J-A01021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    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.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 27, 2018




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A01021-18


      In these consolidated appeals, Appellant, CSX Transportation, Inc.,

appeals from the denials of its motions to dismiss based on the doctrine of

forum non conveniens in these actions brought under the Federal Employers’

Liability Act (“FELA”), 45 U.S.C. §§ 51-60. For the reasons discussed below,

we reverse and remand.

      We take the underlying facts and procedural history in this matter from

the trial court’s May 18, and June 27, 2017 opinions and our independent

review of the certified record.

      Appellee, David W. Hovatter, is a resident of Frostburg, Maryland. He

worked for Appellant as a machinist in Cumberland, Maryland. On July 30,

2015, he instituted the instant action pursuant to the FELA for injuries to his

knee and leg he alleges he sustained when descending a metal ramp at

Appellant CSXT’s facility in Cumberland. Appellant filed preliminary objections

on September 22, 2015. The trial court sustained the preliminary objections,

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. Appellee Hovatter filed an answer on May

31, 2016. The trial court denied the motion on July 1, 2016. On July 20,

2016, Appellant filed a motion to amend the order of July 1, 2016, to allow for


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an interlocutory appeal. The trial court granted this request on July 20, 2016.

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 May 18, 2017, the trial court filed an opinion. See Pa.R.A.P.

1925(a).

      Appellee, Edward M. 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.

Appellant filed preliminary objections on January 19, 2016. The trial court

sustained, in part, the preliminary objections on February 18, 2016. On March

8, 2016, Appellee Wilson filed an amended complaint alleging that he suffered

from cumulative trauma injuries caused by his employment with Appellant.

(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 July 29, 2016, Appellant filed a motion to dismiss

based on the doctrine of forum non conveniens.       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


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J-A01021-18


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 an opinion adopting

its earlier opinion of May 18, 2017. See Pa.R.A.P. 1925(a).

       On appeal, Appellant raises the following questions for our review.

       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).

       On appeal, Appellant challenges the trial court’s denial of its motion to

dismiss based on the doctrine of forum non conveniens pursuant to 42

Pa.C.S.A. § 5322(e).1, 2 Our standard of review is an abuse of discretion. See

____________________________________________


1 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. See 42 Pa.C.S.A. §
5322(e).

2 We emphasize that this matter does not involve an intrastate request to
transfer venue based upon forum non conveniens pursuant to Pa.R.C.P.
1006(d)(1). In cases where there is a request to transfer a case to another
state, 42 Pa.C.S.A. § 5322(e) applies. See Pisieczko, infra at 1262 n. 3
(“42 Pa.C.S.A. § 5322(e) controls when the alternative venue is out-of-state.
When the alternative venue is in-state, Pa.R.C.P. 1006(d)(1) controls.”). We
stress this distinction because a defendant bears a heavier burden under Rule
1006(d)(1), which allows forum transfers only when the defendant
demonstrates that plaintiff’s chosen forum is oppressive and vexatious for the



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J-A01021-18


Pisieczko v. Children's Hosp. of Phil., 73 A.3d 1260, 1262 (Pa. Super.

2013). If there is any valid basis for the trial court’s decision, we must affirm.

See id.

       Pursuant to Section 5322(e), the court may stay or dismiss the matter

when “a tribunal finds that in the interest of substantial justice the matter

should be heard in another forum[.]” 42 Pa.C.S.A. § 5322(e). The trial court

must apply two factors when considering whether dismissal is warranted: “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.”3 Pisieczko, supra at 1263 (citation omitted).

       In deciding whether weighty reasons exist so as to overcome the

plaintiff’s choice of forum, the trial court must “examine both the private and

public interest factors involved.” Engstrom v. Bayer Corp., 855 A.2d 52, 55

(Pa. Super. 2004), appeal denied sub nom., Weiding v. Bayer Corp., 887




____________________________________________


defendant. See Bratic v. Rubendall, 99 A.3d 1, 7 (Pa. 2014). Thus, in the
Rule 1006(d)(1) context, issues such as whether venue is convenient or a
hardship are relevant; those factors are not at issue in a § 5322(e) analysis.

