J.A31046/13

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


PAUL R. BLACK                               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                    v.                      :
                                            :
                                            :
CSX TRANSPORTATION, INC.,                   :
                                            :
                          Appellant         :
                                            :     No. 3058 EDA 2012


               Appeal from the Order Entered September 4, 2012
              In the Court of Common Pleas of Philadelphia County
               Civil Division No(s).: January Term, 2012, No. 1897

BEFORE: BENDER, P.J., LAZARUS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 12, 2014

        Appellant, CSX Transportation, Inc., a Virginia corporation, appeals

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

favor of Appellee, Paul R. Black, a Kentucky resident allegedly injured in

                                                                           ral
                          1
                                                                     forum non

conveniens. This is an interlocutory appeal by permission. We vacate and

remand to have the trial court address all of the relevant factors for

interstate forum non conveniens.



*
    Former Justice specially assigned to the Superior Court.
1
    45 U.S.C. §§ 51-60.
J. A31046/13




opinion.2    See Trial Ct. Op., 4/24/13, at 1-3.       On July 18, 2012, the trial



filed a motion for reconsideration, which the court denied on September 5,

2012.     On October 3, 2012, Appellant filed a petition for review with this

Court, which we granted on November 13, 2012. See generally Pa.R.A.P.

1513.     The trial court did not order Appellant to comply with Pa.R.A.P.

1925(b), but filed a Pa.R.A.P. 1925(a) decision.

        Appellant raises the following issues:

            Whether   Pennsylvania    courts     may    give   heightened

            doctrine of forum non conveniens in a FELA case.


            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.

                       -3.



Appellant argues the trial court failed to heed the edict of Missouri ex rel.

S. Ry. v. Mayfield, 340 U.S. 1 (1950), and thus improperly gave


2
  For purposes of our disposition, given the procedural posture, we view the
facts in the light most favorable to Appellee. We acknowledge that the trial

pleadings.




                                       -2-
J. A31046/13




Appellant contends that dismissal is warranted because Appellee, a Kentucky

resident purportedly exposed to asbestos in Kentucky, has no connection

with Pennsylvania.     Appellant observes that all witnesses are located in

Kentucky. For the reasons set forth below, we vacate the order and remand

for further proceedings.

                                                                          of

interstate forum non conveniens for an abuse of discretion.3 See Jessop v.

ACF Indus., LLC, 859 A.2d 801, 803 (Pa. Super. 2004). To establish an

abuse of discretion,

         it is not sufficient to persuade the appellate court that it
         might have reached a different conclusion if, in the first
         place, charged with the duty imposed on the court below;
         it is necessary to go further and show an abuse of the
         discretionary power. If there is any basis for the . . .
         decision, the decision must stand.

In re Mackaru              , 246 A.2d 661, 666-67 (Pa. 1968) (citation and

footnote omitted); Brown v. Del. Valley Transplant Program, 538 A.2d

889, 891-92 (Pa. Super. 1988) (affirming intrastate transfer because record




3
  An order dismissing for forum non conveniens
there has been a clear abuse of discretion; where the court has considered
all relevant public and private interest factors, and where its balancing of
these factors is reasonable, its decision d
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981) (citations omitted).




                                    -3-
J. A31046/13

     In Shears v. Rigley, 623 A.2d 821 (Pa. Super. 1993),4 this Court

distinguished between intrastate and interstate forum non conveniens:

            A [42 Pa.C.S. §] 5322(e) dismissal [for interstate
        forum non conveniens] terminates the litigation in the
        courts of this Commonwealth unlike the intra-jurisdictional
        transfer between counties embodied under Pennsylvania
        Rule of Civil Procedure 1006(d). Rule 1006(d)(1) provides
        in relevant part:

               For the convenience of the parties and
               witnesses the court upon petition from any
               party may transfer an action to the appropriate
               court of any other county where the action could
               originally have been brought.

