Burnett, R. v. Penn Central Corp. ( 2021 )

J-A05037-21
2021 PA Super 70RONALD L. BURNETT : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
PENN CENTRAL CORPORATION A/K/A : No. 1149 EDA 2020
AMERICAN PREMIER :
UNDERWRITERS, INC AND :
CONSOLIDATED RAIL CORPORATION :
AND CSX TRANSPORTATION, INC :
Appeal from the Order Dated February 26, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 190607181
BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED APRIL 15, 2021
Appellant Ronald L. Burnett (“Mr. Burnett”) appeals from the order
granting the motion filed by Appellees Penn Central Corporation1 a/k/a
American Premier Underwriters, Inc. (“American Premier”), Consolidated Rail
Corporation (“Consolidated Rail”), and CSX Transportation, Inc. (“CSX
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Penn Central Corporation (“Penn Central”), which was incorporated in
Pennsylvania with its corporate headquarters in Philadelphia, filed for
bankruptcy and ceased all railroad operations in the 1970s. All properties of
Penn Central became properties of the trustees in Penn Central’s bankruptcy.
Thereafter, as part of the Regional Rail Reorganization Act, 45 U.S.C. § 701et seq., Congress created Consolidated Rail, and all employees of Penn Central
were offered continued employment with Consolidated Rail. American Premier
is a successor in interest to Penn Central’s non-railroad assets and is primarily
engaged in the business of insurance.
J-A05037-21
Transportation”) (collectively “Appellees”) to dismiss Mr. Burnett’s complaint
filed in the Court of Common Pleas of Philadelphia County based on the
doctrine of forum non conveniens, for re-filing in a more appropriate forum.
After a careful review, we affirm.
The relevant facts and procedural history are as follows: Mr. Burnett is
a non-resident of Pennsylvania and resides in Chicago, Illinois. He instituted
the instant action pursuant to FELA2 and LIA3 against American Premier, which
is incorporated in Pennsylvania with an address for service in Harrisburg,
Consolidated Rail, which is incorporated in Pennsylvania with a principal place
of business in Philadelphia, and CSX Transportation, which is incorporated in
Virginia with an address for service in Florida.4
Mr. Burnett averred Appellees conduct business in and have substantial
contacts with Philadelphia. He specifically averred Appellees are “engaged in
interstate commerce as a common carrier by rail, operating a line and system
of railroads and transacting substantial business in the Commonwealth of
____________________________________________
2 Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60.
3 Locomotive Inspection Act (“LIA”), 49 USC § 20701.
4 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.
-2-
J-A05037-21
Pennsylvania, including Philadelphia County.” Mr. Burnett’s Second Amended
Complaint, filed 11/13/19.5
Mr. Burnett averred that, from 1964 to 2002, he was employed by
Appellees as a brakeman, conductor, policeman, yardmaster, and trainmaster
at rail yards in Chicago, Illinois, as well as neighboring Hammond, Indiana.
He further averred that, as a result of his job duties, he was exposed to
chemicals and cancer-causing substances, which resulted in his development
of lung and throat cancer. He posited Appellees were negligent in failing to
provide him with a reasonably safe work place as required under the relevant
statutes.
On December 3, 2019, Appellees filed a joint motion to dismiss under
42 Pa.C.S.A. § 5322(e) and the doctrine of forum non conveniens. In support
of their motion, Appellees attached Mr. Burnett’s answers to interrogatories,
as well as two affidavits from Lauren Lamp, Field Investigations Specialist II
for CSX Transportation.
Relevantly, in the motion to dismiss, Appellees indicated that Mr.
Burnett admitted he is a twenty-year resident of Chicago, Illinois, and he has
never lived in Pennsylvania. Appellees’ Motion to Dismiss, filed 12/3/19, at 4.
____________________________________________
5 We note Mr. Burnett filed a complaint on June 26, 2019, an amended
complaint on August 15, 2019, and a second amended complaint with court
permission on November 13, 2019. The second amended complaint is not
paginated.
-3-
J-A05037-21
Mr. Burnett admitted he worked at the Ashland Train Yard in Chicago, Illinois,
and the Colehour Train Yard in Hammond, Indiana, for the duration of his
employment with Appellees.6 Id. He never worked for Appellees in
Pennsylvania. Id.
