J-A07036-19

                               2019 PA Super 172

 HOWARD ROBBINS, PERSONAL                   :   IN THE SUPERIOR COURT OF
 REPRESENTATIVE FOR THE ESTATE              :        PENNSYLVANIA
 OF DAVID ROBBINS                           :
                                            :
                                            :
              v.                            :
                                            :
                                            :
 CONSOLIDATED RAIL CORPORATION              :   No. 1055 EDA 2018
 AND PENN CENTRAL CORP., A/K/A              :
 AMERICAN PREMIER                           :
 UNDERWRITERS, INC.                         :
                                            :
                     Appellants             :

             Appeal from the Order Entered December 7, 2017
    In the Court of Common Pleas of Philadelphia County Civil Division at
                            No(s): 1702-7646


BEFORE:    OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                              FILED MAY 29, 2019

      Consolidated Rail Corporation (“Consolidated Rail”) and Penn Central

Corp.,   A/K/A     American   Premier   Underwriters,   Inc.   (“Penn   Central”)

(collectively “Appellants”) appeal from the denial of their motion to dismiss

the 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: Howard

Robbins (“Mr. Robbins”), who is a resident of Indiana and the personal

representative for the estate of David Robbins (“the decedent”), instituted the




____________________________________
* Former Justice specially assigned to the Superior Court.
J-A07036-19


instant action pursuant to FELA1 against Consolidated Rail, which is

incorporated in Pennsylvania with a principal place of business in Philadelphia,

and Penn Central, which is incorporated in Pennsylvania with an address for

service in Harrisburg, Pennsylvania.2 Mr. Robbins averred Appellants conduct

business in and have substantial contacts with Philadelphia. He specifically

averred Appellants conduct business in Philadelphia “as a common carrier by

rail, operating a line and system of railroads and transacting substantial

business throughout the Commonwealth of Pennsylvania, including but not

limited to Philadelphia County.” Mr. Robbins’ Complaint, filed 6/6/17, at 1.

       Mr. Robbins indicated that, from 1953 to 1989, the decedent was

employed by Appellants as a trackman, machine operator, and/or track

foreman at the Beech Grove Train Yard in Indianapolis, Indiana. He averred

that, as a result of the decedent’s job duties, the decedent was exposed to

chemicals and cancer-causing substances, which resulted in the decedent’s

death from lung and liver cancer on March 1, 2014.




____________________________________________


1 Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60. We note Mr.
Robbins originally filed a complaint on March 1, 2017, but he was permitted
to amend his complaint on June 6, 2017.

2 According to a sworn affidavit filed by Appellants, Penn Central filed for
bankruptcy in 1970, and 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. § 701 et seq., Congress created
Consolidated Rail, and all employees of Penn Central were offered continued
employment with Consolidated Rail.

                                           -2-
J-A07036-19


      On October 3, 2017, Appellants 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, Appellants filed an affidavit from Michael Scully, Director of Risk

Management for Consolidated Rail.       Mr. Scully clarified the decedent was

employed in Indiana by Penn Central from 1953 to 1976, and he was

employed in Indiana by Consolidated Rail from 1976 to 1989.           Mr. Scully

confirmed the decedent never worked for Appellants in Pennsylvania, and

employment records for the decedent are stored in Jacksonville, Florida or

Mount Laurel, New Jersey.

      Mr. Scully averred Appellants identified two of the decedent’s former

supervisors who might be potential trial witnesses: Dale Mason, who resides

in Illinois, and Charles Toney, who resides in Indiana. Both of these former

supervisors are retired and no longer employed by Appellants.         Mr. Scully

averred there may be additional former supervisors or co-workers yet to be

identified; however, it was not expected that the supervisors or co-workers

would have worked or lived in Pennsylvania. Mr. Scully alleged Appellants’

employees would suffer personal disruption if they are called to testify in

Pennsylvania, as opposed to Indiana, and Appellants will suffer greater costs,

inconvenience, and business disruption.

