Westerby v. Johns-Manville Corp.

Decision Date16 November 1982
Docket Number681 (671)
PartiesRonald Westerby v. Johns-Manville Corporation et al
CourtPennsylvania Commonwealth Court

(1) Where resident of Nebraska instituted suit in Pennsylvania for injuries allegedly arising from exposure to asbestos-containing materials at workplaces in New Jersey and in Nebraska, court sustained preliminary objections on the ground of forum non conveniens on condition that no defendant raise statute of limitations defense in alternative forum beyond that asserted and established under law and facts extant at time of filing and/or service of plaintiff's original process in Pennsylvania

(2) Doctrine of forum non conveniens vests trial court with discretionary power to refuse to exercise a possessed jurisdiction whenever trial in the chosen forum would be inappropriate and justice would be better served by transcending technical jurisdictional considerations

(3) Factors relevant to a determination of an objection on the ground of forum non conveniens include: the interest of the Commonwealth in providing a forum for its residents to litigate their differences; the forum residence of the parties; whether trial in Pennsylvania might require the application of foreign law; whether witnesses and documents are within the subpoena power of Pennsylvania Courts; whether any other contacts with Pennsylvania justify litigating the case in the Courts of the Commonwealth; and whether an alternative forum is available to the Plaintiff

(4) The location of Plaintiff's counsel is not a compelling consideration in determining the application of forum non conveniens

(5) Dismissal on the ground of forum non conveniens did not contravene either the Privileges and Immunities Clause or the Full Faith and Credit Clause of the United States Consitution

(6) Although the Plaintiff's choice of forum is to be accorded great deference, application of forum non conveniens is determined by the sound discretion of the trial judge in weighing the totality of the circumstances in a given case

(7) None of the factors is dispositive, because the flexibility of the doctrine of forum non conveniens makes it a legitimate and viable tool for declining jurisdiction when the Plaintiff has unfairly or unreasonably invoked the jurisdiction of an inconvenient forum

(8) For this reason, the fact that a Pennsylvania corporation is a party is not dispositive

(9) Fact that two defendants filed voluntary petitions for reorganization under the bankruptcy laws, this precluding Plaintiff from starting suit against those defendants in an alternative forum, did not require precluding application of forum non conveniens, because plaintiff was similarly precluded from continuing lawsuit against those defendants in this forum

(10) Although only several defendants filed preliminary objections asserting forum non conveniens, court appropriately invoked doctrine sua sponte under authorization of Pennsylvania long-arm statute

(11) Appeal from grant of preliminary objections of one defendant did not prevent court from subsequently determining preliminary objections of other defendants on the ground of forum non conveniens under the authority of Pa. R. App. Proc 1701(a).

Joseph D. Shein, Esquire, Michael Shapiro, Esquire, and Robert E. Paul, Esquire, for Plaintiff

Joseph R. Thompson, Esquire, and Mary E. Gilbertson, Esquire, for Defendant Eagle-Picher Industries, Inc.

Edward Greer, Esquire, and Charles J. Kalinowski, Esquire, for Defendant GAF Corporation

Perry S. Bechtel, Esquire, and Francis Wenzel, Esquire, for Defendant Keene Corporation

Joseph Foster, Esquire, and Richard A. Curtis, Esquire, for Defendant H.K. Porter Company, Inc.

Dudley Hughes, Esquire, for Defendant Unarco Industries, Inc.

Edward W. Maderia, Esquire, Stephen S. Phillips, Esquire, and Patricia A. Carpenter, Esquire, for Defendant Lac D'Amiante Du Quebec, Ltd.

Walter D. Meeley, Esquire, and Byron Milner, Esquire, for Defendant Nicolet, Inc.

Thomas J. Ingersoll, Esquire, and John F. Kent, Esquire, for Defendant Armstrong World Industries, Inc.

