Nwachan, T. v. Homegoods, Inc.

J-A01032-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TAYYABA NWACHAN, INDIVIDUALLY : IN THE SUPERIOR COURT OF
AND AS ADMINISTRATRIX OF THE : PENNSYLVANIA
ESTATE OF ADONIS BLAIZE :
NWACHAN (MINOR DECEASED) AND :
ZAHKYLA TILLAR :
:
Appellants :
:
: No. 2269 EDA 2021
v. :
:
:
HOMEGOODS, INC. :

Appeal from the Order Entered October 12, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 200702156

BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY LAZARUS, J.: FILED APRIL 19, 2023

Appellants, Tayyaba Nwachan, individually and as the administratrix of

the Estate of Adonis Blaize Nwachan, deceased, and Zahkyla Tillar, appeal

from the order, entered in the Court of Common Pleas of Philadelphia County,

granting Appellee HomeGoods, Inc.’s (HomeGoods) motion to dismiss,

without prejudice, and giving Appellants the opportunity to re-file in a court

in the State of Delaware within twenty days. After careful consideration, we

affirm.

Appellants are residents of Newark, Delaware. On December 29, 2019,

their three-year-old son, Adonis, tragically died when the metal legs of a
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folding tray table crushed Adonis’ ribcage, causing him to asphyxiate.1 After

unsuccessful attempts to revive the unresponsive toddler at Appellants’ home,

EMS transported Adonis to Christiana Hospital in Newark, Delaware, where he

was later pronounced dead.

Appellants purchased the folding tray table2 at a Newark, Delaware

HomeGoods store. HomeGoods is a Delaware corporation that has its principal

place of business and headquarters located in Framingham, Massachusetts.

HomeGoods is a wholly owned subsidiary of TJX Companies, Inc. (TJX). TJX

is a Delaware corporation with a registered office in Wilmington, Delaware,

and its headquarters in Massachusetts.

TJX owns and operates retail stores throughout the United States,

including HomeGoods, T.J. Maxx, and Homesense. There are 131 TJX retail

stores in the Commonwealth of Pennsylvania;3 nine of those stores are located

in Philadelphia County, with two of them being HomeGoods.4

____________________________________________

1Appellant Tayyaba Nwachan found Adonis trapped in the legs of the table
which compressed his chest and caused him to suffocate.

2 Appellants’ complaint alleges that the tray table was manufactured by a
company in China. Complaint, 7/30/20, at ¶ 14.

3 There are 33 HomeGoods in Pennsylvania. See
https://www.scrapehero.com/location-reports/HomeGoods-USA/ (last visited
1/20/23), accounting for roughly 3.6% of all HomeGoods nationwide. See
https://www.homegoods.com/us/store/stores/allStores.jsp (last visited
2/22/23).

4 Because HomeGoods conducts business in Pennsylvania, it is subject to
general jurisdiction in Pennsylvania. See 42 Pa.C.S.A. § 5322.

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Appellants filed a strict product liability, negligence, and wrongful death5

lawsuit in Philadelphia County against Appellee and TJX (collectively,

Appellees) alleging the folding tray table was defective for being both top

heavy and for failing to have a locking mechanism to prevent the table from

collapsing and causing entrapment injuries or death. Complaint, 7/30/20, at

5. Appellees filed preliminary objections challenging personal jurisdiction.

The court granted TJX’s objections, but overruled HomeGoods’ objections.

On September 10, 2021, HomeGoods filed a motion to dismiss, on the

basis of forum non conveniens, claiming “the interests of substantial justice”

required the court to dismiss the Pennsylvania action “in favor of a Delaware

forum . . . where [HomeGoods] . . . does not have access to necessary

evidence and witnesses in order to defend against Plaintiffs’ allegations.”

