J-A07036-19

2019 PA Super 172

____________________________________

* Former Justice specially assigned to the Superior Court.

HOWARD ROBBINS, PERSONAL 

REPRESENTATIVE FOR THE ESTATE 

OF DAVID ROBBINS

v.

CONSOLIDATED RAIL CORPORATION 

AND PENN CENTRAL CORP., A/K/A 

AMERICAN PREMIER 

UNDERWRITERS, INC. 

Appellants

:

:

:

:

:

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1055 EDA 2018

Appeal from the Order Entered December 7, 2017

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 1702-7646

BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.: FILED MAY 29, 2019

Consolidated Rail Corporation (“Consolidated Rail”) and Penn Central 

Corp., A/K/A American Premier Underwriters, Inc. (“Penn Central”) 

(collectively “Appellants”) appeal from the denial of their motion to dismiss 

the 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: Howard 

Robbins (“Mr. Robbins”), who is a resident of Indiana and the personal 

representative for the estate of David Robbins (“the decedent”), instituted the 
J-A07036-19

- 2 -

instant action pursuant to FELA1 against Consolidated Rail, which is 

incorporated in Pennsylvania with a principal place of business in Philadelphia, 

and Penn Central, which is incorporated in Pennsylvania with an address for 

service in Harrisburg, Pennsylvania.2 Mr. Robbins averred Appellants conduct 

business in and have substantial contacts with Philadelphia. He specifically 

averred Appellants conduct business in Philadelphia “as a common carrier by 

rail, operating a line and system of railroads and transacting substantial 

business throughout the Commonwealth of Pennsylvania, including but not 

limited to Philadelphia County.” Mr. Robbins’ Complaint, filed 6/6/17, at 1. 

Mr. Robbins indicated that, from 1953 to 1989, the decedent was 

employed by Appellants as a trackman, machine operator, and/or track 

foreman at the Beech Grove Train Yard in Indianapolis, Indiana. He averred 

that, as a result of the decedent’s job duties, the decedent was exposed to 

chemicals and cancer-causing substances, which resulted in the decedent’s 

death from lung and liver cancer on March 1, 2014. 

____________________________________________

1 Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60. We note Mr. 

Robbins originally filed a complaint on March 1, 2017, but he was permitted 

to amend his complaint on June 6, 2017. 

2 According to a sworn affidavit filed by Appellants, Penn Central filed for 

bankruptcy in 1970, and all properties of Penn Central became properties of 

the trustees in Penn Central’s bankruptcy. Thereafter, as part of the Regional 

Rail Reorganization Act, 45 U.S.C. § 701 et seq., Congress created 

Consolidated Rail, and all employees of Penn Central were offered continued 

employment with Consolidated Rail. 
J-A07036-19

- 3 -

On October 3, 2017, Appellants 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, Appellants filed an affidavit from Michael Scully, Director of Risk 

Management for Consolidated Rail. Mr. Scully clarified the decedent was 

employed in Indiana by Penn Central from 1953 to 1976, and he was 

employed in Indiana by Consolidated Rail from 1976 to 1989. Mr. Scully 

confirmed the decedent never worked for Appellants in Pennsylvania, and 

employment records for the decedent are stored in Jacksonville, Florida or 

Mount Laurel, New Jersey. 

Mr. Scully averred Appellants identified two of the decedent’s former 

supervisors who might be potential trial witnesses: Dale Mason, who resides 

in Illinois, and Charles Toney, who resides in Indiana. Both of these former 

supervisors are retired and no longer employed by Appellants. Mr. Scully 

averred there may be additional former supervisors or co-workers yet to be 

identified; however, it was not expected that the supervisors or co-workers

would have worked or lived in Pennsylvania. Mr. Scully alleged Appellants’ 

employees would suffer personal disruption if they are called to testify in 

Pennsylvania, as opposed to Indiana, and Appellants will suffer greater costs, 

inconvenience, and business disruption. 

Appellants also filed an affidavit from James Kennedy, the former vicepresident-deputy general counsel and secretary for Penn Central. Mr. 