Mr. Burnett admitted he was not diagnosed with his illness in
Pennsylvania, and he never received medical treatment in Pennsylvania for
the illness underlying the instant action. Id. Appellees listed three physicians,
who treated Mr. Burnett in Illinois and would have knowledge of Mr. Burnett’s
illness. Id.
Additionally, Appellees indicated a viewing of Mr. Burnett’s work sites
would be “important” in this case. Id. at 21. In this vein, Appellees asserted:
It is important to show the jury the enormity of the premises
underlying [Mr. Burnett’s] claims, where he worked, the
locomotives that he worked in and around, and to dispel any
notion that [Mr. Burnett] was, as he claims, exposed to allegedly
injurious substances while working in rail yards and in and around
any locomotives….[M]odern technology cannot obviate the need
for site visits.
Id. (citation omitted).
In her first supporting affidavit, Ms. Lamp confirmed that Mr. Burnett’s
work record reveals he worked for Appellees at rail yards in Illinois and
Indiana. Ms. Lamp identified three of Mr. Burnett’s former co-workers and
supervisors, including T.W. Horan, J.G. Eannace, and A.J. McCormick, all of
____________________________________________
6 Appellees aver the train yards in Illinois and Indiana are approximately a
thirty-six minute drive from one another. Id. at 18.
-4-
J-A05037-21
whom reside in Illinois. Ms. Lamp noted Mr. Burnett’s employment records
are stored in Florida and New Jersey.
In her second supporting affidavit, Ms. Lamp identified four additional
former co-workers and supervisors, including E. Hessert, K.I. Miller, D.C. Litto,
and R.E. McCarter, all of whom worked with Mr. Burnett. Mr. Hessert and Mr.
Litto reside in Illinois, while Mr. Miller and Mr. McCarter reside in Indiana. Ms.
Lamp indicated that any yet-to-be-identified co-workers and supervisors of
Mr. Burnett would logically be expected to be located in Indiana or Illinois
since he never worked at any Pennsylvania location.
Ms. Lamp further indicated Appellees’ former employees will suffer
greater personal disruption, inconvenience, and costs to travel to
Pennsylvania, as opposed to Illinois or neighboring Indiana for trial. Appellees
noted its witnesses are more likely to testify voluntarily if trial is held in Illinois
or Indiana, as opposed to Pennsylvania. Id. at 21.
Moreover, Appellees argued Philadelphia County is suffering from court
congestion, administrative difficulties, and an undue burden on juries due to
an “explosion of out-of-state filing” of mass tort cases. Id.
Based on the aforementioned, Appellees averred the instant action has
no bona fide connection to Pennsylvania, and dismissal of the action is proper
since there is a more convenient forum where litigation could be conducted
more easily, expeditiously, and inexpensively. Additionally, Appellees
reasoned the only connection between Pennsylvania and the instant matter is
-5-
J-A05037-21
that Consolidated Rail has its headquarters in Pennsylvania and American
Premier is incorporated in Pennsylvania. However, Appellees argued these
connections are unrelated to Mr. Burnett’s claim that he suffered injury in
connection with his employment in Illinois and Indiana.
Appellees indicated they agreed to waive the statute of limitations if Mr.
Burnett re-filed his action in Illinois, 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 Illinois, or some other proper forum.
On December 23, 2019, Mr. Burnett filed a response in opposition to
Appellees’ motion to dismiss for forum non conveniens, as well as a supporting
memorandum. Therein, Mr. Burnett admitted he did not live, work, own
property, or receive medical treatment in Pennsylvania. Moreover, he
admitted his former co-workers and supervisors “predominantly reside in
Illinois.” Mr. Burnett’s Response to Appellees’ Motion to Dismiss, filed
12/23/19, at 3.
However, Mr. Burnett denied that all of his fact witnesses are located
outside of Pennsylvania. Specifically, he indicated:
[Mr. Burnett] intends to call four former [Consolidated Rail]
corporate witnesses who worked for [Consolidated Rail] at its
headquarters in Philadelphia, Pennsylvania. [Mr. Burnett] intends
to call Ramon Thomas, who was [Consolidated Rail’s] industrial
hygiene manager who worked for [Consolidated Rail]. Mr.
