J-A22021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    BRUCE RHYNE AND JANICE RHYNE,              :   IN THE SUPERIOR COURT OF
    H/W                                        :        PENNSYLVANIA
                                               :
                       Appellants              :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 432 EDA 2018
    UNITED STATES STEEL                        :
    CORPORATION, SUNOCO, INC.                  :
    (R&M) F/K/A SUN COMPANY, INC.              :
    AND F/K/A SUN OIL COMPANY, INC.,           :
    RADIATOR SPECIALTY COMPANY,                :
    EXXON MOBILE CORPORATION,                  :
    CHEVRON U.S.A., INC. AS                    :
    SUCCESSOR IN INTEREST TO GULF              :
    OIL COMPANY, SAFETY-KLEEN                  :
    SYSTEMS, INC., CRC INDUSTRIES,             :
    INC., UNIVAR USA, INC. F/K/A               :
    CHEMCENTRAL CORP. AND VAN                  :
    WATERS & RODGERS, INC.,                    :
    ASHLAND, INC., KANO                        :
    LABORATORIES, INC., THE STECO              :
    CORPORATION, ACUITY SPECIALTY              :
    PRODUCTS GROUP, INC., THE                  :
    SAVOGRAN COMPANY, TURTLE-WAX,              :
    INC., INDIVIDUALLY AND AS                  :
    SUCCESSOR IN INTEREST TO                   :
    MARVEL OIL COMPANY, INC.                   :

               Appeal from the Order Dated December 20, 2017
      In the Court of Common Pleas of Philadelphia County Civil Division at
                       No(s): 00228 January Term, 2016

BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.:                           FILED FEBRUARY 22, 2019

____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-A22021-18


      Appellants Bruce Rhyne (Rhyne) and Janice Rhyne appeal from the order

granting the motion to dismiss without prejudice based on forum non

conveniens, pursuant to 42 Pa.C.S. § 5322(e), filed by Appellees United States

Steel Corp., Sunoco, Inc. (R&M), Radiator Specialty Co., Exxon Mobile Corp.,

Chevron U.S.A., Inc., Safety-Kleen Sys., Inc., CRC Indus. Inc., Univar USA,

Inc., Ashland, Inc., Kano Lab., Inc., The Steco Corp., Acuity Specialty Prods.

Grp., Inc., The Savogran Co., and Turtle Wax, Inc. Appellants contend the

trial court erred by prematurely granting Appellees’ motion. We affirm.

      We adopt the facts and procedural history set forth in the trial court’s

opinion.

      [Appellants] are North Carolina Residents. [Appellant] Bruce
      Rhyne was employed by Duke Energy Corporation (“Duke”) from
      1976 to 2015 in various parts of North and South Carolina. During
      his employment at Duke, [Mr. Rhyne] alleges that he was exposed
      to a number of products containing the chemical Benzene. [Mr.
      Rhyne] further alleges that as a result of this exposure he
      contracted acute myeloid leukemia. . . .

      On January 5, 2016[, Appellants] filed a complaint against
      nineteen corporate defendants—[Appellees]—bringing claims of
      (1) negligence and gross negligence; (2) breach of warranty; (3)
      strict liability; (4) battery and fraud; and (5) loss of consortium.

      On June 21, 2017, [Appellee] Acuity Specialty Products Group,
      Inc. filed a motion to dismiss for forum non conveniens. On July
      11, 2017, [Appellee] Safety-Kleen Systems, Inc. joined in
      [Appellee] Acuity Specialty Products Group, Inc.’s motion.

Trial Ct. Op., 4/16/18, at 1-2 (citations and some capitalization omitted).

      On July 13, 2017, the trial court ordered that affidavits be submitted to

opposing counsel within thirty days and depositions prompted by the received


                                     -2-
J-A22021-18


affidavits must occur before September 15, 2017, the deadline for

supplemental briefs:

       [A]ll counsel are ordered to submit supplemental briefs on the
       issue of venue by September 15th, 2017. . . .

       All parties are permitted to conduct discovery limited to the issue
       of venue, to include both affidavits and depositions as the parties
       deem necessary. All affidavits must be submitted to opposing
       counsel no later than thirty (30) days from the date of this Order.
       If the party receiving an affidavit wishes to depose the affiant on
       venue related issues, said deposition must occur between the date
       the affidavit is produced and the date briefs are due. Nothing in
       this Rule shall prevent the parties from taking venue-related
       depositions prior to the production of an affidavit. If the parties
       deem that discovery related to issues other than venue is
       necessary, they are granted leave to petition the court for
       permission to conduct such discovery.

Order, 7/17/17.

