J-A10002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 THERESA M. NOONE,               :           IN THE SUPERIOR COURT OF
 ADMINISTRATRIX OF THE ESTATE OF :                PENNSYLVANIA
 EDWARD W. NOONE                 :
                                 :
                 Appellant       :
                                 :
                                 :
            v.                   :
                                 :           No. 2702 EDA 2018
                                 :
 HUB GROUP TRUCKING, INC.,       :
 STELIAN I. ROSU, AND NORFOLK    :
 SOUTHERN RAILWAY CORP.          :

              Appeal from the Order Entered August 16, 2018
    In the Court of Common Pleas of Philadelphia County Civil Division at
                            No(s): 180104004


BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                            FILED MAY 20, 2019

      Theresa M. Noone (Noone/Plaintiff), administratrix of the Estate of

Edward W. Noone (Decedent), appeals from the trial court’s order dismissing

her complaint, without prejudice to refile in a more appropriate forum, based

on the doctrine of forum non conveniens. See 42 Pa.C.S. § 5322(5). After

careful review, we affirm.

      On September 6, 2016, Decedent, a dockworker at Saddle Creek

Logistics Services located in Florence Township, New Jersey, attempted to

unlock a safety lock on a trailer owned by Defendant Norfolk Southern Railway
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Corp. (Norfolk).      As Defendant Stelian I. Rosu (Rosu),1 an employee of

Defendant Hub Group Trucking, Inc. (Hub), backed his tractor toward the

trailer at an unsafe speed, he struck Decedent, pinning him between the

wheels of his tractor and the trailer, crushing him. Decedent was immediately

transported to the emergency room at Our Lady of Lourdes Medical Center in

Willingboro, New Jersey, and then ordered to be airlifted to Cooper University

Hospital, located in Camden, New Jersey, where he passed away 13 days later

on September 19, 2016. Rosu owned the tractor at issue and housed it at

Hub’s Bensalem, Pennsylvania terminal.2

       On January 24, 2018, Noone, a New Jersey resident, filed a negligence,

wrongful death and survival action in Philadelphia County against Defendants

Hub, Norfolk, and Rosu (collectively Defendants).      The complaint asserted

that Hub was negligent in hiring, monitoring, training and supervising its

employee, Rosu, who caused the accident, and that Norfolk was negligent and

careless in the inspection, repair, operation, and maintenance of the subject

tractor and trailer. The complaint also alleged that Rosu negligently operated,

inspected, repaired and or/maintained the subject tractor.
____________________________________________


1Rosu is an “owner-operator” of his tractor. While Rosu parked his tractor at
Hub’s Bensalem facility, Rosu testified in his deposition that many companies’
owner-operators park their tractors there, calling it a “truck stop.” Stelian I.
Rosu Deposition, 5/2/18, at 20.

2 Rosu has a traveling mechanic who comes to him to perform tractor repairs;
Hub’s mechanic cannot perform repairs to Rosu’s tractor at its Bensalem
facility, which is exclusively used for Hub’s mechanic to conduct mechanical
repairs on Hub’s vehicles.


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        On February 28, 2018, Hub and Rosu filed a motion to dismiss Noone’s

complaint on the grounds of forum non conveniens, arguing that both private

and public factors warranted transferring the action to New Jersey. On June

13, 2018, the trial court heard oral argument on the motion and considered

discovery and additional briefing on the matter by the parties. The trial court

chose to await our Court’s decision in Hovatter v. CSX Transportation,

Inc., 193 A.3d 420 (Pa. Super. 2018), before issuing its ruling. On July 17,

2018, the court entered an order granting Defendants’ motion to dismiss

without prejudice. The court, however, vacated its dismissal order on July 19,

2018, and permitted the parties to file supplemental briefs addressing the

forum issue in light of Hovatter.3 On August 15, 2018, finding “Philadelphia’s

connection to this litigation tangential at best,”4 the court issued its final order

dismissing Noone’s complaint, without prejudice to refile in a more appropriate

forum.

        Noone filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. Noone raises

the following issues for our consideration:

        (1)   Did the trial court err or otherwise abuse its discretion in
              granting [D]efendants’ motion to dismiss [P]laintiff’s
              complaint for forum non conveniens?



____________________________________________


3   Our Court filed Hovatter on July 13, 2018.

4   See Pa.R.A.P. 1925(a) Opinion, 11/6/18, at 9.

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      (2)   In concluding that [D]efendants’ motion to dismiss
            [P]laintiff’s complaint for forum non conveniens should be
            granted, did the trial court misapply Hovatter[.]?

Appellant’s Brief, at 2.

      Instantly, Noone claims that there was “no sound basis of justifiable

reason” for the trial court to dismiss her complaint, based on forum non

conveniens, where no “weighty reasons” existed on the record warranting

such an action.

