J-A01021-18


                                  2018 PA Super 205

    DAVID W. HOVATTER,                                IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

    CSX TRANSPORTATION, INC.

                             Appellant                  No. 3379 EDA 2016


                   Appeal from the Order Entered July 20, 2016
              in the Court of Common Pleas of Philadelphia County
                         Civil Division at No.: 1507-3680


    EDWARD M. WILSON,                                 IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

    CSX TRANSPORTATION, INC.

                             Appellant                  No. 631 EDA 2017


                Appeal from the Order Entered October 20, 2016
              in the Court of Common Pleas of Philadelphia County
                        Civil Division at No.: 151102678


BEFORE: LAZARUS, J., OTT, J., and PLATT, J.*

OPINION BY PLATT, J.:                                     FILED JULY 13, 2018




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      In these consolidated cases, Appellant, CSX Transportation, Inc., (or

CSXT), a Virginia corporation headquartered in Jacksonville, Florida, appeals

from the denials of its motions to dismiss two complaints 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. Appellees, David W.

Hovatter and Edward M. Wilson, both railroad workers employed by Appellant

and neither a resident of Pennsylvania, filed complaints in Philadelphia

Common Pleas Court, claiming under the Federal Employers’ Liability Act

(“FELA”), 45 U.S.C. §§ 51-60, for various injuries they allege occurred in other

states. The trial court denied Appellant’s motions to dismiss, primarily on the

ground that it does business in Philadelphia County. On independent review,

we are constrained to conclude that the learned trial court erred in its

interpretation of the applicable law on venue and abused its discretion in

evaluating the factors pertinent to whether to dismiss an action filed in

Pennsylvania, based on the doctrine of forum non conveniens. Accordingly,

we vacate and remand.

      We derive the underlying facts and procedural history in this matter

from the trial court’s Opinion, filed May 18, 2017, its Statement in Lieu of

Opinion, filed June 27, 2017, and our independent review of the certified

record.

      Appellee Hovatter is a lifelong resident of Frostburg, Maryland.       He

worked for Appellant as a machinist in Appellant’s locomotive shop in


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Cumberland, Maryland.     On July 30, 2015, Appellee Hovatter brought the

action sub judice in Philadelphia Common Pleas Court pursuant to the FELA

for injuries to his knee and leg which he alleges he sustained when descending

a metal ramp at Appellant’s facility in Cumberland.

      Appellant CSXT filed preliminary objections on September 22, 2015,

which the trial court sustained in part, on November 30, 2015. On December

15, 2015, Appellee Hovatter filed an amended complaint alleging that he

suffered an injury on August 3, 2012, when descending a metal ramp at work.

(See Amended Complaint, 12/15/15, at ¶¶ 7-8). Appellant filed an answer

and new matter on January 4, 2016.

      On May 9, 2016, Appellant filed a motion to dismiss based on the

doctrine of forum non conveniens. Appellant agreed to waive the statute of

limitations if Hovatter refiled his action in a new forum within one hundred

twenty days of the dismissal of the suit in Philadelphia.

      Appellee Hovatter filed an answer on May 31, 2016.       The trial court

denied the motion on July 1, 2016.

      Appellant’s motion to amend the order of July 1, 2016, to allow for an

interlocutory appeal, was deemed denied by operation of law. See Pa.R.A.P.

1311(b) (application deemed denied if not acted on within thirty days). This

Court granted Appellant’s petition for review. This appeal followed.

      In its opinion, the trial court found that a plaintiff’s choice of forum

brought under the FELA should receive “particular deference.” (Trial Court


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Opinion, 5/18/17, at 3).1 Citing, inter alia, Jessop v. ACF Indus., LLC, 859

A.2d 801, 803 (Pa. Super. 2004), the court reasoned that Appellant had failed

to establish “weighty reasons” for disturbing the deference to be given to a

plaintiff’s choice of forum. (Trial Ct. Op., at 2, 4); see Jessop, supra at 803.