Thomas currently works in Philadelphia and lives in Yardley,
Pennsylvania. [Mr. Burnett] intends to call William Barringer, who
was [Consolidated Rail’s] safety director who worked for
[Consolidated Rail] in Philadelphia, Pennsylvania. Mr. Barringer
currently lives in Naples, Florida. [Consolidated Rail] routinely
-6-
J-A05037-21
brings Mr. Barringer to testify live in Philadelphia, Pennsylvania.
[Mr. Burnett] intends to call Marcia Comstock, M.D., who was
[Consolidated Rail’s] former medical director who worked for
[Consolidated Rail] in Philadelphia. Dr. Comstock lives in Wayne,
Pennsylvania. [Mr. Burnett] intends to call Paul Kovac, who was
[Consolidated Rail’s] claims manager who worked for
[Consolidated Rail] in Philadelphia, Pennsylvania. Mr. Kovac lives
in Hatboro, Pennsylvania.
Id.
Additionally, Mr. Burnett elaborated that he intended to call the four
former Consolidated Rail corporate witnesses because they “were responsible
for developing industrial hygiene, safety and medical programs to prevent
employees from developing cancer due to exposure to diesel exhaust and
asbestos [and] failed to do so in a timely and adequate manner.” Id. at 13.
Mr. Burnett averred “[t]hat is negligence under FELA. That is why the four
former [Consolidated Rail] corporate employees’ testimony is relevant[.]” Id.
In support of this claim, Mr. Burnett attached as exhibits to his response the
notes of testimony given by Mr. Thomas and Mr. Barringer in two unrelated
FELA cases in the Court of Common Pleas of Philadelphia County.
Mr. Burnett contended the current conditions of his work place at the
rail yards in Illinois and Indiana are irrelevant to his working conditions from
1964 to 2002 when he worked for Appellees. Id. at 8. Moreover, he averred
that, in addition to Consolidated Rail being incorporated in Pennsylvania with
its headquarters in Philadelphia, Penn Central was incorporated in
Pennsylvania with its corporate headquarters in Philadelphia. See id. at 12.
-7-
J-A05037-21
He posited that Philadelphia has judicial resources and experience with FELA
cases to ensure a just trial.
On February 21, 2020, Appellees filed a reply to Mr. Burnett’s response
in opposition to their motion to dismiss. Therein, Appellees argued that, since
Mr. Burnett’s complaint alleges exposure to cancer-causing substances that
occurred at rail yards in Illinois and Indiana, his former co-workers and
supervisors, who reside in Illinois or Indiana, would have the information
necessary to testify about Mr. Burnett’s work responsibilities, work conditions,
and alleged exposure. Appellees noted they have conducted additional
investigation and have uncovered additional co-workers and supervisors who
are knowledgeable about Mr. Burnett’s working conditions in Indiana or
Illinois. All of these additional witnesses reside in Indiana or Illinois
Moreover, in support of these averments, Appellees attached to their
reply two supplemental affidavits from Ms. Lamp. In the first supplemental
affidavit, Ms. Lamp identified additional former co-workers and supervisors of
Mr. Burnett’s as including: B.D. Regans, J.H. Wright, M.R. Alamprese, M.W.
Beague, W.L. Schmidt, A.E. Rucker, E.C. Wacker, J.F. Kasmier, and J.M. Ruiz.
Ms. Lamp indicated all of these witnesses reside in either Indiana or Illinois.
Moreover, Mr. Regans and Mr. Ruiz are current employees of CSX
Transportation.
In her second supplemental affidavit, Ms. Lamp indicated business
records from Consolidated Rail indicate that Marcia Comstock, William
-8-
J-A05037-21
Barringer, Ramon Thomas, and Paul Kovac have not been employed by
Appellees since 1998. Moreover, Mr. Barringer resides in Florida.
On February 26, 2020, the matter proceeded to a hearing at which the
trial court heard oral argument in support of the parties’ respective positions.
At the conclusion of the hearing, the trial court granted Appellees’ motion to
dismiss the instant action based on forum non conveniens and dismissed Mr.
Burnett’s complaint without prejudice to his right to re-file in Illinois or some
other appropriate jurisdiction. Specifically, the trial court stated the following:
So weighing the public and private factors, I find that it’s
appropriate to grant defendants’ motion to dismiss this case.
