Hurt, J. v. Penn Central Corporation

J-A05035-21

2021 PA Super 68

JENISA HURT PERSONAL : IN THE SUPERIOR COURT OF
REPRESENTATIVE FOR THE ESTATE : PENNSYLVANIA
OF: CHARLES R. JONES :
:
Appellant :
:
:
v. :
: No. 776 EDA 2020
:
PENN CENTRAL CORPORATION A/K/A :
AMERICAN PREMIER :
UNDERWRITERS, INC., AND :
CONSOLIDATED RAIL CORPORATION :

Appeal from the Order Dated January 22, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 190202482

BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED APRIL 15, 2021

Appellant Jenisa Hurt (“Ms. Hurt”), who is the personal representative

for the estate of Charles R. Jones (“the decedent”), appeals from the order

granting the motion filed by Appellees Penn Central Corporation1 a/k/a

____________________________________________

* Former Justice specially assigned to the Superior Court.
1 Penn Central Corporation (“Penn Central”), which was incorporated in
Pennsylvania with its corporate headquarters in Philadelphia, filed for
bankruptcy and ceased all railroad operations in the 1970s. All properties of
Penn Central became properties of the trustees in Penn Central’s bankruptcy.
Thereafter, as part of the Regional Rail Reorganization Act, 45 U.S.C. § 701
et seq., Congress created Consolidated Rail, and all employees of Penn Central
were offered continued employment with Consolidated Rail. American Premier
is a successor in interest to Penn Central’s non-railroad assets and is primarily
engaged in the business of insurance.
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American Premier Underwriters, Inc. (“American Premier”), and Consolidated

Rail Corporation (“Consolidated Rail”) (collectively “Appellees”) to dismiss Ms.

Hurt’s complaint filed in the Court of Common Pleas of Philadelphia County

based on the doctrine of forum non conveniens, for re-filing in a more

appropriate forum. After a careful review, we affirm.

The relevant facts and procedural history are as follows: Ms. Hurt, who

is a resident of Danville, Indiana, instituted the instant action pursuant to

FELA2 and LIA3 against American Premier, which is incorporated in

Pennsylvania with an address for service in Harrisburg, and Consolidated Rail,

which is incorporated in Pennsylvania with a principal place of business in

Philadelphia.

Ms. Hurt averred Appellees conduct business in and have substantial

contacts with Philadelphia. She specifically averred Appellees are “engaged

in interstate commerce as a common carrier by rail, operating a line and

system of railroads and transacting substantial business in the Commonwealth

of Pennsylvania and other states of the United States.” Ms. Hurt’s Second

Amended Complaint, filed 8/2/19.4

____________________________________________

2 Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60.

3 Locomotive Inspection Act (“LIA”), 49 USC § 20701.

4 We note Ms. Hurt filed a complaint on February 25, 2019, an amended
complaint on April 23, 2019, and a second amended complaint with court

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Ms. Hurt averred that, from 1968 to 1992, the decedent worked for

Appellees as a trainman and a conductor at and around various rail yards in

Indiana and Illinois. She further averred that, as a result of the decedent’s

job duties, he was exposed to chemicals and cancer-causing substances,

which resulted in the decedent’s death from Non-Hodgkin’s Lymphoma on

August 10, 2017. She posited Appellees were negligent in failing to provide

the decedent with a reasonably safe work place as required under the relevant

statutes.

On October 25, 2019, Appellees filed a joint motion to dismiss under 42

Pa.C.S.A. § 5322(e) and the doctrine of forum non conveniens. In support of

their motion, Appellees attached Ms. Hurt’s answers to interrogatories, as well

as an affidavit from Lauren Lamp, Field Investigations Specialist II for CSX

Transportation, Inc. (“CSX Transportation”).5

Relevantly, in the motion to dismiss, Appellees indicated the decedent

lived his entire life in Indiana, and Ms. Hurt currently lives in Indiana. Neither

the decedent nor Ms. Hurt have ever resided in Pennsylvania. Appellees’

____________________________________________

permission on August 2, 2019. The second amended complaint is not
paginated.

5 In July of 1998, the Surface Transportation Board approved a plan by which
CSX Transportation and Norfolk Southern Corporation acquired Consolidated
Rail through a joint stock purchase, and they split most of Consolidated Rail’s
assets between them. CSX Transportation and Norfolk Southern Corporation
took administrative control of Consolidated Rail on August 22, 1998.

