Stevens v. Penn Cent. Corp.

251 A.3d 798

Paul K. STEVENS, Appellant

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

No. 663 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 Penn Central, appellee.

Evan M. Tager, Washington DC, for Consolidated Rail, appellee.

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

OPINION BY STEVENS, P.J.E.:

Appellant Paul K. Stevens ("Mr. Stevens") appeals from the order granting the motion filed by Appellees Penn Central Corporation¹ a/k/a American Premier Underwriters, Inc. ("American Premier"), Consolidated Rail Corporation ("Consolidated Rail"), and CSX Transportation, Inc. ("CSX Transportation") (collectively "Appellees") to dismiss Mr. Stevens’ 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: Mr. Stevens is a non-resident of Pennsylvania and currently lives in Florida. He instituted the instant action pursuant to FELA² and LIA³ against 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 CSX Transportation, which is incorporated in Virginia with an address for service in Florida.⁴

Mr. Stevens 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." Mr. Stevens’ Amended Complaint, filed 5/16/19.⁵

Mr. Stevens averred that, from April 21, 1965, to April 1, 2004, he was employed by Appellees as a brakeman and a conductor at rail yards in Syracuse, New York. 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 multiple myeloma. He posited Appellees were negligent in failing to provide him with a reasonably safe work place as required under the relevant statutes.

On October 21, 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 Mr. Stevens’ answers to interrogatories, as well as two affidavits from Lauren Lamp, Field Investigations Specialist II for CSX Transportation.

Relevantly, in the motion to dismiss, Appellees indicated that Mr. Stevens admitted he resided in Liverpool, New York, when he worked for Appellees, and thereafter, he moved to Florida. Appellees’ Motion to Dismiss, filed 10/21/19.⁶ He has never resided in Pennsylvania. Id. Mr. Stevens admitted he worked solely at the DeWitt Train Yard in Syracuse for the duration of his employment with Appellees. Id. He never worked for Appellees in Pennsylvania. Id.

Moreover, Mr. Stevens admitted he was not diagnosed with his illness in Pennsylvania, and he never received medical treatment in Pennsylvania for the illness underlying the instant action. Id. Additionally, Appellees indicated a viewing of Mr. Stevens’ work site would be "important" in this case. Id. In this vein, Appellees asserted:

It is important to show the jury the enormity of the premises underlying [Mr. Stevens’] claims, where he worked, the locomotives that he worked in and around, and to dispel any notion that [Mr. Stevens] was, as he 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. (citation omitted).

In her first supporting affidavit, Ms. Lamp confirmed that Mr. Stevens’ work record reveals he worked at the DeWitt Train Yard in Syracuse, New York, for his entire career with Appellees. Ms. Lamp identified five of Mr. Stevens’ former co-workers and supervisors, including D.C. Ratliff, R.J. Eberhard, J.H. Schuyler, T.J. Ferris, V, and J.D. Lewandowski, all of whom reside in New York. D.C. Ratliff is currently employed for Appellees, while the remaining listed employees are retired. Ms. Lamp indicated that any yet-to-be-identified co-workers and supervisors of Mr. Stevens would logically be expected to be located in New York since he never worked at any Pennsylvania location.

Ms. Lamp averred Appellees would suffer greater costs and disruption to its business if its employees are required to travel to Philadelphia, Pennsylvania, as opposed to New York, to testify, and additionally, current and retired employees would suffer greater personal disruption, inconvenience, and costs to travel to Pennsylvania.

In her second affidavit, Ms. Lamp noted CSX Transportation's employee records are maintained in Jacksonville, Florida, and Consolidated Rail's employee records are maintained in Mount Laurel, New Jersey.

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.

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 Mr. Stevens’ claim that he suffered injury in connection with his employment in New York.

Appellees indicated they agreed to waive the statute of limitations if Mr. Stevens re-filed his action in Onondaga County, New York, 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 Onondaga County, New York, or some other proper forum.

On November 12, 2019, Mr. Stevens filed a response in opposition to Appellees’ motion to dismiss for forum non conveniens , as well as a supporting memorandum. Therein, Mr. Stevens admitted he did not live, work, own property, or receive medical treatment in Pennsylvania. Moreover, he admitted his former co-workers and supervisors reside in New York.

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

[Mr. Stevens] intends to call four former [Consolidated Rail] corporate witnesses who worked for [Consolidated Rail] at its headquarters in Philadelphia. [Mr. Stevens] intends to call Ramon Thomas, who was [Consolidated Rail's] industrial hygiene manager who worked for [Consolidated Rail]. Mr. Thomas currently works in Philadelphia and lives in Yardley, PA. [Mr. Stevens] 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. [Mr. Stevens] 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. [Mr. Stevens] 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.

Mr. Stevens’ Response to Appellees’ Motion to Dismiss, filed 11/12/19, ¶ 13.⁷

Additionally, Mr. Stevens 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. ¶ 66. Mr. Stevens 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, Mr. Stevens attached as exhibits to his 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.

Mr. Stevens contended the current conditions of his work place at DeWitt Train Yard are irrelevant to his working conditions from 1965 to 2004 when he worked for Appellees. Id. at ¶ 42. Moreover, he 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 ¶ 62. He 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 Mr. Stevens’ response in opposition to their motion to dismiss. Therein, Appellees argued that, since Mr. Stevens’ complaint alleges exposure to cancer-causing substances that occurred at the DeWitt Train Yard in Syracuse, New York, his former co-workers and supervisors, who reside in New York, would have the information necessary to testify about Mr. Stevens’ work responsibilities, work conditions, and alleged exposure. Appellees noted they have conducted additional investigation and have uncovered nine additional co-workers and supervisors who are knowledgeable about Mr. Stevens’ working conditions in New York. All of these nine additional witnesses reside in New York.

Moreover, Appellees attached to their reply two supplemental affidavits...