Kennedy averred that Penn Central does not possess employment or 
J-A07036-19

- 4 -

personnel files, whether in Pennsylvania or elsewhere, for employees such as 

the decedent, who were employed by Penn Central but subsequently accepted 

employment with Consolidated Rail.3

Appellants averred the instant action has no bona fide connection to 

Pennsylvania. They reasoned the only alleged connection between 

Pennsylvania and the instant matter is that Appellants are incorporated in 

Pennsylvania, and Consolidated Rail has its headquarters in Philadelphia. 

However, Appellants argued these connections are totally unrelated to Mr. 

Robbins’ claim that the decedent suffered injury. Appellants indicated they 

agreed to waive the statute of limitations if Mr. Robbins re-filed his action in 

a new forum within 120 days of the dismissal of the suit in Philadelphia, and 

they agreed not to object on the basis of venue or personal jurisdiction if the 

matter was re-filed in Indiana. 

On October 24, 2017, Mr. Robbins filed a response in opposition to 

Appellants’ motion to dismiss for forum non conveniens. Therein, Mr. Robbins 

____________________________________________

3 Pointing to a request for admissions, Appellants averred in their motion to 

dismiss that Mr. Robbins admitted the decedent was not treated for his alleged 

injuries in Pennsylvania, and all of “[Mr. Robbins’] fact witnesses are located 

outside of Pennsylvania.” Appellants’ Motion to Dismiss, filed 10/3/17, at 3, 

12 (bold omitted). Appellants argued the request for admissions was deemed 

admitted since Mr. Robbins did not respond thereto within the time provided 

by the Rules of Civil Procedure. However, as discussed in depth infra, the trial 

court determined the request for admissions, which was referenced in 

Appellants’ motion to dismiss, was served on Mr. Robbins by CSX 

Transportation, which is not a party to the instant matter. Trial Court Opinion, 

filed 9/6/18, at 3 n.2. Accordingly, the trial court “did not consider the 

[r]equest for [a]dmission[s].” Id.
J-A07036-19

- 5 -

admitted the decedent did not live, work, own property, or receive medical 

treatment in Pennsylvania. However, Mr. Robbins specifically averred he 

“intend[ed] to call four (4) former [Consolidated Rail] employees who worked 

in Philadelphia as fact witnesses at trial including Marcia Comstock (medical 

director), William Barringer (safety director), Ramon Thomas (industrial 

hygienist), and Paul Kovac (occupational claims manager).” Mr. Robbins’ 

Response, filed 10/24/17, at 3, 7. He noted that, in Pennsylvania, these 

witnesses would be “subject to compulsory attendance.” Id. at 8. He also 

noted the cost for him to obtain these witnesses’ attendance in Indiana, as 

opposed to Pennsylvania, would be greater. Id. at 9. Further, Mr. Robbins 

indicated that, although he admitted it was unlikely that any of the decedent’s 

unidentified former supervisors or co-workers reside in Pennsylvania, he does 

not know whether they potentially live closer to Indiana or Philadelphia. Id. 

Mr. Robbins noted it is “convenient” that Appellants named only the decedent’s 

former supervisors and Appellant did not indicate any of their current 

employees would testify. Id. at 8-9. 

Moreover, Mr. Robbins asserted that, although the decedent worked at 

the train yard in Indiana, the policies and procedures related to the decedent’s 

exposure to chemicals and cancer-causing substances were determined at 

Consolidated Rail’s headquarters in Philadelphia. Id. at 5-6. Mr. Robbins 

admitted the decedent’s employment files are not located within 

Pennsylvania; however, he indicated some of the files are “located within miles 
J-A07036-19

- 6 -

of the Pennsylvania state border” in Mount Laurel, New Jersey. Id. at 7. 

Moreover, Mr. Robbins noted a viewing of the premises in this case would not 

be desirable and, in fact, it “would be...extremely dangerous [for the jury].” 

Id. at 10. 