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Motion to Dismiss, filed 10/25/19, at 3. The decedent worked at and around

rail yards in Indiana and neighboring Illinois. Id. He never worked for

Appellees in Pennsylvania. Id. at 4.

Moreover, Appellees asserted the decedent was not diagnosed with his

illness in Pennsylvania, and he never received medical treatment in

Pennsylvania for the illness underlying the instant action. Id. at 5. Rather,

the decedent was diagnosed and received medical treatment for his illness in

Indiana. Id. Appellees listed six physicians, who treated the decedent in

Indiana and who would have knowledge of the decedent’s illness. Id. at 5-6.

Additionally, Appellees indicated a viewing of the decedent’s work sites

would be “very much at issue in this case.” Id. at 10. In this vein, Appellees

asserted:

It is important to show the jury the enormity of the premises
underlying [Ms. Hurt’s] claims, where [the decedent] worked, the
locomotives that he worked in and around, and to dispel any
notion that [the decedent] was, as [Ms. Hurt] claims, exposed to
allegedly injurious substances while working in rail yards and in
and around any locomotives….[M]odern technology cannot
obviate the need for site visits.

Id. at 21 (citation omitted).

Furthermore, Appellees noted that, in answering interrogatories, Ms.

Hurt identified one witness: David Souder, who was decedent’s former co-

worker. Id. at 20. Mr. Souder resides in Indiana. Id.

In the supporting affidavit, Ms. Lamp confirmed the decedent’s work

record reveals that he was never employed by Appellees in Pennsylvania, but

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that he worked for Appellees at and around various rail yards in Indiana and

Illinois. Ms. Lamp identified six of the decedent’s former co-workers and

supervisors, including F.D. Pear, B.L. Haydon, D.W. Eller, J.P. Rothaar, J.W.

Parker, and R.C. Smith, all of whom are retired from Consolidated Rail and

currently reside in Indiana. Ms. Lamp indicated that any yet-to-be-identified

co-workers and supervisors of the decedents would logically be expected to

be located in Indiana or Illinois since he never worked at any Pennsylvania

location. Moreover, Ms. Lamp indicated the decedent’s employment files are

located in either Florida or New Jersey.

Appellees averred that, since all of the decedent’s former co-workers

and supervisors reside in Indiana or Illinois, they will not be able to compel

their attendance to testify in Pennsylvania if they are unwilling to voluntarily

do so. Id. at 20-21. They further averred that, since the decedent’s

diagnosing and treating physicians are located in Indiana, Appellees will not

be able to compel their attendance at trial in Pennsylvania. Id. at 21.

Additionally, Appellees indicated their former employees will suffer greater

personal disruption, inconvenience, and costs to travel to Pennsylvania, as

opposed to Indiana (or neighboring Illinois), for trial. Id. at 22.

Moreover, Appellees argued Philadelphia County is suffering from court

congestion, administrative difficulties, and an undue burden on juries due to

an “explosion of out-of-state filing” of mass tort cases. Id. at 23.

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Based on the aforementioned, Appellees averred the instant action has

no bona fide connection to Pennsylvania, and dismissal of the action is proper

since there is a more convenient forum where litigation could be conducted

more easily, expeditiously, and inexpensively. Additionally, Appellees

reasoned the only connection between Pennsylvania and the instant matter is

that Consolidated Rail has its headquarters in Pennsylvania and American

Premier is incorporated in Pennsylvania. However, Appellees argued these

connections are unrelated to Ms. Hurt’s claim that the decedent suffered injury

in connection with his employment in Indiana and Illinois.

Appellees indicated they agreed to waive the statute of limitations if Ms.

Hurt re-filed her lawsuit in Indiana, within ninety days of the dismissal of the

suit in Philadelphia, and agreed not to object on the basis of venue or personal

jurisdiction if the matter was re-filed in Indiana or some other proper forum.

On November 22, 2019, Ms. Hurt filed a response in opposition to

Appellees’ motion to dismiss for forum non conveniens, as well as a supporting

memorandum. Therein, Ms. Hurt admitted the decedent did not live, work,

own property, or receive medical treatment in Pennsylvania. Moreover, she

admitted the decedent’s former co-workers and supervisors, including Mr.

