Jones v. Penn Cent. Corp.

250 A.3d 1227

Jenisa HURT, Personal Representative FOR the ESTATE OF: Charles R. JONES, Appellant

v.PENN CENTRAL CORPORATION a/k/a American Premier Underwriters, Inc., and Consolidated Rail Corporation

No. 776 EDA 2020

Superior Court of Pennsylvania.

Argued March 10, 2021

Filed April 15, 2021

Thomas J. Joyce III, Conshohocken, for appellant.

Daniel L. Jones Jr., Cincinnati, for appellee.

Evan M. Tager, Washington, for appellee.

BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant Jenisa Hurt ("Ms. Hurt"), who is the personal representative for the estate of Charles R. Jones ("the decedent"), appeals from the order granting the motion filed by Appellees Penn Central Corporation¹ a/k/a American Premier Underwriters, Inc. ("American Premier"), and Consolidated Rail Corporation ("Consolidated Rail") (collectively "Appellees") to dismiss Ms. Hurt's 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: Ms. Hurt, who is a resident of Danville, Indiana, instituted the instant action pursuant to FELA² and LIA³ against American Premier, which is incorporated in Pennsylvania with an address for service in Harrisburg, and Consolidated Rail, which is incorporated in Pennsylvania with a principal place of business in Philadelphia.

Ms. Hurt averred Appellees conduct business in and have substantial contacts with Philadelphia. She specifically averred Appellees are "engaged in interstate commerce as a common carrier by rail, operating a line and system of railroads and transacting substantial business in the Commonwealth of Pennsylvania and other states of the United States." Ms. Hurt's Second Amended Complaint, filed 8/2/19.⁴

Ms. Hurt averred that, from 1968 to 1992, the decedent worked for Appellees as a trainman and a conductor at and around various rail yards in Indiana and Illinois. She further averred that, as a result of the decedent's job duties, he was exposed to chemicals and cancer-causing substances, which resulted in the decedent's death from Non-Hodgkin's Lymphoma on August 10, 2017. She posited Appellees were negligent in failing to provide the decedent with a reasonably safe work place as required under the relevant statutes.

On October 25, 2019, Appellees 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, Appellees attached Ms. Hurt's answers to interrogatories, as well as an affidavit from Lauren Lamp, Field Investigations Specialist II for CSX Transportation, Inc. ("CSX Transportation").⁵

Relevantly, in the motion to dismiss, Appellees indicated the decedent lived his entire life in Indiana, and Ms. Hurt currently lives in Indiana. Neither the decedent nor Ms. Hurt have ever resided in Pennsylvania. Appellees’ Motion to Dismiss, filed 10/25/19, at 3. The decedent worked at and around rail yards in Indiana and neighboring Illinois. Id. He never worked for Appellees in Pennsylvania. Id. at 4.

Moreover, Appellees asserted the decedent was not diagnosed with his illness in Pennsylvania, and he never received medical treatment in Pennsylvania for the illness underlying the instant action. Id. at 5. Rather, the decedent was diagnosed and received medical treatment for his illness in Indiana. Id. Appellees listed six physicians, who treated the decedent in Indiana and who would have knowledge of the decedent's illness. Id. at 5-6.

Additionally, Appellees indicated a viewing of the decedent's work sites would be "very much at issue in this case." Id. at 10. In this vein, Appellees asserted:

It is important to show the jury the enormity of the premises underlying [Ms. Hurt's] claims, where [the decedent] worked, the locomotives that he worked in and around, and to dispel any notion that [the decedent] was, as [Ms. Hurt] claims, exposed to allegedly injurious substances while working in rail yards and in and around any locomotives....[M]odern technology cannot obviate the need for site visits.

Id. at 21 (citation omitted).

Furthermore, Appellees noted that, in answering interrogatories, Ms. Hurt identified one witness: David Souder, who was decedent's former co-worker. Id. at 20. Mr. Souder resides in Indiana. Id.

In the supporting affidavit, Ms. Lamp confirmed the decedent's work record reveals that he was never employed by Appellees in Pennsylvania, but that he worked for Appellees at and around various rail yards in Indiana and Illinois. Ms. Lamp identified six of the decedent's former co-workers and supervisors, including F.D. Pear, B.L. Haydon, D.W. Eller, J.P. Rothaar, J.W. Parker, and R.C. Smith, all of whom are retired from Consolidated Rail and currently reside in Indiana. Ms. Lamp indicated that any yet-to-be-identified co-workers and supervisors of the decedents would logically be expected to be located in Indiana or Illinois since he never worked at any Pennsylvania location. Moreover, Ms. Lamp indicated the decedent's employment files are located in either Florida or New Jersey.