Motion to Dismiss, 9/10/21, at ¶ 3-4. In addition, HomeGoods stipulated to

submit to personal jurisdiction in Delaware courts, id. at ¶ 76, and also

recognized that, as of the time it filed its motion to dismiss, “the statute of

____________________________________________

5 Appellants also brought a survival action, see 42 Pa.C.S.A. 8302, a negligent
infliction of emotional distress claim, and sought punitive damages in their
complaint. See Complaint, 7/30/20, at 13-16.

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limitations[6] has not expired and Delaware[7] provides an alternative and

appropriate forum for Plaintiffs’ claims,” and, thus, “no waiver of the statute

of limitations is even required at this time.” Memorandum of Law in Support

of Motion to Dismiss, 9/10/21, at 3, 6-8. Nevertheless, HomeGoods stated in

its memorandum of law in support of its motion, that it “would be willing, if

necessary, to enable re-filing in Delaware, to stipulate to the tolling of the

statute of limitations from the date that Plaintiff originally filed suit in

Philadelphia.” Id. at 8. Appellants filed a response.

On October 12, 2021, the court entered an order granting HomeGoods’

motion to dismiss, concluding that “the public interest factors involved in

hosting this litigation in Philadelphia dictated dismissal of the action.” Trial

Court Opinion, 7/20/22, at 7-9. On October 21, 2021, Appellants filed a

____________________________________________

6 The statute of limitations for “the death of an individual caused by the
wrongful act or neglect . . . or negligence of another” is two years. See 42
Pa.C.S.A. 5524(2). Moreover, even though Decedent was a minor at the time
of his death, because the wrongful death and survival actions were brought
by his parents, the minority tolling statute, 42 Pa.C.S.A. § 5533(b), does not
toll the running of the statute of limitations. See Holt v. Lenko, 791 A.2d
1212 (Pa. Super. 2002) (nothing in section 5533 indicates legislature intended
minority tolling statute would apply to deceased minor plaintiffs).

7 Like Pennsylvania, Delaware has a two-year statute of limitations on
personal injury/negligence and wrongful death actions. See 10 De.C.A. §§
8107, 8119. There is no strict liability in Delaware for a defective product.
However, an action can be asserted against a manufacturer, wholesaler, and
distributer for defective products under general negligence principles, breach
of warranty, or failure to warn.

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motion for reconsideration to which HomeGoods responded.8 On November

3, 2021, Appellants filed a timely notice of appeal. On December 6, 2021,

Appellant filed a timely, court-ordered Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal.9

Appellants raises the following issues for our consideration:

(1) Whether the trial court abused its discretion by dismissing
Appellants’ action for forum non conveniens when
[HomeGoods] failed to establish, with evidence in the
record, weighty reasons to justify negating Appellants’
chosen forum[.10]

(2) Whether the trial court lacked authority to order Appellants
to refile their [c]omplaint in the State of Delaware[.]

Appellant’s Brief, at 4.

“It is well within the power of [a trial] court, in the interests of justice,

to decline to exercise its jurisdiction where, upon consideration of the parties,

the witnesses, the situs of the cause of action[,] and other kindred reasons,

the litigation can more appropriately be conducted in another forum.” Plum

____________________________________________

8 Due to the backlog of cases and various delays and court closures as a result
of the COVID-19 pandemic, the court did not rule on Appellee’s motion until
June 1, 2022. On that date, the court entered an order denying Appellants’
motion for reconsideration. See Pa.R.A.P. 1701(b)(3), Note (“By statute, a
trial court has only 30 days from the entry of a final order to ‘modify or rescind’
its order.”); see also 42 Pa.C.S.A. 5505.

9 On December 24, 2021, Appellants filed a complaint against Appellees in
Middlesex County, Massachusetts. See Nwachan v. The TJX Companies,
Inc. et al., Civil Action No. 2181CV06555, Superior Court, Middlesex County,
Massachusetts.