Souder, reside in Indiana.

However, Ms. Hurt denied that all of her fact witnesses are located

outside of Pennsylvania. Specifically, she indicated:

[Ms. Hurt] intends to call four former [Consolidated Rail]
corporate witnesses who worked for [Consolidated Rail] at its

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headquarters in Philadelphia. [Ms. Hurt] intends to call Ramon
Thomas, who was [Consolidated Rail’s] industrial hygiene
manager who worked for [Consolidated Rail] in Philadelphia. Mr.
Thomas currently works in Philadelphia and lives in Yardley, PA.
[Ms. Hurt] intends to call William Barringer, who was
[Consolidated Rail’s] safety director who worked for [Consolidated
Rail] in Philadelphia. Mr. Barringer currently lives in Naples, FL.
[Consolidated Rail] routinely brings Mr. Barringer to testify live in
Philadelphia. [Ms. Hurt] intends to call Marcia Comstock, M.D.,
who was [Consolidated Rail’s] former medical director who worked
for [Consolidated Rail] in Philadelphia. Dr. Comstock lives in
Wayne, PA. [Ms. Hurt] intends to call Paul Kovac, who was
[Consolidated Rail’s] claims manager who worked for
[Consolidated Rail] in Philadelphia. Mr. Kovac lives in Hatboro,
PA.

Ms. Hurt’s Response to Appellees’ Motion to Dismiss, filed 11/22/19, ¶ 14.6

Additionally, Ms. Hurt elaborated that she intended to call the four

former Consolidated Rail corporate witnesses because they “were responsible

for developing industrial hygiene, safety and medical programs to prevent

employees from developing cancer due to exposure to diesel exhaust and

asbestos [and] failed to do so in a timely and adequate manner.” Id. ¶ 62.

Ms. Hurt averred “[t]hat is negligence under FELA. That is why the four former

[Consolidated Rail] corporate employees’ testimony is relevant[.]” Id. In

support of this claim, Ms. Hurt attached as exhibits to her response the notes

of testimony given by Mr. Thomas and Mr. Barringer in two unrelated FELA

cases in the Court of Common Pleas of Philadelphia County.

____________________________________________

6 Ms. Hurt’s response is not paginated.

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J-A05035-21

Ms. Hurt contended a viewing of the decedent’s work sites would be

irrelevant at trial. Id. at ¶ 42. Moreover, she averred that, in addition to

Consolidated Rail being incorporated in Pennsylvania with its headquarters in

Philadelphia, Penn Central was incorporated in Pennsylvania with its corporate

headquarters in Philadelphia. See id. at ¶ 15. She posited that Philadelphia

has judicial resources and experience with FELA cases to ensure a just trial.

On January 9, 2020, Appellees filed a reply to Ms. Hurt’s response in

opposition to their motion to dismiss. Therein, Appellees argued dismissal

was warranted since Ms. Hurt has identified, at most, three potential fact

witnesses who reside in Pennsylvania. One of Ms. Hurt’s fact witnesses, Mr.

Barringer, resides in Florida, while another fact witness, Mr. Souder, resides

in Indiana. Moreover, all of Appellees identified fact witnesses reside in

Indiana.

On January 22, 2020, the matter proceeded to a hearing at which the

trial court heard oral argument in support of the parties’ respective positions.

At the conclusion of the hearing, the trial court granted Appellees’ motion to

dismiss the instant action based on forum non conveniens and dismissed Ms.

Hurt’s complaint without prejudice to her right to re-file in Indiana, or some

other appropriate jurisdiction. Specifically, the trial court stated the following:

So weighing both private and public interest including that
the action…arose in Indiana, what I would regard as the weight of
relevant evidence are in Indiana, although I do note that some of
the witnesses are in Philadelphia, that the medical treatment was
outside of Pennsylvania; that [Consolidated Rail’s] headquarters
is in Philadelphia and that there’s public interest in how court

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resources are allocated as well as jury time, I will grant the motion
to dismiss with leave to file in Indiana.

N.T., 1/22/20, at 11-12.