Appellees averred that, since all of the decedent's former co-workers and supervisors reside in Indiana or Illinois, they will not be able to compel their attendance to testify in Pennsylvania if they are unwilling to voluntarily do so. Id. at 20-21. They further averred that, since the decedent's diagnosing and treating physicians are located in Indiana, Appellees will not be able to compel their attendance at trial in Pennsylvania. Id. at 21. Additionally, Appellees indicated their former employees will suffer greater personal disruption, inconvenience, and costs to travel to Pennsylvania, as opposed to Indiana (or neighboring Illinois), for trial. Id. at 22.

Moreover, Appellees argued Philadelphia County is suffering from court congestion, administrative difficulties, and an undue burden on juries due to an "explosion of out-of-state filing" of mass tort cases. Id. at 23.

Based on the aforementioned, Appellees averred the instant action has no bona fide connection to Pennsylvania, and dismissal of the action is proper since there is a more convenient forum where litigation could be conducted more easily, expeditiously, and inexpensively. Additionally, Appellees reasoned the only connection between Pennsylvania and the instant matter is that Consolidated Rail has its headquarters in Pennsylvania and American Premier is incorporated in Pennsylvania. However, Appellees argued these connections are unrelated to Ms. Hurt's claim that the decedent suffered injury in connection with his employment in Indiana and Illinois.

Appellees indicated they agreed to waive the statute of limitations if Ms. Hurt re-filed her lawsuit in Indiana, within ninety days of the dismissal of the suit in Philadelphia, and agreed not to object on the basis of venue or personal jurisdiction if the matter was re-filed in Indiana or some other proper forum.

On November 22, 2019, Ms. Hurt filed a response in opposition to Appellees’ motion to dismiss for forum non conveniens , as well as a supporting memorandum. Therein, Ms. Hurt admitted the decedent did not live, work, own property, or receive medical treatment in Pennsylvania. Moreover, she admitted the decedent's former co-workers and supervisors, including Mr. Souder, reside in Indiana.

However, Ms. Hurt denied that all of her fact witnesses are located outside of Pennsylvania. Specifically, she indicated:

[Ms. Hurt] intends to call four former [Consolidated Rail] corporate witnesses who worked for [Consolidated Rail] at its headquarters in Philadelphia. [Ms. Hurt] intends to call Ramon Thomas, who was [Consolidated Rail's] industrial hygiene manager who worked for [Consolidated Rail] in Philadelphia. Mr. Thomas currently works in Philadelphia and lives in Yardley, PA. [Ms. Hurt] intends to call William Barringer, who was [Consolidated Rail's] safety director who worked for [Consolidated Rail] in Philadelphia. Mr. Barringer currently lives in Naples, FL. [Consolidated Rail] routinely brings Mr. Barringer to testify live in Philadelphia. [Ms. Hurt] intends to call Marcia Comstock, M.D., who was [Consolidated Rail's] former medical director who worked for [Consolidated Rail] in Philadelphia. Dr. Comstock lives in Wayne, PA. [Ms. Hurt] intends to call Paul Kovac, who was [Consolidated Rail's] claims manager who worked for [Consolidated Rail] in Philadelphia. Mr. Kovac lives in Hatboro, PA.

Ms. Hurt's Response to Appellees’ Motion to Dismiss, filed 11/22/19, ¶ 14.⁶

Additionally, Ms. Hurt elaborated that she intended to call the four former Consolidated Rail corporate witnesses because they "were responsible for developing industrial hygiene, safety and medical programs to prevent employees from developing cancer due to exposure to diesel exhaust and asbestos [and] failed to do so in a timely and adequate manner." Id. ¶ 62. Ms. Hurt averred "[t]hat is negligence under FELA. That is why the four former [Consolidated Rail] corporate employees’ testimony is relevant[.]" Id. In support of this claim, Ms. Hurt attached as exhibits to her response the notes of testimony given by Mr. Thomas and Mr. Barringer in two unrelated FELA cases in the Court of Common Pleas of Philadelphia County.

Ms. Hurt contended a viewing of the decedent's work sites would be irrelevant at trial. Id. at ¶ 42. Moreover, she averred that, in addition to Consolidated Rail being incorporated in Pennsylvania with its headquarters in Philadelphia, Penn Central was incorporated in Pennsylvania with its corporate headquarters in Philadelphia. See id. at ¶ 15. She posited that Philadelphia has judicial resources and experience with FELA cases to ensure a just trial.

On January 9, 2020, Appellees filed a reply to Ms. Hurt's response in opposition to their motion to dismiss. Therein, Appellees argued dismissal was warranted since Ms. Hurt has identified, at...