10 Appellants do not challenge the trial court’s determination that an
alternative forum was available to them.

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v. Tampax, Inc., 160 A.2d 549, 552 (Pa. 1960). In Pennsylvania, the

common law doctrine of forum non conveniens, in the context of an interstate

foreign dispute, is codified, as follows, at 42 Pa.C.S.A. § 5322(e):11

(e) 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). The burden is on the party seeking to dismiss the

action to establish that the matter should be heard in another jurisdiction.

McConnell v. B. Braun Med. Inc., 221 A.3d 221, 228 (Pa. Super. 2019).

While the plaintiff’s choice of forum is entitled to weighty consideration,

the doctrine of forum non conveniens is a “necessary counterbalance to insure

[sic] fairness and practicality.” Okkerse v. Howe, 556 A.2d 827, 832 (Pa.

1989) (citation omitted). In fact, a plaintiff’s choice of forum is entitled to a

lesser degree of deference “when the plaintiff’s residence and place of injury

are located somewhere else.” Failor v. FedEx Ground Package Sys., Inc.,

____________________________________________

11 Dismissal under section 5322(e) “differs substantially from transfer under
Pa.R.C.P. 1006(d). Rule 1006(d) enables the court to transfer an action to
another county [i.e., intrastate,] within the Commonwealth ‘for the
convenience of the parties and witnesses.’” Alford v. Philadelphia Coca-
Cola Bottling Co., 531 A.2d 792, 794 (Pa. Super. 1987) (emphasis added).
On the other hand, a section 5322(e) dismissal “terminates the litigation in
the courts of this Commonwealth [and, u]nlike the intra-jurisdiction transfer
of Rule 1006(d), section 5322(e) applies when a tribunal of this jurisdiction
determines that a tribunal in another jurisdiction would offer a more
convenient and appropriate situs for the action.” Id. “The corresponding
burden of proof [for a motion to dismiss under section 5322] is lesser than
that of a motion seeking an intrastate transfer.” Wright v. Consol. Rail.
Corp., 215 A.3d 982, 992-93 (Pa. Super 2019).

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248 A.3d 527, 534 (Pa. Super. 2021); Bochetto v. Piper Aircraft Co., 94

A.3d 1044, 1056 (Pa. Super. 2014) (same). See also Wright, supra at 992-

93 (indicating plaintiff’s choice of filing action in foreign forum is not deemed

inherently reasonable or treated with same level of reasonability as plaintiff

filing in his or her native forum).

When determining if a case should be dismissed under the doctrine of

forum non conveniens, a court must consider the following: (1) plaintiff’s

choice of forum should not be disturbed except for “weighty reasons;” and (2)

an action will not be dismissed in any event unless an alternative forum is

available to the plaintiff.12 Petty v. Suburban General Hospital, 525 A.3d

1230, 1232 (Pa. Super. 1987) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S.

501, 508-509 (1947)). “To determine whether such ‘weighty reasons’ exist

to overcome a plaintiff’s choice of forum, the trial court must examine both

the public and private[13] factors involved.” Engstrom v. Bayer Corp., 855
____________________________________________

12In determining whether an alternate forum exists for purposes of ruling on
a motion to dismiss, our Supreme Court has stated:

[T]he suit will be entertained, no matter how inappropriate the
forum may be, if [the] defendant cannot be subjected to
jurisdiction in other states. The same will be true if plaintiff’s
cause of action would elsewhere be barred by the statute of
limitations, unless the court is willing to accept defendant’s
stipulation that he will not raise this defense in the second state.
[The action should not be dismissed unless defendant submits to
jurisdiction in another appropriate and more convenient forum.]

Plum, 160 A.2d at 553.

(Footnote Continued Next Page)

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A.2d 52, 55 (Pa. Super. 2004). “These two sets of factors are not mutually

exclusive[,] but rather supplement each other.” Plum, 160 A.2d 549 at 553.

Finally, “[i]t is within the trial court’s discretion to weigh some of these factors

more heavily than others [] because weighing the factors is not an exercise in

counting numbers.” Lyndes v. Penn Central Corporation, 254 A.3d 725,

738 (Pa. Super. 2021).

