Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1973, No. 3571, in case of Wallace E. Norman v. Norfolk and Western Railway Company.
David G. Klaber, with him Kenneth L. Salmon and Kirkpatrick, Lockhart, Johnson & Hutchison, for appellant.
William W. McVay, with him McArdle, McLaughlin, Paletta & McVay, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.
[ 228 Pa. Super. Page 321]
This is an appeal by defendant, Norfolk & Western Railway, from the lower court's refusal to grant its preliminary objections to a complaint in trespass filed by plaintiff, Wallace E. Norman.
The complaint alleges a violation by defendant of the Federal Employers' Liability Act (F.E.L.A.), 45 U.S.C. § 56 (1964), as amended,*fn1 which violation purportedly resulted in injury to plaintiff at or near Stone, Kentucky.
Defendant's preliminary objections were in a nature of a petition raising a question of venue under the doctrine of forum non conveniens and under Rule 1006(d) of the Pennsylvania Rules of Civil Procedure,*fn2 and were presented as a request for a dismissal of the case in Allegheny County so that it could be brought in the appropriate forum in West Virginia or Kentucky. The defendant also stipulated that it would waive the statute of limitations if the court granted its preliminary objections and dismissed the case.
Plaintiff filed an answer to defendant's preliminary objections and a hearing on the question of "transfer" was held before the lower court, without a jury. No testimony was offered at the hearing; however, certain evidentiary matters were urged by counsel for both sides and considered by the court. Upon consideration of
[ 228 Pa. Super. Page 322]
these matters the lower court dismissed defendant's preliminary objections and indicated that it based its decision mainly on plaintiff's right to choose a forum and the fact that his significant medical treatment had been provided in Allegheny County. This appeal followed.*fn3
The facts in this case are as follows. The defendant is a railroad corporation, duly organized and existing under the laws of Virginia and having its principal place of business in Roanoke, Virginia. It regularly conducts business in Western Pennsylvania as part of its multi-state rail network primarily on a branch line from Brewster, Ohio to Connellsville, Pennsylvania. Its main business is transacted in states south of Pennsylvania. It also operates a branch line in and near Stone, Kentucky, the site of plaintiff's injuries, and has offices in and near Williamson, West Virginia. The communities of Stone and Williamson are one mile apart.
Plaintiff, Mr. Norman, is a resident of Kentucky although his mailing address is Williamson, West Virginia. At the time of the accident he was employed by N & W as a brakeman and on October 1, 1970, was injured at Stone, Kentucky, when in the process of coupling together air hoses his right foot slipped, allegedly on iron ore or coke pellets located on a ...