Ms. Hurt filed a timely notice of appeal, and the trial court directed her

to file a Pa.R.A.P. 1925(b) statement. Ms. Hurt timely complied, and the trial

court filed a Rule 1925(a) opinion setting forth in greater detail the reasons

for its ruling:

At the outset, the trial court notes that (1) [Ms. Hurt]
currently resides in Danville, Indiana, (2) [the decedent] lived his
entire life in Indiana, and (3) the alleged unsafe workplace where
[the decedent] worked was located in Illinois and Indiana.
***
All of the identified sources of proof of [Ms. Hurt’s] claim—
such as the alleged unsafe work environment, [the decedent’s]
former supervisors and co-workers, etc.—are located in or nearer
to Illinois and Indiana rather than in or nearer to Philadelphia
County, Pennsylvania. [The decedent] had never been a resident
of or worked in Pennsylvania. Rather, [the decedent] lived his
entire life in Indiana and worked for [Appellees] in and around
Illinois and Indiana for at least 24 years. [The decedent’s] alleged
injury occurred in and around Illinois and Indiana. All of [the
decedent’s] diagnosing and treating physicians are located outside
of Pennsylvania, and [the decedent] received all of his relevant
medical treatment outside of Pennsylvania. Finally, all of his
medical and employment records are located outside of
Pennsylvania.
***
In further support of their motion to dismiss, [Appellees]
identified six trial witnesses who all live in Indiana. Additionally,
[Appellees] noted that any yet-to-be identified former supervisors
and co-workers of [the decedent] are more likely living in Illinois
and Indiana than in Pennsylvania.2
2Contrary to [Ms. Hurt’s] claims of error, the trial court considered (1)
both the inconvenience of [Appellees’] six potential trial witnesses as
well as the inconvenience of [Ms. Hurt’s] four potential trial witnesses;
and (2) that four of [Ms. Hurt’s] fact witnesses had worked for

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[Consolidated Rail] at its corporate headquarters in Philadelphia County.
Nevertheless, the trial court did not abuse its discretion in determining
that the private and public factors were strongly in favor of dismissing
the action pursuant to Section 5322(e).

As such, it is beyond peradventure that it is easier for the
parties to access sources of proof from Illinois or Indiana rather
than from Philadelphia County, Pennsylvania.
***
[T]he trial court reasonably concluded that it would be less
expensive to have witnesses attend a trial in Illinois or Indiana
than in Philadelphia County, Pennsylvania. This is because the
overwhelming number of witnesses—especially [the decedent’s]
former co-workers and supervisors—reside in the state of Illinois
or Indiana.
***
It would be easier for the fact-finder to view the premises
from Illinois or Indiana than from Philadelphia County,
Pennsylvania, because the work environment that [Ms. Hurt]
claims was the only source of [the decedent’s] injuries is located
in Illinois and Indiana.
***
Trying this case in Philadelphia County, Pennsylvania,
creates some administrative difficulties for Philadelphia County,
Pennsylvania, as compared to trying this case in Illinois and
Indiana.
***
Considering the minimal connections this case has with
Philadelphia County, the trial court reasonably decided not to
impose the burden of jury duty upon the citizens of Philadelphia
County based upon such minimal connections.4
In light of the above, the trial court did not abuse its
discretion in determining that the private and public factors were
strongly in favor of dismissing the action pursuant to Section
5322(e).
4
Contrary to [Ms. Hurt’s] claim of error, the trial court considered the
fact that Penn Central and [Consolidated Rail] are Pennsylvania
Corporations and that [Consolidated Rail’s] principal place of business is
located in Philadelphia County, Pennsylvania. However, such facts do
not preclude dismissal on the basis of forum non conveniens. Wright
v. Consolidated Rail Corporation, 215 A.3d 982, 994-96 (Pa.Super.

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2019) (holding that the fact that the moving party does business in or
has its principal place of business in a plaintiff’s choice of forum supports
venue, but it does not preclude dismissal based on forum non
conveniens). Therefore, the trial court did not abuse its discretion in
determining that the private and public factors were strongly in favor of
dismissing the action pursuant to Section 5322(e).

Trial Court Opinion, filed 7/16/20, at 4-8 (citations to record and footnote

omitted).