An appellate court’s “standard of a review of a trial court’s ruling on a

[p]etition to [d]ismiss on the grounds of forum non conveniens is [an] abuse

of discretion. Pisieczko v Children’s Hosp., 73 A.3d 1260, 1262 (Pa. Super.

2013). “An abuse of discretion will be found when the trial court ‘misapplies

the law or exercises [its] judgment in manner that is manifestly unreasonable

or the result of bias, prejudice or ill will.’” Id. at 1262. If there is any basis

for the trial court’s decision, the decision must stand. Brown v. Delaware

Valley Transplant Program, 538 A.2d 889, 891 (Pa. Super. 1988) (citation

omitted).
____________________________________________

13 In Gulf Oil, the United States Supreme Court set forth the private factors
involved in a section 5322 analysis as follows:

[T]he relative ease of access to sources of proof; availability of
compulsory process for attendance of unwilling [witnesses;] [] the
cost of obtaining attendance of willing[] witnesses; possibility of
view[ing] premises, if view[ing] would be appropriate to the
action; and all other practical problems that make trial of a case
easy, expeditious and inexpensive.

Id., 330 U.S. at 508. Appellants, however, do not challenge the trial court’s
consideration of private factors.

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Appellants contend that the trial court improperly dismissed its action

because HomeGoods failed to establish “weighty reasons” justifying “negating

[their] chosen forum.” Appellants’ Brief, at 4. Specifically, Appellants argue

that HomeGoods did not provide sufficient evidence to show why the public

interest factors “strongly militate” in favor of dismissal. Id. In addition,

Appellants claim that the trial court made presumptions about evidence

against them and assumed facts not in the record when it determined that the

case should be heard in another forum. Id.

In Gulf Oil, supra, the Supreme Court discussed the relevant public

factors to consider when faced with a motion to dismiss based on interstate

transfer:

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 [that] 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.

Gulf Oil, supra at 508-09. “The fact that the suit to some extent also involves

the internal affairs of a foreign corporation is another factor to be considered

in determining whether our court should entertain the suit.” Plum, 160 A.2d

at 562.
Instantly, the trial court found that the following private factors justified

the dismissal of Appellants’ action: there were no significant contacts between

Appellants’ cause of action and the Commonwealth of Pennsylvania where

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Appellants are Delaware citizens and residents; every occurrence leading up

to Adonis’ death took place in Delaware, including purchase of the folding tray

table; and where the substantive laws of Delaware will apply to this case,

Delaware state court is in better position to apply its own laws and has greater

interest in hearing a case involving its own citizens. Trial Court Opinion,

7/19/22, at 9.

In its Rule 1925(a) opinion, the trial court relies heavily upon Cinousis

v. Hechinger Dep’t Store, 594 A.2d 731 (Pa. Super. 1990), to support its

order granting HomeGoods’ motion to dismiss. In Cinousis, plaintiffs, a

husband and wife, were New Jersey residents. They brought a personal injury

lawsuit in Philadelphia after wife was injured when she fell in a Deptford, New

Jersey, department store. The defendant-department store was a Delaware

corporation, with its principal place of business in Maryland. The corporation,

however, operated stores in Pennsylvania, with at least one store located in

Philadelphia. Defendant filed a motion to dismiss the matter on the basis of

forum non conveniens. The court granted the motion, concluding that the

action would more appropriately be heard in New Jersey, based on the

following factors:

• Plaintiffs were not residents of PA;
• Pertinent events giving rise to cause of action occurred outside of PA;
• Relevant medical records of wife’s physician after accident were located
outside of PA;
• Known witnesses resided outside of PA;
• Additional witnesses would most likely reside outside of PA;
• Plaintiffs had another more convenient forum available to them in NJ.

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Id. at 733.

