Lyndes v. Penn Cent. Corp.

254 A.3d 725

Allen F. LYNDES, Appellant

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

No. 1408 EDA 2020

Superior Court of Pennsylvania.

Argued March 10, 2021

Filed: April 29, 2021

Thomas J. Joyce III, Conshohocken, for appellant.

Daniel L. Jones Jr., Cincinnati, OH, for Penn Central, appellee.

Ira L. Podheiser, Pittsburgh, for Consolidated Rail, appellee.

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

OPINION BY STEVENS, P.J.E.:

Appellant Allen F. Lyndes ("Mr. Lyndes") appeals from the order granting the motion filed by Appellees Penn Central Corporation a/k/a American Premier Underwriters, Inc. ("American Premier"),¹ Consolidated Rail Corporation ("Consolidated Rail"), and Norfolk Southern Railway Company ("Norfolk Southern") (collectively "Appellees") to dismiss Mr. Lyndes’ 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 careful review, we affirm.

The relevant facts and procedural history are as follows: Mr. Lyndes, a resident of Beaver Falls, Pennsylvania, instituted this action pursuant to the Federal Employers’ Liability Act ("FELA")² against three corporations: American Premier, which is incorporated in Pennsylvania with an address for service in Harrisburg, Consolidated Rail, which is incorporated in Pennsylvania with a principal place of business in Philadelphia, and Norfolk Southern, which is incorporated in Virginia with an address for service in Norfolk.³

Mr. Lyndes averred Appellees conduct business in and have substantial contacts with Philadelphia. He 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, including Philadelphia County." Amended Complaint, filed 11/8/18 (unpaginated).⁴

In his amended complaint, Mr. Lyndes averred that, from 1974 to 2007, he was employed by Appellees as a trackman and machine operator at various yards and buildings in and around Lorain, Ohio, Dearborn, Michigan, Chicago, Illinois, and Pittsburgh, Pennsylvania. He further averred that, as a result of his job duties, he was exposed to chemicals and cancer-causing substances, which resulted in his development of bladder cancer. He posited Appellees were negligent in failing to provide him with a reasonably safe workplace as required under the relevant statute.

In discovery, Mr. Lyndes conceded that he never worked for Appellees in Philadelphia, but primarily worked for Appellees in Lorain, Ohio. Mr. Lyndes did not provide any confirmation that he worked for Appellees in Pittsburgh or anywhere in Pennsylvania. Instead, Lyndes claimed that he worked as an Assistant Track Supervisor in the "Pittsburgh Division" in Ohio while working for Norfolk Southern from 2000-2003. Lyndes’ Answer to Interrogatories (unpaginated). Mr. Lyndes also admitted that none of his former coworkers or supervisors lived in Pennsylvania.

On February 18, 2020, Appellees Consolidated Rail and Norfolk Southern filed a joint motion to dismiss under 42 Pa.C.S.A. § 5322(e) and the doctrine of forum non conveniens . Thereafter, on February 19, 2020, Appellee American Premier filed a motion to join, adopt and incorporate by reference the motion to dismiss filed by the other Appellees. In support of their motion, Appellees attached Mr. Lyndes’ answers to Appellees’ request for admissions and interrogatories, as well as orders from the Philadelphia County Court of Common Pleas granting forty-five motions to dismiss based on forum non conveniens in other FELA lawsuits with similar circumstances in which the plaintiffs did not reside or work for the railroads in Philadelphia.

Relevantly, Appellees asserted that Mr. Lyndes never worked for Appellees in Philadelphia, nor was he injured as a result of any conduct on the part of Appellees that took place in Philadelphia County. Appellees’ Motion to Dismiss, filed 2/18/20 (unpaginated). Appellees attached Mr. Lyndes’ responses to their interrogatories in which he confirmed that he worked for Appellees primarily in Ohio, but also in Illinois and Indiana. Id .

Appellees emphasized that, in discovery, Mr. Lyndes admitted that all of the individuals he intended to call as witnesses are residents of Ohio or live in locations closer to Ohio than to Philadelphia. Id . In his responses to Appellees’ interrogatories, Mr. Lyndes identified as potential witnesses his former supervisors: Paul Blodgett, Jim Stump, Ed Boyle, and Larry Johnson. Mr. Lyndes alleged that Mr. Blodgett lived in Ohio, Mr. Boyle and Mr. Johnson lived in Illinois, and Mr. Stump was "located in Dearborn Division." Lyndes’ Answer to Interrogatories (unpaginated). Appellees assert that they would rely in part on the testimony of Mr. Lyndes’ former supervisors, superintendents, and/or co-workers who have direct personal knowledge of Mr. Lyndes’ job duties and job requirements. Appellees’ Motion to Dismiss, filed 2/18/20 (unpaginated).

