from the Order Entered December 19, 2017 In the Court of
Common Pleas of Philadelphia County Civil Division at No(s):
BEFORE: OLSON, J., DUBOW, J., and STEVENS [*] , P.J.E.
Rail Corporation ("Consolidated Rail") and CSX
Transportation, Inc. ("CSX Transportation")
(collectively "Appellants") appeal from the denial
of their motion to dismiss the complaint filed in the Court
of Common Pleas of Philadelphia County based on the doctrine
of forum non conveniens, for re-filing in a more
appropriate forum. After a careful review, we are constrained
to reverse and remand for further proceedings.
relevant facts and procedural history are as follows: On
February 23, 2017, Samuel Wright ("Mr. Wright"), a
non-resident of Pennsylvania, instituted the instant action
pursuant to FELA against Consolidated Rail, which is
incorporated in Pennsylvania with a principal place of
business in Philadelphia, and CSX Transportation, which is
incorporated in Virginia with an address for service in
Harrisburg, Pennsylvania. Mr. Wright averred Appellants
conduct business in and have substantial contacts with
Philadelphia. He specifically averred Appellants conduct
business in Philadelphia "as an interstate common
carrier of freight for hire by rail into and from the various
states[.]" Mr. Wright's Complaint, filed 2/23/17, at
Wright alleged that, since 1974, he had been employed by
Appellants as a car inspector at the Dewitt Train Yard in
East Syracuse, New York, and as a direct result of his job
duties, he suffered repetitive stress injuries to both
November 3, 2017, Appellants filed a joint motion to dismiss
under 42 Pa.C.S.A. § 5322(e) and the doctrine of
forum non conveniens. Therein, pointing to Mr.
Wright's answers to interrogatories, Appellants indicated
Mr. Wright had been a long-time resident of New York;
however, in 2016, Mr. Wright relocated from East Syracuse,
New York, to South Carolina. He was employed by Consolidated
Rail and worked at the train yard in East Syracuse, New York,
from July 9, 1974, to May 31, 1999. He was employed by CSX
Transportation and worked at the train yard in East Syracuse,
New York, from June 1, 1999, to September 24,
Wright neither worked nor was injured in Pennsylvania, and he
neither lived nor owned property in Pennsylvania. All of Mr.
Wright's treating physicians and medical files related to
the alleged injury are located in Syracuse, New York. Mr.
Wright admitted all of his fact witnesses are former or
current railroad workers who reside outside of Pennsylvania.
pointing to affidavits filed in support of their motion,
Appellants averred that all of their witnesses who might have
knowledge of Mr. Wright's employment with Appellants
reside outside of Pennsylvania and it is likely that any
yet-to-be identified co-workers who could potentially serve
as witnesses reside outside of Pennsylvania. Appellants
indicated Mr. Wright's supervisors currently live in
Syracuse, New York, and Fisherville, Kentucky. They further
indicated that all employment records related to Mr. Wright
are stored outside of Pennsylvania. Furthermore, Appellants
averred it would be a greater hardship and inconvenience to
Appellants' employees, as well as greater business
disruption and costs to Appellants, if the trial is held in
Pennsylvania, as opposed to New York.
Appellants averred Mr. Wright's action has no bona
fide connection to Pennsylvania. They reasoned the only
alleged connections between Pennsylvania and the instant
matter are that CSX Transportation conducts rail operations
in Philadelphia, which are totally unrelated to Mr.
Wright's claim of injury, and Consolidated Rail is
incorporated in Pennsylvania with headquarters in
Philadelphia, which is totally unrelated to Mr. Wright's
claim of injury.
averred the fact the instant matter was initiated under FELA
does not alter the forum non conveniens analysis in
Pennsylvania. Appellants argued that since Mr. Wright worked
exclusively outside of Pennsylvania and suffered alleged
injuries as a result of conduct that occurred exclusively
outside of Pennsylvania, the matter should be dismissed with
leave for Mr. Wight to re-file in an appropriate state.
Appellants agreed to waive the statute of limitations if Mr.
Wright re-filed his action in a new forum within 120 days of
the dismissal of the suit in Philadelphia, as well agreed to
not object on the basis of venue or personal jurisdiction if
the matter was re-filed in New York.
November 27, 2017, Mr. Wright filed a response in opposition
to Appellants' motion to dismiss for forum non
conveniens. Therein, Mr. Wright argued that, since he
brought his action under FELA, he has a "substantial
right" to choose his forum, he is permitted to bring an
action in any district where Appellants conduct business, and
the trial court should give "notable deference" to
Mr. Wright's choice of forum. With regard to
Appellants' assertion all employee and medical files are
located outside of Pennsylvania, Mr. Wright responded the
location of the documents is immaterial since modern
conveniences make it easy so that the documents may be
accessed by the parties. Further, Mr. Wright averred
Appellants are in a "better financial condition" to
litigate at a distance than is Mr. Wright.
December 8, 2017, Appellants filed a reply to Mr.
Wright's response wherein they presented substantially
similar arguments as they presented in their motion to
order entered December 19, 2017, the trial court denied
Appellants' motion to dismiss. Appellants filed a motion
to amend the order to allow for an interlocutory appeal, and
the trial court denied the motion. Appellants then filed a
petition for review with this Court. We granted the petition
and transferred the matter to the instant docket number.