On appeal, our Court affirmed the trial court’s dismissal of plaintiff’s

action, concluding that “the interest of this Commonwealth in providing a

forum for its residents to litigate their disputes [was] not implicated” because

plaintiffs were not Pennsylvania residents. Id. Moreover, our Court found

that where witnesses and documentary evidence in the case were located in

New Jersey, it was “potentially more difficult to try th[e] case in Pennsylvania.”

Id. Our Court also concluded that because the events underlying the action

occurred in New Jersey, “it is likely that the substantive rights of the parties

will be determined according to New Jersey law.” Id.

Appellants, on the other hand, argue that the trial court’s reliance on

Cinousis is “inconsistent” where the trial judge dismissed the case based on

Petty’s public factors. Appellants contend that this case is more analogous

to another products liability case, McConnell, supra. In McConnell, plaintiff

filed her action14 against defendants, who are manufacturers and distributers

of medical devices,15 when one of their devices allegedly “failed” after being

implanted in plaintiff’s inferior vena cava, a central vein in the heart. At the
____________________________________________

14 Plaintiff also alleged negligence, strict products liability/failure to warn,
strict products liability/design defect, strict products liability/manufacturing
defect, breach of implied warranty of merchantability, negligent
misrepresentation, and punitive damages. Id. at 225.

15 One defendant, B. Braun France (Braun France), designed and
manufactured the device. Another defendant, B. Braun Medical Inc. (BMI),
imported and distributed the device throughout the United States. Finally, the
third defendant, B. Braun Interventional Systems (BIS), maintained the
exclusive rights to the device.

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time of the procedure, the plaintiff resided in Michigan, which is also where

the procedure was performed. Five years after the procedure, plaintiff moved

to North Carolina, where she resided for five years. Plaintiff then moved to

Texas, where she underwent a CT scan that revealed that the implanted device

had “penetrated through the caval wall” and caused damage that would

require “ongoing medical care and monitoring for the rest of her life.” Id. at

224-25.

The defendants, BMI, a Pennsylvania corporation with its headquarters

located in Lehigh County, Pennsylvania, BIS, a Delaware corporation, and

Braun France, a French corporation, filed motions to dismiss the lawsuit, based

on forum non conveniens. Defendants alleged that the suit should be re-filed

in plaintiff’s home state (TX) or where the device was implanted (MI). Id. at

225. Ultimately, the defendants consented to trial in Texas or Michigan and

also agreed to waive a statute of limitations defense in the event of dismissal.

Id. Alternatively, defendants sought to have the case transferred to Lehigh

County. Id.

After hearing argument and taking evidence, the trial court dismissed

plaintiff’s suit, concluding that “Pennsylvania had little interest in resolving

[plaintiff’s] products liability claims . . ., that [there would be] potential

difficulties in applying out-of-state law[, and that if the case were refiled in

Texas,] the presence of witnesses could more easily be ensured.” Id. at 226.

On appeal, our Court reversed the trial court’s dismissal order, concluding that

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“[t]he trial court abused its discretion because it gave no weight to many

relevant factors and too much weight to irrelevant ones.” Id. at 232.

In particular, our Court found that the trial court misapplied the law in

the following ways with regard to private interest factors: (1) ruling existence

of any documentation or evidence in PA would be immaterial; (2) assuming

or speculating that plaintiff’s medical care providers are indispensable

witnesses who will refuse to attend trial in PA; (3) assigning weight to

“potential” inconveniences to plaintiff; (4) not considering the presence of BIS

employees in Lehigh County, where those employees personally engage in the

sale, distribution, and marketing of the implanted device; (5) not considering

defendants’ affidavits, submitted to support their motion to dismiss, showing

PA is a more convenient forum than TX or MI; (6) not taking into account BIS’

president’s admission that several employees reside in Lehigh County; (7)