      The common law doctrine of forum non conveniens, in the context of an

interstate foreign dispute, is codified at 42 Pa.C.S. § 5322(e):

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

42 Pa.C.S. § 5322(e). Forum non conveniens permits a court, exercising its

discretion, to refuse to entertain a case even if jurisdictional requirements are

met. Bochetto v. Piper Aircraft Co., 94 A.3d 1044 (Pa. Super. 2014). While

the plaintiff’s choice of forum is entitled to weighty consideration, the doctrine

of forum non conveniens is a “necessary counterbalance to insure [sic]

fairness and practicality.” Okkerse v. Howe, 556 A.2d 827, 832 (Pa. 1989)

(citation omitted). An appellate court’s “standard of a review of a trial court’s

ruling on a [p]etition to [d]ismiss on the grounds of forum non conveniens is

[an] abuse of discretion. Pisieczko v Children’s Hosp., 73 A.3d 1260, 1262

(Pa. Super. 2013).    “An abuse of discretion will be found when the trial court

‘misapplies the law or exercises [its] judgment in manner that is manifestly

unreasonable or the result of bias, prejudice or ill will.’”   Id. at 1262.

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      When determining if a case should be dismissed under the doctrine of

forum non conveniens, a court must consider that: (1) plaintiff’s choice of

forum should not be disturbed except for “weighty reasons;” and (2) an action

will not be dismissed in any event unless an alternative forum is available to

the plaintiff. Petty v. Suburban General Hospital, 525 A.3d 1230, 1232

(Pa. Super. 1987) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509

(1947)). “To determine whether such ‘weighty reasons’ exist to overcome a

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

private factors involved.” Id.

      Instantly, no one disputes that New Jersey is an alternative forum that

is available to Plaintiff. See N.T. Motion to Dismiss Hearing, 6/13/18, at 5-6.

Thus, the second Petty factor is not at issue here. Rather, we confine our

review to whether there were “weighty reasons” to disturb Noone’s choice of

forum. In Gulf Oil, the United States Supreme Court set forth the private and

public considerations relevant to a forum non conveniens analysis. The private

factors include:

      [T]he relative ease of access to sources of proof; availability of
      compulsory process for attendance of unwilling [witnesses;] [] the
      cost of obtaining attendance of willing[] witnesses; possibility of
      view[ing] premises, if view would be appropriate to the action;
      and all other practical problems that make trial of a case easy,
      expeditious and inexpensive.

Id. 330 U.S. at 508. With regard to the public factors, the Supreme Court

advised:

      Administrative difficulties follow for courts when litigation is piled
      up in congested centers instead of being handled at its origin. Jury

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       duty is a burden that ought not to be imposed upon the people of
       a community which has no relation to the litigation. . . . There is
       an appropriateness, too, in having the trial . . . in a forum that is
       at home with the state law that must govern the case, rather than
       having a court in some other forum untangle problems in conflict
       of laws, and in law foreign to itself.

Id. at 508-509.5 In Cheeseman v. Lethal Exterminator, Inc., 701 A.2d

156 (Pa. 1997), our Supreme Court corrected a practice, developed in the trial

courts, that accorded too much weight to the above-stated “public interest”

factors and refocused a court’s analysis on a showing that the chosen forum

“would be oppressive or vexatious” to the moving party.                Bratic v.

Rubendall, 99 A.3d 1, 8 (Pa. 2014).

       Noone claims that there is a nexus between the traumatic events that

led to Decedent’s death and Pennsylvania.          Specifically, Noone alleges:

Decedent’s treating physician resides in Philadelphia; Hub witnesses are

located in Pennsylvania; a close family friend of Decedent lives in

Pennsylvania; JeffStat6 personnel are located in Philadelphia; affidavits from
____________________________________________


5 With regard to private factors, Defendants argued that New Jersey would
provide easier access to sources of proof (including viewing the accident site)
and that New Jersey is where eyewitnesses and first responders to the
accident lived and worked. With regard to public factors, Defendants argued
that: Philadelphia’s docket is more congested than Burlington County; there
is an attenuated relationship between Philadelphia County and the case that
does not justify imposing the burden of jury duty on citizens of Philadelphia
County; and New Jersey courts should be permitted to apply New Jersey law.

6 JeffSTAT is a medical transportation service owned and operated by Thomas
Jefferson University Hospital. JeffSTAT provides advanced life support and
critical care ambulances, along with air medical helicopters like the one used
in the instant case to transport Decedent. JeffSTAT is licensed by the
Pennsylvania Department of Health, the New Jersey Department of Health and



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a physician and first-responder involved in care of Decedent establish that

Philadelphia is not an inconvenient forum; the tractor involved in Decedent’s

accident is stored in Pennsylvania; Rosu drives daily through Philadelphia (via

Rte. 73/Tacony-Palmyra & Bristol Bridges/I-95) en route to Hub’s Burlington

County, New Jersey facility; Hub’s negligent hiring, training and supervision

of Rosu all occurred in Pennsylvania; all Hub employees to be deposed in the

action are located in Pennsylvania;            all of Hub’s employment records and

documents are located in Pennsylvania; and, it will be more costly and

inconvenient for Decedent’s medical witnesses to appear in a venue outside

of Philadelphia.      Noone presented the affidavits of several individuals,

including Decedent’s treating physicians, Joseph Trani, M.D., and David H.

