J-A27004-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT MALLORY IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellant

v.

NORFOLK SOUTHERN RAILWAY 

COMPANY

Appellee No. 802 EDA 2018

Appeal from the Order Entered February 7, 2018

In the Court of Common Pleas of Philadelphia County

Civil Division at No: 170901961

BEFORE: STABILE, J., NICHOLS, J. and COLINS, J.*

MEMORANDUM BY STABILE, J.: FILED OCTOBER 30, 2020

Appellant, Robert Mallory, appeals from an order sustaining the 

preliminary objections of Appellee, Norfolk Southern Railway Company, and 

dismissing this action for lack of personal jurisdiction. Appellant argues that 

the trial court has jurisdiction over Appellee, a foreign corporation, pursuant 

to 42 Pa.C.S.A. § 5301(a)(2)(ii), because Appellee consented to the general 

jurisdiction of Pennsylvania courts by registering to do business in 

Pennsylvania.1 The trial court held that Section 5301(a)(2)(ii) is 

unconstitutional and does not serve as a basis for exercising jurisdiction over 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Section 5301(a)(2)(ii) provides that “consent, to the extent authorized by 

the consent,” constitutes a sufficient basis for Pennsylvania courts to exercise 

general jurisdiction over a corporation.
J-A27004-20

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Appellee. For the reasons that follow, we transfer this appeal to the 

Pennsylvania Supreme Court.

On September 18, 2017, Appellant commenced this action against 

Appellee alleging a violation of the Federal Employers’ Liability Act, 45 U.S.C. 

§§ 51-60. The complaint alleged that Appellant worked for Appellee as a 

carman in Ohio and Virginia from 1988 through 2005, but that his employment 

with Appellee exposed him to harmful carcinogens which caused him to 

develop colon cancer. Appellee filed preliminary objections seeking dismissal 

of the complaint due to lack of personal jurisdiction. Appellant countered that 

Appellee consented to jurisdiction by registering in Pennsylvania as a foreign 

corporation. On February 6, 2018, the court sustained Appellee’s preliminary 

objections and dismissed the complaint. Appellant filed a timely appeal to this 

Court. Subsequently, Appellant filed a timely statement of matters 

complained of on appeal raising a single issue: the court erred in finding it 

lacked personal jurisdiction over Appellee because Section 5301(a)(2)(ii)

confers general jurisdiction by consent over any corporation who registers to 

do business in Pennsylvania. 

The court filed a Pa.R.A.P. 1925 opinion in which it concluded that 

Section 5301(a)(2)(ii) was unconstitutional. The court noted that 

Pennsylvania law requires foreign corporations to register with the 

Commonwealth before doing business in Pennsylvania. Opinion, 5/30/18, at 

6 (citing 15 Pa.C.S.A. §§ 102, 411). Construed together with Section 5301, 
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these statutes mandate foreign corporations to submit to the court’s general 

jurisdiction as a condition for doing business in Pennsylvania. Id. at 7. The 

court held that this statutory regime of “forcing foreign corporations to choose 

between consenting to general jurisdiction in Pennsylvania or foregoing the 

opportunity to conduct business in Pennsylvania” violates the Due Process 

Clause of the Fourteenth Amendment. Id. at 7-8. 

In this Court, Appellant contends that the trial court erred by finding 

Section 5301(a)(2)(ii) unconstitutional. Before proceeding further, we find it 

necessary to inquire whether we have subject matter jurisdiction to decide 

this question. Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa. Super. 

2019) (court may raise question of subject matter jurisdiction sua sponte at 

any stage of the proceeding). 

The Judiciary Code prescribes that our Supreme Court “shall have 

exclusive jurisdiction of appeals from final orders of the courts of common 

pleas” that hold any Pennsylvania statute “repugnant to the Constitution . . . 

of the United States.” 42 Pa.C.S.A. § 722(7). The present appeal is from a 

final order declaring the consent provision of Pennsylvania’s general 

jurisdiction statute, Section 5301(a)(2)(ii), unconstitutional under the 

Fourteenth Amendment. The plain language of Section 722(7) mandates that 

the Supreme Court decide this appeal, not the Superior Court. 

42 Pa.C.S.A. § 5103 provides the mechanism for transferring this appeal 

to the Supreme Court. It states:
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If an appeal . . . is taken to . . . a court . . . of this Commonwealth 

which does not have jurisdiction of the appeal . . ., the court . . . 

shall not quash such appeal or dismiss the matter, but shall 

transfer the record thereof to the proper tribunal of this 

Commonwealth, where the appeal . . . shall be treated as if 

originally filed in the transferee tribunal on the date when the 

appeal . . . was first filed in a court . . . of this Commonwealth.

42 Pa.C.S.A. § 5103(a). Pursuant to Section 5103(a), we direct the 

prothonotary to transfer the record in this case to the Supreme Court. 

Case transferred to the Pennsylvania Supreme Court. Prothonotary 

directed to transfer record of this case to the Supreme Court of Pennsylvania, 

Eastern District.

2

 

Judge Nichols did not participate in the consideration or decision of this 

case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/30/20

____________________________________________

2

In light of our disposition, Appellants’ Application for Relief Seeking Oral 

Argument is denied as moot.