improperly relying on claim that evidence is located in France and that

distance between PA and that locale “may pose logistical difficulties” where

any U.S. state would be equally remote (8) where BMI and BIS have corporate

offices in PA and, therefore, forum state as good as any other in terms of

convenience for those defendants; and (9) defendants did not show how

application of TX law could make a difference in outcome of suit. Id. at 229-

31.
With regard to public factors, our Court found the trial court misapplied

the law by: (1) disregarding PA’s interests and improperly focusing on whether

Philadelphia is convenient forum; (2) not analyzing PA’s interests in light of

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undisputed number of BIS workers that reside in PA and have personal

knowledge about products liability case; and (3) failing to account for

corporate action where marketing, sale and post-market surveillance of device

was from within PA and is crux of many of plaintiff’s claims. Id. at 231-32.16

Here, we agree with the trial court and conclude that this case is more

akin to the circumstances and facts in Cinousis17 where:

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16 Although not raised on appeal, we emphasize that HomeGoods stipulated
to submit to jurisdiction in a Delaware court and, if necessary, agreed to
stipulate to the tolling of the two-year statute of limitations on Appellants’
claim from the date that the original lawsuit was filed in Pennsylvania.
Memorandum of Law in Support of Motion to Dismiss, 9/10/21, at 6-8. See
McConnell, supra at 228 n.7 (“It is unnecessary to assess whether an
alternative forum is available for [the plaintiff’s] claims because the
[d]efendants have stipulated to jurisdiction in Texas or Michigan.”).

In Lyndes v. Penn Cent. Corp, 254 A.3d 725 (Pa. Super. 2021), where the
defendant stipulated to waive the statute of limitations, as well as not object
on the basis of venue or personal jurisdiction, if the plaintiff refiled in another
appropriate jurisdiction, our Court concluded that the second Petty factor—
whether an alternate forum exists—was not an issue in the case. Id. at 733.
Similarly, here, we agree that the trial court properly determined that an
alternate forum existed where HomeGoods stipulated to both submit to
jurisdiction and not raise the defense of the statute of limitations if Appellants
were to refile in Delaware, an alternate forum. See Cinousis, 594 A.2d at
732 (suit will be entertained in plaintiff’s forum, no matter how inappropriate,
if “cause of action would elsewhere be barred by the statute of limitations,
unless the court is willing to accept defendant’s stipulation that he will not
raise this defense in the second state”) (emphasis added); Plum, supra
(stipulation by defendant that he or she will submit to service of process and
not raise statute of limitations defense has been accepted by courts as
eliminating concern regarding the availability of alternative forum).

17 Even though the Cinousis court relied heavily on private interest factors in
justifying its decision to dismiss plaintiff’s case, we recognize that we are not
limited by the trial court’s rationale and may affirm its decision on any basis.
(Footnote Continued Next Page)

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• Appellants are not residents of PA;
• Decedent’s accident and death occurred outside of PA;
• Decedent’s relevant medical records post-accident are located outside
of PA;
• Appellants have another more convenient forum available to them; and
• HomeGoods’ employees who are responsible for the distribution, sales,
and recalls of their products neither reside nor work in PA.18