3 In the present cases, Appellant has agreed to waive any applicable statute
of limitations and any objections on the basis of venue or personal jurisdiction.
(See Appellant’s Brief, at 6, 8). Thus, there are available alternative forums.
See Jessop v. ACF Industries, LLC, 859 A.2d 801, 803 (Pa. Super. 2004)
(“A stipulation made by a defendant that he or she will submit to service of
process and not raise the statute of limitations as a defense has been accepted
by the courts as eliminating the concern regarding the availability of an
alternate forum.”) (citation omitted).

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J-A01021-18


A.2d 1242 (Pa. 2005). In Engstrom, we set forth the pertinent private and

public factors thusly:

             [The private interests at play 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 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 [a] 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 a law foreign to itself.

Id. at 56 (citation omitted).

      In its first issue, Appellant contends that the trial erred in applying a

heightened deference to Appellees’ choice of forum because they brought the

cases pursuant to the FELA.      (See Appellant’s Brief, at 12-14; Trial Court

Opinion, 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:




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J-A01021-18


                  [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.

(Trial Ct. Op., at 3). However, in a decision issued approximately two weeks

after the trial court issued its opinion, the United States Supreme Court

addressed this issue and came to a contrary result.        In BNSF Ry. Co. v.

Tyrrell, 137 S. Ct. 1549, 1553 (2017), like the instant matter, the plaintiffs

sued under the FELA in state court. See Tyrrell, supra at 1553. Again, as

in the instant matter, while the defendant did business in the state, it was not

incorporated there and its principal place of business was not there. See id.

The Montana Supreme Court held that it had personal jurisdiction over the

case under Section 56. See id. The United States Supreme Court disagreed,

holding that Section 56:

      is a venue prescription governing proper locations for FELA suits
      filed in federal court. The provision’s second relevant sentence,
      using the term “concurrent” jurisdiction, refers to subject-matter
      jurisdiction, not personal jurisdiction. It simply clarifies that the
      federal courts do not have exclusive subject-matter jurisdiction
      over FELA suits; state courts can hear them, too.

Id. (emphasis added). The Court stated that the mere fact that the case was

brought under the FELA was insufficient to vest personal jurisdiction in a state

where none of the events at issue occurred, none of the parties resided, and

the state was not the defendant’s place of incorporation or principal place of


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J-A01021-18


business.   See id. at 1558-59.     It found that simply having tracks and

employees located in the state was not enough to give the Montana court

personal jurisdiction over the matter. See id.

      The holding in BNSF is in line with earlier United States Supreme Court

precedent. In Missouri ex rel. S. Ry. Co. v. Mayfield, 340 U.S. 1 (1950),

the Supreme Court held that states courts have to apply the doctrine of forum

non conveniens to FELA cases in the same way they apply it to any other

cases. See Mayfield, supra at 4; see also Rini v. New York Cent. R.R.

Co., 240 A.2d 372, 374-75 (Pa. 1968) (applying normal Pennsylvania

standard to doctrine of forum non conveniens in FELA case); Norman v.

Norfolk & W. Ry. Co., 323 A.2d 850, 855-56 (Pa. Super. 1974) (same and

reversing trial court’s denial of defendant’s preliminary objections based upon

doctrine of forum non conveniens). Thus, we find that the trial court erred in

finding that Section 56 applied to the instant matter and in granting

heightened deference to Appellees’ choice of forum based upon its application.

See Tyrell, supra at 1553.

      In its second issue, Appellant alleges that “[u]nder generally applicable

Pennsylvania law, [its] unrelated business activity in Pennsylvania is not a

valid basis for denying [its motion to dismiss.]”   (Appellant’s Brief, at 14)

(unnecessary capitalization omitted). Again, we agree.

      Here, Appellant avers the following in support of its position that

dismissal is proper. Neither Appellee resides in Pennsylvania. (See id. at 7-


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J-A01021-18


8). Appellee Hovatter resides in Maryland, while Appellee Wilson is a resident

of Kentucky.   (See id. at 7).   Appellant is incorporated in Virginia and its

principal headquarters is in Jacksonville, Florida. (See id.).

      As previously noted, Appellant Hovatter’s injury occurred at Appellant’s

facility in Cumberland, Maryland. (See id.). Appellant Wilson alleged that he

sustained injuries to his knees, lower back, and neck during the course of his

employment at Appellant’s facilities in Kentucky, Ohio, and Indiana. (See id.

at 8-9).

      Appellee Hovatter received all of his medical treatment in Maryland.