The trial court also relied on 45 U.S.C.A. § 56. (See Trial Ct. Op., at 3).

       The facts in Appellee Wilson’s case are similar.

       Appellee Wilson is a resident of Worthville, Kentucky. He worked for

Appellant in a variety of locations in Kentucky, Ohio, and Indiana.           On

November 18, 2015, he instituted the instant action pursuant to the FELA, and

after preliminary objections, filed an amended complaint on March 8, 2016,

alleging that he suffered from cumulative traumatic injuries which occurred in

the course of his employment with Appellant.        (See Amended Complaint,

3/08/16, at ¶¶ 5-12).

       Appellant again filed preliminary objections, which the trial court

overruled. Appellant filed an answer and new matter on June 13, 2016. On



____________________________________________


1 In support of its argument, the trial court also cites two unreported federal
district court cases, not binding on this Court: Askew v. CSX Transp., Inc.,
No. CIV. A. 05-CV-5915, 2008 WL 4347530 (E.D. Pa. filed Sept. 22, 2008);
and Szabo v. CSX Transp., Inc., No. CIV. A. 05-CV-4390, 2006 WL 263625
(E.D. Pa. filed Feb. 1, 2006). See Eckman v. Erie Ins. Exch., 21 A.3d 1203,
1207 (Pa. Super. 2011) (noting that this Court is not bound by decisions of
federal courts, other than United States Supreme Court, or decisions of other
states’ courts). Moreover, we note that both decisions consider other factors
besides deference, including the substantial completion of discovery (not at
issue here) and the prospect of further delay.


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July 29, 2016, Appellant filed a motion to dismiss based on the doctrine of

forum non conveniens.

      Appellant stipulated that if Appellee Wilson were to dismiss his complaint

and refile it in a more appropriate forum, CSXT would waive any objection on

the basis of venue or personal jurisdiction, and would use the date of the filing

of Wilson’s complaint in Pennsylvania, November 18, 2015, for the purpose of

determining compliance with the statute of limitations in the new forum,

provided that Wilson were to re-file his action within ninety days of the

dismissal order in Pennsylvania.

      Appellee Wilson filed an answer on August 22, 2016. The trial court

denied the motion on October 20, 2016. Appellant filed a motion to amend

the order of November 4, 2016, to allow for an interlocutory appeal. The trial

court denied this request on January 12, 2017.        On December 19, 2016,

Appellant filed a petition for review in this Court. On February 23, 2017, this

Court granted the petition for review. The instant, timely appeal followed.

      The trial court did not order Appellant to file a concise statement of

errors complained of on appeal. See Pa.R.A.P. 1925(b). On June 27, 2017,

the trial court filed a statement in lieu of an opinion in Wilson, adopting its

earlier opinion of May 18, 2017 in Hovatter.        (See Statement in Lieu of

Opinion, 6/27/17, at 2); see also Pa.R.A.P. 1925(a). This Court consolidated

the two cases at the request of Appellant.

      On appeal, Appellant raises two questions for our review.


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             1. Whether Pennsylvania courts may give heightened
       deference to a plaintiff’s choice of forum in applying the doctrine
       of forum non conveniens in a FELA case?

             2. Whether the requisite “weighty” reasons for dismissal
       under the doctrine of forum non conveniens exist when an out-of-
       state plaintiff who had no connection to Pennsylvania sues an out-
       of-state defendant to recover for injuries allegedly suffered
       outside of Pennsylvania and all known witnesses reside outside of
       Pennsylvania[?]

(Appellant’s Brief, at 4-5) (quotation marks in original).2

       Orders on motions to dismiss under the doctrine of forum non

conveniens are reviewed for an abuse of discretion. See Rini v. N.Y. Cent.