Among other factors I’m reviewing or considering is that the
plaintiff is an Illinois resident and worked in Illinois and Indiana
facilities; that the balance of witnesses are located here in Illinois
and Indiana and that the plaintiff received medical treatment in
Illinois. And so I’ll sign the order.
N.T., 2/26/20, at 6-7.
Mr. Burnett filed a timely notice of appeal, and the trial court directed
Mr. Burnett to file a Pa.R.A.P. 1925(b) statement. Mr. Burnett timely
complied, and the trial court filed a Rule 1925(a) opinion setting forth in
greater detail the reasons for its ruling:
At the outset, the trial court notes that [Mr. Burnett]
currently resides in Chicago, Illinois, and that the alleged unsafe
workplace was located in Illinois and Indiana.
***
All of the identified sources of proof of [Mr. Burnett’s] claim-
-such as the alleged unsafe work environment, [Mr. Burnett’s]
former supervisors and co-workers, etc.--are located in or nearer
to Illinois or Indiana, rather than in or near Philadelphia County,
Pennsylvania. [Mr. Burnett] has never been a resident of or
-9-
J-A05037-21
worked in Pennsylvania. Rather, [Mr. Burnett] lived in Chicago,
Illinois, for at least 20 years and worked for [Appellees] in and
around Chicago, Illinois, for at least 38 years. [Mr. Burnett’s]
alleged injury occurred at rail yards in Illinois and Indiana. All of
[Mr. Burnett’s] diagnosing and treating physicians are located
outside of Pennsylvania, and [Mr. Burnett] received all of his
relevant medical treatment outside of Pennsylvania. Finally, all of
his medical records and employment records are located outside
of Pennsylvania.
***
In further support of their motion to dismiss, [Appellees]
identified sixteen trial witnesses who live in Illinois and Indiana.
Additionally, [Appellees] noted that any yet-to-be identified
former supervisors and co-workers of [Mr. Burnett] are more
likely living in Illinois or Indiana than in Pennsylvania.2
______________________________________________
2
Contrary to [Mr. Burnett’s] claim of error, the trial court considered (1)
both the inconvenience of [Appellees’] sixteen potential trial witnesses
as well as the inconvenience of [Mr. Burnett’s] four potential trial
witnesses; and (2) that four of [Mr. Burnett’s] fact witnesses had worked
for [Consolidated Rail] at its corporate headquarters in Philadelphia
County. Nevertheless, the trial court did not abuse its discretion in
determining that the private and public factors were strongly in favor of
dismissing the action pursuant to Section 5322(e).
As such, it is beyond peradventure that it is easier for the
parties to access sources of proof from Illinois or Indiana rather
than from Philadelphia County, Pennsylvania.
***
[Moreover,] the trial court reasonably concluded that it
would be less expensive to have witnesses attend a trial in Illinois
or Indiana than in Philadelphia County, Pennsylvania. This is
because the overwhelming number of witnesses--especially [Mr.
Burnett’s] former co-workers and supervisors--reside in the state
of Illinois or Indiana.
***
It would be easier for the fact-finder to view the premises
from Illinois or Indiana than from Philadelphia County,
Pennsylvania, because the rail yard that [Mr. Burnett] claims was
the only source of his injuries is located in Illinois and Indiana.
***
- 10 -
J-A05037-21
Trying this case in Philadelphia County, Pennsylvania,
creates some administrative difficulties for Philadelphia County,
Pennsylvania, as compared to trying this case in Illinois or
Indiana.
***
Considering the minimal connections this case has with
Philadelphia County, the trial court reasonably decided not to
impose the burden of jury duty upon the citizens of Philadelphia
County based upon such minimal connections.4
In light of the above, the trial court did not abuse its
discretion in determining that the private and public factors were
strongly in favor of dismissing the action pursuant to Section
5322(e).
4
Contrary to [Mr. Burnett’s] claims of error, the trial court considered
the fact that Penn Central and [Consolidated Rail] are Pennsylvania
Corporations and that [Consolidated Rail’s] principal place of business is
located in Philadelphia County, Pennsylvania. However, such facts do
not preclude dismissal on the basis of forum non conveniens. Wright
v. Consolidated Rail Corporation, 215 A.3d 982, 994-96 (Pa.Super.