On December 6, 2017, the trial court held a hearing on the matter, at 

which neither party produced additional evidence; but rather, the parties 

focused their attention on the legal arguments. 

On December 7, 2017, the trial court denied Appellants’ motion to 

dismiss. Appellants filed a motion to amend the order to allow for an 

interlocutory appeal, and the trial court denied the motion. Appellants then 

filed a petition for review with this Court. We granted the petition and 

transferred the matter to the instant docket number. On September 6, 2018, 

the trial court filed a Pa.R.A.P. 1925(a) opinion in which it set forth its reasons 

for denying Appellants’ motion to dismiss.

4

 

On appeal, Appellants present the following issues in their “Statement 

of Questions Involved”:

1. Whether a court considering a motion to dismiss a FELA case 

pursuant to 42 Pa.C.S. § 5322(e) should give any consideration 

to the fact that granting the motion would eliminate the 

plaintiff’s option to litigate his action in the state in which the 

defendant resides and thereby limit the plaintiff to the forum in 

which the claim arose[?]

____________________________________________

4 The trial court did not order Appellants to file a Pa.R.A.P. 1925(b) statement, 

and therefore, no such statement was filed.
J-A07036-19

- 7 -

2. Whether a trial court may treat a plaintiff’s unverified assertion 

that certain of his witnesses are located in the forum state as 

fact and give it primacy in the forum non conveniens analysis 

over the plaintiff’s admissions establishing that the action has 

no connection to the forum state[?]

3. Whether a Pennsylvania jury has an interest in trying an action 

brought by an out-of-state plaintiff for injuries suffered 

exclusively in another state solely because the defendant 

resides in Pennsylvania[?]

Appellants’ Brief at 5-6 (suggested answers omitted) (alphabetizing replaced 

with numbers).

Initially, we note the following relevant principles:

Orders on motions to dismiss under the doctrine of forum 

non conveniens are reviewed for an abuse of discretion. This 

standard applies even where jurisdictional requirements are met. 

Moreover, if there is any basis for the trial court’s decision, the 

decision must stand.

An abuse of discretion occurs if, inter alia, there was an error 

of law or the judgment was manifestly unreasonable. When 

reviewing for errors of law, the appellate standard of review is de 

novo and the scope of review is plenary. 

In Pennsylvania, the doctrine of forum non conveniens, 

which originated in Common Law, has been codified by statute:

Inconvenient forum.-When a tribunal finds that in 

the interest of substantial justice the matter should be 

heard in another forum, the tribunal may stay or 

dismiss the matter in whole or in part on any 

conditions that may be just.

42 Pa.C.S.A. § 5322(e).
J-A07036-19

- 8 -

Hovatter v. CSX Transportation, Inc., 193 A.3d 420, 424 (Pa.Super. 2018)

(quotations and citations omitted).5

The doctrine of forum non conveniens “provides the court with a means 

of looking beyond technical considerations such as jurisdiction and venue to 

determine whether litigation in the plaintiff’s chosen forum would serve the 

interests of justice under the particular circumstances.” Alford, 531 A.2d at 

794 (citation omitted). 

The two most important factors the trial court must apply 

when considering whether dismissal is warranted are that “1.) the 

plaintiff’s choice of forum should not be disturbed except for 

‘weighty reasons,’ and 2.) there must be an alternate forum 

available or the action may not be dismissed.”[6]

***

[W]ith respect to the initial factor, we note that “a court may 

find that the presumption in favor of a plaintiff’s choice of forum 

may be less stringently considered when the plaintiff has chosen 

a foreign forum to litigate his or her claims.” Furthermore,

To determine whether such “weighty reasons” 

exist as would overcome the plaintiff’s choice of 

forum, the trial court must examine both the private 

and public interest factors involved. Petty v. 

Suburban General Hospital, 525 A.2d 1230, 1232 

(Pa.Super. 1987). The Petty Court reiterated the 

considerations germane to a determination of both the 

plaintiff’s private interests and those of the public as 

defined by the United States Supreme Court in Gulf 

____________________________________________

5 Our courts lack the authority to transfer matters to courts of our sister 

states; but rather, when appropriate, our courts should dismiss the action to 

permit re-filing in another state. See Alford v. Philadelphia Coca-Cola 

Bottling Co., Inc., 531 A.2d 792 (Pa.Super. 1987).

