Deangelis, C. v. Penn Central Corp. ( 2021 )

J-A05036-21
2021 PA Super 69CHERYLE A. DEANGELIS, PERSONAL : IN THE SUPERIOR COURT OF
REPRESENTATIVE FOR THE ESTATE : PENNSYLVANIA
OF: LAURENCE BLOOM :
:
Appellant :
:
:
v. :
: No. 782 EDA 2020
:
PENN CENTRAL CORPORATION A/K/A :
AMERICAN PREMIER :
UNDERWRITERS, INC., AND :
CONSOLIDATED RAIL CORPORATION :
Appeal from the Order Dated January 22, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 190401270
BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED APRIL 15, 2021
Appellant Cheryle A. DeAngelis (“Ms. DeAngelis”), who is the personal
representative for the estate of Laurence Bloom (“the decedent”), appeals
from the order granting the motion filed by Appellees Penn Central
Corporation1 a/k/a American Premier Underwriters, Inc. (“American
____________________________________________
*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
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Premier”), and Consolidated Rail Corporation (“Consolidated Rail”)
(collectively “Appellees”) to dismiss Ms. DeAngelis’ complaint filed in the Court
of Common Pleas of Philadelphia County based on the doctrine of forum non
conveniens, for re-filing in a more appropriate forum. After a careful review,
we affirm.
The relevant facts and procedural history are as follows: Ms. DeAngelis,
who is a resident of Venice, Florida, instituted the instant action pursuant to
FELA2 and LIA3 against American Premier, which is incorporated in
Pennsylvania with an address for service in Harrisburg, and Consolidated Rail,
which is incorporated in Pennsylvania with a principal place of business in
Philadelphia.
Ms. DeAngelis averred Appellees conduct business in and have
substantial contacts with Philadelphia. She specifically averred Appellees are
“engaged in interstate commerce as a common carrier by rail, operating a line
and system of railroads and transacting substantial business in the
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is a successor in interest to Penn Central’s non-railroad assets and is primarily
engaged in the business of insurance.
2 Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60.
3 Locomotive Inspection Act (“LIA”), 49 USC § 20701.
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Commonwealth of Pennsylvania and other states of the United States.” Ms.
DeAngelis’ Second Amended Complaint, filed 7/15/19.4
Ms. DeAngelis averred that, from 1967 to 1982, the decedent worked
for Appellees as a fireman and engineer in and around Rochester, New York.
She further averred that, as a result of the decedent’s job duties, he was
exposed to chemicals and cancer-causing substances, which resulted in the
decedent’s death from laryngeal cancer on November 19, 2016. She posited
Appellees were negligent in failing to provide the decedent with a reasonably
safe work place as required under the relevant statutes.
On October 29, 2019, Appellees filed a joint motion to dismiss under 42
Pa.C.S.A. § 5322(e) and the doctrine of forum non conveniens. In support of
their motion, Appellees attached Ms. DeAngelis’ answers to interrogatories, as
well as an affidavit from Lauren Lamp, Field Investigations Specialist II for
CSX Transportation, Inc. (“CSX Transportation”).5
Relevantly, in the motion to dismiss, Appellees indicated the decedent
lived in New York, except for the last five years of his life when he lived in
____________________________________________
4 We note Ms. DeAngelis filed a complaint on April 8, 2019, an amended
complaint on May 16, 2019, and a second amended complaint with court
permission on July 15, 2019. The second amended complaint is not paginated.
5 In July of 1998, the Surface Transportation Board approved a plan by which
CSX Transportation and Norfolk Southern Corporation acquired Consolidated
Rail through a joint stock purchase, and they split most of Consolidated Rail’s
assets between them. CSX Transportation and Norfolk Southern Corporation
took administrative control of Consolidated Rail on August 22, 1998.
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Florida. Ms. DeAngelis currently lives in Florida. Neither the decedent nor Ms.
DeAngelis have ever resided in Pennsylvania. Appellees’ Motion to Dismiss,
filed 10/29/19, at 3. The decedent worked in and around Rochester, New
York. Id. at 4. Specifically, he drove “the train from Rochester, New York, to
Buffalo, NY, Syracuse, NY, and Binghamton, NY.” Id. He never worked for
Appellees in Pennsylvania. Id.