       The trial court discussed the subsequent events as follows:

       The parties timely responded.          On September 19, 2017,
       [Appellees] ExxonMobil Corporation, Radiator Specialty Company,
       Chevron USA, Inc., CRC Industries, Inc., Univar USA Inc., and
       Kano Laboratories, Inc. joined the pending motion. On September
       28, 2017, [Appellee] Turtle Wax, Inc. also joined in Acuity’s
       pending motion to dismiss.[1] On December 19, 2017, this court
       granted [Acuity’s] motion and dismissed the matter without
       prejudice to be filed in another jurisdiction.[2]

       On January 19, 2018, [Appellants] filed a motion for
       reconsideration of this court’s December 19, 2017 order.
       Contemporaneously, [Appellants] filed an appeal to the Superior
____________________________________________


1Appellants did not ask the trial court to delay its ruling on Appellees’ motion
due to purported outstanding discovery issues.
2 Appellees had stipulated that they would consent to jurisdiction in North
Carolina and that the filing date of the North Carolina complaint would be
identical to the filing date of the Pennsylvania complaint.


                                           -3-
J-A22021-18


       Court . . . . On January 26, 2018, [Appellees] filed briefs in
       opposition to [Appellants’] motion for reconsideration arguing
       both that the trial court did not err in granting [Appellees’] motion
       to dismiss and that [Appellants] precluded this court from ruling
       on the motion for reconsideration by contemporaneously filing this
       appeal. On January 30, 2018, this court denied [Appellants’]
       motion for reconsideration and on February 7, 2018, [Appellants]
       appealed that decision. This second appeal was subsequently
       quashed on March 20, 2018.

Trial Ct. Op. at 1-2 (citations and some capitalization omitted).

       Appellants timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

Appellants raise the following issues, which we have reordered:

       1) Did the [trial] court abuse its discretion by prematurely issuing
       its order granting a motion to dismiss under forum non conveniens
       where Appellants did not have a reasonable opportunity to present
       Safety-Kleen discovery that was relevant for forum non
       conveniens that had been ordered by the lower court, nor the
       opportunity to present a relevant key deposition?

       2) Did the [trial] court abuse its discretion by granting a motion
       to dismiss to North Carolina under forum non conveniens where
       two cases in this Court, Wright and Hunter, govern this appeal,
       where the public factors weigh strongly in favor of retaining this
       case in Pennsylvania and Philadelphia County because, inter alia,
       the crux of the litigation pertains to decisions by manufacturers to
       use benzene in their products, more Defendants/Appellees are
       located here than in any other State, all Defendants/Appellees are
       alleged to conduct business here, over 50 witnesses are located
       in or near Philadelphia, and where the private factors do not
       strongly weigh in favor of dismissal?

Appellants’ Brief at 3.3




____________________________________________


3We note that several of Appellees’ briefs cited to non-precedential decisions
of this Court, which violates 210 Pa. Code. § 65.37.


                                           -4-
J-A22021-18


      In support of their first issue, Appellants raise two arguments. First,

Appellants argue that the trial court erred by not permitting them the

opportunity to supplement their briefs in opposition to the motion to dismiss

for forum non conveniens. Id. at 61. Appellants note that the court granted

their motion to compel Appellee Safety-Kleen to produce documents on

November 6, 2017. Id. According to Appellants, Safety-Kleen produced over

6,000 pages of documents on November 22, 2017. Appellants continue: “This

was just 27 days before the [trial] court granted the motion to dismiss without

prior warning on December 19, 2017. If [Appellants] had known they would

have only 27 days, they could have put a rush on the review.” Id. at 62

(citation omitted).

      Second, Appellants assert that Mr. Rhyne’s co-worker and purported

sole eyewitness, Johnny Couch, had testified at his December 7, 2017

deposition that he was prepared to travel from North Carolina to Philadelphia

to testify.   Id.   In Appellants’ view, Couch’s willingness to travel was a

“relevant fact,” but they did not receive Couch’s deposition transcription until

December 18, 2017, the day before the court granted Appellees’ motion to

dismiss. Id. at 62-63. Appellants reason that had they known the court was

going to rule on the motion to dismiss on December 19, 2017, they could have

expedited the transcription and filed it with the court before December 19th.

Id. at 63.




                                     -5-
J-A22021-18


       Appellants acknowledge the trial court’s contention that they waived the

issue by failing to timely act. Id. Appellants counter by noting that the court’s

October 2, 2017 order permitted them to supplement their briefs-in-

opposition with additional discovery. Id. In Appellants’ view, the court should

have acknowledged its October 2, 2017 order and, essentially, delayed ruling

on the motion to dismiss. Id. at 63-64.

