J-S31018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 DEBRA K. YOWELL, PERSONAL               :   IN THE SUPERIOR COURT OF
 REPRESENTATIVE FOR THE ESTATE           :        PENNSYLVANIA
 OF RALPH G. YOWELL, JR.                 :
                                         :
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :   No. 3018 EDA 2017
                                         :
 NORFOLK SOUTHERN RAILWAY                :
 COMPANY                                 :

                Appeal from the Order Dated August 2, 2017
    In the Court of Common Pleas of Philadelphia County Civil Division at
                    No(s): March Term, 2017 No. 001277


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                            FILED JUNE 12, 2018

      Debra K. Yowell (“Yowell”), in her capacity as personal representative

for the Estate of Ralph G. Yowell, Jr., Deceased (“Decedent”), appeals from

the order entered in the Court of Common Pleas of Philadelphia County,

sustaining preliminary objections filed by Appellee Norfolk Southern Railway

Company (“Norfolk”) and dismissing her complaint with prejudice.        Upon

careful review, we affirm.

      On March 14, 2017, Yowell, a resident of the State of Illinois, filed a

wrongful death complaint pursuant to the Federal Employers Liability Act

(“FELA”) against Norfolk, a Virginia corporation with its headquarters in that

Commonwealth, in the Court of Common Pleas of Philadelphia County. The

complaint alleged that Decedent, Yowell’s late husband, developed multiple
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myeloma as a result of exposure to excessive and harmful amounts of

chemicals   and   cancer-causing   substances    during   the   course   of   his

employment with Norfolk.      Yowell alleged that Decedent endured pain and

suffering and, ultimately, died due to negligence on the part of Norfolk in

exposing Decedent to such materials.

      On May 1, 2017, Norfolk filed preliminary objections to Yowell’s

complaint in which it alleged, inter alia, that Yowell had failed to establish

personal jurisdiction over Norfolk.   Specifically, Norfolk argued that Yowell

failed to allege facts demonstrating that: (1) the controversy arose out of or

was related to Norfolk’s contacts with Pennsylvania such that specific personal

jurisdiction existed; or (2) Norfolk’s contacts with Pennsylvania satisfied due

process requirements for general personal jurisdiction in Pennsylvania.

      On May 22, 2017, Yowell filed a response to Norfolk’s preliminary

objections, asserting that:    (1) section 56 of FELA grants the courts of

Pennsylvania jurisdiction over FELA claims; (2) Norfolk does substantial

business in the Commonwealth, thus subjecting it to personal jurisdiction; and

(3) Norfolk consented to personal jurisdiction in Pennsylvania by registering

to do business as a foreign corporation. Norfolk responded to Yowell’s answer

to preliminary objections on May 30, 2017.

      On August 2, 2017, following oral argument, the trial court granted

Norfolk’s preliminary objections and dismissed Yowell’s complaint with

prejudice. In doing so, the trial court held that: (1) section 56 of FELA does

not grant Pennsylvania state courts personal jurisdiction over Norfolk; (2)

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Yowell proved neither specific nor general in personam jurisdiction over

Norforlk; and (3) Yowell waived her argument regarding Norfolk’s alleged

consent to jurisdiction for lack of analysis or citation to legal authority. Yowell

filed a timely notice of appeal to this Court. The trial court, which did not

order Yowell to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, filed its opinion on December 28, 2017. Yowell raises

the following issue for our review:

      Whether the trial court made an error of law in sustaining
      [Norfolk’s] [p]reliminary [o]bjections and dismissing with
      prejudice [Yowell’s] FELA wrongful death action based on lack of
      personal jurisdiction[?]

Brief of Appellant, at 4.

      Our standard and scope of review of a trial court’s decision to sustain

preliminary objections are well settled:

      Our standard of review mandates that on an appeal from an order
      sustaining preliminary objections which would result in the
      dismissal of suit, we accept as true all well-pleaded material facts
      set forth in the appellant’s complaint and all reasonable inferences
      which may be drawn from those facts. [] Where, as here,
      upholding sustained preliminary objections would result in the
      dismissal of an action, we may do so only in cases that are clear
      and free from doubt. To be clear and free from doubt that
      dismissal is appropriate, it must appear with certainty that the law
      would not permit recovery by the plaintiff upon the facts averred.
      Any doubt should be resolved by a refusal to sustain the
      objections. We review for merit and correctness—that is to say,
      for an abuse of discretion or an error of law. This case was
      dismissed at the preliminary objections stage on issues of law; our
      scope of review is thus plenary.

McCabe v. Marywood Univ., 166 A.3d 1257, 1261 (Pa. Super. 2017),

quoting Reardon v. Allegheny Coll., 926 A.2d 477, 480 (Pa. Super. 2007).