Moreover, Appellees asserted the decedent was not diagnosed with his
illness in Pennsylvania, and he never received medical treatment in
Pennsylvania for the illness underlying the instant action. Id. at 5.
Additionally, Appellees indicated a viewing of the decedent’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 [Ms. DeAngelis’] claims, where [the decedent] worked,
the locomotives that he worked in and around, and to dispel any
notion that [the decedent] was, as [Ms. DeAngelis] 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 the supporting affidavit, Ms. Lamp confirmed the decedent’s work
record reveals he was never employed by Appellees in Pennsylvania, but that
he worked for Appellees in and around Rochester, New York. Ms. Lamp
identified nine of the decedent’s former co-workers and supervisors, including
A.B. Wager, A.L. Flint, D.A. Vile, D.H. Meyers, F.J. Kryszak, G.M. Cochrane,
G.W. Lund, J.F. Hunter, and K.F. LaFauve, all of whom are retired from
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Consolidated Rail and currently reside in New York. Ms. Lamp indicated that
any yet-to-be-identified co-workers and supervisors of the decedents would
logically be expected to be located in New York since he never worked at any
Pennsylvania location. Moreover, Ms. Lamp indicated the decedent’s
employment files are located in either Florida or New Jersey.
Appellees averred that, since all of the decedent’s former co-workers
and supervisors reside in New York, they will not be able to compel their
attendance to testify in Pennsylvania if they are unwilling to voluntarily do so.
Id. at 20. Additionally, Appellees indicated their former employees will suffer
greater personal disruption, inconvenience, and costs to travel to
Pennsylvania, as opposed to New York for trial. 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. at 22.
Based on the aforementioned, Appellees averred the instant action has
no bona fide connection to Pennsylvania, and dismissal of the action is proper
since there is a more convenient forum where litigation could be conducted
more easily, expeditiously, and inexpensively. Additionally, Appellees
reasoned the only connection between Pennsylvania and the instant matter is
that Consolidated Rail has its headquarters in Pennsylvania and American
Premier is incorporated in Pennsylvania. However, Appellees argued these
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connections are unrelated to Ms. DeAngelis’ claim that the decedent suffered
injury in connection with his employment in New York.
Appellees indicated they agreed to waive the statute of limitations if Ms.
DeAngelis re-filed her lawsuit in New York, 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 New York or some other
proper forum.
On November 21, 2019, Ms. DeAngelis filed a response in opposition to
Appellees’ motion to dismiss for forum non conveniens, as well as a supporting
memorandum. Therein, Ms. DeAngelis admitted the decedent did not live,
own property, or receive medical treatment in Pennsylvania. She also
admitted the decedent’s former co-workers and supervisors reside in New
York.
However, Ms. DeAngelis denied that all of her fact witnesses are located
outside of Pennsylvania. Specifically, she indicated:
[Ms. DeAngelis] intends to call four former [Consolidated
Rail] corporate witnesses who worked for [Consolidated Rail] at
its headquarters in Philadelphia. [Ms. DeAngelis] intends to call
Ramon Thomas, who was [Consolidated Rail’s] industrial hygiene
manager who worked for [Consolidated Rail] in Philadelphia. Mr.
Thomas currently works in Philadelphia and lives in Yardley, PA.
[Ms. DeAngelis] intends to call William Barringer, who was
[Consolidated Rail’s] safety director who worked for [Consolidated
Rail] in Philadelphia. Mr. Barringer currently lives in Naples, FL.
[Consolidated Rail] routinely brings Mr. Barringer to testify live in
Philadelphia. [Ms. DeAngelis] intends to call Marcia Comstock,
M.D., who was [Consolidated Rail’s] former medical director who
worked for [Consolidated Rail] in Philadelphia. Dr. Comstock lives
in Wayne, PA. [Ms. DeAngelis] intends to call Paul Kovac, who
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was [Consolidated Rail’s] claims manager who worked for
[Consolidated Rail] in Philadelphia. Mr. Kovac lives in Hatboro,
PA.