       Pennsylvania Rule of Appellate Procedure 302 provides that “[i]ssues

not raised in the lower court are waived and cannot be raised for the first time

on appeal.”     Pa.R.A.P. 302(a).       A necessary corollary is that if a court is

unaware of a particular issue, then it cannot act on it. Here, Appellants were

aware that the trial court could have ruled on Appellees’ motion to dismiss on

any day after September 15, 2017.              We agree with the trial court that if

Appellants believed that the Safety-Kleen discovery or the Couch deposition

would have assisted the court in ruling on Appellees’ motion, then Appellants

could have filed the appropriate motion to continue discovery.           Appellants

“never made such a request to” the court.4 Because Appellants did not alert

the trial court to such issues, they have waived them for appellate review.

See id.; see Takes v. Metropolitan Edison Co., 695 A.2d 397, 400 (Pa.


____________________________________________


4 Trial Ct. Op. at 8 (stating, Appellants “seem to contend that [the trial c]ourt
should have been able to divine that [Appellants] needed additional time to
review documents and that [Appellants] also wanted to provide this [c]ourt
with additional information—even though [Appellants] never made such a
request to this [c]ourt.”).


                                           -6-
J-A22021-18


1997) (stating that the “waiver rule prevents the trial from becoming a mere

dress rehearsal and ensures trial counsel is prepared to litigate the case and

create an adequate record for appellate review”).

      In support of their second issue, Appellants raise several arguments.

Appellants contend that the trial court should have weighed the public and

private factors in their favor.    Appellants’ Brief at 30.      For example, in

Appellants’ view, Pennsylvania has the strongest connections to the suit

because three of the corporate Appellees are incorporated in Pennsylvania.

Id. Further, according to Appellants, numerous witnesses are in the greater

Philadelphia area. Id. Appellants claim “[m]ost discovery is complete,” they

submitted expert reports, they opposed Appellees’ motions for summary

judgment, and that Pennsylvania law would govern this case under choice-of-

law principles. Id. at 31. In support, Appellants rely on Hunter v. Shire US,

Inc., 992 A.2d 891 (Pa. Super. 2010), and Wright v. Aventis Pasteur, Inc.,

905 A.2d 544 (Pa. Super. 2006), which we summarize below.

      “A trial court’s decision to dismiss based on forum non conveniens will

not be disturbed absent an abuse of discretion.”        Bochetto v. Dimeling,

Schreiber & Park, 151 A.3d 1072, 1079 (Pa. Super. 2016) (citation omitted).

      A trial court will have abused its discretion when in reaching its
      conclusion the law is overridden or misapplied, or the judgment
      exercised is manifestly unreasonable, or the result of partiality,
      prejudice, bias, or ill will. If there is any valid basis for the trial
      court’s decision, the decision will not be disturbed.




                                       -7-
J-A22021-18


Id. (quotation marks, brackets, and citations omitted).         “A finding by an

appellate court that it would have reached a different result than the trial court

does not constitute a finding of an abuse of discretion.”        Harman ex rel.

Harman v. Borah, 756 A.2d 1116, 1123 (Pa. 2000).

       Section 5322(e) of the Judicial Code addresses a motion to dismiss

based on interstate forum non conveniens:

       (e) Inconvenient forum.—When a tribunal finds that in the
       interest of substantial justice the matter should be heard in
       another forum, the tribunal may stay or dismiss the matter in
       whole or in part on any conditions that may be just.

42 Pa.C.S. § 5322.5

       The two most important factors look to the court’s retention of the
       case. They are (1) that since it is for the plaintiff to choose the
       place of suit, his choice of a forum should not be disturbed except
       for weighty reasons, and (2) that the action will not be dismissed
       in any event unless an alternative forum is available to the
       plaintiff. Because of the second factor, the suit will be entertained,
       no matter how inappropriate the forum may be, if defendant
       cannot be subjected to jurisdiction in other states. The same will
       be true if plaintiff’s cause of action would elsewhere be barred by

____________________________________________


5 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 v. Phila.
Coca-Cola Bottling Co., 531 A.2d 792, 794 (Pa. Super. 1987) (citing the
extensive scholarly historical background of the doctrine in Westerby v.
Johns-Manville Corp., 32 Pa. D. & C.3d 163, 165-71 (Phila. C.C.P. 1982)).
The doctrine addresses the issue of plaintiffs bringing “suit in an inconvenient
forum in the hope that they will secure easier or larger recoveries or so add
to the costs of the defense that the defendant will take a default judgment or
compromise for a larger sum.” Norman v. Norfolk & W. Ry. Co., 323 A.2d
850, 854 (Pa. Super. 1974) (citing Restatement (Second) of Conflict of Laws
§ 84 cmt. a).