(See id. at 7). His claim concerns working conditions at a facility in Maryland

and any witnesses to either the working conditions or his injury are located in

Maryland. (See id.).

      Appellee 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 relevant employment records or other documents of

relevance to 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 22).




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J-A01021-18


      Appellant 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. (See id. at 23). It contends that even if the some of the witnesses

are willing to attend, it will be costly and inconvenient. (See id. at 24-25). If

the jury wished to view any of the facilities or the ramp on which Appellant

Hovatter sustained his injury, they would be unable to. (See id. at 24-25).

It maintains both that it would be easier and significantly less expensive if the

cases were venued in their home forums. (See id. at 25).

      We agree.     As delineated above, all relevant events in both cases

occurred outside of Pennsylvania. All witnesses, including medical personnel,

reside outside of Pennsylvania. All relevant documentation is located outside

of Pennsylvania. Neither Appellee resides in Pennsylvania nor is Appellant

incorporated in Pennsylvania and it does not maintain its principal

headquarters here.      It will be difficult for Appellant to compel witness

attendance at trial in Pennsylvania and any discovery disputes will have to be

resolved through states courts in the relevant states.          Appellants have

demonstrably shown that Maryland and, in the case of Appellee Wilson, either

Kentucky or Ohio will provide ease of access to sources of proof, which are

some of the private factors we must consider. These factors are particularly

compelling here and strongly warrant dismissal of this action. See Engstrom,

supra at 55; see also Pisieczko, supra at 1264 (“Because the private

factors indeed favor New Jersey as a more convenient forum, the trial court


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J-A01021-18


did not abuse its discretion when it found that the private factors were in favor

of dismissing the case.”) (citation omitted).     Appellant has unequivocally

demonstrated that there are no obstacles to a fair trial in Maryland, Kentucky,

or Ohio and that trial in these jurisdictions would be easier, more expeditious,

and less expensive. Hence, all of the above-discussed private factors favor

dismissal. See Engstrom, supra at 55; see also Pisieczko, supra at 1264;

Rini, supra at 374-75 (affirming grant of motion to dismiss for forum non

conveniens in FELA case where cause of action arose outside of Pennsylvania;

neither plaintiff nor any witnesses resided within or had any connection to

Allegheny County; and no witnesses were within subpoena range of Court of

Common Pleas of Allegheny County); Norman, supra at 855-56 (holding trial

court abused its discretion in denying motion to dismiss for forum non

conveniens in FELA case where only connection to county in question was that

plaintiff’s expert witness resided there).

      Moreover, all of the public factors weigh in favor of trying this action in

the Appellees’ home forums.       As Appellant correctly notes, the courts in

Philadelphia County are extremely congested and have “become a magnet for

tort suits . . . [which] have no connection whatever to Pennsylvania.”

(Appellant’s Brief, at 30).    We see no reason to impose jury duty on

Pennsylvania citizens for FELA actions that arose in other states and involved

citizens of those states. See Engstrom, supra at 57 (“[t]here is simply no

valid reason that the people of Philadelphia County should bear the burden of


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J-A01021-18


adjudicating th[ese] case[s], including jury duty and the expense of

conducting a trial.”) (citation omitted).     We note that the third factor is

inapplicable since this case involves federal law.

      In short, we cannot find any basis upon which to distinguish this matter

from the cases of Rini, supra; Pisieczko, supra; Engstrom, supra; and

Norman, supra.      In each of these cases, our Courts strongly upheld the

principle that simply doing business in a state was insufficient to sustain venue

under the doctrine of forum non conveniens when there was no other

connection between the chosen forum and the case. See Rini, supra at 374-

75; Pisieczko, supra at 1264; Engstrom, supra at 55; Norman, supra at

855-56.

      Each of the considerations present in these case is present herein. The

cause of action arose outside of Pennsylvania. All parties and witnesses are

residents of other states. Appellant established unequivocally that there will

be significant burdens associated with trying the case in Pennsylvania. The

Philadelphia courts are overly congested and a Philadelphia jury should not be

taxed with trying a case with which it has no relation. All of the private and

the majority of the public factors support dismissal under § 5322(e).