2019) (holding that the fact that the moving party does business in or
has its principal place of business in a plaintiff’s choice of forum supports
venue, but it does not preclude dismissal based on forum non
conveniens). Therefore, the trial court did not abuse its discretion in
determining that the private and public factors were strongly in favor of
dismissing the action pursuant to Section 5322(e).
Trial Court Opinion, filed 7/30/20, at 5-8 (citations to record and footnote
omitted).
On appeal, Mr. Burnett sets forth the following issues in his “Statement
of Questions Presented” (verbatim):
1. Whether the Trial Court abused its discretion in finding that
weighty reasons existed to support dismissal under the
doctrine of forum non conveniens?
2. Whether the Trial Court should have considered not only that
[Consolidated Rail] and Penn Central were Pennsylvania
corporations and that both of their corporate headquarters
were located in Philadelphia, PA, but also that four of the
Plaintiff’s fact witnesses worked for [Consolidated Rail] at its
corporate headquarters in Philadelphia, PA?
- 11 -
J-A05037-21
3. Whether the Trial Court erred in considering the inconvenience
of Defendants’ potential hypothetical fact witnesses over the
actual inconvenience of Plaintiff’s four fact witnesses who
would be required to travel to Illinois for trial?
Mr. Burnett’s Brief at 2.7
Initially, we note the following relevant principles, which guide our
review:
Orders on motions to dismiss under the doctrine of forum
non conveniens are reviewed for an abuse of discretion. This
standard applies even where jurisdictional requirements are met.
Moreover, if there is any basis for the trial court’s decision, the
decision must stand.
An abuse of discretion occurs if, inter alia, there was an error
of law or the judgment was manifestly unreasonable. When
reviewing for errors of law, the appellate standard of review is de
novo and the scope of review is plenary.
In Pennsylvania, the doctrine of forum non conveniens,
which originated in Common Law, has been codified by statute:
Inconvenient forum.-When a tribunal finds that in
the interest of substantial justice the matter should be
heard in another forum, the tribunal may stay or
dismiss the matter in whole or in part on any
conditions that may be just.
42 Pa.C.S.A. § 5322(e).
____________________________________________
7 Although Mr. Burnett has set forth three separate issues in his “Statement
of Questions Presented,” he intertwines and discusses the issues together in
the argument portion of his brief. We shall treat the issues in a similar
manner.
- 12 -
J-A05037-21
Hovatter v. CSX Transportation, Inc., 193 A.3d 420, 424 (Pa.Super. 2018)
(quotation marks, quotations, and citations omitted).8
The doctrine of forum non conveniens “provides the court with a means
of looking beyond technical considerations such as jurisdiction and venue to
determine whether litigation in the plaintiff’s chosen forum would serve the
interests of justice under the particular circumstances.” Alford, 531 A.2d at
794 (citation omitted).
The two most important factors the trial court must apply
when considering whether dismissal is warranted are that “1.) the
plaintiff’s choice of forum should not be disturbed except for
‘weighty reasons,’ and 2.) there must be an alternate forum
available or the action may not be dismissed.”
***
[W]ith respect to the initial factor, we note that “a court may
find that the presumption in favor of a plaintiff’s choice of forum
may be less stringently considered when the plaintiff has chosen
a foreign forum to litigate his or her claims.” Furthermore,
To determine whether such “weighty reasons”
exist as would overcome the plaintiff’s choice of
forum, the trial court must examine both the private
and public interest factors involved. Petty v.
Suburban General Hospital, 525 A.2d 1230, 1232
(Pa.Super. 1987). The Petty Court reiterated the
considerations germane to a determination of both the
plaintiff’s private interests and those of the public as
defined by the United States Supreme Court in Gulf
Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839(1947). They are:
____________________________________________
8 Our courts lack the authority to transfer matters to courts of our sister
states; but rather, when appropriate, our courts should dismiss the action to
permit re-filing in another state. See Alford v. Philadelphia Coca-Cola
Bottling Co., Inc., 531 A.2d 792 (Pa.Super. 1987).
- 13 -
J-A05037-21
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).