On appeal, Ms. Hurt sets forth the following issues in her “Statement of

Questions Presented” (verbatim):

1. Whether the Trial Court abused its discretion in finding that
weighty reasons existed to support dismissal under the
doctrine of forum non conveniens?
2. Whether the Trial Court should have considered not only that
[Consolidated Rail] and Penn Central were Pennsylvania
corporations and that both of their corporate headquarters
were located in Philadelphia, PA, but also that four of the
Plaintiff’s fact witnesses worked for [Consolidated Rail] at its
corporate headquarters in Philadelphia, PA?
3. Whether the Trial Court erred in considering the inconvenience
of Defendants’ potential hypothetical fact witnesses over the
actual inconvenience of Plaintiff’s four fact witnesses who
would be required to travel to Indiana for trial?

Ms. Hurt’s Brief at 2.7

Initially, we note the following relevant principles, which guide our

review:

Orders on motions to dismiss under the doctrine of forum
non conveniens are reviewed for an abuse of discretion. This
____________________________________________

7 Although Ms. Hurt has set forth three separate issues in her “Statement of
Questions Presented,” she intertwines and discusses the issues together in the
argument portion of her brief. We shall treat the issues in a similar manner.

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standard applies even where jurisdictional requirements are met.
Moreover, if there is any basis for the trial court’s decision, the
decision must stand.
An abuse of discretion occurs if, inter alia, there was an error
of law or the judgment was manifestly unreasonable. When
reviewing for errors of law, the appellate standard of review is de
novo and the scope of review is plenary.
In Pennsylvania, the doctrine of forum non conveniens,
which originated in Common Law, has been codified by statute:
Inconvenient forum.-When a tribunal finds that in
the interest of substantial justice the matter should be
heard in another forum, the tribunal may stay or
dismiss the matter in whole or in part on any
conditions that may be just.
42 Pa.C.S.A. § 5322(e).

Hovatter v. CSX Transportation, Inc., 193 A.3d 420, 424 (Pa.Super. 2018)

(quotation marks, quotations, and citations omitted).8

The doctrine of forum non conveniens “provides the court with a means

of looking beyond technical considerations such as jurisdiction and venue to

determine whether litigation in the plaintiff’s chosen forum would serve the

interests of justice under the particular circumstances.” Alford, 531 A.2d at

794 (citation omitted).

The 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.”
____________________________________________

8 Our courts lack the authority to transfer matters to courts of our sister
states; but rather, when appropriate, our courts should dismiss the action to
permit re-filing in another state. See Alford v. Philadelphia Coca-Cola
Bottling Co., Inc., 531 A.2d 792 (Pa.Super. 1987).

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J-A05035-21

***
[W]ith respect to the initial factor, we note that “a court may
find that the presumption in favor of a plaintiff’s choice of forum
may be less stringently considered when the plaintiff has chosen
a foreign forum to litigate his or her claims.” Furthermore,
To determine whether such “weighty reasons”
exist as would overcome the plaintiff’s choice of
forum, the trial court must examine both the private
and public interest factors involved. Petty v.
Suburban General Hospital, 525 A.2d 1230, 1232
(Pa.Super. 1987). The Petty Court reiterated the
considerations germane to a determination of both the
plaintiff’s private interests and those of the public as
defined by the United States Supreme Court in Gulf
Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839
(1947). They are:
the relative ease of access to sources of
proof; availability of compulsory process
for attendance of unwilling, and the cost
of obtaining attendance of willing,
witnesses; possibility of view of premises,
if view would be appropriate to the
actions; and all other practical problems
that make trial of a case easy, expeditious
and inexpensive. There may also be
questions as to the enforceability of a
judgment if one is obtained. The court will
weigh relative advantages and obstacles
to a fair trial.
***
Factors of public interest also have
place in applying the doctrine.
Administrative difficulties follow for courts
when litigation is piled up in congested
centers instead of being handled at its
origin. Jury duty is a burden that ought
not to be imposed upon the people of a
community which has no relation to the
litigation. There is appropriateness, too,
in having the trial…in a forum that is at
home with the state law that must govern
the case, rather than having a court in

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some other forum untangle problems in
conflict of laws, and in law foreign to itself.

Hovatter, 193 A.3d at 424-25 (quotations and citations omitted).