August 10, 2018, the trial court filed a Pa.R.A.P. 1925(a)
opinion in which it set forth its reasoning. Initially, the
trial court indicated it did not consider the law under FELA
regarding a plaintiff's choice of forum. Trial Court
Opinion, filed 8/10/18, at 4 n.1. The trial court
acknowledged New York is an available forum; however, the
trial court indicated it was required to examine the
"private" and "public" factors in order
to determine whether "weighty reasons" exist to
overcome Mr. Wright's choice of forum. Id. at
4-5. In denying Appellants' motion to dismiss, the trial
court relevantly indicated the following:
[It] [i]s undisputed that [Consolidated Rail] is incorporated
in Philadelphia, Pennsylvania[, ] and that [CSX
Transportation], which owns part of [Consolidated Rail], is
headquartered in Florida and was served process in
Pennsylvania. It is further undisputed that [Mr.] Wright is
currently a resident of South Carolina, [Mr.] Wright does not
and nor ever has either worked or lived in Pennsylvania. He
owns no property in the Commonwealth. His injuries were not
sustained in Pennsylvania and none of his witnesses reside in
Pennsylvania. Further, his medical treatment occurred in New
It is also undisputed that jurisdiction is proper in
Pennsylvania, resting as it does on [Consolidated Rail's]
corporate residence in Pennsylvania.
In support of their motion to dismiss the matter and grant
[Mr. Wright] leave to re-file in New York, [Appellants]
appended two affidavits. In her affidavit on behalf of [CSX
Transportation, ] [Lauren] Lamp stated that she is employed
as Manager of Field Investigations and that she works in
Tonawanda, New York. Her review of the corporate records
shows that while employed with [CSX Transportation], [Mr.]
Wright never worked in any [of CSX Transportation's]
facilities in Pennsylvania. She makes the same or similar
statements in her affidavit on behalf of [Consolidated Rail],
with whom [Mr.] Wright was employed between 1974 and 1999,
when [CSX Transportation] assumed administrative control of
[Consolidated Rail]; she avers that [Mr.] Wright had no
work-related connection with Pennsylvania.
On the claim of forum non conveniens, namely,
[Appellants'] difficulties and costs associated with
litigating [Mr.] Wright's case in Philadelphia, [Ms.]
Lamp had the following to say:
â¢ "Mr. Wright's supervisors and
co-workers may be potential trial witnesses."
â¢ Mr. Wright's…supervisors in New
York were: Scott T. Neidl (Neidl) and Tyson D. Hill (Hill).
Neidl lives in New York; Hill lives in Kentucky.
his…supervisors and co-workers "would not be
expected to have worked, been based, or lived in
â¢ None of the "potential
supervisors" and none of his co-workers live in
â¢ Referring to the relative inconvenience to
[Appellants'] employees of traveling to Philadelphia,
[Ms.] Lamp avers that "[b]ased on the time needed for
travel, trial preparation and trial attendance, such
employees would be expected to be out of service for a
minimum of three to four days for a trial in
â¢ Taking such employees out of operation
"will result in…greater operational disruption
and inconvenience" than a trial in New York.
â¢ Similarly, hotel and travel expenses for
each employee, and inconvenience to employees and their
families will be much less if the case were tried in New
â¢ Finally, [Appellants'] employment
records are maintained in either New York, …New
Jersey, or in…Florida, [but] not [in] Pennsylvania.
[T]he court concludes that [Appellants] have failed to create
a record showing that weighty reasons either require or
permit dismissing [Mr.] Wright's case. [Appellants] rely
principally on two affidavits consisting of unsupported
conclusory statements that, taken at face value, present a
case of mere inconvenience. The affidavits lack any iteration
of facts showing that [Appellants] or [Appellants']
employees, its putative witnesses, are faced with costs and
inconvenience beyond what is ordinary in corporate litigation
practice. There is no record to support the affiant's
assertion that most or all of [Appellants'] witnesses
reside "primarily, if not exclusively" in New York.
While [Mr. Wright] has admitted that his fact witnesses are
outside of Pennsylvania, the record contains no information
about where they do in fact reside. Since [Appellants']
bare assertions cannot be credited without a record, the
court is unable to find that [Mr. Wright's] choice is
"seriously inappropriate" and that weighty reasons
require dismissing [Mr.] Wright's case.
[Appellants'] treatment of "private factors"
falls short in the following ways:
• "access to sources of
proof" (namely documents) presents nothing more
than an inconvenience to both parties. [Appellants] assert
that whatever documents they have relevant to [Mr.]
Wright's case may be in any one of three locations: New
York, New Jersey, and Florida. Therefore, wherever the case
is tried, the parties necessarily will rely, as litigants
customarily do, on tools such as mail, fax, thumb drives,
courier services, and electronic transfers.
• "the cost of obtaining
witnesses" only two of whom are actually
identified (one in Kentucky [and one in New York]) is
supported by no detail, nor do [Appellants] demonstrate what
costs it will bear or how those costs and inconvenience to
its employee or interruption of their operations present
hardships disproportionate to the same burdens they will bear
litigating the case in Philadelphia.
• "availability of compulsory
unidentified, unwilling witnesses is a claim unsupported by
anything other ...