                                           -8-
J-A22021-18


      the statute of limitations, unless the court is willing to accept
      defendant’s stipulation that he will not raise this defense in the
      second state.

Plum v. Tampax, Inc., 160 A.2d 549, 560-61 (Pa. 1960) (citation omitted);

accord Rini v. N.Y. Cent. R.R., 240 A.2d 372, 373-74 (Pa. 1968) (plurality)

(affirming dismissal of case brought, in part, by Ohio plaintiffs based on Plum

factors).

      With respect to the first factor, “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.”

Aerospace Fin. Leasing, Inc. v. New Hampshire Ins. Co., 696 A.2d 810,

814 (Pa. Super. 1997) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235,

255 (1981)). “[W]hen the home forum has been chosen, it is reasonable to

assume that this choice is convenient. When the plaintiff is foreign, however,

this assumption is much less reasonable.” Id. (quoting Piper Aircraft, 454

U.S. at 255).

      As for the “weighty reasons” referenced in the first factor, the Bochetto

Court noted as follows:

      To determine whether “weighty reasons” exist, a trial court must
      examine both the private and public factors announced by Gulf
      Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055
      (1947). The private factors [set forth by the Supreme Court]
      include:

            The relative ease of access to sources of proof; availability
            of compulsory process for attendance of unwilling, and the
            cost of obtaining attendance of willing, witnesses; possibility
            of view of premises, if view would be appropriate to the

                                         -9-
J-A22021-18


         action; 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 fair trial.

      With respect to public factors, the Supreme Court advised:

         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 an appropriateness, too, in having
         the trial in a forum that is at home with the state law that
         must govern the case, rather than having a court in some
         other forum untangle problems in conflict of laws, and in law
         foreign to itself.

Bochetto, 151 A.3d at 1079-80 (citations, brackets, and ellipses omitted).

      With respect to practical considerations that make a case “easy,

expeditious and inexpensive” to try, Plum, 160 A.2d at 553, the trial court

considers whether discovery has been substantially complete and the state of

pre-trial preparation.   See Wright, 905 A.2d at 552; D’Alterio v. N.J.

Transit Rail Operations, Inc., 845 A.2d 850, 854 (Pa. Super. 2004). The

fact of substantially complete discovery, however, may be outweighed by,

among other things, the fact that such discovery could be used in the new

forum.   See Jessop v. ACF Indus., LLC, 859 A.2d 801, 805 (Pa. Super.

2004). The trial court may also consider the timing of the motion to dismiss.

See Beatrice Foods Co. v. Proctor & Schwartz, Inc., 455 A.2d 646, 650

(Pa. Super. 1982).




                                     - 10 -
J-A22021-18


      In Wright, the plaintiffs, Texas residents, sued multiple manufacturers

of “various immune globulin products and vaccines” in Philadelphia. Wright,

905 A.2d at 546. It was uncontested that Texas was where the vaccine was

administered. Id. As summarized by the Hunter Court:

      The defendants in Wright moved for dismissal under 42 Pa.C.S.
      § 5322(e), alleging that Pennsylvania was an inconvenient forum
      in which to litigate the matter. Defendants agreed to consent to
      jurisdiction and service in Texas and to waive any defense
      premised upon expiration of the statute of limitations. The trial
      court granted that motion, and on appeal, we reversed.

Hunter, 992 A.2d at 894 (stating holding of Wright).

      The Hunter Court summarized the rationale of the Wright Court as

follows:

      [The Wright Court] conducted an examination of the private and
      public factors in that case. [It] noted that the crux of the litigation
      pertained to the decisions by the manufacturers, which decisions
      were made in the Philadelphia area, to use and market the
      substance that allegedly caused the injuries in question when they
      sold their vaccines and blood products. The defendants countered
      that since the medical care at issue was rendered in Texas and
      since Texas law would probably apply, the trial court’s decision
      was correct.

      After weighing the private and public factors, we concluded that
      the trial court had abused its discretion in dismissing the action
      under § 5322(e). We stated, “none of the appellees-defendants
      [has] corporate headquarters in Texas. Thus, there is no basis
      upon which to conclude that Texas would be a more convenient
      forum for appellees’ corporate employee witnesses. In fact,
      Philadelphia County, with its proximity to the relevant corporate
      offices of four appellees-defendants, appears to be quite a
      convenient jurisdiction for the trial of the case.”