R.R. Co., 240 A.2d 372, 373 (Pa. 1968). “This standard applies even where

jurisdictional requirements are met.” Engstrom v. Bayer Corp., 855 A.2d

52, 55 (Pa. Super. 2004), appeal denied sub nom. Weiding v. Bayer Corp.,

887 A.2d 1242 (Pa. 2005). Moreover, “if there is any basis for the trial court’s

decision, the decision must stand.” Id. (citation omitted).

       An abuse of discretion occurs if, inter alia, there was an error of law or

the judgment was manifestly unreasonable. See Silver v. Thompson, 26

A.3d 514, 516 (Pa. Super. 2011).               When reviewing for errors of law, “the

appellate standard of review is de novo and the scope of review is plenary.”




____________________________________________


2We note that in addition to the briefs of the parties we also have the benefit
of an amicus curiae brief, filed on behalf of the Association of American
Railroads, in support of Appellant CSXT.


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J-A01021-18


Hutchison ex rel. Hutchison v. Luddy, 946 A.2d 744, 750 (Pa. Super.

2008) (citations omitted).

      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).

      Application of the forum non conveniens doctrine in an interstate context

solves the “problem . . . that plaintiffs may bring the 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).

      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.”

Pisieczko v. Children's Hosp. of Phila., 73 A.3d 1260, 1263 (Pa. Super.

2013) (citation omitted); see also Engstrom, supra at 55.

      In these cases, there is no substantial dispute that Appellant’s proposed

stipulations provide an alternative forum for the Appellees.    Therefore, the

second factor is not at issue. (See Trial Ct. Op., at 4). However, with respect

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J-A01021-18


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.”

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

814 (Pa. Super. 1997) (citation omitted). 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, 363 Pa. Super. 277, 525
      A.2d 1230, 1232 (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, 91 L. Ed. 1055 (1947). They are:

               the relative ease of access to sources of proof;
         availability of compulsory process for attendance of
         unwilling, and the cost of obtaining attendance of willing,
         witnesses; possibility of view of premises, if view would be
         appropriate to the actions; and all other practical problems
         that make trial of a case easy, expeditious and inexpensive.
         There may also be questions as to the enforceability of a
         judgment if one is obtained. The court will weigh relative
         advantages and obstacles to a fair trial. * * *

                Factors of public interest also have place in applying
         the doctrine. Administrative difficulties follow for courts
         when litigation is piled up in congested centers instead of
         being handled at its origin. Jury duty is a burden that ought
         not to be imposed upon the people of a community which
         has no relation to the litigation. There is appropriateness,
         too, in having the trial * * * in a forum that is at home with
         the state law that must govern the case, rather than having
         a court in some other forum untangle problems in conflict of
         laws, and in law foreign to itself.

      Petty, supra at 1232 (quoting Gulf Oil, supra at 508–09, 67 S.
      Ct. 839).


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J-A01021-18


Engstrom, supra at 55–56 (one citation omitted).

        Here, in its first issue, Appellant contends that the trial court erred in

applying a standard of heightened deference to Appellees’ choice of forum

because they brought their cases pursuant to the FELA.            (See Appellant’s

Brief, at 12-14; Trial Ct. Op., 5/18/17, at 3). We agree.

        In its decision, the trial court stated:

        Specifically, pursuant to 45 U.S.C. § 56 of the FELA, [Appellees
        have] the right to choose [their] forum to litigate [their] individual
        FELA personal injury action[s]. Under the FELA, a plaintiff is
        entitled to bring an action in any district where the defendant is
        doing business at the time of commencing such action. In
        pertinent part, 45 U.S.C. § 56, states:

                    [U]nder this chapter, an action may be brought
              in a District Court of the United States, in the District
              of the residence of the defendant, or in which the
              cause of action arose or in which the defendant shall
              be doing business at the time of commencing such
              action . . .

        45 U.S.C. § 56.3
____________________________________________


3   In its entirety, section 56 provides:

              No action shall be maintained under this chapter unless
        commenced within three years from the day the cause of action
        accrued.

