Rahn, P. v. Consolidated Rail Corp. ( 2021 )

J-A05033-21
2021 Pa. Super. 81
PAUL RAHN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CONSOLIDATED RAIL CORPORATION : No. 3500 EDA 2019
Appeal from the Order Entered October 16, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 180200568
BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: APRIL 29, 2021
Appellant Paul Rahn (“Mr. Rahn”) appeals from the order granting the
motion filed by Consolidated Rail Corporation (“Consolidated Rail”) to dismiss
Mr. Rahn’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 careful review, we affirm.
The relevant facts and procedural history are as follows: Mr. Rahn is a
non-resident of Pennsylvania and currently lives in Chicago, Illinois. He
instituted this action pursuant to the Federal Employers’ Liability Act (FELA)1
against Consolidated Rail, which is incorporated in Pennsylvania with a
principal place of business in Philadelphia. Mr. Rahn averred Consolidated
Rail also conducts business in and has substantial contacts with Philadelphia.
He also specifically claimed that Consolidated Rail is “engaged in interstate
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* Former Justice specially assigned to the Superior Court.
1 45 U.S.C. §§ 51-60.
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commerce as a common carrier by rail, operating a line and system of
railroads and transacting substantial business in the Commonwealth of
Pennsylvania, including Philadelphia County.”2 Mr. Rahn’s Amended
Complaint, filed 4/11/2018 (unpaginated).3
Mr. Rahn averred in his amended complaint that, from 1978 to 1996,
he was employed by Consolidated Rail as a trainmaster at rail yards in
Chicago, IL, Indianapolis, IN, Burns Harbor, IN, Detroit, MI, Kalamazoo, MI,
Dearborn, MI, Cleveland, OH, Columbus, OH, and Youngstown, OH. Id. He
further claimed that, because of his job duties, he was exposed to cancer-
causing substances, which resulted in his development of lymphoma. Id. He
posited that Consolidated Rail was negligent in failing to provide him with a
reasonably safe workplace as required under the relevant statute. Id.
Mr. Rahn also stated in his amended complaint that he worked for
Consolidated Rail as a trainmaster at rail yards in Philadelphia, PA. Id. He
subsequently averred in discovery that “his cancer was caused or contributed
from his exposure to toxic substances while working with [Consolidated Rail]
in Philadelphia.” Responses to Consolidated Rail’s Request for Admissions
(unpaginated). However, in his April 23, 2019 deposition taken in Illinois, Mr.
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2 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.
3 Mr. Rahn initially filed a complaint on February 8, 2018; however, he filed
an amended complaint with court permission on April 11, 2018.
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Rahn admitted that, while he worked for Consolidated Rail in Philadelphia and
Pittsburgh near the end of his career, he was not exposed to harmful
substances during this time period in which he worked a desk job. Mr. Rahn’s
Deposition, 4/23/19, 147, 172-79.
On July 22, 2019, Consolidated Rail filed a motion to dismiss under 42
Pa.C.S.A. § 5322(e) and the doctrine of forum non conveniens. In support of
its motion, Consolidated Rail attached Mr. Rahn’s deposition testimony, his
answers to Consolidated Rail’s First Set of Interrogatories, and his answers to
Consolidated Rail’s Request for Admissions. Consolidated Rail also attached
an affidavit from Lauren Lamp, Field Investigations Specialist for CSX
Transportation.4
Relevantly, in the motion to dismiss, Consolidated Rail emphasized that
Mr. Rahn resides in Chicago, Illinois, where he has lived for the majority of his
life. Consolidated Rail’s Motion to Dismiss, filed 7/22/19, at 2, 6. Consolidated
Rail stressed that while Mr. Rahn initially claimed that he was exposed to
harmful substances while working for Consolidated Rail in Philadelphia, Mr.
Rahn eventually conceded that his alleged workplace exposures occurred
outside of Pennsylvania in Illinois, Indiana, Michigan, and Ohio. Id. at 2, 15.
As such, Consolidated Rail asserted that all of the relevant witnesses
and sources of proof to Mr. Rahn’s claims are located outside of Pennsylvania.