        Pa.R.C.P. 1006(d)(1). Because our courts lack the
        authority to transfer matters to courts of our sister states,
        dismissal of the action is the only permissible result.
        Alford v. Phil. Coca-Cola Bottling, 366 Pa. Super. 510,
        513, 531 A.2d 792, 794 (1987). Section 5322(e) of the
        Judicial Code provides as follows:

               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). Regardless of the differences
        between a transfer of venue under Rule 1006 and
        dismissal under section 5322, both remedies are derivative
        of the common law doctrine of forum non conveniens.
        Alford, supra; . . . . This court has recognized that the
        application of the principles of the doctrine of forum non

4
  Unlike intrastate forum non conveniens, which involves the application of
Pa.R.C.P. 1006, few Pennsylvania cases discuss interstate forum non
conveniens, which invokes 42 Pa.C.S. § 5322(e). Our research revealed no
Supreme Court jurisprudence interpreting Section 5322(e). Accord Humes
v. Eckerd Corp., 807 A.2d 290, 292 n.4 (Pa. Super. 2002).




                                     -4-
J. A31046/13

        conveniens in both intrastate and interstate cases serves
        the same essential purpose:

               It provides the court with a means of looking
               beyond technical considerations such as
               jurisdiction and venue to determine whether

               serve the interests of      justice   under     the
               particular circumstances.

        Alford, 366 Pa. Super. at 513, 531 A.2d at 794. As such,
        those decisions addressing the application of the doctrine
        equally apply to dismissal of the instant action pursuant to
        section 5322. Id.

Shears, 623 A.2d at 823-24 (some citations omitted).         Further, application

of the forum non conveniens doctrine in an interstate context solves the



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

                               Norman v. Norfolk & W. Ry. Co., 323 A.2d

850, 854 (Pa. Super. 1974).

     In ascertaining whether to grant Section 5322(e) relief, a trial court

must evaluate various factors. Shears, 623 A.2d at 824-25; see Plum v.

Tampax, Inc., 160 A.2d 549, 553 (Pa. 1960) (construing international         i.e.,

interstate forum non conveniens doctrine prior to enactment of Section

5322(e)).5


5
  Our Supreme Court has consistently employed the public and private factor
test in evaluating whether the trial court abused its discretion regarding
interstate forum non conveniens. Accord Rini v. N.Y. Cent. R.R., 240 A.2d



                                    -5-
J. A31046/13

         The two most important
         retention of the case. They are (1) that since it is for the
         plaintiff to choose the place of suit, his choice of a forum
         should not be disturbed except for weighty reasons, and
         (2) that the action will not be dismissed in any event
         unless an alternative forum is available to the plaintiff.
         Because of the second factor, the suit will be entertained,
         no matter how inappropriate the forum may be, if
         defendant cannot be subjected to jurisdiction in other
         states. The same will be
         would elsewhere be barred by the statute of limitations,

         that he will not raise this defense in the second state.

Plum, 160 A.2d at 553 (quotation marks and citation omitted); accord

Rini, 240 A.2d at 373-74 (applying Plum factors in FELA case and according

no special deference to, inter alia, Ohio plaintiffs).6



presumption in favor of a plaintiff

considered when the plaintiff has chosen a foreign forum to litigate his or her

          Aerospace Fin. Leasing, Inc. v. New Hampshire Ins. Co., 696

A.2d 810, 814 (Pa. Super. 1997) (citing Piper Aircraft Co., supra, in



372, 373-74 (Pa. 1968) (plurality) (employing Plum factors in interstate
forum non conveniens case).
6
  Rini addressed three lawsuits filed in Allegheny County: two involved Ohio
plaintiffs and one involved a Pennsylvania plaintiff. Rini, 240 A.2d at 373.
In affirming the dismissal of all three cases on the basis of forum non
conveniens, the Rini
the Commonwealth of Pennsylvania; [n]either the plaintiffs nor any of the
witnesses reside in or have any connection with Allegheny County, nor are
the witnesses within subpoena range of the Court of Common Pleas of
                     Id. at 374.