Ms. DeAngelis’ Response to Appellees’ Motion to Dismiss, filed 11/21/19, ¶
17.6
Additionally, Ms. DeAngelis elaborated that she intended to call the four
former Consolidated Rail corporate witnesses because they “were responsible
for developing industrial hygiene, safety and medical programs to prevent
employees from developing cancer due to exposure to diesel exhaust and
asbestos [and] failed to do so in a timely and adequate manner.” Id. ¶ 69.
Ms. DeAngelis averred “[t]hat is negligence under FELA. That is why the four
former [Consolidated Rail] corporate employees’ testimony is relevant[.]” Id.
In support of this claim, Ms. DeAngelis attached as exhibits to her response
the notes of testimony given by Mr. Thomas and Mr. Barringer in two unrelated
FELA cases in the Court of Common Pleas of Philadelphia County.
Ms. DeAngelis contended a viewing of the decedent’s work sites would
be irrelevant at trial. Id. at ¶ 47. Moreover, she averred that, in addition to
Consolidated Rail being incorporated in Pennsylvania with its headquarters in
Philadelphia, Penn Central was incorporated in Pennsylvania with its corporate
headquarters in Philadelphia. See id. at ¶ 18. She posited that Philadelphia
has judicial resources and experience with FELA cases to ensure a just trial.
____________________________________________
6 Ms. DeAngelis’ response is not paginated.
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On January 9, 2020, Appellees filed a reply to Ms. DeAngelis’ response
in opposition to their motion to dismiss. Therein, Appellees argued dismissal
was warranted since Ms. DeAngelis has identified, at most, three potential fact
witnesses who reside in Pennsylvania. Moreover, all of Appellees potential
fact witness, nine in all, reside in New York.
On January 22, 2020, the matter proceeded to a hearing at which the
trial court heard oral argument in support of the parties’ respective positions.
At the conclusion of the hearing, the trial court granted Appellees’ motion to
dismiss the instant action based on forum non conveniens and dismissed Ms.
DeAngelis’ complaint without prejudice to her right to re-file in New York, or
some other appropriate jurisdiction.
Ms. DeAngelis filed a timely notice of appeal, and the trial court directed
her to file a Pa.R.A.P. 1925(b) statement. Ms. DeAngelis timely complied, and
the trial court filed a Rule 1925(a) opinion setting forth in detail the reasons
for its ruling:
At the outset, the trial court notes that (1) [Ms. DeAngelis]
currently resides in Venice, Florida, (2) [the decedent] lived most
of his life in Bloomfield, New York, in Ontario County, and (3) the
alleged unsafe workplace where [the decedent] worked was
located in and around Rochester, New York.
***
All of the identified sources of proof of [Ms. DeAngelis’]
claim—such as the alleged unsafe work environment, [the
decedent’s] former supervisors and co-workers, etc.—are located
in or nearer to Ontario County, New York, rather than in or nearer
to Philadelphia County, Pennsylvania. [The decedent] had never
been a resident of or worked in Pennsylvania. Rather, [the
decedent] lived most of his life in Bloomfield, New York, in Ontario
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County, and worked for [Appellees] in and around Rochester, New
York, for at least 15 years. In the last five years of his life, [the
decedent] resided in Florida. [The decedent’s] alleged injury
occurred in and around Rochester, New York. All of [the
decedent’s] diagnosing and treating physicians are located outside
of Pennsylvania, and [the decedent] received all of his relevant
medical treatment outside of Pennsylvania. Finally, all of his
medical and employment records are located outside of
Pennsylvania.
***
In further support of their motion to dismiss, [Appellees]
identified nine trial witnesses who all live in New York.
Additionally, [Appellees] noted that any yet-to-be identified
former supervisors and co-workers of [the decedent] are more
likely living in New York than in Pennsylvania.2
2Contrary to [Ms. DeAngelis’] claims of error, the trial court considered
(1) both the inconvenience of [Appellees’] nine potential trial witnesses
as well as the inconvenience of [Ms. DeAngelis’] four potential trial
witnesses; and (2) that four of [Ms. DeAngelis’] 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 Ontario County, New York,
rather than from Philadelphia County, Pennsylvania.
