Failor v. FedEx Ground Package Sys., Inc.

248 A.3d 527

Russell E. FAILOR, Jr., and Cathy Failor Appellants

v.FEDEX GROUND PACKAGE SYSTEM, INC.

No. 3491 EDA 2019

Superior Court of Pennsylvania.

Argued February 10, 2021

Filed March 17, 2021

Howard Jonathan Bashman, Willow Grove, for appellant.

Bryson Forrest Datt Jr., Pittsburgh, for appellee.

BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.^*

OPINION BY PELLEGRINI, J.:

Russell E. Failor, Jr. (Failor), and Cathy Failor (collectively, the Failors) appeal from the November 6, 2019 order in the Court of Common Pleas of Philadelphia County (trial court) dismissing their personal injury lawsuit against FedEx Ground Package System, Inc. (FedEx Ground) pursuant to Section 5322(e) of the Uniform Interstate and International Procedure Act. See 42 Pa.C.S. § 5322(e).¹ The Failors contend that the trial court abused its discretion in dismissing their claim because FedEx Ground did not establish that Pennsylvania is an inconvenient forum for it. After our careful review, we vacate the order dismissing the Failors’ case.

I.

The following background facts and procedural history are taken from our independent review of the certified record and the trial court's June 22, 2020 opinion. For the purposes of this appeal, those facts are not in dispute.

A.

On December 17, 2018, the Failors, residents of Perry County, Pennsylvania, filed a complaint against FedEx Ground in the Philadelphia County trial court. The complaint states that FedEx Ground maintains its principal place of business in Allegheny County, Pennsylvania, and regularly conducts business throughout the United States, including in Pennsylvania, specifically maintaining a shipping facility in Philadelphia County.

The complaint alleged that Failor was a tractor-trailer driver for an independent contractor that had contracted to haul freight for FedEx Ground between Hagerstown, Washington County, Maryland and Lewisberry, York County, Pennsylvania. On June 28, 2018, while at FedEx Ground's Hagerstown facility, Failor slipped and fell on an unknown liquid substance on the rear end of a FedEx Ground trailer, sustaining injuries. He notified FedEx Ground employee, Shelley DePriest, who created an accident report and took pictures of the scene on his phone. Failor received a ride back to Pennsylvania after his injury and went to the emergency room in Mechanicsburg, Cumberland County, Pennsylvania. Doctors diagnosed Failor with a fractured right ankle and he underwent surgery in Hershey, Dauphin County, Pennsylvania, where he continues to receive treatment. He was unable to return to work.

B.

FedEx Ground filed a motion to dismiss pursuant to 42 Pa.C.S. § 5322(e) seeking dismissal for forum non conveniens . Alternatively, it requested that the case be transferred to Perry County, Pennsylvania for forum non conveniens pursuant to Pennsylvania Rule of Civil Procedure 1006(d)(1).

In support of its motion to dismiss, it alleged that:

29. The incident giving rise to this suit occurred in Washington County, Maryland and this matter has no contact with or connection to Philadelphia County.

30. The sources of proof relative to the subject incident are located in Washington County, Maryland and Perry County, Pennsylvania.

31. Trial of this matter in Philadelphia County will not be easy, expeditious, or inexpensive.

32. The FedEx Ground employee(s) involved in this incident with first-hand knowledge of the events are employed in and around Washington County, Maryland.

33. The parties and non-party witnesses can more effectively, economically, and conveniently present their evidence and witnesses in Washington County, Maryland.

* * *

35. Moreover, it is common knowledge that the Philadelphia courts are inundated with litigation.

(Motion to Dismiss Pursuant to 42 Pa.C.S. § 5322(e), 4/04/19, at 5-6) (pagination provided).

FedEx Ground also provided an affidavit by Shelley DePriest in which she represented that she was the senior manager of line haul at the Fed Ground Hagerstown, Maryland facility where Failor alleged he was injured. She stated that she lived in Franklin County, Pennsylvania,² approximately three hours from Philadelphia, and that, as a single mother, it would be inconvenient and costly for her to attend a trial in Philadelphia County and she would not be willing to attend a trial there.

Later, in a supplemental brief, FedEx Ground also represented that Ms. DePriest left employment with FedEx Ground after providing her affidavit. FedEx Ground also appended to that brief the affidavits of employees Tracy White and Tom Belasco. In his affidavit, Mr. White represented that he worked at FedEx Ground's Winchester, Virginia plant, but on the date of Failor's incident, he worked as a line haul manager for FedEx Ground's Hagerstown facility. The affidavit asserted that it would be inconvenient and costly for him to attend a trial in Philadelphia County, would involve a significant time commitment, that he would not be willing to attend a trial in that location and that it would be "far more convenient and economical" to attend trial in either Washington County, Maryland or Perry County, Pennsylvania.