Instantly, as the trial court concluded, the second factor pertaining to

the existence of an alternate forum is not at issue in the case sub judice. See

Hovatter, supra. That is, it is undisputed there is an alternate forum

(Indiana) available. Moreover, Appellees have stipulated to waive the statute

of limitations, as well as not object on the basis of venue or personal

jurisdiction, if Ms. Hurt re-files in an appropriate jurisdiction.

Accordingly, we instead focus on the “weighty reasons” factor in the trial

court’s analysis of Appellees’ motion to dismiss for forum non conveniens. In

this regard, we note Ms. Hurt contends the trial court abused its discretion in

finding Appellees demonstrated “weighty reasons” to overcome her choice of

forum. She specifically avers her case is indistinguishable from Robbins for

Estate of Robbins v. Consolidated Rail Corporation, 212 A.3d 81

(Pa.Super. 2019). Appellees, on the other hand, contend Ms. Hurt’s case is

more akin to Wright v. Consolidated Rail Corporation, 215 A.3d 982

(Pa.Super. 2019).

In Wright, the trial court denied the motion to dismiss Mr. Wright’s

complaint based on forum non conveniens, and Consolidated Rail and CSX

Transportation appealed. In that case, Mr. Wright was a non-resident of

Pennsylvania, he had been a car inspector at the DeWitt Train Yard in

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Syracuse, New York, and he averred that, as a direct result of his job duties,

he suffered repetitive stress injuries to both shoulders. See Wright, supra.

Moreover, Mr. Wright lived in New York while working for the railroad

companies from 1974 to 2014; however, he moved to South Carolina upon

his retirement. All of his treating physicians and medical files were located in

New York, New Jersey, or Florida, and all of his fact witnesses were former or

current railroad workers who resided outside of Pennsylvania. See Wright,

supra.

Accordingly, based on the record in Wright, this Court held the trial

court abused its discretion in denying Consolidated Rail’s and CSX

Transportation’s motion to dismiss based on forum non conveniens. In so

holding, we noted the trial court erred in giving great deference to Mr. Wright’s

choice of forum and incorporating “plaintiff-friendly” Pa.R.C.P. 1006(d)

standards into the analysis.9 Id. at 992. Further, we noted the trial court

erred in concluding that Consolidated Rail’s and CSX Transportation’s sworn

affidavits were insufficient regarding the New York residency of their

witnesses. Id. at 993. We specifically held that “inasmuch as the trial court

determined there is no dispute that [] Wright worked for [Consolidated Rail

and CSX Transportation] exclusively in New York, [the] assertion in [their]

____________________________________________

9As this Court acknowledged in Wright, “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.” Wright, 215 A.3d at 992.

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affidavits that most or all of [their] witnesses reside primarily, if not

exclusively, in New York does not require additional record support.” Id. at

993-94. Accordingly, we reversed and remanded as it pertained to the trial

court’s consideration of Consolidated Rail’s and CSX Transportation’s affidavits

and evidentiary burden. Id.

In Robbins, supra, Consolidated Rail and Penn Central filed a motion

to dismiss for forum non conveniens because the decedent’s injuries occurred

in Indiana and their two proposed witnesses were located outside of

Pennsylvania. In response to the motion to dismiss, the plaintiff averred he

intended to call four witnesses, who were previous employees of Consolidated

Rail in Philadelphia: Dr. Comstock, Mr. Barringer, Mr. Thomas, and Mr. Kovac

(the same four witnesses Ms. Hurt avers she plans to call at trial in this case).

Additionally, the 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 cancer-causing substances were determined at

Consolidated Rail’s headquarters in Philadelphia.” Robbins, 212 A.3d at 85-

86. Moreover, the plaintiff argued the viewing of the work site would not be

desirable, and in fact, would be dangerous to a jury. Id. at 86. Following a

hearing, the trial court denied the motion to dismiss.

On appeal in Robbins, Consolidated Rail 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

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reasons” to grant the motion to dismiss. This Court disagreed and held the

following:

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 [Consolidated Rail and
Penn Central] identified two potential witnesses, both of whom
were [] former employees: [] Mason, who resides in Illinois, and
[] Toney, who resides in [Indiana]. [] Robbins, on the other hand,
identified four fact witnesses, all of whom reside in Pennsylvania
and were former Consolidated Rail employees. Additionally, the
trial court noted [Consolidated Rail 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 Consolidated Rail’s
headquarters in Philadelphia. 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 [Consolidated Rail and Penn Central] have not met their
burden, we affirm.