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, Appellees have stipulated to waive the statute
of limitations, as well as not object on the basis of venue or personal
jurisdiction, if Mr. Burnett re-files in an appropriate jurisdiction.
- 14 -
J-A05037-21
Accordingly, we instead focus on the “weighty reasons” factor in the trial
court’s analysis of Appellees’ motion to dismiss for forum non conveniens. In
this regard, we note Mr. Burnett contends the trial court abused its discretion
in finding Appellees demonstrated “weighty reasons” to overcome his choice
of forum. He specifically avers his case is indistinguishable from Robbins for
Estate of Robbins v. Consolidated Rail Corporation, 212 A.3d 81(Pa.Super. 2019). Appellees, on the other hand, contend Mr. Burnett’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.
Moreover, Mr. Wright lived in New York while working for the railroad
companies from 1974 to 2014; however, he moved to South Carolina upon
his retirement. All of his treating physicians and medical files were located in
New York, New Jersey, or Florida, and all of his fact witnesses were former or
current railroad workers who resided outside of Pennsylvania. See Wright,
supra.
- 15 -
J-A05037-21
Accordingly, based on the record in Wright, this Court held the trial
court abused its discretion in denying Consolidated Rail’s and CSX
Transportation’s motion to dismiss based on forum non conveniens. In so
holding, we noted the trial court erred in giving great deference to Mr. Wright’s
choice of forum and incorporating “plaintiff-friendly” Pa.R.C.P. 1006(d)
standards into the analysis.9 Id. at 992. Further, we noted the trial court
erred in concluding that Consolidated Rail’s and CSX Transportation’s sworn
affidavits were insufficient regarding the New York residency of their
witnesses. Id. at 993. We specifically held that “inasmuch as the trial court
determined there is no dispute that [] Wright worked for [Consolidated Rail
and CSX Transportation] exclusively in New York, [the] assertion in [their]
affidavits that most or all of [their] witnesses reside primarily, if not
exclusively, in New York does not require additional record support.” Id. at
993-94. Accordingly, we reversed and remanded as it pertained to the trial
court’s consideration of Consolidated Rail’s and CSX Transportation’s affidavits
and evidentiary burden. Id.
In Robbins, supra, Consolidated Rail and Penn Central filed a motion
to dismiss for forum non conveniens because the decedent’s injuries occurred
in Indiana and their two proposed witnesses were located outside of
____________________________________________
9As this Court acknowledged in Wright, “a defendant bears a heavier burden
under Pa.R.C.P. 1006(d)(1), which permits [intrastate] forum transfers only
when the defendant establishes that a plaintiff’s chosen forum is oppressive
and vexatious for the defendant.” Wright, 215 A.3d at 992.
- 16 -
J-A05037-21
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. Burnett 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 concluding 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
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,
- 17 -
J-A05037-21
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
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.
- 18 -
J-A05037-21
Recently, in Ficarra v. Consolidated Rail Corporation, 242 A.3d 323(Pa.Super. 2020),10 this Court examined the holdings of Wright, supra, and
Robbins, supra.
In Ficarra, the record before the trial court demonstrated that none of
the plaintiffs resided in Pennsylvania, and all of the plaintiffs worked for the
railroad companies outside of Pennsylvania from 1953 to 2012. In its motion
to dismiss, the railroad companies averred none of the potential fact witnesses
or sources of proof resided in Pennsylvania; the railroad companies would be
unable to avail themselves of compulsory process for attendance of unwilling
non-Pennsylvania witnesses; there would be a high cost of obtaining
attendance of willing out-of-state witnesses; a fact-finder in Pennsylvania
would be unable to view easily the plaintiffs’ work premises; and there would
be a burden on Pennsylvania courts, taxpayers, and jury pool. Ficarra,
supra.
____________________________________________
10 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 in one of the cases.
Specifically, with regard to the latter, we noted the procedural posture
of the case was such that it was “trial ready” with discovery complete and a
trial term set by the Philadelphia Court of Common Pleas. See id. Thus, in
weighing the factors, we concluded the trial court did not abuse its discretion
in holding dismissal would be inappropriate based on forum non conveniens.
See id. We specifically note the case sub judice is distinguishable from the
latter case in Ficarra since the case is not “trial ready” in Philadelphia County.
