. See id. at 1558-59. It found that simply having tracks and
employees located in the state was not enough to give the Montana court
personal jurisdiction over the matter. See id.
The holding in BNSF is in line with earlier United States Supreme Court
precedent. In Missouri ex rel. S. Ry. Co. v. Mayfield, 340 U.S. 1 (1950),
the Supreme Court held that states courts have to apply the doctrine of forum
non conveniens to FELA cases in the same way they apply it to any other
cases. See Mayfield, supra at 4; see also Rini v. New York Cent. R.R.
Co., 240 A.2d 372, 374-75 (Pa. 1968) (applying normal Pennsylvania
standard to doctrine of forum non conveniens in FELA case); Norman v.
Norfolk & W. Ry. Co., 323 A.2d 850, 855-56 (Pa. Super. 1974) (same and
reversing trial court’s denial of defendant’s preliminary objections based upon
doctrine of forum non conveniens). Thus, we find that the trial court erred in
finding that Section 56 applied to the instant matter and in granting
heightened deference to Appellees’ choice of forum based upon its application.
See Tyrell, supra at 1553.
In its second issue, Appellant alleges that “[u]nder generally applicable
Pennsylvania law, [its] unrelated business activity in Pennsylvania is not a
valid basis for denying [its motion to dismiss.]” (Appellant’s Brief, at 14)
(unnecessary capitalization omitted). Again, we agree.
Here, Appellant avers the following in support of its position that
dismissal is proper. Neither Appellee resides in Pennsylvania. (See id. at 7-
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8). Appellee Hovatter resides in Maryland, while Appellee Wilson is a resident
of Kentucky. (See id. at 7). Appellant is incorporated in Virginia and its
principal headquarters is in Jacksonville, Florida. (See id.).
As previously noted, Appellant Hovatter’s injury occurred at Appellant’s
facility in Cumberland, Maryland. (See id.). Appellant Wilson alleged that he
sustained injuries to his knees, lower back, and neck during the course of his
employment at Appellant’s facilities in Kentucky, Ohio, and Indiana. (See id.
at 8-9).
Appellee Hovatter received all of his medical treatment in Maryland.
(See id. at 7). His claim concerns working conditions at a facility in Maryland
and any witnesses to either the working conditions or his injury are located in
Maryland. (See id.).
Appellee Wilson received all of his medical treatment in Kentucky and
Ohio. (See id. at 9). All of his claims arise from alleged acts and omissions
of Appellant in Kentucky, Ohio, Indiana, or Florida. (See id.). There are no
relevant witnesses to any of the working conditions in Pennsylvania. (See id.
at 9-10).
There are no relevant employment records or other documents of
relevance to either case in Pennsylvania. (See id. at 20). Appellant states
that all sources of proof in these matters are located outside of Pennsylvania.
(See id. at 22).
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Appellant argues that because all of the witnesses it is likely to call
reside outside of Pennsylvania, it will be more difficult to compel their presence
at trial. (See id. at 23). It contends that even if the some of the witnesses
are willing to attend, it will be costly and inconvenient. (See id. at 24-25). If
the jury wished to view any of the facilities or the ramp on which Appellant
Hovatter sustained his injury, they would be unable to. (See id. at 24-25).
It maintains both that it would be easier and significantly less expensive if the
cases were venued in their home forums. (See id. at 25).
We agree. As delineated above, all relevant events in both cases
occurred outside of Pennsylvania. All witnesses, including medical personnel,
reside outside of Pennsylvania. All relevant documentation is located outside
of Pennsylvania. Neither Appellee resides in Pennsylvania nor is Appellant
incorporated in Pennsylvania and it does not maintain its principal
headquarters here. It will be difficult for Appellant to compel witness
attendance at trial in Pennsylvania and any discovery disputes will have to be
resolved through states courts in the relevant states. Appellants have
demonstrably shown that Maryland and, in the case of Appellee Wilson, either
Kentucky or Ohio will provide ease of access to sources of proof, which are
some of the private factors we must consider. These factors are particularly
compelling here and strongly warrant dismissal of this action. See Engstrom,
supra at 55; see also Pisieczko, supra at 1264 (“Because the private
factors indeed favor New Jersey as a more convenient forum, the trial court
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did not abuse its discretion when it found that the private factors were in favor
of dismissing the case.”) (citation omitted). Appellant has unequivocally
demonstrated that there are no obstacles to a fair trial in Maryland, Kentucky,
or Ohio and that trial in these jurisdictions would be easier, more expeditious,
and less expensive. Hence, all of the above-discussed private factors favor
dismissal. See Engstrom, supra at 55; see also Pisieczko, supra at 1264;
Rini, supra at 374-75 (affirming grant of motion to dismiss for forum non
conveniens in FELA case where cause of action arose outside of Pennsylvania;
neither plaintiff nor any witnesses resided within or had any connection to
Allegheny County; and no witnesses were within subpoena range of Court of
Common Pleas of Allegheny County); Norman, supra at 855-56 (holding trial
court abused its discretion in denying motion to dismiss for forum non
conveniens in FELA case where only connection to county in question was that
plaintiff’s expert witness resided there).
Moreover, all of the public factors weigh in favor of trying this action in
the Appellees’ home forums. As Appellant correctly notes, the courts in
Philadelphia County are extremely congested and have “become a magnet for
tort suits . . . [which] have no connection whatever to Pennsylvania.”