      Moreover, the trial court failed to offer any valid basis for its action. As

discussed above, its reliance on 45 U.S.C. § 56 was in error. It offered no

legal support for its contention that advances in technology somehow obviate

the fact that no parties, witnesses, or evidence are in Pennsylvania. (See


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J-A01021-18


Trial Ct. Op., at 5). It discounted the possibility of a view of the premises and

indicated that videotape or photographs could serve as a substitute for a

viewing. (See id. at 5-6). We disagree. Its contention that Appellant could

“transport the ramp” in question in Appellee Hovatter’s case to Philadelphia

borders on the absurd.      (Id. at 6).     Moreover, its finding that because

Appellant hauls freight it could make arrangements to transport people to

travel to Philadelphia is irrelevant.      In so finding, the trial court also

inexplicably failed to consider the fact that all of the witnesses in these case

are beyond the subpoena power of Pennsylvania, and it will be cumbersome

to compel their presence at trial.        It never discussed the difficulties of

conducting discovery in Pennsylvania with respect to witnesses and

documents located in other states.        Finally, it provides no support for its

analysis that Philadelphia juries have interest in a FELA case because Appellant

transports cargo on rail lines located within Philadelphia.      And, again, its

analysis of 45 U.S.C. § 56 is flawed.

      Moreover, Appellees’ arguments in support of keeping the matters

venued in Philadelphia are largely misplaced. The first four pages of their

argument rely on Section 56 and Appellees ignore the fact that their position

has been foreclosed by Tyrrell, supra. (See Appellees’ Brief, at 4-7); see

also Tyrrell, supra at 1553. The remainder of their argument consists of

citations to boilerplate law, summaries of holdings without addressing how




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J-A01021-18


those holding apply to the facts of the instant matter, and lengthy quotations

from the trial court opinion. (See Appellant’s Brief, at 8-18).

      Appellees rely largely on the fact that Philadelphia is their chosen forum

and that at least some of the medical witnesses have agreed to testify via

videotape. (See id. at 11, 13-15). At no point do they discuss the fact that

the instant matter has no relationship to Pennsylvania.           Moreover, they

mention that Appellant did not establish that this jurisdiction would be

inconvenient.   (See id. at 11-13).     Whether a venue is burdensome, a

hardship, or a convenience is pertinent to the Pa.R.C.P. 1006(d)(1) test; not

the test utilized under § 5322(e).    Appellees have not addressed the key

questions, which are whether discovery will be more difficult due to the fact

that it will have to be conducted through out-of-state courts, and whether out-

of-state witnesses can be compelled to appear in Philadelphia, regardless of

the convenience of that forum.

      Appellees also complain that Appellant has failed to specify what out-of-

state witnesses they would need to call or who would be “inconvenienced if

required to testify in Philadelphia.” (Appellees’ Brief, 12). This argument is a

non-sequitur because that is the purpose of discovery, which Appellant is

hindered in conducting in Pennsylvania. More importantly, it is incorrect. It is

untenable to maintain that people who may have witnessed Appellee

Hovatter’s accident, or who worked at the allegedly unsafe facilities in

question will not have information relevant to this matter.


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J-A01021-18


      With respect to the public factors, Appellees merely adopt trial court

arguments that we have already rejected. (See id. at 15-18). Moreover,

their argument that because Appellant does business in Philadelphia a jury in

that location has the right to decide if it provides “a reasonably safe place to

work” (in other states), (id. at 11), fails to address the relevant issue, which

is whether jury duty should be imposed upon individuals in a county which

has no relation to the litigation.   As discussed above, Philadelphia has no

relation to cases involving an accident at a Maryland facility or working

conditions at facilities in Kentucky, Ohio, and Indiana. The fact that Appellant

conducts business in Philadelphia does not mean that the litigation is subject

to personal jurisdiction in this Commonwealth. See Jessop, supra at 807

(holding plaintiff did not prove Pennsylvania jury had relation to litigation,

which involved activities that occurred in Kansas, based on fact that defendant

did business in this Commonwealth and citizens of Pennsylvania might have

interest in litigation).

      Accordingly, for the reasons discussed above, we are constrained to

reverse and remand with directions that the court enter an order dismissing

the complaint without prejudice to the right of Appellees to refile the lawsuits

in Maryland with respect to Appellee Hovatter, and Kentucky or Ohio with

respect to Appellee Wilson. Appellant shall accept service, and is prohibited

from asserting lack of personal jurisdiction in the states of Maryland,

Kentucky, or Ohio on the defense of the statute of limitations.


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J-A01021-18


      Order     reversed   with   directions.   Case   remanded.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/18




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