J-A26016-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MATTHEW R. GRILLO : IN THE SUPERIOR COURT OF
Appellant : PENNSYLVANIA
:
:
v. :
:
:
PENN CENTRAL CORPORATION A/K/A :
AMERICAN PREMIER : No. 32 EDA 2021
UNDERWRITERS, INC. AND :
CONSOLIDATED RAIL CORPORATION :
:
Appellees
Appeal from the Order Entered December 3, 2020
In the Court of Common Pleas of Philadelphia County
Civil Division at No: No. 190902710
BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.
MEMORANDUM BY STABILE, J.: FILED MARCH 22, 2022
Appellant Matthew R. Grillo brought this action under the Federal
Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60, against Appellees
Consolidated Rail Corporation (“Conrail”) and Penn Central Corporation a/k/a
American Premier Underwriters, Inc. (“Penn Central”). On December 3,
2020, the Court of Common Pleas of Philadelphia County (“trial court”)
entered an order dismissing his action under the doctrine of forum non
conveniens without prejudice to Appellant’s right to file his action in a more
appropriate forum. We vacate the order of dismissal and remand for further
proceedings due to the trial court’s consideration of improper factors in its
analysis.
J-A26016-21
The factual and procedural history of this case is as follows. On
September 20, 2019, Appellant filed a FELA action against Appellees in the
trial court alleging that he was injured during the course of his railroad
employment when he was exposed to hazardous substances, causing him to
develop esophageal and larynx cancer. It is undisputed that Appellees are
Pennsylvania corporations, and that the principal place of business of both
Appellees is in Philadelphia County.
Appellant’s complaint and his answers to Appellees’ discovery
requests demonstrate that he has never lived in Pennsylvania. He resided in
New Jersey from 1949 to 2001 and has resided in South Carolina since
2001. Appellant worked for Penn Central in New Jersey from 1974 to 1976,
and he worked for Conrail from 1976 to 1981 and from 1984 to 1997.1
Appellant first worked as a clerk and later as a stevedore. Although he
visited Philadelphia several times over the years, these visits were to resolve
matters such as payroll issues, an interview for a new position, or union
representative duties, nothing that concerned his job duties or the exposures
to hazardous substances alleged in his complaint. He never received
treatment from any licensed physician within Pennsylvania. He received
medical diagnoses and treatment for his claimed injuries in South Carolina
and New York.
____________________________________________
1 Appellant worked for New Jersey Transit from 1981 to 1984.
-2-
J-A26016-21
Appellant identified fifteen potential witnesses, consisting of thirteen
fact witnesses and two experts. Five fact witnesses allegedly live in
Pennsylvania, while the other nine live outside of Pennsylvania, including
four in New Jersey and others in South Carolina, New York, Massachusetts
and Florida. The two expert witnesses live in Virginia and Tennessee.
Four fact witnesses, Appellant claimed, worked for Conrail in
Philadelphia and had information relevant to Conrail’s policies and
procedures relating to employee safety. Three of these four live in
Pennsylvania: Marcia Comstock, Conrail’s former medical director, Ramon
Thomas, Conrail’s former industrial hygiene manager, and Paul Kovac,
Conrail’s former claims manager. The fourth, William Barringer, Conrail’s
former safety director, lives in Florida.
Appellant failed to identify the Pennsylvania address of the fifth
witness, Richard Savior, or the substance of his testimony.
On June 26, 2020, Appellee Conrail moved to dismiss Appellant’s
action without prejudice on the basis of forum non conveniens. Appellee
Penn Central joined in this motion several days later. Conrail contended in
its motion that multiple factors overcame Appellant’s choice of Philadelphia
County as the forum for this case, including (1) none of the potential fact
witnesses, or any other sources of proof, are located in Philadelphia County
or Pennsylvania; (2) Conrail would be denied the availability of compulsory
process for the attendance of unwilling witnesses, since they would be
-3-
J-A26016-21
located outside the subpoena power of Philadelphia County; (3) the cost of
obtaining the attendance of willing witnesses would be great and
unnecessary, particularly when Appellant’s case could be more conveniently
filed in New Jersey; (4) if Conrail and the court determined that a view of
the premises would be appropriate in this matter, Conrail would likely be
denied the opportunity to see Appellant’s workplace and job duties in New
Jersey; and (5) there is no reason to burden the courts, taxpayers, and jury
pool of Philadelphia County with matters that are more appropriately
resolved in another state. Conrail stated that it would rely on testimony by
Appellant’s former supervisors, superintendents and co-workers who have
personal knowledge of his job duties and job requirements, and that “none
of [these witnesses] are located in Philadelphia.” Conrail’s Motion To
Dismiss, at ¶ 14 (emphasis added). Conrail, however, did not identify these
witnesses or provide their addresses. Conrail also stipulated that it would
“submit to service of process within a reasonable time after dismissal of this
suit to allow [Appellant] to re-file his claim, and it will not use dismissal of
the Philadelphia County action as a basis for a statute of limitations
defense.” Id. at ¶ 41.