      Turning to the “public factors,” we observed that the suit involved
      the actions of pharmaceutical companies that marketed their
      products in Pennsylvania; in light of that fact, the conclusion that

                                      - 11 -
J-A22021-18


      the citizens of this state had no interest in the action was
      unsubstantiated.      We were unconvinced that the potential
      applicability of Texas law militated in favor of transfer to Texas,
      stating that there was “no basis upon which to conclude that the
      law determined to be applicable [was] beyond the ken of a
      Philadelphia trial judge.”

Id. at 896 (citations omitted and some brackets in original).

      In Hunter, the plaintiff, a resident of Georgia, sued Shire US, Inc., a

corporation with headquarters in Chester County, Pennsylvania. Id. at 892.

Shire purportedly “promoted, manufactured, and distributed” a drug that

injured the plaintiff, who had prescribed, purchased, and ingested it in

Georgia. Id. Shire moved to, among other items, dismiss the suit under 42

Pa.C.S. § 5322(e), because the plaintiff, who resides in Georgia, was

prescribed and took the drug in Georgia. Id. at 893. According to the Hunter

Court, the plaintiff countered as follows:

      that the circumstances of his ingestion of [the drug] and ensuing
      medical care are largely settled and that the central issue in this
      case does not involve his consumption of that drug. [The plaintiff]
      continues that this action primarily concerns [Shire’s]
      development, marketing, testing, and knowledge of the risks of
      heart attacks associated with its use. [The plaintiff] notes that
      [Shire] marketed [the drug] throughout the United States and
      that its principal place of business is located in Pennsylvania. [The
      plaintiff] continues that it is undisputed that all of [Shire’s]
      employees who have been identified as possessing knowledge
      about the development, marketing, labeling and safety of [the
      drug] are located in Pennsylvania.                  Furthermore, all
      documentation produced regarding [the drug] was generated
      from [Shire’s] offices in Pennsylvania. Thus, the witnesses and
      documents pertinent to the central issue herein, [Shire’s]
      development and testing of its drug, are actually located in
      Pennsylvania.

Id. at 893-94.

                                     - 12 -
J-A22021-18


       The Hunter Court noted that Shire raised the exact same arguments

raised and rejected by the Wright Court:

       In the case at bar, [Shire] raises the same arguments considered
       and rejected by this Court in Wright. There is no question that
       the central issue herein relates to [Shire’s] development, testing,
       and marketing of [the drug], and its knowledge of and warnings
       about the risks of heart attack from ingesting that drug. The
       events relating to these activities were conducted by [Shire’s]
       employees in Pennsylvania.

Id. Accordingly, the Hunter Court affirmed the court’s order denying Shire’s

motion to dismiss. Id. at 892.

       Here, the trial court weighed the private and public factors and found

the factors weighed in Appellees’ favor. See Trial Ct. Op. at 3-7.6 Appellants

have argued that the facts of this case are more aligned with the facts in

Hunter and Wright, as summarized above, and therefore, the court abused

its discretion. Any such similarities, however, do not compel the conclusion

that the court abused its discretion. See Bochetto, 151 A.3d at 1079.7 It

was within the court’s discretion to weigh some factors more heavily than

others. See id. That this Court may have weighed the factors differently and

____________________________________________


6We note that although the trial court initially stated that “few of the relevant
sources of proof are located in Philadelphia,” see Trial Ct. Op. at 5, the court
appropriately addressed the existence of sources of proof in Pennsylvania.
See id. at 5-6.
7For example, in Hunter and Wright, it was largely unchallenged as to when
and where the victim ingested the drug at issue, unlike here, in which
Appellees challenge when and where Mr. Rhyne was purportedly exposed to
benzene. See Trial Ct. Op. at 1 (noting that Mr. Rhyne alleged exposure to
benzene between 1976 and 2015 in North and South Carolina).


                                          - 13 -
J-A22021-18


arrived at a different result, does not mean the trial court abused its discretion.

See Harman, 756 A.2d at 1123.          Because Appellants have not met their

burden, we affirm.

      Order affirmed. The Savogran Company’s Application for Admission Pro

Hac Vice is granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/19




                                      - 14 -
                                                                                             Circulated 01/31/2019 03:36 PM




                          IN THE COURT OF COMMON PLEAS
                     FIRST JUDICIAL DISTRICT OF PENNSYLVANIA                                                    �··
                                                                                                             ....