6 As the trial court held, with regard to the second factor, in light of Appellants’ 

stipulations, an alternate forum (Indiana) is available for the instant action. 

See Trial Court Opinion, filed 9/6/18, at 4. 
J-A07036-19

- 9 -

Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839 

(1947). They are: 

the relative ease of access to sources of 

proof; availability of compulsory process 

for attendance of unwilling, and the cost 

of obtaining attendance of willing, 

witnesses; possibility of view of premises, 

if view would be appropriate to the 

actions; and all other practical problems 

that make trial of a case easy, expeditious 

and inexpensive. There may also be 

questions as to the enforceability of a 

judgment if one is obtained. The court will 

weigh relative advantages and obstacles 

to a fair trial. 

***

Factors of public interest also have 

place in applying the doctrine. 

Administrative difficulties follow for courts 

when litigation is piled up in congested 

centers instead of being handled at its 

origin. Jury duty is a burden that ought 

not to be imposed upon the people of a 

community which has no relation to the 

litigation. There is appropriateness, too, 

in having the trial...in a forum that is at 

home with the state law that must govern 

the case, rather than having a court is 

some other forum untangle problems in 

conflict of laws, and in law foreign to itself. 

Hovatter, 193 A.3d at 424-25 (quotations and citations omitted).

In their first claim, Appellants contend the trial court erred in considering

the fact that granting Appellants’ motion to dismiss would eliminate Mr. 

Robbins’ option to litigate this action in Pennsylvania and require him to 

litigate the action in Indiana. Appellants suggest the trial court improperly 

concluded Appellants had an “untoward” motive in seeking to dismiss the suit 
J-A07036-19

- 10 -

in Pennsylvania. See Appellants’ Brief at 17-19. Further, Appellants suggest 

the trial court improperly gave “heightened deference” to Mr. Robbins’s choice 

of forum because he brought the action under FELA. Id. 

In developing their claim, Appellants rely on the following portion of the 

trial court’s Rule 1925(a) opinion: 

The instant case sounds in the violation of a federal statute, 

FELA[.] Section 56 [of FELA] provides a plaintiff the right to bring 

an action “in a District Court of the United States, in the District 

of the residence of the defendant, or in which the cause of action 

arose, or in which the defendant shall be doing business at the 

time of commencing such action....” 45 U.S.C. § 56. The U.S. 

Supreme Court interpreted [Section] 56 as a venue provision, 

allowing a plaintiff to bring a FELA suit in any venue which has 

personal jurisdiction over the defendants. BNSF Ry. Co. v. 

Tyrrell, 137 S.Ct. 1549 (2017). Thus, [Mr. Robbins] had a choice 

of bringing this matter in one of two jurisdictions: 1) Philadelphia, 

which has general jurisdiction over [Appellants], and 2) 

Indianapolis, which has specific jurisdiction because that is where 

the cause of action accrued. In filing the instant [m]otion, 

[Appellants] sought to remove the first option—filing suit in a 

court that has general personal jurisdiction—effectively limiting 

the instant FELA case solely to the jurisdiction in which the cause 

of action accrued. 

Trial Court Opinion, filed 9/6/18, at 7-8. 

We disagree with Appellants that the trial court’s statements 

demonstrated the court found Appellants had an “untoward motive” in seeking 

to dismiss the instant suit or that the trial court gave “heightened deference” 

to Mr. Robbins in analyzing the forum non conveniens issue. Rather, the trial 

court’s statements were a proper summary of the law under FELA as to where 

venue may lie for purposes of the instant case (namely, Pennsylvania, where 
J-A07036-19

- 11 -

Appellants were doing business at the time Mr. Robbins commenced the 

action, or Indiana where the cause of action arose). See 45 U.S.C. § 56.