____________________________________________
4As CSX Transportation assumed administrative control of Consolidated Rail,
Ms. Lamp was authorized to evaluate Consolidated Rail’s employee records in
her position with CSX Transportation. See supra note 2.
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Consolidated Rail pointed out that Mr. Rahn admitted in his deposition that he
will not be able to travel to Philadelphia for trial due to an ailment in his legs
and vertigo. Id. at 2, 14. In fact, Consolidated Rail pointed out that Mr. Rahn’s
deposition had to be taken in Illinois as he could not travel to Pennsylvania as
a result of his health.
Consolidated Rail pointed out that Mr. Rahn was neither diagnosed or
treated for his lymphoma in Pennsylvania, and thus, Consolidated Rail
provided the names of his seven diagnosing and treating physicians, all of
whom are located in Illinois. Id. at 9.
Consolidated Rail claimed Mr. Rahn had not identified any co-workers or
supervisors located in Pennsylvania with information about the conditions in
which Rahn worked in which he was allegedly exposed to toxic substances.
Id. at 15-16. While Mr. Rahn identified three individuals who he worked with
in Pennsylvania, Consolidated Rail argued that these individuals would have
no knowledge relevant to Mr. Rahn’s claims as he admits that his exposure
did not occur while he worked in Pennsylvania at a desk job. Id.
Moreover, Consolidated Rail indicated that the witnesses Mr. Rahn
identified that could potentially have knowledge relevant to his claims do not
reside in Pennsylvania. Consolidated Rail pointed to Ms. Lamp’s affidavit
acknowledging that Mr. Rahn worked with several co-workers and supervisors
in the locations outside of Pennsylvania where he alleges he was exposed to
toxic substances; these coworkers included K. Jensen, L. Schmidt, L.
Makowski, R.J. Rathje, and D. Rines. Id. at 15. Ms. Lamp determined that
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Consolidated Rail’s records indicated that none of these witnesses lived in
Pennsylvania but had the following last known addresses: K. Jensen (Burbank,
Illinois), L. Schmidt (Valparaiso, Indiana), L. Makowski (Cheektowago, New
York), R.J. Rathje (East Liverpool, Ohio), and D. Rines (Grand Blanc,
Michigan), Ms. Lamp indicated that any yet-to-be-identified co-workers and
supervisors of Mr. Rahn would not be expected to have worked, been based
in or lived in Pennsylvania.
Ms. Lamp also averred that Mr. Rahn’s personnel file with Consolidated
Rail is not housed in Pennsylvania as many of Consolidated Rail’s records were
transferred to CSX Transportation, which is headquartered in Jacksonville,
Florida, and microfilms of Consolidated Rail’s personnel files are stored in
Mount Laurel, New Jersey. See supra note 2.
Consolidated Rail contended that holding this litigation in Philadelphia
would prevent the parties from showing the jury the condition of the railyards
outside of Pennsylvania where Mr. Rahn worked and was allegedly exposed to
toxic substances. Consolidated Rail argued that a site visit to a rail yard in
Illinois would “allow a jury to see the openness of the environment in which
[Mr. Rahn] alleges exposures and how his worksites markedly differ from [Mr.
Rahn’s] own account.” Consolidated Rail’s Motion to Dismiss, filed 7/22/19,
at 18.
Consolidated Rail also argued that public interest factors weigh heavily
in favor of dismissal of the instant case as Philadelphia County is suffering
from court congestion, administrative difficulties, and an undue burden on
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juries due to an exponential increase in the filing of mass tort cases by out-
of-state plaintiffs. Id. at 22-23.
Based on the aforementioned arguments, Consolidated Rail 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, Consolidated Rail reasoned the only connection between
Pennsylvania and the instant matter is that Consolidated Rail has its
headquarters in Pennsylvania. However, Consolidated Rail argued this
connection is unrelated to Mr. Rahn’s claim that he suffered injury in
connection with his employment in Illinois, Indiana, Michigan, and Ohio.