Mr. Belasco's affidavit stated that since Ms. DePriest left her FedEx Ground employment, he was the line haul manager at FedEx Ground's Hagerstown facility; that he resided in Boonsboro, Maryland, approximately three-and-one-half hours from Philadelphia; that attending trial in Philadelphia would be inconvenient and costly; and that he would not be willing to attend a trial there as it would be much more convenient and economical to attend a trial in Perry County, Pennsylvania or Washington County, Maryland.

Paragraphs nine through twelve of his affidavit stated that Ms. DePriest could not be compelled to testify since she is no longer a FedEx Ground employee and that this would adversely affect FedEx Ground's defense of this matter and would be inconvenient and costly for members of the cleaning and maintenance staff to attend trial in Philadelphia because they live in or around Hagerstown. Finally, the affidavit stated that the absence of Mr. Belasco and other members of his staff would be oppressive and vexatious to the Hagerstown, Maryland operations.

Furthermore, in its supplemental brief, FedEx Ground argued that its only connection to Philadelphia County is that it has a shipping facility there; the site of the underlying incident occurred in Hagerstown, Maryland; the Failors’ residence and the medical providers were in another Pennsylvania county; and that the known FedEx Ground or non-party witnesses reside in or near Hagerstown, Pennsylvania.

C.

In response to FedEx Ground's motion to dismiss, the Failors admitted that Failor received medical treatment in Harrisburg and Hershey, Pennsylvania, and they noted that the only thing in Washington County, Maryland relative to this litigation is the empty trailer lot where Failor fell. They maintained that FedEx Ground regularly conducts business in Philadelphia in receiving and sending packages and that Philadelphia courts are more than capable of handling the high case volume.

The Failors noticed the depositions of Ms. DePriest, Mr. White and Mr. Belasco. During discussions between counsel, they confirmed that Ms. DePriest was no longer employed with FedEx Ground and that she now lives in Virginia. She did not appear for her deposition, but the Failors did depose Mr. White and Mr. Belasco.

At his deposition, Mr. White admitted that he has no personal knowledge of the Failor incident. Mr. White stated that he did not know how far it was from his West Virginia home to Philadelphia, only that it was a couple of hours away. Contrary to the affidavit's language, he admitted that he would attend a trial in Philadelphia if subpoenaed to do so and that it would be inconvenient whether the trial was held there or in Hagerstown, Maryland. Despite the inconvenience of attending a trial in Philadelphia because of his work schedule and daughter's extracurricular activities, Mr. White admitted he could make other arrangements if required to do so.

In his deposition, Mr. Belasco testified that he took over the position of line haul manager after Ms. DePriest left the company. He conceded that FedEx Ground's attorney prepared his affidavit and he signed it without making any changes, although he did not actually know if paragraphs nine through thirteen were correct. Specifically, he did not know if Ms. DePriest could be compelled to testify at trial or if her absence would adversely affect FedEx Ground's defense, whether it would be inconvenient for the cleaning staff to attend trial in Philadelphia, or if trial in Philadelphia would be oppressive and vexatious since he did not know what "vexatious" meant and he only meant that attending trial in Philadelphia would be inconvenient.

Although he testified that it was three-and-one-half hours from his home in Boonsboro, Maryland to Philadelphia, he admitted that this estimate was in the affidavit when he received it from counsel. He did not disagree that Google Maps showed the distance was two hours and forty-five minutes. He admitted that he would appear to testify if he were subpoenaed to do so and that the inconvenience was the distance to Philadelphia. Mr. Belasco stated that any information he could provide could also be provided by Mr. White since it would be about FedEx Ground policies and procedures at the Hagerstown facility, not the Failor incident, since he was not there at the time of its occurrence.

D.

Pursuant to 42 Pa.C.S. § 5322(e), the trial court granted FedEx Ground's motion and dismissed the Failors’ complaint without prejudice to be re-filed in Maryland or other appropriate jurisdiction.³ The trial court reasoned that:

The facts of this case strongly favor dismissal pursuant to § 5322(e) and transfer to Maryland. Plaintiff's slip and fall incident occurred at Defendant's facility located in Hagerstown, Maryland. Plaintiffs reside in Perry County, Pennsylvania, which is approximately 130 miles from

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