Robbins, 212 A.3d at 90 (footnote omitted).

Furthermore, in Robbins, we distinguished the facts of Robbins’ case

from Hovatter, supra. In this regard, this Court held:

To the extent [Consolidated Rail and Penn Central] aver the facts
of this case are indistinguishable from Hovatter, supra, we

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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
[Consolidated Rail] at its headquarters in Philadelphia. There was
no such allegation made in Hovatter as to CSX Transportation
(the sole defendant in Hovatter).

Robbins, 212 A.3d at 90 n.8.

Recently, in Ficarra v. Consolidated Rail Corporation, 242 A.3d 323

(Pa.Super. 2020),10 this Court examined the holdings of Wright, supra, and

Robbins, supra.

In Ficarra, the record before the trial court demonstrated that none of

the plaintiffs resided in Pennsylvania, and all of the plaintiffs worked for the

railroad companies outside of Pennsylvania from 1953 to 2012. In its motion

____________________________________________

10 We note Ficarra involved nine different plaintiffs, and we consolidated the
cases in this Court. In all nine cases, the trial court denied the railroad
defendants’ motions to dismiss. On appeal, we reversed the orders in eight
of the cases and concluded the trial court abused its discretion in holding the
defendants did not provide sufficient “weighty reasons” for dismissal. See id.
However, we affirmed in one of the cases.
Specifically, with regard to the latter, we noted that the procedural
posture of the case was such that it was “trial ready” with discovery complete
and a trial term set by the Philadelphia Court of Common Pleas. See id. Thus,
in weighing the factors, we concluded the trial court did not abuse its
discretion in holding dismissal would be inappropriate based on forum non
conveniens. See id. We specifically note the case sub judice is distinguishable
from the latter case in Ficarra since the case is not “trial ready” in Philadelphia
County.

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to dismiss, the railroad companies averred none of the potential fact witnesses

or sources of proof resided in Pennsylvania; the railroad companies would be

unable to avail themselves of compulsory process for attendance of unwilling

non-Pennsylvania witnesses; there would be a high cost of obtaining

attendance of willing out-of-state witnesses; a fact-finder in Pennsylvania

would be unable to view easily the plaintiffs’ work premises; and there would

be a burden on Pennsylvania courts, taxpayers, and jury pool. Ficarra,

supra.

In response, the plaintiffs argued they intended to call the same

witnesses as the plaintiff in Robbins: Dr. Comstock, Mr. Barringer, Mr.

Thomas, and Mr. Kovac. Based on the record before it, the trial court

determined that the plaintiffs’ four witnesses had worked for Consolidated

Rail, but only Dr. Comstock undisputedly continued to reside in Pennsylvania.

See Ficarra, supra. Moreover, the trial court determined that all of the

plaintiffs’ former co-workers and supervisors, who were potential witnesses,

lived outside of Pennsylvania, the plaintiffs’ injuries occurred outside of

Pennsylvania, and the plaintiffs’ physicians, as well as medical records, were

outside of Pennsylvania. See id.

Based on the aforementioned, the trial court in Ficarra denied the

railroad companies’ motions to dismiss based on forum non conveniens;

however, in its subsequent Pa.R.A.P. 1925(a) opinions, the trial court opined

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that it should have granted the railroad companies’ motions. See id. Upon

review, this Court agreed.

Specifically, we acknowledged the plaintiffs in Ficarra, similar to the

plaintiff in Robbins, listed Comstock, Barringer, Thomas, and Kovac as four

witnesses they intended to call at trial. We also acknowledged that “at first

glance [the] plaintiffs’ cases strikingly resemble Robbins.” Ficarra, 242 A.3d

at 336. However, we concluded there were two important distinctions

between Ficarra and Robbins.

Namely, in Robbins, the plaintiff set forth a specific argument that

Consolidated Rail developed policies and procedures in its Philadelphia office

that created the conditions leading to the plaintiff’s injuries; however, in

Ficarra, the plaintiffs provided scant argument as to the relevance of the

former Consolidated Rail employees’ testimony. Furthermore, based on the

record in Robbins, the trial court found all four of the former Consolidated

Rail employees resided in Pennsylvania; however, based on the record, the

trial court in Ficarra found only Dr. Comstock resided in Pennsylvania.