      Appellants also filed an affidavit from James Kennedy, the former vice-

president-deputy general counsel and secretary for Penn Central.             Mr.

Kennedy averred that Penn Central does not possess employment or


                                      -3-
J-A07036-19


personnel files, whether in Pennsylvania or elsewhere, for employees such as

the decedent, who were employed by Penn Central but subsequently accepted

employment with Consolidated Rail.3

       Appellants averred the instant action has no bona fide connection to

Pennsylvania.      They    reasoned      the   only   alleged   connection   between

Pennsylvania and the instant matter is that Appellants are incorporated in

Pennsylvania, and Consolidated Rail has its headquarters in Philadelphia.

However, Appellants argued these connections are totally unrelated to Mr.

Robbins’ claim that the decedent suffered injury. Appellants indicated they

agreed to waive the statute of limitations if Mr. Robbins re-filed his action in

a new forum within 120 days of the dismissal of the suit in Philadelphia, and

they agreed not to object on the basis of venue or personal jurisdiction if the

matter was re-filed in Indiana.

       On October 24, 2017, Mr. Robbins filed a response in opposition to

Appellants’ motion to dismiss for forum non conveniens. Therein, Mr. Robbins


____________________________________________


3  Pointing to a request for admissions, Appellants averred in their motion to
dismiss that Mr. Robbins admitted the decedent was not treated for his alleged
injuries in Pennsylvania, and all of “[Mr. Robbins’] fact witnesses are located
outside of Pennsylvania.” Appellants’ Motion to Dismiss, filed 10/3/17, at 3,
12 (bold omitted). Appellants argued the request for admissions was deemed
admitted since Mr. Robbins did not respond thereto within the time provided
by the Rules of Civil Procedure. However, as discussed in depth infra, the trial
court determined the request for admissions, which was referenced in
Appellants’ motion to dismiss, was served on Mr. Robbins by CSX
Transportation, which is not a party to the instant matter. Trial Court Opinion,
filed 9/6/18, at 3 n.2. Accordingly, the trial court “did not consider the
[r]equest for [a]dmission[s].” Id.

                                           -4-
J-A07036-19


admitted the decedent did not live, work, own property, or receive medical

treatment in Pennsylvania.     However, Mr. Robbins specifically averred he

“intend[ed] to call four (4) former [Consolidated Rail] employees who worked

in Philadelphia as fact witnesses at trial including Marcia Comstock (medical

director), William Barringer (safety director), Ramon Thomas (industrial

hygienist), and Paul Kovac (occupational claims manager).”         Mr. Robbins’

Response, filed 10/24/17, at 3, 7.     He noted that, in Pennsylvania, these

witnesses would be “subject to compulsory attendance.” Id. at 8. He also

noted the cost for him to obtain these witnesses’ attendance in Indiana, as

opposed to Pennsylvania, would be greater. Id. at 9. Further, Mr. Robbins

indicated that, although he admitted it was unlikely that any of the decedent’s

unidentified former supervisors or co-workers reside in Pennsylvania, he does

not know whether they potentially live closer to Indiana or Philadelphia. Id.

Mr. Robbins noted it is “convenient” that Appellants named only the decedent’s

former supervisors and Appellant did not indicate any of their current

employees would testify. Id. at 8-9.

      Moreover, Mr. Robbins asserted 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.    Id. at 5-6.    Mr. Robbins

admitted   the   decedent’s   employment     files   are   not   located   within

Pennsylvania; however, he indicated some of the files are “located within miles


                                     -5-
J-A07036-19


of the Pennsylvania state border” in Mount Laurel, New Jersey.           Id. at 7.

Moreover, Mr. Robbins noted a viewing of the premises in this case would not

be desirable and, in fact, it “would be…extremely dangerous [for the jury].”

Id. at 10.

       On December 6, 2017, the trial court held a hearing on the matter, at

which neither party produced additional evidence; but rather, the parties

focused their attention on the legal arguments.