Moreover, Consolidated Rail agreed to waive the statute of limitations if
Mr. Rahn re-filed his action in Cook County, Illinois, or another appropriate
venue, 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 Cook County, Illinois, or some other proper forum.
On August 12, 2019, Mr. Rahn filed a response in opposition to
Consolidated Rail’s motion to dismiss for forum non conveniens, as well as a
supporting memorandum. Therein, Mr. Rahn admitted he did not live, own
property, or receive medical treatment in Pennsylvania. While Mr. Rahn
indicated in his prior deposition that he did not believe he could travel to
Philadelphia due to health problems, he indicated that he intends to attend
trial in this matter even though his “ailments make travel difficult.” Mr. Rahn’s
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Response to Consolidated Rail’s Motion to Dismiss, filed 8/12/19, ¶ 1(b)
(unpaginated response).
Moreover, Mr. Rahn admitted that he was injured in relation to
workplace exposure that occurred outside of Pennsylvania and agreed that his
former co-workers and supervisors do not reside in Pennsylvania. However,
Mr. Rahn denied that all of his fact witnesses are located outside of
Pennsylvania. Specifically, he indicated:
[Mr. Rahn] intends to call four former [Consolidated Rail]
employees who worked in the Philadelphia headquarters. [Mr.
Rahn] intends to call Marcia Comstock (medical director, resides
in Wayne, PA), William Barringer (safety director), Ramon Thomas
(industrial hygienist), and Paul Kovac (occupational claims
manager). Mr. Thomas and Mr. Kovac also reside in the
Philadelphia area.
Id. ¶ 1(d) (unpaginated response). Mr. Rahn elaborated that he intended to
call the four former corporate witnesses because they “will testify to policies
crafted and implemented by [Consolidated Rail].” Id. ¶ 37, 130. Moreover,
Mr. Rahn claimed that Consolidated Rail’s “corporate headquarters is the
center of where policy decisions were made and implemented regarding safety
rules and regulations that directly led to [Mr. Rahn’s] cancer. Id. at ¶ 125.
Mr. Rahn contended the current conditions of his workplaces at the train
yards in Illinois or other locations are irrelevant to his working conditions when
he worked for Consolidated Rail from 1978 to 1996. Id. at ¶ 89. Moreover,
he averred that, as Consolidated Rail is incorporated in Pennsylvania and its
headquarters is located in Philadelphia, it is “undeniable that a Philadelphia
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jury has an interest in determining whether a corporate neighbor was
negligent.” Id. at ¶ 116. He posited that Philadelphia has judicial resources
and experience with FELA cases to ensure a just trial.
On August 16, 2019, the trial court filed an order directing the parties
to file supplemental briefs on Consolidated Rail’s motion to dismiss based on
forum non conveniens. The trial court indicated that the parties were
permitted to conduct discovery limited to the issue of forum non conveniens,
to include both affidavits and depositions as the parties deemed necessary.
Both parties filed supplemental briefs in support of their positions. In a
supplemental brief filed on October 15, 2019, Mr. Rahn claimed for the first
time that dismissal of the action based on forum non conveniens principles
was not appropriate as discovery was complete and the case was trial-ready.
Consolidated Rail responded that the delay in its filing of its motion to dismiss
was caused by Mr. Rahn’s filings which misled Consolidated Rail into believing
that his claims were based on allegations that Mr. Rahn was exposed to toxic
substances while working in Philadelphia. Consolidated Rail emphasized that
after Mr. Rahn admitted for the first time in his deposition that his claims of
exposure were not related to his employment in Pennsylvania, Consolidated
Rail filed its motion to dismiss promptly thereafter.5
____________________________________________
5 In his supplemental brief, Mr. Rahn did not confirm or deny whether he would
be able to appear in Philadelphia for trial, but merely indicated that
“[Consolidated Rail] alleges that because [Mr. Rahn] resides in Chicago, he
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On October 16, 2019, the trial court granted Consolidated Rail’s motion
to dismiss the instant action based on forum non conveniens and dismissed
Mr. Rahn’s complaint without prejudice to his right to re-file in Illinois, or some
other appropriate jurisdiction.