In addition, while Appellees acknowledged that Mr. Lyndes would testify on his own behalf and intended to offer the testimony of his wife, Shirley Lyndes, Appellees noted that the couple lives in Beaver Falls (western Pennsylvania), which is significantly closer to Ohio than Philadelphia (eastern Pennsylvania). Id . Moreover, Appellees noted that Mr. Lyndes never received medical treatment in Philadelphia for the illness underlying the instant action. Id . As Mr. Lyndes was diagnosed and treated for bladder cancer by physicians in medical facilities in western Pennsylvania (Butler County and Allegheny County), Appellees asserted that Mr. Lyndes’ treating physicians and his medical records are more accessible to the parties in Ohio, rather than in Philadelphia County. Id .

Further, Appellees asserted that they would be denied the availability of compulsory process to compel the attendance of unwilling out-of-state witnesses to travel to Philadelphia for trial. Id . In addition, Appellees claimed that even if the witnesses, most of whom are located in or near Ohio, were willing to attend proceedings in Philadelphia, Appellees argued that the cost of obtaining their attendance would be great and unnecessary, particularly where this case would be more conveniently filed in Ohio. Id . Appellees admitted that they had not determined whether a site visit by the jury would be necessary during trial, but argued that the possibility of a site visit in Ohio is a factor that weighs in favor of dismissal. Id.

Moreover, Appellees argued that there was no reason to burden the courts, taxpayers and jury pool of Philadelphia County with matters that would be more appropriately resolved in Ohio. Id . Appellees claimed that citizens of Philadelphia County would have a minimal interest in the litigation in deciding issues relating to the working conditions of an individual who worked over hundreds of miles away in Ohio. Id .

Based on the aforementioned arguments, 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 Appellees conduct unrelated business operations in Philadelphia. However, Appellees argued these connections are not related to Mr. Lyndes’ claim that he suffered injury while he worked as Appellees’ employee in Ohio.

Appellees indicated they agreed to waive the statute of limitations if Mr. Lyndes re-filed his action in Ohio 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 Ohio, or some other proper forum.

On March 9, 2020, Mr. Lyndes filed a response in opposition to Appellees’ motion to dismiss for forum non conveniens , as well as a supporting memorandum. Therein, Mr. Lyndes asserted that he was a resident of Beaver Falls, Pennsylvania, but admitted he did not work in or receive medical treatment in Philadelphia, Pennsylvania. Moreover, he admitted his former co-workers and supervisors reside in Ohio.

However, Mr. Lyndes denied that all of his fact witnesses are located outside of Pennsylvania. Specifically, he indicated:

[Mr. Lyndes] intends to call four former [Consolidated Rail] management employees to testify in [Mr. Lyndes’] case in chief who actually worked for [Consolidated Rail] in Philadelphia. [Mr. Lyndes] intends to call Marcia Comstock, M.D., [Consolidated Rail's] former medical director, who worked for [Consolidated Rail] in Philadelphia and lives in Wayne, PA. [Mr. Lyndes] intends to call William Barringer, [Consolidated Rail's] former safety director, who worked for [Consolidated Rail] in Philadelphia. Mr. Barringer now lives in Naples, Florida. [Mr. Lyndes] intends to call Ramon Thomas, [Consolidated Rail's] former industrial hygienist, who worked for [Consolidated Rail] in Philadelphia and lives or works in Morrisville, PA. [Mr. Lyndes] intends to call Paul Kovac, [Consolidated Rail's] occupational claims manager, who worked for [Consolidated Rail] in Philadelphia, PA and lives in Hatboro, PA.

Mr. Lyndes’ Response to Appellees’ Motion to Dismiss, filed 3/9/20, ¶ 8.

Additionally, Mr. Lyndes elaborated that he 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. ¶ 15. Mr. Lyndes also indicated that he would ask these four witnesses to "testify as to what the [Consolidated Rail] safety department based in...