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       On appeal, Yowell asserts that Norfolk, by registering in Pennsylvania

as a foreign corporation, consented to general personal jurisdiction under the

Commonwealth’s long-arm statute.               In its opinion in support of the order

granting Norfolk’s preliminary objections, the trial court concluded that Yowell

waived the issue of jurisdiction by consent, finding that Yowell’s one sentence

argument was “wholly devoid of analysis or citation to legal authority for

support.”1 Trial Court Opinion, 12/28/17, at 6. Accordingly, the court did not

address this claim.      On review, we concur with the trial court’s finding of

waiver and, consequently, find her sole appellate argument waived.

       “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a). Failure to cite authority in

support of a claim results in waiver of that argument, Giant Food Stores,

LLC v. THF Silver Spring Dev., L.P., 959 A.2d 438, 444 (Pa. Super. 2008),

and it is axiomatic that courts will not develop arguments on behalf of a

litigant. Bombar v. W. Am. Ins. Co., 932 A.2d 78, 93 (Pa. Super. 2007).

       Here, Yowell’s entire jurisdiction-by-consent argument before the trial

court consisted of the following conclusory statement: “Norfolk Southern has

already consented to jurisdiction in Pennsylvania based upon its registering to

do business in Pennsylvania as of September 1, 1998, Exhibit 5.” Yowell’s

Trial Court Brief, 5/22/07, at 6. Yowell presented no argument or citation to

____________________________________________


1We note that Yowell did not address the trial court’s finding of waiver in her
appellate brief.



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authority in support of this claim. In particular, Yowell entirely failed to cite

that portion of Pennsylvania’s long-arm statute on which her consent claim is

necessarily based.2       Instead, and only in conjunction with an unrelated

argument, Yowell cited 42 Pa.C.S.A. § 5322, which governs specific personal

jurisdiction and was inapposite even to the argument for which it was cited.3
____________________________________________


2 Section 5301 of Pennsylvania’s Long-Arm Statute authorizes Pennsylvania
courts to exercise personal jurisdiction over out-of-state defendants based
upon a defendant’s general activities within the Commonwealth, in relevant
part, as follows:

       (a) General rule.--The existence of any of the following
       relationships between a person and this Commonwealth shall
       constitute a sufficient basis of jurisdiction to enable the tribunals
       of this Commonwealth to exercise general personal jurisdiction
       over such person, or his personal representative in the case of an
       individual, and to enable such tribunals to render personal orders
       against such person or representative:

                                           ...

        (2) Corporations.--

          (i) Incorporation under or qualification as a foreign
          corporation under the laws of this Commonwealth.

          (ii) Consent, to the extent authorized by the consent.

          (iii) The carrying on of a continuous and systematic part of
          its general business within this Commonwealth.

                                           ...

42 Pa.C.S.A. § 5301(a)(2) (emphasis added).

3 Under the long-arm statute, Pennsylvania courts may exercise over non-
resident defendants either specific personal jurisdiction, which is based upon
the defendant’s specific activities within the forum state giving rise to the
particular cause of action, or general personal jurisdiction, which is based upon



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Additionally, Yowell did not mention, much less discuss or apply, the recent

decisions of the United States Supreme Court in Goodyear Dunlop Tires

Operations, S.A. v. Brown, 564 U.S. 915 (2011), and Daimler AG v.

Bauman, 571 U.S. 117 (2014), which significantly altered our nation’s

personal jurisdiction jurisprudence.4            A discussion of the due process

limitations on in personam jurisdiction imposed by those cases would have

been crucial to any argument either for or against a finding of jurisdiction by

consent.

       Because Yowell utterly failed to present the trial court with any analysis

whatsoever regarding her jurisdiction-by-consent claim, the court was well

within its discretion to deem that claim waived. Consequently, we must also

deem it waived for purposes of appeal, as she failed to properly preserve it in

the trial court. Pa.R.A.P. 302(a). Because it is the sole claim pursued on




____________________________________________


the defendant’s general activity within the forum. See Hall-Woolford Tank
Co., Inc. v. R.F. Kilns, Inc., 698 A.2d 80, 82 (Pa. Super. 1997). An
argument alleging consent through registration as a foreign association
implicates section 5301, the portion of the statute governing general
jurisdiction.

4 Goodyear and Daimler clarified that a court may assert general jurisdiction
over foreign corporations only when their affiliations with the state are “so
‘continuous and systematic’ as to render them essentially at home in the
forum [s]tate.” BNSF Ry. Co. v. Tyrrell, 137 S.Ct. 1549, 1558 (2017).




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appeal, we affirm the trial court’s order sustaining Norfolk’s preliminary

objections and dismissing Yowell’s complaint.5

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/18




____________________________________________


5 We would also note that Yowell’s complaint did not contain an averment that
Norfolk was a foreign corporation registered to do business in the
Commonwealth of Pennsylvania, which is the factual foundation of her
jurisdiction-by-consent claim. Our appellate review of an order granting
preliminary objections requires that we accept as true all well-pleaded
material facts set forth in the appellant’s complaint and all reasonable
inferences which may be drawn from those facts. McCabe, supra. Because
Yowell’s complaint sets forth no facts which could support a conclusion that
Norfolk consented to jurisdiction in Pennsylvania by registering as a foreign
corporation, we could affirm the court’s order on that alternative basis.

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