On November 15, 2019, Mr. Rahn filed a notice of appeal. On November
20, 2019, the trial court filed an order directing Mr. Rahn to file a Concise
Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).
The order contained the following language:
…it is hereby ORDERED and DECREED that [Appellant] Paul Rahn
forthwith file and serve on this Court a concise Statement of Errors
Complained of on Appeal in accordance with Rule 1925(b)(1) of
the Pennsylvania Rules of Appellate Procedure addressing the
jurisdictional basis for its appeal. Said statement is to be filed no
later than twenty-one (21) days from the date of this order. Any
issue not properly included in the Statement timely filed and
served pursuant to Rule 1925(b) shall be deemed waived.
Rule 1925(b) order, 11/20/19, at 1. The order did not specifically instruct Mr.
Rahn to serve the trial judge with his 1925(b) statement and did not contain
certain information required by Pa.R.A.P. 1925(b)(3)(iii).
____________________________________________
cannot travel to Philadelphia due to his health.” Mr. Rahn’s Supplemental
Brief, 10/15/19, at 2. Just hours later, Consolidated Rail filed a Second
Supplemental Brief, attaching an email sent by Mr. Rahn’s counsel on October
15, 2019, indicating that he intended to take Mr. Rahn’s trial deposition
testimony in the same location in Chicago, Illinois, that the parties took Mr.
Rahn’s discovery deposition. Consolidated Rail argued that Mr. Rahn’s counsel
had been dishonest in withholding this information from the court when he
claimed in opposition to the motion to dismiss that Mr. Rahn intended to
attend trial in Philadelphia. Consolidated Rail’s Second Supplemental Brief,
10/15/19, at 2.
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While Mr. Rahn timely filed his Rule 1925(b) statement on December
10, 2019 in an electronic filing with the court, he did not serve the trial judge
with his 1925(b) statement until January 29, 2020. The trial judge issued a
responsive decision pursuant to Pa.R.A.P. 1925(a), but did not address Mr.
Rahn’s failure to timely serve him with the Rule 1925(b) statement.
Initially, before we reach the merits of Mr. Rahn’s arguments on appeal,
we must review Consolidated Rail’s request for this Court to dismiss the appeal
based on the undisputed fact that Mr. Rahn failed to serve his Rule 1925(b)
statement on the trial judge in a timely matter. Mr. Rahn asks this Court not
to dismiss this appeal as he “substantially complied with the trial court’s 1925
order.” Mr. Rahn’s Response to Application to Dismiss, 3/27/20, at 3.
On June 24, 2019, the Pennsylvania Supreme Court entered an order
amending Rule 1925, effective October 1, 2019. See 49 Pa.B. 3867 (2019).
In particular, the amendments to the Rule 1925 included clarification that an
order which directs appellant to file a concise statement must also provide
information as to the location where the appellant can serve the judge in
person and the address where the appellant can mail the statement.
The current version of Rule 1925, which was in effect at the time the
trial court ordered Mr. Rahn to file his statement, states in relevant part:
(b) Direction to file statement of errors complained of on
appeal; instructions to the appellant and the trial court. If
the judge entering the order giving rise to the notice of appeal
(“judge”) desires clarification of the errors complained of on
appeal, the judge may enter an order directing the appellant to
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file of record in the trial court and serve on the judge a concise
statement of the errors complained of on appeal (“Statement”).
(1) Filing and service. The appellant shall file of record the
Statement and concurrently shall serve the judge. Filing of record
shall be as provided in Pa.R.A.P. 121(a) and, if mail is used, shall
be complete on mailing if the appellant obtains a United States
Postal Service Form 3817, Certificate of Mailing, or other similar
United States Postal Service form from which the date of deposit
can be verified in compliance with the requirements set forth in
Pa.R.A.P. 1112(c). Service on the judge shall be at the
location specified in the order, and shall be either in
person, by mail, or by any other means specified in the
order. Service on the parties shall be concurrent with filing and
shall be by any means of service specified under Pa.R.A.P. 121(c).
(2) Time for filing and service.