Accordingly, in Ficarra, this Court relevantly held:

[W]e conclude the trial court abused its discretion in
applying the wrong evidentiary burden….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 [the] 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 [the] plaintiffs’ claims is that four
individuals who used to work in Philadelphia were allegedly
involved in the drafting and implementation of procedures that led

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to [the] plaintiffs’ injuries. However, on the record before the trial
court, only one of those witnesses undisputedly resides in
Pennsylvania currently. Moreover, [the] 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
[the railroad companies] presented sufficient weighty reasons to
warrant dismissal for forum non conveniens[.] 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…and remand to the trial
court to dismiss these cases to permit re-filing in an appropriate
jurisdiction.

Ficarra, 242 A.3d at 337.

Preliminarily, similar to our initial assessment in Ficarra, we

acknowledge the facts of the case sub judice appear at first glance to resemble

Robbins. However, there are important differences, which weigh in favor of

dismissal.

First, in Robbins, where the decedent worked exclusively in Indiana,

the railroad companies indicated it planned to call as witnesses two of the

decedent’s former supervisors: Dale Mason, who resided in Illinois, and

Charles Toney, who resided in Indiana.

However, in the case sub judice, Appellees informed the trial court, and

provided a supporting affidavit, indicating they had identified six of the

decedent’s former co-workers and supervisors, all of whom reside in Indiana.

Appellees averred a greater personal inconvenience and cost to these

witnesses, if they are required to travel to Pennsylvania, as opposed to Indiana

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for trial. Moreover, Ms. Hurt identified one of her witnesses as David Souder,

who was decedent’s former co-worker. Id. Mr. Souder resides in Indiana.

Id. As the trial court determined, “the overwhelming number of witnesses--

especially [the decedent’s] former co-workers and supervisors-- reside in the

state of Illinois or Indiana.” Trial Court Opinion, filed 8/3/20, at 6 (footnote

omitted).

Furthermore, in Robbins, this Court specifically recognized that “a

viewing of the site was not at issue.” Robbins, 212 A.3d at 90 n.8. However,

in the case sub judice, Appellees averred it would be “important” to visit the

decedent’s work sites during trial. See Appellees’ Motion to Dismiss, filed

10/25/19. The trial court specifically accepted Appellees’ argument and

concluded the necessity of viewing the work premises weighed in favor of

dismissal. Trial Court Opinion, filed 8/3/20, at 7.

As it pertains to the public factors, in the case sub judice, the trial court

concluded there would be more administrative difficulties if the case is tried in

Philadelphia, Pennsylvania, as opposed to Illinois or Indiana. There was no

such finding by the trial court in Robbins.

Accordingly, although the trial court accepted in this case that Ms. Hurt

identified four witnesses, all of whom formerly worked for Consolidated Rail in

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Pennsylvania,11 and three of whom presently reside in Pennsylvania,12 the trial

court held that, upon weighing all of the relevant factors, Appellees met their

burden of demonstrating “weighty reasons” for dismissal.

Based on the record, we find no abuse of discretion. The trial court

properly weighed the private and public factors using the correct evidentiary

burden. Ficarra, supra. Thus, we affirm the order granting Appellees’

motion to dismiss.

As this Court has previously recognized, 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, 151 A.3d at

1083. See Hovatter, supra (holding that, in reviewing orders dismissing an

action under the doctrine of forum non conveniens, if there is any basis for

the trial court’s decision, the decision must stand).

Affirmed.

____________________________________________

11 To the extent Ms. Hurt avers the trial court did not consider the fact she
had four fact witnesses, all of whom previously worked for Consolidated Rail
at its corporate headquarters in Philadelphia, we find no merit. The trial court
indicated that it considered Ms. Hurt’s witnesses in assessing whether
Appellees demonstrated “weighty reasons” for dismissal. See Trial Court
Opinion, filed 8/3/20, at 6 n.2.

12Based on the record in Robbins, the trial court determined that all four of
the plaintiff’s witnesses (Comstock, Barringer, Thomas, and Kovac) resided in
Pennsylvania. In the case sub judice, the record revealed Mr. Barringer
resides in Florida.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/15/2021

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