Clements, M.D., Florence Township, New Jersey, Fire Marshall Brian

Richardson, who was on call at the scene of the accident, Florence Township,

New Jersey, fire fighters Michael Warren and Charles Todd Estelow, who were

also at the scene of the accident, who each indicated that it would not be

inconvenient for them to travel to Philadelphia County for depositions and trial.

Affidavit of Joseph Trani, M.D. 5/30/18, at ¶ 5; Affidavit of David H. Clements,

M.D., 5/25/18, at ¶ 4; Affidavit of Brian Richardson, 6/11/18, at ¶ 4; Affidavit

____________________________________________


Senior Services, and Delaware Health and Social Services.                   See
https://hospitals.jefferson.edu/departments-and-services/jeffstat          (last
visited 4/10/19). JeffSTAT’s administrative offices are located in Philadelphia,
Pennsylvania. See Exhibit “C” to Plaintiff’s Memorandum of Law in Support
of Response to Defendant’s Motion to Dismiss for Forum Non Conveniens,
3/20/18.


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of Michael Warren, 6/11/18, at ¶ 4.; Affidavit of Charles Todd Estelow,

6/11/18, at ¶ 4.

      In Hovatter, our Court found that a defendant’s business activity in

Pennsylvania, while supporting venue, “does not preclude dismissal based on

forum non conveniens.”      193 A.3d at 427.      The doctrine of forum non

conveniens presumes that venue is proper; however, it raises the question

about whether there is a more convenient forum “where the litigation could

be conducted more easily, expeditiously, and inexpensively.” Id. It is well

established that a party seeking a change of venue bears a heavy burden in

justifying the request, which requires an on the record demonstration of

hardships. Walker v. Ohio River Co., 205 A.2d 43 (Pa. 1964).

      Similar to the facts in Hovatter, none of the parties in the underlying

lawsuit is a Pennsylvania resident, the injury giving rise to the current action

did not occur in Pennsylvania, and Decedent’s post-accident treatment did not

take place in Pennsylvania.    The evidence reveals that Hub is a Delaware

corporation, headquartered in Memphis, Tennessee, that has two terminals in

Pennsylvania (Bensalem, Bucks County, and Harrisburg, Dauphin County).

See Affidavit of Maxwell Brusky, Director of Claims Management at Hub Group

Trucking, Inc., 2/7/18, at ¶¶ 11, 12, 14. Hub does not operate any terminals

in Philadelphia County, Pennsylvania.      Id. at ¶ 13.   Norfolk is a Virginia

corporation, has its principle place of business in Norfolk, Virginia, and does

business in this Commonwealth. See Plaintiff’s Complaint, 1/24/18, at ¶ 7.

The Florence Township, New Jersey Police Department responded to and

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investigated Decedent’s accident.          Decedent (at the time of the accident),

Noone and Rosu are all New Jersey residents. The accident occurred in New

Jersey at Saddle Creek Logistics, a New Jersey company that ran the

loading/unloading operations at Hub’s Florence Township, New Jersey facility.

Affidavit of Maxwell Brusky, Director of Claims Management at Hub Group

Trucking, Inc., 2/7/18, at ¶ 8. Decedent’s medical care was provided in New

Jersey.7 At the time of the accident, Rosu did not perform work in Philadelphia

County, and currently does not perform work in Philadelphia County. Affidavit

of Stelian I. Rosu, 2/27/18, at ¶ 5; Stelian I. Rosu Deposition, 5/3/18, at 25.

Rosu also averred in his affidavit and stated during his deposition that trial in

Philadelphia County would be an inconvenient and oppressive forum for him.

Id. at ¶ 6; Id. at 29, 36, 38.

       After a comprehensive review of the record, we do not find that the trial

court abused its discretion in granting Defendants’ motion to dismiss the case

based on the grounds of forum non conveniens. Considering the totality of

the evidence, the Defendants met their burden of proving that trial in another

forum would provide easier access to critical witnesses and other sources of

proof, such as physical evidence and Decedent’s treatment records, as well as

provide easier access to the loading dock and facility where Decedent’s
____________________________________________


7 However, as the trial judge acknowledges in his Pa.R.A.P. 1925(a) opinion,
the medical records regarding Decedent’s treatment rendered during his
JeffSTAT medical helicopter transport are potentially located in Philadelphia,
as Jefferson Hospital is located in Philadelphia.



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accident occurred, Bratic, supra, and that trial in Philadelphia County would

be more than merely “inconvenient.” Cheeseman, supra.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/19




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