Arthur Makadon, Esquire, for Defendant Raymark Industries




Plaintiff, presently a resident of the State of Nebraska, instituted the instant action to recover for injuries allegedly sustained as a result of his exposure to asbestos-containing products supplied by defendants during the course of his employment either in the State of New Jersey, where plaintiff engaged in summer employment from 1959 through 1963, or in the State of Nebraska, where plaintiff has since worked. Contending that Philadelphia County has no connection or nexus with either the plaintiff or the situs out of which plaintiff's cause of action arises and that this suit could more conveniently be litigated in another forum, defendants Eagle-Picher Industries, Inc., GAF Corporation, Keene Corporation, H.K. Porter Company, Inc., and Unarco Industries, Inc., preliminarily objected to plaintiff's complaint on the grounds of forum non conveniens. By Order dated August 31, 1982, this Court sustained defendants' preliminary objections and dismissed plaintiff's complaint upon condition that no defendant raise the statute of limitations as a defense in the alternative forum beyond that which was asserted and established under the law and facts extant at the time of filing and/or service of plaintiff's original process in this jurisdiction. On September 15, 1982, plaintiff petitioned the court to reconsider its ruling. Thereafter, on September 28, 1982, upon consideration of said petition, supporting memoranda filed, and after oral argument held on September 21, 1982, this Court granted plaintiff's request and undertook reconsideration of the instant matter. We now affirm our ruling. Prompted by arguments briefed by counsel in the instant petition, we deem a more detailed explication of our rationale is appropriate.


The doctrine of forum non conveniens vests the trial court with the discretionary power to refuse to exercise a possessed jurisdiction whenever, because of varying factors, it is determined that trial in the chosen forum would be inappropriate. Plum v. Tampax, Inc., 399 Pa. 553 160 A.2d 549 (1960). See generally Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Colum. L. Rev. 1 (1929); Dainow, The Inappropriate Forum, 29 Ill. L. Rev. 867 (1935); Morley, Forum Non Conveniens: Restraining Long-Arm Jurisdiction, 68 NW. U.L. Rev. 24 (1973); Enlightened Forum Non Conveniens Policy: A Remedy for Plaintiff's Jurisdictional Overreaching, 16 Wayne L. Rev. 1162 (1970); Restatement (Second), Conflict of Laws § 84 (1971); 20 Am. Jur. 2d Courts § § 172-182 (1965). The purpose of the doctrine, it has been stated, is to " permit a trial court to go beyond technical jurisdictional considerations and to focus instead on how justice can be best served in a particular case." Forum Non Conveniens in Georgia: A Critical Analysis and Proposal for Adoption, 7 Ga. L. Rev. 744 (1973).

The doctrine, equitable in nature, is generally presumed to have originated in the common law of Scotland in the late 1800's, where it found widespread acceptance. See Barrett, The Doctrine of Forum Non Conveniens, 35 Cal. L. Rev. 380, 386-87 (1947); Braucher, The Inconvenient Federal Forum, 60 Harv. L. Rev. 908, 909-11 (1947); Gibb, International Law of Jurisdiction (1926); Gloag and Henderson, Introduction to the Law of Scotland (1927). The Latin term itself was introduced into American jurisprudence by a law review writer in 1929, see Barrett, supra at 388, and, despite initial skepticism over the propriety of this novel legal precept, the doctrine of forum non convenens has been recognized and accepted by our federal courts, [1] and is now firmly imbedded in the law of virtually all American jurisdictions. [2]

The Pennsylvania Supreme Court, in Plum v. Tampax, Inc., 399 Pa. 553, 160 A.2d 549 (1960), embraced the doctrine and enunciated the standards governing its application. In Plum, plaintiff commenced her action by writ of foreign attachment, naming certain garnishees, and, thereafter, filed a complaint in equity against the defendant for an accounting. By preliminary objections, the defendant challenged the jurisdiction of the court to adjudicate the matter, asserting that all of the relief sought by the plaintiff involved the internal affairs of a foreign corporation. The trial court sustained the objections and dismissed the complaint. Plaintiff appealed.

The Supreme Court initially noted that the question presented was not whether the court had jurisdiction, which it unquestionably did, but whether the court should exercise the jurisdiction it had, a determination left to the sound discretion of the trial court. Although the Court restated the well-settled rule that Pennsylvania courts will generally not take jurisdiction for the purpose of regulating or interfering with the internal management or affairs of a foreign corporation, see e.g., Kahn v. American Cone & Pretzel Co., 365 Pa. 161, 74 A.2d 160 (1950), it concluded that the instant case did not fall within the ambit of the " internal affairs" doctrine and, therefore, was not subject to mandatory dismissal. Id. at 559. The court nevertheless indicated that it was well within the discretionary power of the trial court, after weighing various factors, to decline to exercise its jurisdiction and dismiss the suit under the doctrine of forum non conveniens. The court stated:

It is well within the power of the court, in the interests of justice, to decline to exercise its jurisdiction where, upon consideration of the parties, the witnesses, the situs of the...

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