On July 15, 2020, Appellant filed a response in opposition to the
motion to dismiss. Appellant argued that Appellees had their principal
places of business in Philadelphia, and Appellees created policies and
-4-
J-A26016-21
practices in their Philadelphia headquarters that denied Appellant a safe
workplace in violation of the FELA.
On September 30, 2020, the trial court denied Appellees’ motion to
dismiss. On October 27, 2020, this Court issued its precedential opinion in
Ficarra v. Consolidated Rail Corporation, 242 A.3d 323 (Pa. Super.
2020), affirming the dismissal of eight FELA lawsuits against Conrail on
grounds of forum non conveniens. On November 16, 2020, relying on
Ficarra, Conrail filed a motion in the present case for reconsideration of the
September 30, 2020 order. On the same day, Penn Central joined in this
motion. On November 24, 2020, Appellant filed a response in opposition to
the motion for reconsideration. Attached to Appellant’s response were (1) a
letter from a private detective, Dan Levine, detailing his investigation into
the whereabouts of the four Conrail employees whom Appellant said would
testify about Conrail’s policies and practices on employee safety (Comstock,
Barringer, Thomas and Kovac), and (2) transcripts of Barringer’s and
Thomas’s 2019 testimony in another FELA trial in Philadelphia County.
On December 3, 2020, the trial court granted the motion for
reconsideration and dismissed Appellant’s complaint without prejudice for
refiling in New Jersey or any other appropriate jurisdiction within 90 days of
the order. The order stated that if this action is refiled within 90 days of this
order, the filing date to be used for statute of limitations purposes in the
refiled action shall be September 20, 2019, the date Appellant commenced
-5-
J-A26016-21
the present action in Philadelphia. Appellant filed a timely appeal to this
Court, and both Appellant and the trial court complied with Pa.R.A.P. 1925.
On March 3, 2021, Appellant filed a FELA action against Appellees in
Essex County Superior Court, New Jersey at No. ESX-L-001734-21. The
docket in the New Jersey case indicates that this case remains active.2
Appellant raises three questions in this appeal:
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 abused its discretion by granting
[Appellees’] Motion to Dismiss on the basis of forum non
conveniens where the negligent actions, inactions, and decisions
made in Philadelphia by Philadelphia-based corporate employees
ultimately failed to provide [Appellant] with a reasonably safe
workplace that he was entitled to under the FELA.
3. Whether the Trial Court abused its discretion by granting
[Appellees’] Motion to Dismiss on the basis of forum non
conveniens in considering the inconvenience of [Conrail’s]
unnamed hypothetical fact witnesses over the inconvenience of
[Appellant’s] four named fact witnesses [who] reside in the
Philadelphia area.
Appellant’s Brief at 2-3. These questions boil down to one issue: whether
the trial court abused its discretion by dismissing Appellant’s action under
the doctrine of forum non conveniens.
____________________________________________
2 Although we generally cannot take judicial notice of records from other
cases, we can take judicial notice of other proceedings involving the same
parties, such as Appellant’s action against Appellees in New Jersey.
Hvizdak v. Linn, 190 A.3d 1213, 1218 n.1 (Pa. Super. 2018).
-6-
J-A26016-21
We review orders of dismissal based on forum non conveniens for
abuse of discretion. Rahn v. Consolidated Rail Corporation, 254 A.3d
738, 747 n.6 (Pa. Super. 2021). “[I]f, there is any [factual basis in the
record] for the trial court’s decision, the decision must stand.” Id. An error
of law or a manifestly unreasonable judgment may constitute an abuse of
discretion, and such errors are reviewed de novo. Id.