       On December 7, 2017, the trial court denied Appellants’ motion to

dismiss.     Appellants filed a motion to amend the order to allow for an

interlocutory appeal, and the trial court denied the motion. Appellants then

filed a petition for review with this Court.       We granted the petition and

transferred the matter to the instant docket number. On September 6, 2018,

the trial court filed a Pa.R.A.P. 1925(a) opinion in which it set forth its reasons

for denying Appellants’ motion to dismiss.4

       On appeal, Appellants present the following issues in their “Statement

of Questions Involved”:

       1. Whether a court considering a motion to dismiss a FELA case
          pursuant to 42 Pa.C.S. § 5322(e) should give any consideration
          to the fact that granting the motion would eliminate the
          plaintiff’s option to litigate his action in the state in which the
          defendant resides and thereby limit the plaintiff to the forum in
          which the claim arose[?]


____________________________________________


4The trial court did not order Appellants to file a Pa.R.A.P. 1925(b) statement,
and therefore, no such statement was filed.


                                           -6-
J-A07036-19


     2. Whether a trial court may treat a plaintiff’s unverified assertion
        that certain of his witnesses are located in the forum state as
        fact and give it primacy in the forum non conveniens analysis
        over the plaintiff’s admissions establishing that the action has
        no connection to the forum state[?]
     3. Whether a Pennsylvania jury has an interest in trying an action
        brought by an out-of-state plaintiff for injuries suffered
        exclusively in another state solely because the defendant
        resides in Pennsylvania[?]

Appellants’ Brief at 5-6 (suggested answers omitted) (alphabetizing replaced

with numbers).

     Initially, we note the following relevant principles:

           Orders on motions to dismiss under the doctrine of forum
     non conveniens are reviewed for an abuse of discretion. This
     standard applies even where jurisdictional requirements are met.
     Moreover, if there is any basis for the trial court’s decision, the
     decision must stand.
           An abuse of discretion occurs if, inter alia, there was an error
     of law or the judgment was manifestly unreasonable. When
     reviewing for errors of law, the appellate standard of review is de
     novo and the scope of review is plenary.
          In Pennsylvania, the doctrine of forum non conveniens,
     which originated in Common Law, has been codified by statute:
           Inconvenient forum.-When a tribunal finds that in
           the interest of substantial justice the matter should be
           heard in another forum, the tribunal may stay or
           dismiss the matter in whole or in part on any
           conditions that may be just.
     42 Pa.C.S.A. § 5322(e).




                                     -7-
J-A07036-19


Hovatter v. CSX Transportation, Inc., 193 A.3d 420, 424 (Pa.Super. 2018)

(quotations and citations omitted).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, 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.”[6]
                                        ***
              [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
____________________________________________


5 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).

6 As the trial court held, with regard to the second factor, in light of Appellants’
stipulations, an alternate forum (Indiana) is available for the instant action.
See Trial Court Opinion, filed 9/6/18, at 4.

                                           -8-
J-A07036-19


           Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839
           (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 is
                 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).

     In their first claim, Appellants contend the trial court erred in considering

the fact that granting Appellants’ motion to dismiss would eliminate Mr.

Robbins’ option to litigate this action in Pennsylvania and require him to

litigate the action in Indiana. Appellants suggest the trial court improperly

concluded Appellants had an “untoward” motive in seeking to dismiss the suit


                                     -9-
J-A07036-19


in Pennsylvania. See Appellants’ Brief at 17-19. Further, Appellants suggest

the trial court improperly gave “heightened deference” to Mr. Robbins’s choice

of forum because he brought the action under FELA. Id.