              Under this chapter an action may be brought in a district
        court of the United States, in the district of the residence of the
        defendant, or in which the cause of action arose, or in which the
        defendant shall be doing business at the time of commencing such
        action. The jurisdiction of the courts of the United States under
        this chapter shall be concurrent with that of the courts of the
        several States.

45 U.S.C. § 56.

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J-A01021-18



(Trial Ct. Op., at 3).

       Initially, our review of the plain meaning of section 56 confirms that the

statute only addresses venue in federal district courts (along with concurrent

state jurisdiction), not whether dismissal of a case under forum non

conveniens is appropriate in state court.

       Furthermore, we are constrained to conclude that the trial court’s

reasoning concerning the applicability of section 56 based on the inference it

draws from the legislative odyssey of the Jennings Bill in 1947, (see id. at 4),

is unpersuasive.4 In support of its intended inference, the learned trial court

offers neither controlling authority nor legislative history. In any event, there

is no rule of statutory interpretation which justifies drawing a binding inference

from the failure to enact proposed legislation. The court’s reliance on section

56 (and on the failure to enact the Jennings Bill) is legal error.

       Moreover, the trial court’s assumption, that particular deference must

be given to a foreign resident’s choice of forum for an FELA complaint, must

be qualified by the effect of long-standing authority which holds that state

courts must apply the doctrine of forum non conveniens impartially, without

____________________________________________


4 For an interesting discussion by the United States Supreme Court of the
interplay of the Jennings Bill with other legislative considerations, see Ex
parte Collett, 337 U.S. 55 (1949) (“The plain words and meaning of a statute
cannot be overcome by a legislative history which through strained processes
of deduction from events of wholly ambiguous significance, may furnish
dubious bases for inference in every direction.”). Id. at 61 (citation omitted).



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J-A01021-18


regard to the FELA. See State of Mo. ex rel. S. Ry. Co. v. Mayfield, 340

U.S. 1, 4 (1950) (also holding, contrary to this trial court’s assumption, that

a state may choose to prefer to give home state residents access to often

overcrowded courts over foreign litigants);5 see also Rini, supra at 374-75

(holding no abuse of discretion by trial court in dismissing actions under

doctrine of forum non conveniens, where cause of action arose outside of

Pennsylvania; neither plaintiffs nor any of witnesses reside in or have any

connection with Allegheny County, nor were witnesses within subpoena range

of Court of Common Pleas of Allegheny County); accord, Norman, supra at

855-56 (reversing trial court’s order denying preliminary objections for forum

non conveniens to FELA complaint in Allegheny County by Kentucky resident;

defendant agreed to waive statute of limitations).

       Finally, as already noted, “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, supra

at 814 (citation omitted).




____________________________________________


5 See also BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1558 (2017), filed May
30, 2017, about two weeks after the trial court’s opinion, (concluding, inter
alia, that FELA does not authorize state courts to exercise personal jurisdiction
over railroad solely on ground that railroad does some business in their
states).




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J-A01021-18


       We are constrained to conclude that the trial court erred in finding that

section 56 controlled the instant matter, and abused its discretion in giving

heightened deference to Appellees’ choice of forum. Appellant is entitled to

relief on its first claim.

       We address Appellant’s second and third arguments together.6

Appellant contends that it established “weighty reasons” for the dismissal of

Appellees’ Pennsylvania complaints, and asks that this Court reverse the trial

court’s orders denying dismissal. (Appellant’s Brief, at 5, 36). We agree.

       The trial court found that Appellant was doing business in Philadelphia

by virtue of its hauling freight through the county on a regular basis. (See

Trial Ct. Op., at 1).        Furthermore, the court reasoned that even though

Appellant had waived objections to re-filing in an alternate jurisdiction (on

certain conditions), it had failed to establish weighty reasons for dismissal on

evaluation of the private and public interest factors. (See id. at 4). We are

constrained to disagree.