Further, we note the trial court’s statements were made in the context 

of discussing whether an alternate forum existed in this case, as well as 

whether Mr. Robbins’ choice of forum should be disturbed due to “weighty 

reasons.” As indicated supra, both the existence of an alternate forum and 

“weighty reasons” are proper considerations when a defendant makes a 

request to transfer a case to another state based on forum non conveniens. 

See Hovatter, supra.

Moreover, to the extent Appellants suggest the trial court’s statements 

reveal the court improperly gave “heightened deference” to Mr. Robbins’

choice of forum because he brought the action under FELA, we note the trial 

court specifically stated the following in its opinion:

[T]he Superior Court in Hovatter held the trial court erred 

by concluding that federal law required a FELA plaintiff’s choice of 

forum to receive heightened deference. In the case sub judice, 

th[e] [trial court] did not apply such deference; instead, [the] 

[c]ourt, applying the precedent set forth by our appellate courts, 

concluded [Appellants] failed to produce the requisite strong 

evidence of “weighty reasons” which would entitle [them] to 

dismissal of this action. 

Trial Court Opinion, filed 9/6/18, at 9. Accordingly, we find no merit to 

Appellants’ first claim.

Appellants combine their second and third claims into one argument 

section. Initially, Appellants aver that, under Pa.R.C.P. 4014(b), the trial court 

abused its discretion in failing to deem admitted the matters raised in 
J-A07036-19

- 12 -

Appellants’ request for admissions since Mr. Robbins did not respond thereto 

in a timely manner. See Appellants’ Brief at 29-32. 

We review a ruling related to discovery for an abuse of discretion. 

Kuwait & Gulf Link Transport Co. v. Doe, 92 A.3d 41, 44 (Pa.Super. 2014).

As this Court has held:

Rule 4014 governs requests for admissions. It permits a party to 

serve upon another party a written request for the admission of 

the truth of certain matters relating to statements or opinions of 

fact or the application of the law to fact. Pa.R.C.P. 4014(a). “The 

purpose of this discovery tool is to clarify and simplify the issues 

raised in prior pleadings in order to expedite the litigation 

process.” Christian v. Pennsylvania Fin. Responsibility 

Assigned Claims Plan, 686 A.2d 1, 5 ([Pa.Super.] 1996) 

(citation omitted)[.] Unless the party responds to the request 

within 30 days (45 days for a defendant), the matter is deemed 

admitted. Pa.R.C.P. 4014(b). The trial court may extend or 

shorten the timeframe in which the responding party has to 

answer the request. Id.

Estate of Borst v. Edward Stover Sr. Testamentary Trust, 30 A.3d 1207, 

1210 (Pa.Super. 2011).

Here, Appellants suggested the following in their October 3, 2017, 

motion to dismiss:

[Consolidated Rail] served [Mr. Robbins] with Requests for 

Admissions on August 17, 2017. See Ex. D (letter transmitting 

Requests for Admissions to [Mr. Robbins]. [Mr. Robbins] has not 

answered the Requests for Admissions as of September 18, 2017. 

Under Pa.R.C.P. 4014(b), “[t]he matter is admitted unless, within 

thirty days after service of the request, or within such shorter or 

longer time as the court may allow, the party to whom the request 

is directed serves upon the party requesting the admission an 

answer verified by the party or an objection, signed by the party 

or by the party’s attorney....” Thus, [Consolidated Rail’s] Requests 

for Admission, attached as Ex. C, are deemed admitted.
J-A07036-19

- 13 -

Appellants’ Motion to Dismiss, filed 10/3/17, at 5 n.4. 

In its Rule 1925(a) opinion, the trial court indicated it rejected 

Appellants’ argument since a review of the request for admissions, which 

Appellants attached to its motion to dismiss as Exhibit C, revealed that the 

request for admissions was served upon Mr. Robbins by “CSX Transportation,” 

which is not a party to the instant case. See Trial Court Opinion, filed 9/6/18, 

at 3 n.2. Thus, the trial court concluded Mr. Robbins was not obligated to 

answer the August 17, 2017, request for admissions, resulting in the trial 

court’s conclusion that the matters contained therein were not deemed 

admitted. 