      In developing their claim, Appellants rely on the following portion of the

trial court’s Rule 1925(a) opinion:

             The instant case sounds in the violation of a federal statute,
      FELA[.] Section 56 [of FELA] provides a plaintiff the right to bring
      an action “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. The U.S.
      Supreme Court interpreted [Section] 56 as a venue provision,
      allowing a plaintiff to bring a FELA suit in any venue which has
      personal jurisdiction over the defendants. BNSF Ry. Co. v.
      Tyrrell, 137 S.Ct. 1549 (2017). Thus, [Mr. Robbins] had a choice
      of bringing this matter in one of two jurisdictions: 1) Philadelphia,
      which has general jurisdiction over [Appellants], and 2)
      Indianapolis, which has specific jurisdiction because that is where
      the cause of action accrued. In filing the instant [m]otion,
      [Appellants] sought to remove the first option—filing suit in a
      court that has general personal jurisdiction—effectively limiting
      the instant FELA case solely to the jurisdiction in which the cause
      of action accrued.

Trial Court Opinion, filed 9/6/18, at 7-8.

      We   disagree   with   Appellants      that   the   trial   court’s   statements

demonstrated the court found Appellants had an “untoward motive” in seeking

to dismiss the instant suit or that the trial court gave “heightened deference”

to Mr. Robbins in analyzing the forum non conveniens issue. Rather, the trial

court’s statements were a proper summary of the law under FELA as to where

venue may lie for purposes of the instant case (namely, Pennsylvania, where




                                      - 10 -
J-A07036-19


Appellants were doing business at the time Mr. Robbins commenced the

action, or Indiana where the cause of action arose).      See 45 U.S.C. § 56.

      Further, we note the trial court’s statements were made in the context

of discussing whether an alternate forum existed in this case, as well as

whether Mr. Robbins’ choice of forum should be disturbed due to “weighty

reasons.” As indicated supra, both the existence of an alternate forum and

“weighty reasons” are proper considerations when a defendant makes a

request to transfer a case to another state based on forum non conveniens.

See Hovatter, supra.

      Moreover, to the extent Appellants suggest the trial court’s statements

reveal the court improperly gave “heightened deference” to Mr. Robbins’

choice of forum because he brought the action under FELA, we note the trial

court specifically stated the following in its opinion:

            [T]he Superior Court in Hovatter held the trial court erred
      by concluding that federal law required a FELA plaintiff’s choice of
      forum to receive heightened deference. In the case sub judice,
      th[e] [trial court] did not apply such deference; instead, [the]
      [c]ourt, applying the precedent set forth by our appellate courts,
      concluded [Appellants] failed to produce the requisite strong
      evidence of “weighty reasons” which would entitle [them] to
      dismissal of this action.

Trial Court Opinion, filed 9/6/18, at 9.       Accordingly, we find no merit to

Appellants’ first claim.

      Appellants combine their second and third claims into one argument

section. Initially, Appellants aver that, under Pa.R.C.P. 4014(b), the trial court

abused its discretion in failing to deem admitted the matters raised in

                                      - 11 -
J-A07036-19


Appellants’ request for admissions since Mr. Robbins did not respond thereto

in a timely manner. See Appellants’ Brief at 29-32.

     We review a ruling related to discovery for an abuse of discretion.

Kuwait & Gulf Link Transport Co. v. Doe, 92 A.3d 41, 44 (Pa.Super. 2014).

     As this Court has held:

     Rule 4014 governs requests for admissions. It permits a party to
     serve upon another party a written request for the admission of
     the truth of certain matters relating to statements or opinions of
     fact or the application of the law to fact. Pa.R.C.P. 4014(a). “The
     purpose of this discovery tool is to clarify and simplify the issues
     raised in prior pleadings in order to expedite the litigation
     process.” Christian v. Pennsylvania Fin. Responsibility
     Assigned Claims Plan, 686 A.2d 1, 5 ([Pa.Super.] 1996)
     (citation omitted)[.] Unless the party responds to the request
     within 30 days (45 days for a defendant), the matter is deemed
     admitted. Pa.R.C.P. 4014(b). The trial court may extend or
     shorten the timeframe in which the responding party has to
     answer the request. Id.

Estate of Borst v. Edward Stover Sr. Testamentary Trust, 30 A.3d 1207,

1210 (Pa.Super. 2011).