____________________________________________


6 After raising the issue of “weighty reasons” for dismissal in the statement of
questions involved, Appellant in the argument section switches to a refutation
of the trial court’s assumed conclusion that unrelated business activity is a
sufficient basis to deny the motions to dismiss. (See Appellant’s Brief, at 14-
16). Then, in a third section (not in the statement of questions), Appellant
switches back again to a point-by-point discussion divided into seven sub-
parts, of the various applicable private and public factors to be considered in
a review of whether there were “weighty reasons” for dismissal. (See id. at
17-36). Because the second and third arguments intertwine, we address them
together.

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J-A01021-18


      Appellant maintains that “under generally applicable Pennsylvania law,

CSXT’s unrelated business activity in Pennsylvania is not a valid basis for

denying CSXT’s [forum non conveniens] motions.” (Appellant’s Brief, at 14)

(unnecessary capitalization omitted).    Preliminarily, we observe that doing

business in Philadelphia supports venue. It does not preclude dismissal based

on forum non conveniens.

      The doctrine of forum non conveniens presumes that venue is proper.

This standard applies even where jurisdictional requirements are met. See

Engstrom, supra at 55.        The question for this Court on our review of

discretion is still whether, even if venue is technically proper, there is a more

convenient forum where the litigation could be conducted more easily,

expeditiously, and inexpensively. See id. at 56.

      Appellant argues that these cases should be dismissed. Neither Appellee

resides in Pennsylvania (Hovatter resides in Maryland; Wilson, in Kentucky);

Hovatter’s injury allegedly occurred in Cumberland, Maryland; Wilson’s in

Kentucky, Ohio, and Indiana; Hovatter received his medical treatment in

Maryland; his witnesses are in Maryland. (See Appellant’s Brief, at 7).

      Wilson received all of his medical treatment in Kentucky and Ohio. (See

id. at 9). All of his claims arise from alleged acts and omissions of Appellant

in Kentucky, Ohio, Indiana, or Florida.       (See id.).   There are no relevant

witnesses to any of the working conditions in Pennsylvania. (See id. at 9-

10). There are no employment records or other documents of relevance to


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J-A01021-18


either case in Pennsylvania. (See id. at 20). Appellant states that all sources

of proof in these matters are located outside of Pennsylvania. (See id. at 19,

22).

       Appellant also argues that because all of the witnesses it is likely to call

reside outside of Pennsylvania, it will be more difficult to compel their presence

at trial, in particular, unwilling witnesses. (See id. at 23). It contends that

even if the some of the witnesses are willing to attend, it will be more costly

and inconvenient. (See id. at 24-25).

       Nevertheless, the trial court maintains that the private and public factors

do not favor dismissal. (See Trial Ct. Op., at 4). However, the trial court’s

conclusion is unreasonably and impermissibly dependent on its own sua

sponte suggestions on how to trim costs or work around other objections.

       These recommendations range from the court’s encouragement of

increased use of video technology, to its highly impractical (and implausible)

suggestion that in Horvatter’s case Appellant could remove the ramp at issue,

a twelve feet by six feet construct of steel and concrete still in active use in

the Cumberland locomotive shop, for shipment to Philadelphia. (See id. at

6).

       Similarly, the trial court dismissed the problem of transporting witnesses

from Cumberland, Maryland to Philadelphia (a distance of about two hundred

forty miles) by reasoning that because Appellant is in the business of hauling




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J-A01021-18


freight, it should be able to make arrangements for employee (and other

Maryland witnesses’) travel as well. (See id. at 5).

      Furthermore, the trial court did not weigh all the pertinent factors,

including Appellees’ “foreign” status (i.e., Maryland and Kentucky). We are

constrained to conclude that the trial court abused its discretion.

      Accordingly, we reverse the orders in question and remand with

directions to the trial court to dismiss the underlying complaints without

prejudice to refiling them, within the time limits previously stipulated, in more

appropriate courts.

      Orders reversed.     Cases remanded with instructions.          Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/18




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