(i) The judge shall allow the appellant at least 21 days from the
date of the order's entry on the docket for the filing and service of
the Statement. Upon application of the appellant and for good
cause shown, the judge may enlarge the time period initially
specified or permit an amended or supplemental Statement to be
filed.
***
(3) Contents of order. The judge's order directing the filing
and service of a Statement shall specify:
(i) the number of days after the date of entry of the judge's order
within which the appellant must file and serve the Statement;
(ii) that the Statement shall be filed of record;
(iii) that the Statement shall be served on the judge
pursuant to paragraph (b)(1) and both the place the
appellant can serve the Statement in person and the
address to which the appellant can mail the Statement. In
addition, the judge may provide an email, facsimile, or
other alternative means for the appellant to serve the
Statement on the judge; and
(iv) that any issue not properly included in the Statement timely
filed and served pursuant to subdivision (b) shall be deemed
waived.
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Pa.R.A.P. 1925(b) (emphasis added).
Our courts have consistently held that “in order to preserve their claims
for appellate review, appellants must comply whenever the trial court orders
them to file a Statement of Matters Complained of on Appeal pursuant to
Pa.R.A.P. 1925.” Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d
775, 780 (2005) (quoting Commonwealth v. Lord, [553 Pa. 415, 420,] 719
A.2d [306,] 309 [(1999)]). In Forest Highlands Community Ass’n v.
Hammer, 879 A.2d 223, 229 (Pa.Super. 2005), this Court found that the
appellant waived her issues on appeal by failing to serve the trial judge with
her court-ordered Rule 1925(b) statement. This Court held that the service
requirements in Rule 1925(b) are not satisfied when the appellant simply
mails his 1925(b) to the presiding judge of the court or merely files the
statement with the prothonotary, emphasizing that it is not the trial court’s
responsibility to manually search the prothonotary’s files. Id.
However, our courts have recognized that:
there are still operative exceptions to Rule 1925(b) waiver with
regard to timeliness. “[I]n determining whether an appellant has
waived his issues on appeal based on non-compliance with
Pa.R.A.P. 1925, it is the trial court's order that triggers an
appellant's obligation ... therefore, we look first to the language
of that order.” In re Estate of Boyle, 77 A.3d 674, 676
(Pa.Super.2013) (citing Berg v. Nationwide Mutual Ins. Co.,
607 Pa. 341, 6 A.3d 1002, 1007–08 (2010)).
Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d
222, 225 (Pa.Super. 2014).
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This Court has summarized the Opinion Announcing the Judgment of the
Court (OAJC) in Berg as follows:
In Berg, our Supreme Court considered whether an appellant's
failure to personally serve on a trial judge a court-ordered 1925(b)
statement, in accordance with Pa.R.A.P. 1925, results in waiver of
all issues, where the court's order itself does not comply with Rule
1925.... A plurality of our Pennsylvania Supreme Court held that,
in contravention of Rule 1925(b)(3), the express language of the
1925(b) order did not instruct the appellants to serve a copy of
their 1925(b) Statement on the trial judge; rather, it directed
them to file copies ... with the court and with the trial judge.
Accordingly, it concluded, the appellants substantially complied
with the court's order by attempting to provide the prothonotary
with two time-stamped copies of [their] 1925(b) statement, with
one to be served on the trial judge.
Commonwealth v. Jones, 193 A.3d 957, 961 (Pa.Super. 2018) (quoting
Estate of Boyle, 77 A.3d 674, 678 (Pa.Super. 2013) (cleaned up)). The OAJC
in Berg also stated that “where the trial court's order is inconsistent with the
requirements of Rule 1925(b)(3)(iii), we hold that the waiver provisions of
subsection (b)(4)(vii) do not apply.” Berg, 607 Pa. at 356, 6 A.3d at 1011
(2010).
In Jones, this Court declined to quash the appeal even though the
Commonwealth failed to properly serve the trial judge with its Rule 1925(b)
statement as this Court found the trial judge’s order was deficient in failing to
adequately inform the Commonwealth of its obligations under Rule 1925.