     Here, Appellants suggested the following in their October 3, 2017,

motion to dismiss:

     [Consolidated Rail] served [Mr. Robbins] with Requests for
     Admissions on August 17, 2017. See Ex. D (letter transmitting
     Requests for Admissions to [Mr. Robbins]. [Mr. Robbins] has not
     answered the Requests for Admissions as of September 18, 2017.
     Under Pa.R.C.P. 4014(b), “[t]he matter is admitted unless, within
     thirty days after service of the request, or within such shorter or
     longer time as the court may allow, the party to whom the request
     is directed serves upon the party requesting the admission an
     answer verified by the party or an objection, signed by the party
     or by the party’s attorney….” Thus, [Consolidated Rail’s] Requests
     for Admission, attached as Ex. C, are deemed admitted.


                                    - 12 -
J-A07036-19


Appellants’ Motion to Dismiss, filed 10/3/17, at 5 n.4.

       In its Rule 1925(a) opinion, the trial court indicated it rejected

Appellants’ argument since a review of the request for admissions, which

Appellants attached to its motion to dismiss as Exhibit C, revealed that the

request for admissions was served upon Mr. Robbins by “CSX Transportation,”

which is not a party to the instant case. See Trial Court Opinion, filed 9/6/18,

at 3 n.2. Thus, the trial court concluded Mr. Robbins was not obligated to

answer the August 17, 2017, request for admissions, resulting in the trial

court’s conclusion that the matters contained therein were not deemed

admitted.

       We find no abuse of discretion in this regard. Our review of the certified

record confirms that Exhibit C, which Appellants attached to their motion to

dismiss,    contained     the     following    in   the   opening    paragraph:   “CSX

Transportation…directs          the   following     Requests   for    Admission    and

Interrogatories to Plaintiff….” Appellants’ Motion to Dismiss, filed 10/3/17,

Exhibit C. Further, in the body of the request for admissions, “CSX

Transportation” is identified as the defendant.            See id.    Accordingly, Mr.

Robbins was not obligated to respond to the August 17, 2017, request for

admissions.7 See Estate of Borst, supra.

____________________________________________


7 On September 20, 2018, after the trial court filed its Rule 1925(a) opinion,
Appellants filed a supplemental record to which they attached a “corrected”
request for admissions naming “Consolidated Rail” as the defendant.



                                          - 13 -
J-A07036-19


       Appellants next claim the trial court abused its discretion in weighing

the private and public factors and, thus, the trial court erred in concluding

there were insufficient “weighty reasons” to warrant overcoming Mr. Robbins’

choice of forum. We disagree.

       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 Appellants identified

two potential witnesses, both of whom were Appellants’ former employees:

Mr. Mason, who resides in Illinois, and Mr. Toney, who resides in Illinois. Mr.

Robbins, on the other hand, identified four fact witnesses, all of whom reside

in Pennsylvania and were former Consolidated Rail employees. Additionally,

the trial court noted Appellants conceded that it is unlikely any party would

seek a request to view the train yard at issue.



____________________________________________


Appellants admit in their brief that, on October 10, 2018, Mr. Robbins
responded to the request for admissions; however, they characterize the
response as being “over one year since [Consolidated Rail] served [Mr.
Robbins] with those [r]equests[.]” Appellants’ Brief at 9 n.3. Since Mr.
Robbins was not obligated to respond to the August 17, 2017, request for
admissions, which was served upon him by a non-party (CSX Transportation),
we conclude Mr. Robbins’ October 10, 2018, response was actually a timely
response to the September 20, 2018, request for admissions, which was
served upon him by a party (Consolidated Rail).

                                          - 14 -
J-A07036-19


       With regard to the public factors, and Pennsylvania’s connection to the

lawsuit, it is noteworthy that Mr. 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 Appellants have not met their burden, we affirm.8

       For all of the foregoing reasons, we affirm.

       Affirmed.




____________________________________________


8 To the extent Appellants 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, Mr. 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).

                                          - 15 -
J-A07036-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/19




                          - 16 -
