The opinion of the court was delivered by: GOURLEY
The Baltimore and Ohio Railroad Company has filed a claim for injunctive relief against George H. Halchak, and in connection therewith asks the Court to apply the doctrine of forum non conveniens.
The Baltimore and Ohio Railroad Company is the defendant in a civil action pending in the United States District Court for the Northern District of Illinois, Eastern Division, and George H. Halchak is the plaintiff in said proceeding.
The action filed in Illinois is clearly one of tort and under the law of Pennsylvania is transitory in nature. It arose out of an accident which occurred on the 10th day of February, 1946, at a railroad crossing in the Borough of Braddock, Allegheny County, Pennsylvania.
The plaintiff contends the Railroad was negligent in the maintenance of said crossing in said Borough, and in the operation of its equipment, and as a result thereof sustained injuries.
The plaintiff is a resident of the City of Pittsburgh. The Railroad is a corporation organized and existing under and by virtue of the laws of the state of Maryland, and in addition thereto operates as a common carrier in Illinois and many other states of the Union.
The request for a preliminary injunction was denied since just cause was not shown. Consideration is now given as to what form of equitable relief, if any, should be granted.
It appears that the action filed in the District Court of Illinois, Eastern Division, is not predicated on the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60, nor on any other federal statute, but is an action of trespass under the law of Pennsylvania.
After the action was filed in the District Court of Illinois, the defendant filed a proceeding to dismiss the cause of action in which the doctrine of forum non conveniens was invoked. The company contended, on the basis of said doctrine, that the cause of action should be filed either in the state court or in the United States District Court for the Western District of Pennsylvania. It was represented to the Court that this motion had not been disposed of in the District Court of Illinois at the time of argument on March 24, 1947, and no information has been given to the Court to the contrary.
The case on its merits involves no federal question and was brought in the United States District Court solely on the diversity of citizenship of the parties.
This is true both as to the action pending in the United States District Court for the Northern District of Illinois, Eastern Division, which is the tort action, and the proceeding pending in this Court or in the United States District Court for the Western District of Pennsylvania, which is the equitable proceeding or complaint for injunctive relief.
Because of the character of this jurisdiction and the holdings, under Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487, the law of Pennsylvania will have application. The diversity of citizenship should not change the outcome.
Under the law of Pennsylvania, as to personal torts, an action may be brought wherever the wrong-doer may be found, and jurisdiction of his person may be obtained. In such cases the law of the place where the right was acquired, or the liability was incurred, will govern as to the right of action; while all that pertains merely to the remedy will be controlled by the law of the state where the action is brought. Knight v. West Jersey Railroad Co., 108 Pa. 250, 56 Am.Rep. 200; Delaware, Lackawanna & Western R. Co., Appellant v. Ashelman et ux., 300 Pa. 291, 150 A. 475, 69 A.L.R. 588; Pittsburgh & Lake Erie R. Co. v. Grimm's administrator, 28 Pa.Dist.R. 419.
Since this is a transitory cause of action, it would not be consistent for the courts in this state to grant or permit such a right of action and at the same time destroy the right to sue in any court having jurisdiction. Tenne jurisdiction. Tennessee Coal, Iron & Railroad Co. v. George, 233 U.S. 354, 34 S. Ct. 587, 58 L. Ed. 997, L.R.A. 1916D, 685; Delaware, ...