***
[T]he trial court reasonably concluded that it would be less
expensive to have witnesses attend a trial in Ontario County, New
York, than in Philadelphia County, Pennsylvania. This is because
the overwhelming number of witnesses—especially [the
decedent’s] former co-workers and supervisors—reside in the
state of New York.
***
It would be easier for the fact-finder to view the premises
from Ontario County, New York, than from Philadelphia County,
Pennsylvania, because the work environment that [Ms. DeAngelis]
claims was the only source of [the decedent’s] injuries is located
in Ontario County, New York.
***
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Trying this case in Philadelphia County, Pennsylvania,
creates some administrative difficulties for Philadelphia County,
Pennsylvania, as compared to trying this case in Ontario County,
New York.
***
Considering the minimal connections this case has with
Philadelphia County, the trial court reasonably decided not to
impose the burden of jury duty upon the citizens of Philadelphia
County based upon such minimal connections.4
In light of the above, the trial court did not abuse its
discretion in determining that the private and public factors were
strongly in favor of dismissing the action pursuant to Section
5322(e).
4
Contrary to [Ms. DeAngelis’] claim of error, the trial court considered
the fact that Penn Central and [Consolidated Rail] are Pennsylvania
Corporations and that [Consolidated Rail’s] principal place of business is
located in Philadelphia County, Pennsylvania. However, such facts do
not preclude dismissal on the basis of forum non conveniens. Wright
v. Consolidated Rail Corporation, 215 A.3d 982, 994-96 (Pa.Super.
2019) (holding that the fact that the moving party does business in or
has its principal place of business in a plaintiff’s choice of forum supports
venue, but it does not preclude dismissal based on forum non
conveniens). Therefore, the trial court did not abuse its discretion in
determining that the private and public factors were strongly in favor of
dismissing the action pursuant to Section 5322(e).
Trial Court Opinion, filed 7/16/20, at 4-7 (citations to record and footnote
omitted).
On appeal, Ms. DeAngelis sets forth the following issues in her
“Statement of Questions Presented” (verbatim):
1. Whether the Trial Court abused its discretion in finding that
weighty reasons existed to support dismissal under the
doctrine of forum non conveniens?
2. Whether the Trial Court should have considered not only that
[Consolidated Rail] and Penn Central were Pennsylvania
corporations and that both of their corporate headquarters
were located in Philadelphia, PA, but also that four of the
Plaintiff’s fact witnesses worked for [Consolidated Rail] at its
corporate headquarters in Philadelphia, PA?
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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 Ontario County, NY for trial?
Ms. DeAngelis’ Brief at 2-3.7
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).
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7 Although Ms. DeAngelis has set forth three separate issues in her “Statement
of Questions Presented,” she intertwines and discusses the issues together in
the argument portion of her brief. We shall treat the issues in a similar
manner.
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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:
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8 Our courts lack the authority to transfer matters to courts of our sister
states; but rather, when appropriate, our courts should dismiss the action to
permit re-filing in another state. See Alford v. Philadelphia Coca-Cola
Bottling Co., Inc., 531 A.2d 792 (Pa.Super. 1987).
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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 (New
York) available. Moreover, Appellees have stipulated to waive the statute of
limitations, as well as not object on the basis of venue or personal jurisdiction,
if Ms. DeAngelis re-files in an appropriate jurisdiction.
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Accordingly, we instead focus on the “weighty reasons” factor in the trial
court’s analysis of Appellees’ motion to dismiss for forum non conveniens. In
this regard, we note Ms. DeAngelis contends the trial court abused its
discretion in finding Appellees demonstrated “weighty reasons” to overcome
her choice of forum. She specifically avers her case is indistinguishable from
Robbins for Estate of Robbins v. Consolidated Rail Corporation, 212
A.3d 81 (Pa.Super. 2019). Appellees, on the other hand, contend Ms.
DeAngelis’ 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.
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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
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9As this Court acknowledged in Wright, “a defendant bears a heavier burden
under Pa.R.C.P. 1006(d)(1), which permits [intrastate] forum transfers only
when the defendant establishes that a plaintiff’s chosen forum is oppressive
and vexatious for the defendant.” Wright, 215 A.3d at 992.
