Norman v. Norfolk & W. Ry. Co.

• Decision Date: 21 June 1974
• Parties: Wallace E. NORMAN v. NORFOLK AND WESTERN RAILWAY COMPANY, Appellant.
• Court: Pennsylvania Superior Court

323 A.2d 850

228 Pa.Super. 319

Wallace E. NORMAN v. NORFOLK AND WESTERN RAILWAY COMPANY, Appellant.

Superior Court of Pennsylvania.

June 21, 1974.

CERCONE, Judge.

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, ^[1] 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, ^[2] 12 P.S. Appendix, 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 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. ^[3]

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 track tie between the cars he was working on, causing him injury to his lower back and legs.

While there are no eye witnesses to the alleged incident, there are five witnesses who were near the scene of the accident at the time it occurred who, allegedly are familiar with the ground condition at the time and at the point plaintiff fell. These witnesses, according to defendant, will be able to testify as to their personal observations of plaintiff's condition after the accident and as to what he said subsequently relative to the accident. In addition, there are two other witnesses who were also familiar with the ground conditions in the area before and after the accident and will testify that N & W had no advance notice of any dangerous conditions in that area. All seven of these witnesses, allegedly, will also testify as to the proper method to be applied in coupling air hoses.

All these witnesses reside near plaintiff's home in the vicinity of Stone, Kentucky and Williamson, West Virginia, which are located approximately 340 miles from Pittsburgh. Due to the distances involved, all of these witnesses reside beyond the subpoena power of the Court of Common Pleas of Allegheny County.

After the alleged accident plaintiff received medical evaluation and treatment initially at a clinic in South Williamson, Kentucky under the care of Dr. Fred W. Wampler who rendered a preliminary diagnosis and prescribed medication. Four days later Mr. Norman began an intensive series of examinations and treatments with Dr. Duane A. Schram and received treatments at the Appalachian Regional Hospital in South Williamson, Kentucky. In March of 1971 plaintiff was referred to a neurosurgeon, Dr. Russell Meyers, at the same hospital. In the spring of 1971 plaintiff stopped seeking medical and therepeutic assistance from Dr. Schram and sought the services of Dr. Paul B. Steele, Jr. in Pittsburgh. Doctors Wampler, Schram and Meyers all reside in the vicinity of plaintiff's home, and are also beyond the subpoena power of the Court of Common Pleas of Allegheny County. Plaintiff's doctor, Dr. Steele, resides in Allegheny County.

Complicating the picture is the fact that the accident allegedly took place on premises belonging to and under the control of the Eastern Coal Company (Eastern). Defendant alleges that Eastern does not transact business in Allegheny County Pennsylvania and consequently cannot be made an additional defendant in the Allegheny County action. Thus, defendant alleges that unless this matter is litigated in the vicinity of plaintiff's home, a separate action may well have to be initiated in either Kentucky or West Virginia in order to ultimately resolve this matter.

The defendant invokes the doctrine of forum non conveniens on the grounds that the facts demonstrate a clear case of inconvenience and a strong case for dismissal. The defendant asserts that it will not raise any defense based on the statute of limitations if its motion is granted.

The plaintiff contends that the motion to dismiss should not be granted because his choice of forum may not be disturbed except for weighty reasons; and that, in this regard, the lower court did not abuse its discretion in not finding such weighty reasons to be present. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). Plaintiff contends that his propositions are bolstered by the fact that Dr. Steele, who resides in Allegheny County, examined plaintiff on numerous occasions and in addition performed a laminectomy and excised two protruding intervertebral lumbar spinal discs.

Journeying to the question of whether this is one of those cases where the doctrine of forum non conveniens should be applied, we look first to the interest of the litigants. Important considerations in this area are the relative ease of access to sources of proof; the availability of compulsory process for the attendance of unwilling witnesses; the cost of obtaining attendance of willing witnesses; the possible need for a view of the premises, if view would be appropriate to the action; and all other practical problems that make trial of a case expeditious and inexpensive. Gulf Oil Corp. v. Gilbert, supra.

The factors pertaining to public interest to be considered here encompass administrative difficulties which follow for courts when litigation is piled up in congested centers instead of being handled in the jurisdiction of its origin. Gulf Oil Corp. v. Gilbert; Koster v. Lumbermens Cas. Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947). It does not comport with equity and justice to allow a suit to be litigated in a forum where, on balance, unnecessary hardship and inconvenience would be cast upon one party without compensatingly fair convenience to the other parties; and where, the suit might be more conveniently litigated in another forum available equally to both parties.

Plaintiff cites the case of Walker v. Ohio River Co., 416 Pa. 149, 205 A.2d 43 (1964) in support of its position objecting to the application for change of venue under the doctrine of forum non conveniens. That case involved separate appeals in two separate suits involving the same issue. Plaintiff Walker was injured on defendant's vessel as it moved eastward on the Ohio River from Cincinnati. Plaintiff Wilson was injured on defendant's vessel while it moved up the river to Pittsburgh. Plaintiff Walker resided in Manchester, Ohio and all the witnesses were from Ohio. The place of her hospitalization was in Cleveland, Ohio. Plaintiff Wilson lived in Huntington, West Virginia and the witnesses came from West Virginia and Ohio. The lower court in Walker sustained the preliminary objections and granted a change of venue. The Supreme Court of Pennsylvania reversed, holding that plaintiff's choice of place of suit should not be disturbed except for 'weighty reasons' and found nothing in the record which would support the dismissal of plaintiff's action in Allegheny County. As for the inconvenience to the defendant, the Supreme Court said in Walker that the neighboring states of West Virginia and Ohio were not so distant that transportation of witnesses to Pittsburgh would create exorbitant expense or a great loss of time.

On the other hand, defendant cites the case of Rini v. New York Cent R.R., 429 Pa. 235, 240 A.2d 372 (1968) which reached a different result on facts strikingly similar to those in Walker. Rini involved companion appeals of three plaintiffs from an order of the lower court granting defendant's motion to dismiss plaintiffs' actions under the doctrine of forum non conveniens. Plaintiff Rini was injured in an accident occurring in Cleveland where he resided. There were fourteen proposed witnesses--four of whom were doctors who resided in Cleveland, Ohio, while none of the other witnesses resided in Allegheny County. Rini was confined in two hospitals in Cleveland and appropriate forums were available to the plaintiff both in the state and federal courts in Cleveland, Ohio. Plaintiff Brant was injured in an...