- 19 -
J-A05037-21
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. See id. Upon
review, this Court agreed.
Specifically, we acknowledged the plaintiffs in Ficarra, similar to the
plaintiff in Robbins, listed Comstock, Barringer, Thomas, and Kovac as four
witnesses they intended to call at trial. We also acknowledged that “at first
glance [the] plaintiffs’ cases strikingly resemble Robbins.” Ficarra, 242 A.3d
at 336. However, we concluded there were two important distinctions
between Ficarra and Robbins.
- 20 -
J-A05037-21
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
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.
- 21 -
J-A05037-21
Ficarra, 242 A.3d at 337.
Preliminarily, similar to our initial assessment in Ficarra, we
acknowledge the facts of the case sub judice appear at first glance to resemble
Robbins. However, there are important differences, which weigh in favor of
dismissal.
First, in Robbins, where the decedent worked exclusively in Indiana,
the railroad companies indicated it planned to call as witnesses two of the
decedent’s former supervisors: Dale Mason, who resided in Illinois, and
Charles Toney, who resided in Indiana. Both of these supervisors were retired.
However, in the case sub judice, Appellees informed the trial court, and
provided supporting affidavits, indicating they had identified sixteen of Mr.
Burnett’s former co-workers and supervisors, two of whom are actively
working for Appellees. Moreover, all sixteen of these former co-workers and
supervisors reside in Illinois or Indiana. Appellees averred a substantial
disruption and cost to their business, as well as greater personal
inconvenience and cost to these witnesses, if they are required to travel to
Pennsylvania, as opposed to Illinois or Indiana. As the trial court determined,
“the overwhelming number of witnesses--especially [Mr. Burnett’s] former co-
workers and supervisors-- reside in the state of Illinois or Indiana.” Trial Court
Opinion, filed 7/30/20, at 7 (footnote omitted).
Furthermore, in Robbins, this Court specifically recognized that “a
viewing of the site was not at issue.” Robbins, 212 A.3d at 90 n.8. However,
- 22 -
J-A05037-21
in the case sub judice, Appellees averred it would be “important” to visit Mr.
Burnett’s work sites during trial. See Appellees’ Motion to Dismiss, filed
12/3/19, at 21. The trial court accepted Appellees’ argument and concluded
the necessity of viewing the work premises weighed in favor of dismissal. Trial
Court Opinion, filed 7/30/20, at 7.
As it pertains to the public factors, in the case sub judice, the trial court
concluded there would be more administrative difficulties if the case is tried in
Philadelphia, Pennsylvania, as opposed to Illinois or Indiana. There was no
such finding by the trial court in Robbins.
Accordingly, although the trial court accepted in this case that Mr.
Burnett identified four witnesses, all of whom formerly worked for
Consolidated Rail in Pennsylvania,11 and three of whom presently reside in
Pennsylvania,12 the trial court held that, upon weighing all of the relevant
factors, Appellees met their burden of demonstrating “weighty reasons” for
dismissal.
____________________________________________
11 To the extent Mr. Burnett avers the trial court did not consider the fact he
had four fact witnesses, all of whom previously worked for Consolidated Rail
at its corporate headquarters in Philadelphia, we find no merit. The trial court
indicated it considered Mr. Burnett’s witnesses in assessing whether Appellees
demonstrated “weighty reasons” for dismissal. See Trial Court Opinion, filed
7/30/20, at 6 n.2.
12Based on the record in Robbins, the trial court determined that all four of
the plaintiff’s witnesses (Comstock, Barringer, Thomas, and Kovac) resided in
Pennsylvania. In the case sub judice, the record revealed Mr. Barringer
resides in Florida.
- 23 -
J-A05037-21
Based on the record, we find no abuse of discretion. The trial court
properly weighed the private and public factors using the correct evidentiary
burden. Ficarra, supra. Thus, we affirm the order granting Appellees’
motion to dismiss.
As this Court has previously recognized, it is within the trial court’s
discretion to weigh some factors more heavily than others and weighing the
factors is not “an exercise in counting numbers.” Bochetto, 151 A.3d at
1083. See Hovatter, supra (holding that, in reviewing orders dismissing an
action under the doctrine of forum non conveniens, if there is any basis for
the trial court’s decision, the decision must stand).
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2021
- 24 -