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Pennsylvania. In response to the motion to dismiss, the plaintiff averred he
intended to call four witnesses, who were previous employees of Consolidated
Rail in Philadelphia: Dr. Comstock, Mr. Barringer, Mr. Thomas, and Mr. Kovac
(the same four witnesses Ms. DeAngelis avers she plans to call at trial in this
case).
Additionally, the plaintiff argued that “although the decedent worked at
the train yard in Indiana, the policies and procedures related to the decedent’s
exposure to chemicals and cancer-causing substances were determined at
Consolidated Rail’s headquarters in Philadelphia.” Robbins, 212 A.3d at 85-
86. Moreover, the plaintiff argued the viewing of the work site would not be
desirable, and in fact, would be dangerous to a jury. Id. at 86. Following a
hearing, the trial court denied the motion to dismiss.
On appeal in Robbins, Consolidated Rail and Penn Central argued, inter
alia, that the trial court abused its discretion in weighing the public and private
factors, and thus, erred in concluding there were insufficient “weighty
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,
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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.
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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
____________________________________________
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 that the procedural
posture of the case was such that it was “trial ready” with discovery complete
and a trial term set by the Philadelphia Court of Common Pleas. See id. Thus,
in weighing the factors, we concluded the trial court did not abuse its
discretion in holding dismissal would be inappropriate based on forum non
conveniens. See id. We specifically note the case sub judice is distinguishable
from the latter case in Ficarra since the case is not “trial ready” in Philadelphia
County.
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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 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
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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
discretion to weigh some factors more heavily than others and
weighing the factors is not an exercise in counting numbers.”)
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(citation and quotation marks omitted). Accordingly, we vacate
the orders denying the motions to dismiss…and remand to the trial
court to dismiss these cases to permit re-filing in an appropriate
jurisdiction.
Ficarra, 242 A.3d at 337.
Preliminarily, similar to our initial assessment in Ficarra, we
acknowledge the facts of the case sub judice appear at first glance to resemble
Robbins. However, there are important differences, which weigh in favor of
dismissal.
First, in Robbins, where the decedent worked exclusively in Indiana,
the railroad companies indicated it planned to call as witnesses two of the
decedent’s former supervisors: Dale Mason, who resided in Illinois, and
Charles Toney, who resided in Indiana.
However, in the case sub judice, Appellees informed the trial court, and
provided a supporting affidavit, indicating they had identified nine of the
decedent’s former co-workers and supervisors, all of whom reside in New
York. Appellees averred a greater personal inconvenience and cost to these
witnesses, if they are required to travel to Pennsylvania, as opposed to New
York for trial. As the trial court determined, “the overwhelming number of
witnesses--especially [the decedent’s] former co-workers and supervisors--
reside in the state of New York.” Trial Court Opinion, filed 7/27/20, at 6
(footnote omitted).
Furthermore, in Robbins, this Court specifically recognized that “a
viewing of the site was not at issue.” Robbins, 212 A.3d at 90 n.8. However,
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in the case sub judice, Appellees averred it would be “important” to visit the
decedent’s work sites during trial. See Appellees’ Motion to Dismiss, filed
10/29/19, at 21. The trial court specifically accepted Appellees’ argument and
concluded the necessity of viewing the work premises weighed in favor of
dismissal. Trial Court Opinion, filed 7/27/20, 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 New York. There was no such
finding by the trial court in Robbins.
Accordingly, although the trial court accepted in this case that Ms.
DeAngelis 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.
____________________________________________
11To the extent Ms. DeAngelis avers the trial court did not consider the fact
she had four fact witnesses, all of whom previously worked for Consolidated
Rail at its corporate headquarters in Philadelphia, we find no merit. The trial
court indicated that it considered Ms. DeAngelis’ witnesses in assessing
whether Appellees demonstrated “weighty reasons” for dismissal. See Trial
Court Opinion, filed 7/27/20, at 6 n.2.
12Based on the record in Robbins, the trial court determined that all four of
the plaintiff’s witnesses (Comstock, Barringer, Thomas, and Kovac) resided in
Pennsylvania. In the case sub judice, the record revealed Mr. Barringer
resides in Florida.
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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
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