BRUCE RHYNE and JANICE RHYNE, h/w                                   January Term, 2016
         Plaintiffs                                                 No. I 60100228

        V.                                                          432 EDA 2018

UNITED STATES STEEL CORPORATION, et al.:
          Defendants


                                              OPINION

    A. FACTUAL BACKGROUND

        Plaintiffs Bruce and Janice Rhyne are North Carolina Residents. Pls. Compl. ,r 3. Plaintiff

Bruce Rhyne was employed by Duke Energy Corporation ("Duke") from 1976 to 2015 in various

parts of North and South Carolina. Id. at ,r 4. During his employment at Duke, Plaintiff alleges that

he was exposed to a number of products containing the chemical Benzene. Id. at ,r,r 5, 6. Plaintiff

further alleges that as a result of this exposure he contracted Acute Myeloid Leukemia. Id. at ,r 7.

    B. PROCEDURALBACKGROUND

        On January 5, 2016 Plaintiffs filed a Complaint against nineteen corporate defendants-

Kendall Refining Company; Univar USA, Inc.; Ashland, Inc.; Kano Laboratories, Inc.; Hunt Oil

Company; Witco Corporation; Chemtura Corporation; Hunt Refining Company; Steco

Corporation; Acuity Specialty Products Group, Inc.; Savogran Company; Turtle Wax, Inc.;

Sunoco, Inc.; United States Steel Corporation; Radiator Specialty Company; Exxonmobil

Corporation; Chevron U.S.A., Inc.; Safety-Kleen Systems, Inc.; CRC Industries, Inc.-bringing

claims of (1) negligence and gross negligence; (2) breach of warranty; (3) strict liability; ( 4) battery

and fraud; and (5) loss of consortium. Pis. Compl.    ,r,r 11-78.

                                                                           Rhyne Eta! Vs United Slates Steel Corporal-OPFLD




                                                                           llllllllllllll/111111111111111
                                                                                  16010022800545
        On June 21, 2017, Defendant Acuity Specialty Products Group, Inc. filed a Motion to

Dismiss for Forum Non Conveniens. On July 11, 2017 Defendant Safety-Kleen Systems, Inc.

joined in Defendant Acuity Specialty Products Group, Inc. 's Motion. On July 13, 2017 this Court

ordered the parties to submit supplemental briefing on the issue of venue by September 15, 2017.

The parties timely responded. On September 19, 2017 Defendants ExxonMobil Corporation,

Radiator Specialty Company, Chevron USA, Inc. CRC Industries, Inc., Univar USA Inc., and

Kano Laboratories, Inc. joined the pending Motion. On September 28, 2017 Defendant Turtle

Wax, Inc. also joined in Acuity's pending Motion to Dismiss. On December 19, 2017 this Court

granted Defendant's Motion and dismissed the matter without prejudice to be filed in another

jurisdiction.

        On January 19, 2018 Plaintiffs filed a Motion for Reconsideration of this Court's December

19, 2017 Order. Contemporaneously, Plaintiffs filed an Appeal to the Superior Court, which is the

subject of this opinion. On January 26, 2018 Defendants filed briefs in Opposition to Plaintiffs'

Motion for Reconsideration arguing both that the trial court did not err in granting Defendants'

Motion to Dismiss and that Plaintiff precluded this Court from ruling on the Motion for

Reconsideration by contemporaneously filing this appeal. On January 30, 2018 this Court denied

Plaintiffs' Motion for Reconsideration and on February 7, 2018 Plaintiffs appealed that decision.

This second appeal was subsequently quashed on March 20, 2018.

       On February 22, 2018 this Court ordered Plaintiffs to submit a Statement of Errors

Complained of on Appeal. Plaintiffs timely filed said Statement and stated that this Court erred in

granting Defendants' Motion because Defendants failed to demonstrate weighty reasons to justify

dismissal. Plaintiff also stated that this Court erred in granting Defendant's Motion because this

Court granted the Motion prematurely.
   C. DISCUSSION

           a. Standard of Review

       On appeal a trial court's decision to dismiss pursuant for forum non coveniens is reversible

only if the trial court has abused its discretion. See, e.g., Bochetto v. Dimeling, Schreiber & Park

(Bochetto JI), 151 A.3d 1072, 1079 (Pa. Super. Ct. 2016); Pisieczko v. Children's Hospital of

Philadelphia, 73 A.3d 1260, 1262 (Pa. Super. Ct.2013). An abuse of discretion will be found when

the trial court misapplies the law or exercises its judgment in a manner that is manifestly

unreasonable or the result of bias, prejudice, or ill will. Pisieczko, 73 A.3d at 1262 (quoting Hunter

v. Shire US, Inc., 992 A.2d 891. 896 (Pa. Super. Ct. 2010)). If there is any basis for the trial court's

decision, the decision must stand. Pisieczko, 73 A.3d at 1262 (quoting Engstrom v. Bayer

Corporation, 855 A.2d 52, 55 (Pa. Super. Ct. 2004)).

           b. Pennsylvania is Not a Proper Forum for this Action Because an Alternative Forum
              Exists and Weighty Reasons Exist to Disturb Plaintiff's Choice of Forum.