                                       -6-
J. A31046/13

resolving international, i.e., interstate, forum non conveniens issue).



this choice is convenient.    When the plaintiff is foreign, however, this

assumption is much less reasona           Id. (quotation marks and citation

omitted).

          The remaining factors can best be grouped under the
        two principal interest [sic] involved: those of the parties
        and those of the public. . . .

            If the combination and weight of factors requisite to
        given results are difficult to forecast or state, those to be
        considered are not difficult to name. An interest to be
        considered, and one likely to be most pressed, is the
        private interest of the litigant. Important considerations
        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 action; 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 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.

           These two sets of factors are not mutually exclusive but
        rather supplement each other.



                                    -7-
J. A31046/13

Plum, 160 A.2d at 553 (quotation marks and citation omitted); accord

Jessop, 859 A.2d at 803-04 (affirming dismissal for forum non conveniens

because Kansas was more appropriate forum).

       The Plum



has been substantially completed and the state of pre-trial preparation. See

Wright v. Aventis Pasteur, Inc., 905 A.2d 544, 552 (Pa. Super. 2006)

(reversing dismissal for forum non conveniens because, inter alia, discovery

was substantially complete);

Operations, Inc., 845 A.2d 850, 854 (Pa. Super. 2004) (reversing grant of

forum non conveniens motion because, among other reasons, pre-trial

preparation was complete).   Substantial completion of discovery, however,

may be outweighed by a finding that discovery could be used in a new

forum. Jessop, 859 A.2d at 805. Timing of the motion to change venue

may be a salient factor. Beatrice Foods Co. v. Proctor & Schwartz, Inc.,

455 A.2d 646, 650 (Pa. Super. 1982).        The trial court is barred from



                                                   forum non conveniens.

Humes, 807 A.2d at 292 (citation omitted), 295. The trial court must also

                                                        Plum, 160 A.2d at

554.




                                   -8-
J. A31046/13

      Instantly, with respect to the two important Plum factors, we initially

observe that although the trial court ordinarily gives great deference to

                                         a resident of Kentucky     has chosen

Pennsylvania, a foreign forum, to litigate his claims against Appellant       a

Virginia corporation.    See Plum, 160 A.2d at 553; Aerospace Fin.

Leasing, 696 A.2d at 814.      Thus, the instant trial court should give less

                                                                      se of his

foreign, i.e., Kentucky, residence. See Aerospace Fin. Leasing, 696 A.2d

at 814; accord Piper Aircraft, 454 U.S. at 256.         Regarding the second

Plum factor, the trial court failed to discuss the availability of any available

alternate forums, including the applicable statutes of limitations, if any. See

Plum, 160 A.2d at 553.

      We next address the private interest factors.            The trial court

acknowledges that relevant witnesses and other sources of proof are in

Kentucky. Trial Ct. Op. at 4. The court also acknowledges that Appellant

conducts business in Philadelphia. Id. The court, however, failed to address

the availability of compulsory process, cost of obtaining attendance of willing

                                                                  nd all other

practical problems that make trial of a case easy, expeditious and

                See Plum, 160 A.2d at 553.         Appellee does not contend

discovery was substantially complete, the case was ready for trial, or that




                                     -9-
J. A31046/13

Appellant untimely filed the underlying motion.      See, e.g., Wright, 905

A.2d at 552;           , 845 A.2d at 854; Beatrice Foods, 455 A.2d at 650.

      Because the trial court did not weigh all the pertinent factors, including

                    i.e., Kentucky, status, see Aerospace Fin. Leasing, 696

A.2d at 814, the trial court did not properly exercise its discretion.     See

Piper Aircraft, 454 U.S. at 257; Plum, 160 A.2d at 553.            Accordingly,

having discerned an error of law, we remand for the trial court to discuss

and weigh all the relevant interstate forum non conveniens factors. See 42

Pa.C.S. § 5322(e); Jessop, 859 A.2d at 803.

      Order vacated.      Case remanded with instructions.          Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/12/2014




                                    - 10 -