FELA affords the plaintiff a “substantial right” to select the forum in
which to file his or her FELA claims. 45 U.S.C. § 56. Notwithstanding this
right, the doctrine of forum non conveniens permits the trial court to dismiss
a case in whole or in part if it “finds that in the interest of substantial justice
the matter should be heard in another forum[.]” 42 Pa.C.S.A. § 5322(e);
see also Hovatter v. CSX Transp., Inc., 193 A.3d 420, 425-26 (Pa.
Super. 2018) (FELA does not heighten deference afforded to plaintiff’s choice
of forum in context of forum non conveniens). Our courts lack the authority
to transfer matters to courts of our sister states; rather, when appropriate,
our courts should dismiss the action to permit re-filing in another state.
Rahn, 254 A.3d at 747.
The forum non conveniens 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.” Id. at 747. Two
main factors guide the determination on whether the plaintiff has chosen a
-7-
J-A26016-21
proper forum. Id. at 248. One factor is whether the plaintiff has an
available alternative forum to refile claims if they are dismissed. Id.
Appellant does not claim that he lacks an alternative forum; indeed, he has
refiled his action in New Jersey. The second factor, which Appellant does
dispute, is whether “weighty reasons” justify the court’s decision to alter the
plaintiff’s choice of forum. Id. To analyze this question, the court must
consider multiple private and public interests. Id. Private interests 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.
Id. 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 some other forum untangle problems in conflict
of laws, and in law foreign to itself.
Id.
In recent years, this Court has decided multiple appeals concerning
whether forum non conveniens applies to FELA cases brought by out-of-state
plaintiffs in Pennsylvania against railroad companies (mostly Conrail and
Penn Central). In all of these cases, the plaintiffs identified the same four
-8-
J-A26016-21
witnesses from Pennsylvania that would testify on their behalf that Appellant
has proffered in this case: Comstock, Barringer, Thomas and Kovac. In one
case, we held that the trial court properly denied the railroad companies’
motion to dismiss. Robbins for Estate of Robbins v. Penn Central
Corporation, 212 A.3d 81 (Pa. Super. 2019). Subsequent to Robbins,
however, we have repeatedly held that the trial court acted within its
discretion by dismissing the actions on the ground of forum non conveniens.
See Rahn, supra; Lyndes, supra; Stevens v. Penn Central
Corporation, 251 A.3d 798 (Pa. Super. 2021); DeAngelis for Estate of
Bloom v. Penn Central Corporation, 251 A.3d 432 (Pa. Super. 2021);
Burnett v. Penn Central Corporation, 250 A.3d 1240 (Pa. Super. 2021);
Hurt for Estate of Jones v. Penn Central Corporation, 250 A.3d 1227
(Pa. Super. 2021); Wallace v. Penn Central Corporation, —A.3d—, 2022
WL 402952 (Pa. Super., Feb. 10, 2022) (unpublished); Sacco v. Penn
Central Corporation, —A.3d—, 2021 WL 4305876 (Pa. Super., Sep. 22,
2021) (unpublished); Favire v. Consolidated Rail Corporation, —A.3d—,
2021 WL 4279772 (Pa. Super., Sep. 21, 2021) (unpublished); Chatman v.
Consolidated Rail Corporation, —A.3d—, 2021 WL 4167787 (Pa. Super.,
Sep. 14, 2021) (unpublished). In another decision, Ficarra v.
Consolidated Rail Corporation, 242 A.3d 323 (Pa. Super. 2020)
(consolidating nine cases for purposes of disposition), we vacated orders
denying motions to dismiss in eight cases, and we denied dismissal in one
-9-
J-A26016-21
case because it was trial-ready due to completion of discovery and the
selection of a trial term.