       Pennsylvania law states that when a court finds "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." PA. C.S. § 5322(e). This statute effectively codifies

the common law doctrine offorum non conveniens. See id; Bochetto, 151 A.3d at 1079. A court

considering a Motion to Dismiss pursuant to the doctrine offorum non conveniens must apply a

two part analysis. Bochetto, 151 A.3d 1079; Jessop v. ACF Indus., LLC, 859 A.2d 801, 803 (Pa.

Super. Ct. 2004); see also Black v. CSX Transp., Inc., 2014 WL 10803040 (in a more recent, but

non-binding decision Pennsylvania Superior Court stating the same). First, as a threshold matter

a court must ensure that there is an alternative forum available to the plaintiff. Bochetto, 151

A.3d at 1079; Jessop, 859 A.2d at 803. Second, a court must determine whether weighty reasons
exist to disturb Plaintiffs choice of forum. Bochetto II, 151 A.3d at 1079; Jessop, 859 A.2d at

803.

                           1. An Alternative Forum Exists

       Finding an available alternative forum is a threshold question; if there is an available

forum, the issue progresses to the second part of the forum non conveniens analysis. Pisieczko,

73 A.3d at 1263. The relevant consideration as to this threshold question is whether the statute of

limitations has expired and whether Defendant will submit to service in the new matter. See e.g.

Plum, 160 A.2d at 553; Jessop, 859 A.2d at 803. This standard is so stringent that the state of

Pennsylvania will hear a case-even where the forum is inappropriate-if there is no alternative

forum available. Plum, 160 A.2d at 553; D'Alterio v. New Jersey Transit Rail Operations,

Inc., 845 A.2d 850, 852 (Pa. Super. 2004). In the instant case Defendants have agreed not to

contest specific jurisdiction in North Carolina and to use the date of filing in Philadelphia for

statute of limitations purposes. As such, this satisfies the threshold question of an alternative

forum exists. See Plum, 160 A.2d at 553; Jessop, 859 A.2d at 803.

                           2.   Weighty Reasons Exist to Disturb Plaintiff's Choice of Forum

       As to the second step of the analysis-weighty reasons-Pennsylvania courts have held

that both public and private factors must be examined. Bochetto, 151 A.3d at 1079-80 ( citing

GulfOil Co. v. Gilbert, 330 U.S. 501 (1947)). Private factors to consider are the relative ease of

access to sources of proof, availability of compulsory process for attendance of unwilling, cost of

obtaining attendance of willing witnesses, possibility to view the premises where the incident

occurred, and all other practical problems that make trial of a case easy, expeditious, and

inexpensive. Bochetto, 151 A.3d at 1079-80; Wright v. Aventis Pasteur, 905 A.2d 544, 548

(2006); Jessop, 859 A.2d at 803. The public factors to consider are congestion of courts, whether
the surrounding community should be burdened with jury duty when they have no relation to the

litigation, and conflicts of law considerations. Bochetto, 15 l A.3d at 1079-80; Wright, 905 A.2d

at 548; Jessop, 859 A.2d at 803.

       Looking first to the private factors in the present case, this Court finds that the private

factors weigh against Philadelphia as an appropriate forum because few of the relevant sources

of proof are located in Philadelphia. See Jessop, 859 A.2d at 804 (affirming the decision of a trial

court to dismiss an action pursuant to the doctrine offorum non conveniens where plaintiffs were

not residents of Pennsylvania, Plaintiffs entire work history which gave rise to the litigation

occurred outside of Pennsylvania, and Plaintiff received all medical treatment outside of

Pennsylvania); Cinousis v. Hechinger Dept. Store, 584 A.2d 731, 733 (Pa. Super. Ct. 1991)

(affirming the decision of a trial court to dismiss an action pursuant to the doctrine offorum non

conveniens where plaintiffs were not residents of Pennsylvania, the events giving rise to the

claim occurred outside of Pennsylvania, and medical records and known witnesses resided

outside of Pennsylvania). Virtually all of Plaintiffs exposure to Benzene occurred in North and

South Carolina. All of Plaintiffs medical care also occurred in North and South Carolina. The

majority of the fact witnesses also live in North and South Carolina. Plaintiff himself has actually

only ever been to Pennsylvania once, four or five years ago. Rhyne Dep. At 13. While this court

does acknowledge that there are some sources of proof that do exist in the Commonwealth of

Pennsylvania-limited to documents that may be in the possession of only three, out of nineteen

total, defendants-the potential existence of these documents simply does not change this court's

calculation that the private factors weigh in favor of dismissal. See Wright, 905 A.2d at 549

(holding that the private factors weighed against dismissal where more than half of the corporate
defendants maintained documents, conducted relevant clinical trials, and manufactured the

vaccines giving rise to the lawsuit in the Commonwealth of Pennsylvania).

