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Wright v. Consolidated Rail Corp.

Superior Court of Pennsylvania

July 19, 2019


          Appeal from the Order Entered December 19, 2017 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 170206086

          BEFORE: OLSON, J., DUBOW, J., and STEVENS [*] , P.J.E.


          STEVENS, P.J.E.

         Consolidated 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.

         The 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[1] 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 3.

         Mr. 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 shoulders.

         On 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, 2014.[2]

         Mr. 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.

         Moreover, 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.

         Accordingly, 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.

         Appellants 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.

         On 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.

         On 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 dismiss.

         By 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.

         On August 10, 2018, the trial court filed a Pa.R.A.P. 1925(a) opinion in which it set forth its reasoning.[3] 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 York.
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:
• "Mr. Wright's supervisors and co-workers may be potential trial witnesses."
• 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.
• "Ordinarily" his…supervisors and co-workers "would not be expected to have worked, been based, or lived in Pennsylvania."
• None of the "potential supervisors" and none of his co-workers live in Pennsylvania.
• 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 Philadelphia."
• Taking such employees out of operation "will result in…greater operational disruption and inconvenience" than a trial in New York.
• 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 York.
• 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.
Private Factors
[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 services" for
unidentified, unwilling witnesses is a claim unsupported by anything other ...

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