Black, P. v. CSX Transportation, Inc.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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