Jones, 193 A.3d at 962-963. In particular, this Court noted the trial court’s
order did not specify that the “Statement shall be served on the judge
pursuant to paragraph (b)(1)” as required by Pa.R.A.P. 1925(b)(3)(iii), but
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only indicated the statement was to be filed and served “with the court.” Id.
at 962. As such, this Court found that the order was ambiguous in that it used
the phrase “the court” without distinguishing between the Court of Common
Pleas as the court of record and “the court” in reference to the trial judge. Id.
In this case, the trial court entered an order in this case stating that Mr.
Rahn was required to “file and serve on this Court a concise Statement of
Errors Complained of on Appeal in accordance with Rule 1925(b)(1) of the
Pennsylvania Rules of Appellate Procedure addressing the jurisdictional basis
for its appeal.” Rule 1925(b) order, 11/20/19, at 1.
The trial court’s order fails to satisfy the requirements set forth in Rule
1925(b) in two ways. First, the order does not specify “that the Statement
shall be served on the judge pursuant to paragraph (b)(1)” as required by
Rule 1925(b)(3)(iii) but simply directed Mr. Rahn to file and serve the
Statement on the Court. Similar to Jones, the trial court’s order was
ambiguous to the extent that it did not distinguish between the Court of
Common Pleas and the trial judge when using the term “this Court.”
Second, the order did not satisfy the requirements set forth in the 2019
amendments to Rule 1925 which state that the order directing an appellant to
comply with Rule 1925 must specify “the place the appellant can serve the
Statement in person and the address to which the appellant can mail the
Statement.” See Pa.R.A.P. 1925(b)(3)(iii). As such, the trial judge failed to
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follow the express requirement of the amended Rule 1925(b) to provide Mr.
Rahn with specific information on how to serve his 1925(b) statement.
In light of these defects in the order, we decline to quash the appeal.
We need not address Mr. Rahn’s assertion that he substantially complied with
Rule 1925 in submitting his Concise Statement in a timely electronic filing and
providing the trial court with a copy of the statement after the relevant period
for filing had elapsed. As the order at issue did not specifically direct Mr. Rahn
to serve the trial judge with the statement or contain the requisite information
notifying Mr. Rahn where to serve the trial judge, we will not deem Mr. Rahn’s
issues waived as the trial court’s 1925(b) order is itself deficient.
Turning to the merits of the appeal, Mr. Rahn set forth the following
issues in his “Statement of Questions” (verbatim):
1. Whether the Trial Court abused its discretion in granting
[Consolidated Rail’s] Motion to Dismiss on the eve of trial.
2. Whether the Trial Court abused its discretion in finding that
weighty reasons existed to support dismissal under the
doctrine of forum non conveniens.
Mr. Rahn’s Brief at 2.
In reviewing the trial court’s decision to grant Consolidated Rail’s motion
to dismiss, we are guided by the following relevant principles:
Orders on motions to dismiss under the doctrine of forum
non conveniens are reviewed for an abuse of discretion. This
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
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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).6
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.”
***
[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,
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6 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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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
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).
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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
(Illinois) available. Moreover, Consolidated Rail has stipulated to waive the
statute of limitations, as well as not object on the basis of venue or personal
jurisdiction, if Mr. Rahn re-files in an appropriate jurisdiction.
Accordingly, we instead focus on the “weighty reasons” factor in the trial
court’s analysis of Consolidated Rail’s motion to dismiss for forum non
conveniens. In this regard, we note Mr. Rahn contends the trial court abused
its discretion in finding Consolidated Rail demonstrated “weighty reasons” to
overcome his choice of forum. He specifically avers that his case is
indistinguishable from Robbins for Estate of Robbins v. Consolidated Rail
Corporation, 212 A.3d 81 (Pa.Super. 2019). Consolidated Rail, on the other
hand, contends Mr. Rahn’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
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.
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Moreover, Mr. Wright lived in New York while working for the railroad
companies from 1974 to 2014, but moved to South Carolina upon 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) venue
standards into the analysis.7 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]
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
____________________________________________
7As 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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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 Mr. Rahn avers he 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 finding there were insufficient “weighty 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
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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
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
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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), this Court examined the holdings of Wright, supra, and
Robbins, supra. We note that 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 the trial court’s decision to deny
the motion to dismiss in one of the consolidated cases involving plaintiff
William R. Anderson. We discuss this particular case in further detail below.