The trial court gave a series of reasons for finding forum non
conveniens. Many of these reasons were proper grounds for finding forum
non conveniens under our post-Robbins decisions, including the following:
(1) Appellant has received treatment for his alleged injuries in South
Carolina and New York and not Philadelphia County; (2) Appellant has lived
in New Jersey and South Carolina, but never Philadelphia County; (3)
Appellant has never worked in Philadelphia County and only worked for
Appellees in New Jersey; (4) the expert witnesses that Appellant plans to
call both are located in Virginia and Tennessee; (5) Appellant admits in his
deposition testimony that he was only exposed to harmful substances in New
Jersey; (6) there is no proof that any evidence related to the injury,
including but not limited to Appellant’s medical records, are in Philadelphia
County; (7) Appellant fails to provide any proof that one of his fact
witnesses, Richard Savior, lives in Pennsylvania, and fails to identify the
substance of his testimony; and (8) another fact witness, William Barringer,
lives in Florida, so Pennsylvania plainly is an inconvenient forum for him.
Trial Ct. Op., 2/9/21, at 17-19.
Two other reasons given by the trial court for finding forum non
conveniens, however, were improper. First, the trial court determined that
- 10 -
J-A26016-21
Appellant failed to demonstrate that several persons he identified as fact
witnesses lived in Pennsylvania. The court stated:
[Appellant] attached a report as an Exhibit prepared by
[detective] Dan Levine on November 24, 2020, stating that on
November 5, 2020, he was contacted by [Appellant]’s counsel to
confirm the residential addresses of the four former Conrail
employees. Regarding Maria Comstock, on November 5, 2020,
her information was entered into a database and returned with
an address in Norristown, PA. However, when her alleged
telephone number was called on November 16, 2020, there was
a generic voicemail. On November 17, 2020, the detective sent
a certified envelope addressed to the alleged address given by
the database. For Ramon Thomas, on November 5, 2020, his
information was [run] through a database. On November 17,
2020, a certified envelope was sent to Mr. Thomas[,] and on
November 20, 2020, Mr. Thomas contacted the detective
confirming that he lives in Yardley, PA. On November 5, 2020,
Paul Kovac’s information was [run] through a database with his
alleged address being in Hatboro, PA. A landline number was
called, and an answering machine stated that the caller has
reached the Kovacs. On November 17, 2020, a certified
envelope was sent to the alleged address.
Trial Ct. Op. at 17-18. Nonetheless, the court concluded that there was no
proof that these witnesses lived in Pennsylvania. Id. at 19. This finding was
manifestly unreasonable. The evidence clearly demonstrates that Thomas
lives in Pennsylvania, since a database search provided a Pennsylvania
address for him, a certified envelope was mailed to him on November 17,
2020, and he contacted the detective three days later and confirmed that he
lives in Yardley, Pennsylvania. There also is some evidence that Kovac and
Comstock live in Pennsylvania, since a database search yielded Pennsylvania
addresses for both individuals, and Kovac’s answering machine stated that
the called had reached the Kovacs.
- 11 -
J-A26016-21
The second improper reason given by the court was that in 2019,
Barringer and Thomas testified for the plaintiff in another FELA trial, 3 but the
jury returned a defense verdict, thus indicating that it did not “heavily
weigh” Barringer’s and Thomas’s testimony. Id. at 17; see also id. at 19
(“the jury [in Nouse] clearly found that testimony of Mr. Thomas and Mr.
Barringer had little weight because the jury found for Defendants”). In our
view, the defense verdict in Nouse does not indicate that the jury gave
“little weight” to Thomas’s or Barringer’s testimony. It might have taken
this testimony quite seriously yet found other overriding reasons for finding
in favor of the defense. Furthermore, and more importantly, under our
forum non conveniens cases, the jury’s opinion of the witnesses’ testimony
in Nouse is completely irrelevant to whether Pennsylvania is a convenient
forum for the present case. The private and public factors that the court
must consider during forum non conveniens analysis, Rahn, 254 A.3d at
748, do not include consideration of the weight that the jury will give to a
proposed witness’s testimony.
Thus, while many of the reasons in the court’s forum non conveniens
ruling were proper, two reasons were not—and we cannot tell how much
these reasons affected the court’s exercise of its discretion. We therefore
believe that the proper remedy under these circumstances is to remand this
____________________________________________
3 Nouse v. Penn Central, No. 1801-05260 (Phila. Cty.).
- 12 -
J-A26016-21
case to the trial court for reconsideration of the evidence. The court should
apply only proper factors to the evidence, Rahn, 254 A.3d at 748, and
obviously refrain from considering the two factors identified above as
improper.
Order of dismissal vacated. Case remanded for further proceedings in
accordance with this Memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2022
- 13 -