Robbins v. Consol. Rail Corp.
| Decision Date | 29 May 2019 |
| Docket Number | No. 1055 EDA 2018,1055 EDA 2018 |
| Citation | 212 A.3d 81 |
| Parties | Howard ROBBINS, Personal Representative FOR the ESTATE OF David ROBBINS v. CONSOLIDATED RAIL CORPORATION and Penn Central Corp., a/k/a American Premier Underwriters, Inc. Appellants |
| Court | Pennsylvania Superior Court |
Evan M. Tager, Washington, DC, for Consolidated Rail, appellant.
Daniel L. Jones, Jr., Cincinnati, OH, for Penn Central, appellant.
Thomas J. Joyce, III, Conshohocken, for appellee.
BEFORE: OLSON, J., DUBOW, J., and STEVENS,* P.J.E.
Consolidated Rail Corporation ("Consolidated Rail") and Penn Central Corp., A/K/A American Premier Underwriters, Inc. ("Penn Central") (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 affirm.
The relevant facts and procedural history are as follows: Howard Robbins ("Mr. Robbins"), who is a resident of Indiana and the personal representative for the estate of David Robbins ("the decedent"), instituted the instant action pursuant to FELA1 against Consolidated Rail, which is incorporated in Pennsylvania with a principal place of business in Philadelphia, and Penn Central, which is incorporated in Pennsylvania with an address for service in Harrisburg, Pennsylvania.2 Mr. Robbins averred Appellants conduct business in and have substantial contacts with Philadelphia. He specifically averred Appellants conduct business in Philadelphia "as a common carrier by rail, operating a line and system of railroads and transacting substantial business throughout the Commonwealth of Pennsylvania, including but not limited to Philadelphia County." Mr. Robbins' Complaint, filed 6/6/17, at 1.
Mr. Robbins indicated that, from 1953 to 1989, the decedent was employed by Appellants as a trackman, machine operator, and/or track foreman at the Beech Grove Train Yard in Indianapolis, Indiana. He averred that, as a result of the decedent's job duties, the decedent was exposed to chemicals and cancer-causing substances, which resulted in the decedent's death from lung and liver cancer on March 1, 2014.
On October 3, 2017, Appellants filed a joint motion to dismiss under 42 Pa.C.S.A. § 5322(e) and the doctrine of forum non conveniens . In support of their motion, Appellants filed an affidavit from Michael Scully, Director of Risk Management for Consolidated Rail. Mr. Scully clarified the decedent was employed in Indiana by Penn Central from 1953 to 1976, and he was employed in Indiana by Consolidated Rail from 1976 to 1989. Mr. Scully confirmed the decedent never worked for Appellants in Pennsylvania, and employment records for the decedent are stored in Jacksonville, Florida or Mount Laurel, New Jersey.
Mr. Scully averred Appellants identified two of the decedent's former supervisors who might be potential trial witnesses: Dale Mason, who resides in Illinois, and Charles Toney, who resides in Indiana. Both of these former supervisors are retired and no longer employed by Appellants. Mr. Scully averred there may be additional former supervisors or co-workers yet to be identified; however, it was not expected that the supervisors or co-workers would have worked or lived in Pennsylvania. Mr. Scully alleged Appellants' employees would suffer personal disruption if they are called to testify in Pennsylvania, as opposed to Indiana, and Appellants will suffer greater costs, inconvenience, and business disruption.
Appellants also filed an affidavit from James Kennedy, the former vice-president-deputy general counsel and secretary for Penn Central. Mr. Kennedy averred that Penn Central does not possess employment or personnel files, whether in Pennsylvania or elsewhere, for employees such as the decedent, who were employed by Penn Central but subsequently accepted employment with Consolidated Rail.3
Appellants averred the instant action has no bona fide connection to Pennsylvania. They reasoned the only alleged connection between Pennsylvania and the instant matter is that Appellants are incorporated in Pennsylvania, and Consolidated Rail has its headquarters in Philadelphia. However, Appellants argued these connections are totally unrelated to Mr. Robbins' claim that the decedent suffered injury. Appellants indicated they agreed to waive the statute of limitations if Mr. Robbins re-filed his action in a new forum within 120 days of the dismissal of the suit in Philadelphia, and they agreed not to object on the basis of venue or personal jurisdiction if the matter was re-filed in Indiana.
On October 24, 2017, Mr. Robbins filed a response in opposition to Appellants' motion to dismiss for forum non conveniens . Therein, Mr. Robbins admitted the decedent did not live, work, own property, or receive medical treatment in Pennsylvania. However, Mr. Robbins specifically averred he "intend[ed] to call four (4) former [Consolidated Rail] employees who worked in Philadelphia as fact witnesses at trial including Marcia Comstock (medical director), William Barringer (safety director), Ramon Thomas (industrial hygienist), and Paul Kovac (occupational claims manager)." Mr. Robbins' Response, filed 10/24/17, at 3, 7. He noted that, in Pennsylvania, these witnesses would be "subject to compulsory attendance." Id. at 8. He also noted the cost for him to obtain these witnesses' attendance in Indiana, as opposed to Pennsylvania, would be greater. Id. at 9. Further, Mr. Robbins indicated that, although he admitted it was unlikely that any of the decedent's unidentified former supervisors or co-workers reside in Pennsylvania, he does not know whether they potentially live closer to Indiana or Philadelphia. Id. Mr. Robbins noted it is "convenient" that Appellants named only the decedent's former supervisors and Appellant did not indicate any of their current employees would testify. Id. at 8-9.
Moreover, Mr. Robbins asserted that, although the decedent worked at the train yard in Indiana, the policies and procedures related to the decedent's exposure to chemicals and cancer-causing substances were determined at Consolidated Rail's headquarters in Philadelphia. Id. at 5-6. Mr. Robbins admitted the decedent's employment files are not located within Pennsylvania; however, he indicated some of the files are "located within miles of the Pennsylvania state border" in Mount Laurel, New Jersey. Id. at 7. Moreover, Mr. Robbins noted a viewing of the premises in this case would not be desirable and, in fact, it "would be...extremely dangerous [for the jury]." Id. at 10.
On December 6, 2017, the trial court held a hearing on the matter, at which neither party produced additional evidence; but rather, the parties focused their attention on the legal arguments.
On December 7, 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 September 6, 2018, the trial court filed a Pa.R.A.P. 1925(a) opinion in which it set forth its reasons for denying Appellants' motion to dismiss.4
On appeal, Appellants present the following issues in their "Statement of Questions Involved":
Appellants' Brief at 5-6 (suggested answers omitted) (alphabetizing replaced with numbers).
Initially, we note the following relevant principles:
Hovatter v. CSX Transportation, Inc. , 193 A.3d 420, 424 (Pa.Super. 2018) (quotations and citations omitted).5
The doctrine of forum non conveniens "provides the court with a means of looking beyond technical considerations such as jurisdiction and venue to determine whether litigation in the plaintiff's chosen forum would serve the interests of justice under the particular circumstances." Alford , 531 A.2d at 794 (citation omitted).
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