In Ficarra, the record 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 to dismiss, the
railroad companies averred that 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
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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
that it should have granted the railroad companies’ motions in eight of the
cases, but continued to ask this Court to affirm its decision to deny
Consolidated Rail’s motion to dismiss in the case involving plaintiff Anderson.
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
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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
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
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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. Thus, in weighing the factors, we concluded the
trial court did not abuse its discretion in holding dismissal would be
appropriate based on forum non conveniens principles in eight of the nine
cases consolidated for review in Ficarra. See id.
However, as noted above, the Ficarra Court also affirmed the trial
court’s decision to deny Consolidated Rail’s motion to dismiss in the ninth
consolidated case involving plaintiff William R. Anderson (hereinafter
“Anderson”). See id. at 337-39. Specifically, we noted that the procedural
posture of Anderson’s 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. In addition, this Court noted that Anderson had set forth argument as to
the relevance of the testimony of the four former employees of Consolidated
Rail and their locations in Pennsylvania. Specifically, this Court provided:
Upon review, it is apparent that contrary to [Consolidated Rail’s]
claim, the near-trial readiness of Anderson's case was always a
factor in ruling on [Consolidated Rail’s] motion to dismiss. At the
September 20, 2018 hearing, Anderson opposed the motion to
dismiss in part because the case was almost trial-ready.
Specifically, Anderson's deposition was scheduled for September
28, 2018, discovery was to end November 5, 2018, and trial was
set for March 2019. Additionally, unlike the other eight cases,
Anderson raised a similar argument to Robbins, claiming that the
four former [Consolidated Rail] employees’ testimony would be
relevant to “notice and foreseeability” and as to what
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[Consolidated Rail] knew “about the dangers of the exposure to
asbestos [and diesel exhaust[, and] the dangers of cancer
relevant to the time [ ] Anderson worked for [Consolidated Rail.]”
Finally, Anderson averred not only that Comstock lived in
Pennsylvania, but that Kovac also resided in Pennsylvania.
Given this record, we discern no abuse of discretion in the
trial court's weighing the private and public interest factors
differently than the other eight cases and concluding that
“litigation in the plaintiff's chosen forum would serve the interests
of justice under the particular circumstances.” Robbins, 212 A.3d
at 87 (citation and quotation marks omitted).
Ficarra, 242 A.3d at 339 (footnote and some citations omitted).
Preliminarily, similar to our initial assessment in Ficarra, we
acknowledge the facts of the case sub judice appear at first glance to resemble
Robbins and the Ficarra court’s decision as to plaintiff Anderson. However,
there are important differences which weigh in favor of dismissal.
First, in considering the private factors, 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. Both of these
supervisors were retired. Robbins identified the four former Consolidated Rail
corporate employees, three of whom lived in Pennsylvania and one in Florida.
However, in this case, all of Mr. Rahn’s coworkers, supervisors, and his
seven diagnosing and treating physicians live outside of Pennsylvania, the
majority of whom live in Illinois. Consolidated Rail averred a substantial
disruption and cost to its business, as well as greater personal inconvenience
and cost to these witnesses, if they are required to travel to Pennsylvania, as
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opposed to Illinois. The trial court noted that Mr. Rahn himself, who is a long-
time resident of Illinois, admitted in his deposition testimony that he will not
be able to travel to Philadelphia for trial in this case due to health problems.8
Although the trial court considered that Mr. Rahn identified four
witnesses, all of whom formerly worked at the corporate headquarters of
Consolidated Rail in Pennsylvania, we agree that Mr. Rahn failed to present a
sufficient factual basis to allow the support its claims with respect to the
witnesses’ current residences and the relevance of their testimony. In our
review of the record, we note that Mr. Rahn alleged in his Response to
Consolidated Rail’s Motion to Dismiss that Ms. Comstock resides in Wayne,
Pennsylvania and vaguely alleged that Mr. Thomas and Mr. Kovac “also reside
in the Philadelphia area.” Response to Motion to Dismiss at ¶ 35. Mr. Rahn
did not attempt to identify where Mr. Barringer resides. In addition, Mr. Rahn
did not indicate how these particular witnesses could offer specific testimony
that would be relevant to Mr. Rahn’s claims.