       Turning then to the public factors, the public factors weigh against Philadelphia as an

appropriate forum because of the litigation's limited connection to Philadelphia as well as the

existence of conflict of laws concerns. See Bochetto, 151 A.3d at 1086, 1088; Engstrom, 855

A.2d at 56-57; Cinousis, 594 A.2d at 733. In this regard, only three of the nineteen corporate

defendants have any connection to Pennsylvania and in fact only one of the Defendants, Sunoco,

maintains a corporate office-notably not its principle place of business-in Philadelphia. This

limited connection is too attenuated to require the citizens of Philadelphia to endure jury duty or

to be burdened with the costs of trying this case. See Jessop, 859 A.2d at 54 7 (holding that when

entirety of the occurrence giving rise to the litigation took place outside of Philadelphia and no

parties reside in Philadelphia, the people of Philadelphia County should not be burdened with

jury duty or the cost oflitigation). Further, Philadelphia courts are already significantly burdened

with litigation and as such, the congestion of this court system suggests that transfer is

appropriate. Bochetto, 151 A.3d at 1079-80; Wright, 905 A.2d at 548; Cinousis, 594 A.2d at 733.

At the same time, there are significant conflict of laws considerations. Bochetto, 15 l A.3d I 086

(noting that the existence of a conflict of laws issue necessitating analysis is burdensome to a

trial court); Engstrom v. Bayer Corp., 855 A.2d 52, 57 (Pa. Super Ct. 2004) (noting that allowing

cases to go forward in Philadelphia would create "needless legal complexity" where the case

raised a conflict of laws issue). Here, where all of plaintiffs exposure to benzene containing

products occurred in North and South Carolina and manufacture and marketing of such products

occurred throughout the country the law that will apply to Plaintiffs' claims is not obvious.

Therefore, should trial go forward in Philadelphia, the trial court would need to engage in an
analysis as to what law is applicable to the instant case. See Bochetto, 151 A.3d at 1086 (noting

that a trial court deciding a motion to dismiss for forum non conveniens does not need to decide

which law applies, but that it is enough to recognize the existence of a conflict oflaws issue).

             c.   This Court's Decision Was Not Premature.

        Plaintiff further argues that this Court's ruling on Defendants' Motion to Dismiss was

premature because this Court ruled on Defendants' Motion before Plaintiff had an opportunity to

review certain documents from Defendant Safety-Kleen Systems, Inc. that Plaintiff obtained

pursuant to an Order from this Court. Plaintiff, though, through his own inaction has waived this

claim. Nearly three months passed from the time the supplemental briefing was due until the time

that this Court decided Defendants' Motion to Dismiss. Never once during that period did Plaintiff

ever ask this Court for more time to respond, let alone even inform this Court that Plaintiff intended

to file an additional response. In fact, even now in Plaintiffs own l 925(b) Statement, said

Statement is devoid of any expression of an intent to file an additional response to Defendants'

Motion to Dismiss. Notably too, also absent from said Statement is any allegation of prejudice to

Plaintiff.

         Moreover, looking to the procedural history of this case alone, the timeline of this Motion

reveals that Plaintiffs' claims of prematurity are wholly and completely without merit. On July 13,

201 7 this Court ordered the parties to conduct discovery related to the issue of venue and submit

supplemental briefing. Said supplemental briefing was due on September 15, 2017 and the parties

timely responded. It was not until three months later, on December 19, 2017, that this Court even

ruled on Defendants' Motion. At no time during the pendency of this Motion did Plaintiffs ever

file a Motion for Extraordinary Relief related to Defendants' Motion to Dismiss.
       In spite of the fact that the timeline detailed above demonstrates that this Court's ruling

was not premature, Plaintiffs seem to contend that this Court should have been able to divine that

Plaintiffs needed additional time to review documents and that Plaintiffs also wanted to provide

this Court with additional information--even though Plaintiffs never made such a request to this

Court. While such intuition could certainly be helpful to this Court, it is currently outside the scope

of this Court's capabilities. As such, absent a Motion for Extraordinary Relief or the actual

submission of additional briefing this Court cannot simply let Motions languish because it

speculates that the parties may need additional time.

CONCLUSION

       For the foregoing reasons, the decision of this Court should be affirmed.


                                                        BY THE COURT:




                                                        DENIS P. COHEN, J.


Dated: April 13, 2018