Significantly, unlike two of the McConnell defendants (BIS and BMI) that had

either a principal place of business or a headquarters in Lehigh County,

HomeGoods has no corporate offices in Pennsylvania. Cf. McConnell, supra

at 231 (“If held in Pennsylvania, a trial would determine whether corporations

with a principal place of business and a headquarters located within it have

sold, marketed[,] and distributed a product that may have injured people

across the country.”). Rather, the only connection that HomeGoods has to

this Commonwealth is the fact that it is registered to do business in

Pennsylvania and conducts business in the state. See Jessop v. ACF Indus.,

____________________________________________

Blumenstock v. Gibson, 811 A.2d 1029, 1033 (Pa. Super. 2002). See infra
at n.18 (discussing private factors in instant case).
18 In fact, Appellants, somewhat paradoxically, admit that the “conduct giving
rise to Appellee’s alleged liability” did not occur in Pennsylvania. See
Appellants’ Brief, at 17 (“[T]he pertinent conduct giving rise to Appellee’s
alleged liability—e.g., Appellee’s acquisition and sale of a foreign-made-
defective product—occurred not in Delaware[,] but in Massachusetts.”); id.
(“Appellee’s employees who are responsible for the distribution, sales, recalls,
etc.[,] of products sold by HomeGoods . . . reside and work in Massachusetts
. . . and [t]hese individuals’ documents and files are also located in
Massachusetts.”). See also Affidavit of Paul Kangas, HomeGoods Chief Risk
and Compliance Officer, 9/9/21, at ¶¶ 6-8 (primary witnesses concerning
sales/transactions in instant case located in DE or MA, their documents and
files located in DE or MA, other potentially relevant HomeGoods’ witnesses
responsible for distribution, sales and recalls of HomeGoods’ products reside
and work in MA and their documents and files located in MA).

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LLC., 859 A.2d 801 (Pa. Super. 2004) (even though defendant did business

in Pennsylvania, because plaintiff failed to prove facts of case bore any

connection to Commonwealth, trial court did not abuse discretion in dismissing

case to be re-filed in alternate forum); but see McConnell, supra at 225 (“It

was undisputed that each of the Braun Defendants . . . have varying degrees

of local presence in [plaintiff’s] chosen forum of Philadelphia County.”); id. at

230 (“BMI and BIS both have corporate offices in Pennsylvania; so in terms

of convenience for those defendants, that forum state seems as good as any

other.”); Failor, supra (motion to dismiss reversed on appeal where plaintiff

was PA resident, corporate defendant maintained principal place of business

in PA, and defendant has shipping facility located in PA).

Simply put, the “meaningful ties” that the plaintiff’s case had to

Pennsylvania in McConnell and Failor, due to the defendants’ corporate

offices being located in the state, do not exist in the instant case. Without

these ties, the interest that Pennsylvania has to this case is significantly

lacking, and, thus, weighs in favor of dismissing the case. See Wright, supra

at 996 (marginal connection between party’s business activities in forum and

claims at issue “weighs in favor of transferring a case”); Engstrom v. Bayer

Corp., 855 A.2d 52 (Pa. Super. 2004) (imposing jury duty and court costs on

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communities with no relation to plaintiff’s claim weighs in favor of transferring

case).19

It is well-established that under section 5322(e), when we are presented

with a foreign plaintiff, the assumption that plaintiff’s chosen forum is

convenient is much less reasonable. Aerospace Finance Leasing, Inc. v.

New Hampshire Ins. Co., 696 A.2d 810, 814 (Pa. Super. 1997) (citation

omitted). With that premise in mind, we conclude that “in the interest of

substantial justice,” 42 Pa.C.S.A. 5322(e), the trial court properly dismissed

the matter: Appellants are not residents of PA; the accident did not occur in

PA; the HomeGoods’ store where the allegedly defective product was sold was

not located in PA;20 HomeGoods is not incorporated in PA; HomeGoods does

____________________________________________

19 Although neither binding nor of persuasive value, we do note our Court’s
decision, Duckett v. WaWa, Inc., No. 3405 EDA 2009 (Pa. Super. 2011)
(unpublished memorandum decision affirming motion to dismiss personal
injury action, filed in Philadelphia County, on forum non conveniens grounds
where plaintiff injured in New Jersey WaWa store, plaintiff is NJ resident,
witnesses located in NJ, NJ law will likely apply to case, WaWa waived any
statute of limitations objection in NJ court, and only connection case has to
PA is fact WaWa headquartered in Delaware County and maintains locations
around Philadelphia area). In fact, 25% of all WaWas are located in
Pennsylvania.