____________________________________________
8 We also note that Mr. Rahn’s counsel claimed in opposition to Consolidated
Rail’s motion to dismiss that while Mr. Rahn was unable to attend a deposition
in Philadelphia due to “prior complications,” Mr. Rahn intended to travel to
Philadelphia for trial.
However, we point out that, just hours after Mr. Rahn’s counsel filed his
supplemental brief on this issue and skirted the issue of whether Mr. Rahn
would attend trial in Philadelphia, Mr. Rahn’s counsel sent an email to
Consolidated Rail’s attorneys indicating that he intended to take Mr. Rahn’s
trial deposition in Chicago, Illinois, instead of having him travel to Philadelphia.
Consolidated Rail’s Second Supplemental Brief, 10/15/19 (Exhibit 1). We
admonish Mr. Rahn’s counsel for his failure to be candid in presenting the trial
court with all of the relevant facts necessary to reach a decision in his case.
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Nevertheless, we note that the trial court determined, “even if these
witnesses are relevant to [Mr. Rahn’s claims], the undisputed facts make it
clear that almost all of the potential witnesses with any connection to the
underlying case reside in Illinois, thereby establishing Illinois as a more
convenient forum where the litigation could be conducted more easily,
expeditiously, and inexpensively.” Trial Court Opinion, filed 6/15/20, at 5.
Second, 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. See id. There
was no such finding by the trial court in Robbins.
We also acknowledge the similarity of this case to the circumstances
presented by one of the individual plaintiffs in Ficarra (Anderson). As noted
above, this Court found the trial court properly denied Consolidated Rail’s
motion to dismiss based on forum non conveniens in part due to the fact that
discovery was complete and the trial date had been set. See Ficarra, supra.
In that case, Anderson had consistently objected to dismissal based on the
fact that the case was nearly trial-ready. See id.
However, in this case, we find it disingenuous for Mr. Rahn to assert the
case should not be dismissed because Consolidated Rail waited eighteen
months after Mr. Rahn filed his complaint to file the motion to dismiss. Mr.
Rahn fails to acknowledge that, as a result of his averments in his complaint
and responses in discovery, Consolidated Rail was unaware of a key operative
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fact that would have supported filing an earlier motion to dismiss on the basis
of forum non conveniens.
As noted above, Mr. Rahn claimed in his amended complaint and his
responses to discovery requests that his cancer was caused or contributed to
from his exposure to substances while working with Consolidated Rail in
Philadelphia. It was not until Mr. Rahn’s deposition, which was taken in
Chicago, Illinois on April 22-23, 2019, that Mr. Rahn recanted the verified
allegations in his complaint and in discovery and for the first time claimed that
he was not exposed to toxic substances while he was employed for
Consolidated Rail in Philadelphia as he worked at a desk job.
Once it became clear to Consolidated Rail that Mr. Rahn’s claims of
exposure did not relate to his brief employment in Pennsylvania and instead
stemmed from his employment with Consolidated Rail in Illinois, Michigan,
Indiana, and Ohio, Consolidated Rail filed its motion to dismiss on the basis of
forum non conveniens.
Moreover, Mr. Rahn did not raise this timeliness argument in his
opposition to the timeliness of Consolidated Rail’s motion to dismiss. Mr. Rahn
waited until he filed his court-ordered supplemental brief on the forum non
conveniens issue to argue that Consolidated Rail’s motion to dismiss should
not be granted when the case was trial-ready.
Thus, considering the entire record, we find no abuse of discretion. The
trial court properly weighed the private and public factors using the correct
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evidentiary burden and found that Consolidated Rail met its burden of
demonstrating “weighty reasons” for dismissal. Thus, we affirm the order
granting Consolidated Rail’s 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.
Judge Nichols join the Opinion.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/21
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