(Appellant’s Brief, at 30). We see no reason to impose jury duty on
Pennsylvania citizens for FELA actions that arose in other states and involved
citizens of those states. See Engstrom, supra at 57 (“[t]here is simply no
valid reason that the people of Philadelphia County should bear the burden of
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adjudicating th[ese] case[s], including jury duty and the expense of
conducting a trial.”) (citation omitted). We note that the third factor is
inapplicable since this case involves federal law.
In short, we cannot find any basis upon which to distinguish this matter
from the cases of Rini, supra; Pisieczko, supra; Engstrom, supra; and
Norman, supra. In each of these cases, our Courts strongly upheld the
principle that simply doing business in a state was insufficient to sustain venue
under the doctrine of forum non conveniens when there was no other
connection between the chosen forum and the case. See Rini, supra at 374-
75; Pisieczko, supra at 1264; Engstrom, supra at 55; Norman, supra at
855-56.
Each of the considerations present in these case is present herein. The
cause of action arose outside of Pennsylvania. All parties and witnesses are
residents of other states. Appellant established unequivocally that there will
be significant burdens associated with trying the case in Pennsylvania. The
Philadelphia courts are overly congested and a Philadelphia jury should not be
taxed with trying a case with which it has no relation. All of the private and
the majority of the public factors support dismissal under § 5322(e).
Moreover, the trial court failed to offer any valid basis for its action. As
discussed above, its reliance on 45 U.S.C. § 56 was in error. It offered no
legal support for its contention that advances in technology somehow obviate
the fact that no parties, witnesses, or evidence are in Pennsylvania. (See
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Trial Ct. Op., at 5). It discounted the possibility of a view of the premises and
indicated that videotape or photographs could serve as a substitute for a
viewing. (See id. at 5-6). We disagree. Its contention that Appellant could
“transport the ramp” in question in Appellee Hovatter’s case to Philadelphia
borders on the absurd. (Id. at 6). Moreover, its finding that because
Appellant hauls freight it could make arrangements to transport people to
travel to Philadelphia is irrelevant. In so finding, the trial court also
inexplicably failed to consider the fact that all of the witnesses in these case
are beyond the subpoena power of Pennsylvania, and it will be cumbersome
to compel their presence at trial. It never discussed the difficulties of
conducting discovery in Pennsylvania with respect to witnesses and
documents located in other states. Finally, it provides no support for its
analysis that Philadelphia juries have interest in a FELA case because Appellant
transports cargo on rail lines located within Philadelphia. And, again, its
analysis of 45 U.S.C. § 56 is flawed.
Moreover, Appellees’ arguments in support of keeping the matters
venued in Philadelphia are largely misplaced. The first four pages of their
argument rely on Section 56 and Appellees ignore the fact that their position
has been foreclosed by Tyrrell, supra. (See Appellees’ Brief, at 4-7); see
also Tyrrell, supra at 1553. The remainder of their argument consists of
citations to boilerplate law, summaries of holdings without addressing how
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those holding apply to the facts of the instant matter, and lengthy quotations
from the trial court opinion. (See Appellant’s Brief, at 8-18).
Appellees rely largely on the fact that Philadelphia is their chosen forum
and that at least some of the medical witnesses have agreed to testify via
videotape. (See id. at 11, 13-15). At no point do they discuss the fact that
the instant matter has no relationship to Pennsylvania. Moreover, they
mention that Appellant did not establish that this jurisdiction would be
inconvenient. (See id. at 11-13). Whether a venue is burdensome, a
hardship, or a convenience is pertinent to the Pa.R.C.P. 1006(d)(1) test; not
the test utilized under § 5322(e). Appellees have not addressed the key
questions, which are whether discovery will be more difficult due to the fact
that it will have to be conducted through out-of-state courts, and whether out-
of-state witnesses can be compelled to appear in Philadelphia, regardless of
the convenience of that forum.
Appellees also complain that Appellant has failed to specify what out-of-
state witnesses they would need to call or who would be “inconvenienced if
required to testify in Philadelphia.” (Appellees’ Brief, 12). This argument is a
non-sequitur because that is the purpose of discovery, which Appellant is
hindered in conducting in Pennsylvania. More importantly, it is incorrect. It is
untenable to maintain that people who may have witnessed Appellee
Hovatter’s accident, or who worked at the allegedly unsafe facilities in
question will not have information relevant to this matter.
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With respect to the public factors, Appellees merely adopt trial court
arguments that we have already rejected. (See id. at 15-18). Moreover,
their argument that because Appellant does business in Philadelphia a jury in
that location has the right to decide if it provides “a reasonably safe place to
work” (in other states), (id. at 11), fails to address the relevant issue, which
is whether jury duty should be imposed upon individuals in a county which
has no relation to the litigation. As discussed above, Philadelphia has no
relation to cases involving an accident at a Maryland facility or working
conditions at facilities in Kentucky, Ohio, and Indiana. The fact that Appellant
conducts business in Philadelphia does not mean that the litigation is subject
to personal jurisdiction in this Commonwealth. See Jessop, supra at 807
(holding plaintiff did not prove Pennsylvania jury had relation to litigation,
which involved activities that occurred in Kansas, based on fact that defendant
did business in this Commonwealth and citizens of Pennsylvania might have
interest in litigation).
Accordingly, for the reasons discussed above, we are constrained to
reverse and remand with directions that the court enter an order dismissing
the complaint without prejudice to the right of Appellees to refile the lawsuits
in Maryland with respect to Appellee Hovatter, and Kentucky or Ohio with
respect to Appellee Wilson. Appellant shall accept service, and is prohibited
from asserting lack of personal jurisdiction in the states of Maryland,
Kentucky, or Ohio on the defense of the statute of limitations.
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Order reversed with directions. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/18
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