20 Although the issue regarding whether the same product (folding tray table)
was sold in Pennsylvania HomeGoods stores was raised at oral argument, we
note that in their response to HomeGoods’ motion to dismiss Appellants stated
that they “do not allege that the specific table at issue was sold in
Pennsylvania.” See Response to Motion to Dismiss, 9/29/21, at ¶ 19. See
also Motion to Dismiss, 9/10/21, at ¶ 19 (HomeGoods stating in motion to
dismiss, “Plaintiffs do not aver that the table was distributed or sold in
Pennsylvania.”). Moreover, our exhaustive review of the record uncovers no
(Footnote Continued Next Page)

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not have it principal place of business in PA; HomeGoods’ employees who are

responsible for the distribution, sales, and recalls of their products do not

reside or work in PA; HomeGoods’ employees’ documents and files regarding

product distribution, sales and recalls are not located in PA; and none of the

parties or potential witnesses reside in PA. Accordingly, we cannot conclude

that the trial court abused its discretion in granting HomeGoods’ motion to

dismiss.21

The trial court neither misapplied the law nor exercised its judgment in

a manner that was manifestly unreasonable or the result of bias, prejudice, or

ill will. Pisieczko, supra. We are guided by the edict that “[i]f there is any

basis for the trial court’s decision, the decision must stand.” Brown, supra

at 891. Therefore, even though jurisdiction and venue technically may have

been proper in Pennsylvania, it does not preclude dismissal based on forum

____________________________________________

evidence that the table was alleged to have been sold in PA, and Appellants
do not raise that claim in their appellate brief.

21 In addition, the following private factors were involved in the case:
Delaware police officers, firemen, medics, and EMTs responded to Appellants’
home to provide emergency services to Adonis; Delaware police conducted
the accident investigation; the Delaware Division of Family Services was
involved in investigating the case; Adonis was treated by Delaware doctors at
a Delaware hospital following the accident; and, finally, a Delaware medical
examiner performed an autopsy on Adonis. See Motion to Dismiss, 9/10/21,
at ¶¶ 26-43; see also Complaint, 7/30/20, at ¶ 42 (alleging “EMS and Police
arrived on scene [and] performed intubation and CPR approximately thirty
(30) minutes before arrival at Christiana Hospital . . . where Advanced Trauma
Life Support protocol was initiated upon arrival at the hospital [and, after
unsuccessful efforts,] Adonis was pronounced dead.”).

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non conveniens where Appellants have the right to re-file in an alternate

forum. 42 Pa.C.S.A. 5322(e). See Hovatter v. CSX Transp., Inc., 193 A.3d

420, 427 (Pa. Super. 2018) (citation omitted) (even if venue technically

proper, dismissal appropriate if where “there is a more convenient forum

where the litigation could be conducted more easily, expeditiously, and

inexpensively”).

In their second claim on appeal, Appellants argue that the trial court

was without authority and jurisdiction to order them to re-file in Delaware

within 20 days of the date of its decision. Based upon the record evidence

and the fact that Appellants have re-filed their decision in another alternate

forum, Massachusetts, within the statute limitations, we find this argument

moot. As HomeGoods correctly notes, “Appellants have suffered no prejudice

whatsoever as a result of the trial court’s ruling [where they] have availed

themselves of [an alternative] forum.” Appellee’s Brief, at 22.22

However, even if we were to address the merits of the claim, we would

conclude Appellants are entitled to no relief. In Rahn v. Consolidated Rail

Corporation, 254 A.3d 738, 747 n.6 (Pa. Super. 2021), our Court noted that,

while trial courts lack authority to transfer matters to courts of our sister

states, “when appropriate, our courts should dismiss the action [under section

5322(e)] to permit re-filing in another state.” Therefore, the trial court was

acting within its authority by instructing Appellants to re-file in an alternate
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22 In fact, Appellants not only disregarded the 20-day time table in the trial
court’s order, but also chose to file in a state other than Delaware.

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forum within the statute of limitations. See also Jessop v. ACF Indus., LLC,

859 A.2d 801 (Pa. Super. 2004) (affirming order granting defendants’ motion

to dismiss case and granting leave to re-file lawsuit in Kansas).

Order affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/19/2023

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