We find no abuse of discretion in this regard. Our review of the certified 

record confirms that Exhibit C, which Appellants attached to their motion to 

dismiss, contained the following in the opening paragraph: “CSX 

Transportation...directs the following Requests for Admission and 

Interrogatories to Plaintiff....” Appellants’ Motion to Dismiss, filed 10/3/17, 

Exhibit C. Further, in the body of the request for admissions, “CSX 

Transportation” is identified as the defendant. See id. Accordingly, Mr. 

Robbins was not obligated to respond to the August 17, 2017, request for 

admissions.7 See Estate of Borst, supra. 

____________________________________________

7 On September 20, 2018, after the trial court filed its Rule 1925(a) opinion, 

Appellants filed a supplemental record to which they attached a “corrected” 

request for admissions naming “Consolidated Rail” as the defendant. 
J-A07036-19

- 14 -

Appellants next claim the trial court abused its discretion in weighing 

the private and public factors and, thus, the trial court erred in concluding 

there were insufficient “weighty reasons” to warrant overcoming Mr. Robbins’ 

choice of forum. We disagree.

With regard to the private factors, the trial court relevantly concluded 

there was no evidence that Indiana would provide easier access to the 

decedent’s employment records, which are housed in New Jersey and/or 

Florida. Further, with regard to the cost of obtaining the attendance of willing 

witnesses and the availability of compulsory process for obtaining the 

attendance of unwilling witnesses, the trial court noted Appellants identified 

two potential witnesses, both of whom were Appellants’ former employees: 

Mr. Mason, who resides in Illinois, and Mr. Toney, who resides in Illinois. Mr. 

Robbins, on the other hand, identified four fact witnesses, all of whom reside 

in Pennsylvania and were former Consolidated Rail employees. Additionally, 

the trial court noted Appellants conceded that it is unlikely any party would 

seek a request to view the train yard at issue. 

____________________________________________

Appellants admit in their brief that, on October 10, 2018, Mr. Robbins 

responded to the request for admissions; however, they characterize the 

response as being “over one year since [Consolidated Rail] served [Mr. 

Robbins] with those [r]equests[.]” Appellants’ Brief at 9 n.3. Since Mr. 

Robbins was not obligated to respond to the August 17, 2017, request for 

admissions, which was served upon him by a non-party (CSX Transportation), 

we conclude Mr. Robbins’ October 10, 2018, response was actually a timely 

response to the September 20, 2018, request for admissions, which was 

served upon him by a party (Consolidated Rail). 
J-A07036-19

- 15 -

With regard to the public factors, and Pennsylvania’s connection to the 

lawsuit, it is noteworthy that Mr. Robbins averred that, although he worked at 

the train yard in Indiana, the policies and procedures related to his exposure 

to chemicals and cancer-causing substances were determined at Consolidated 

Rail’s headquarters in Philadelphia. Thus, as the trial court concluded, 

Pennsylvania citizens have a relation to the litigation. 

Based on the aforementioned, we conclude the trial court did not abuse 

its discretion in weighing the private and public factors. We note it is within 

the trial court’s discretion to weigh some factors more heavily than others and

weighing the factors is “not an exercise in counting numbers.” Bochetto v. 

Dimeling, Schreiber & Park, 151 A.3d 1072, 1083 (Pa.Super. 2016). 

Because Appellants have not met their burden, we affirm.8 

For all of the foregoing reasons, we affirm.

Affirmed.

____________________________________________

8 To the extent Appellants aver the facts of this case are indistinguishable from 

Hovatter, supra, we disagree. In Hovatter, this Court held the trial court 

erred in failing to dismiss the plaintiff’s action, which was filed in Pennsylvania, 

under the doctrine of forum non conveniens. However, in the instant matter, 

unlike in Hovatter, there were Pennsylvania witnesses identified by a party 

and a viewing of the site was not at issue. Further, we note in the case sub 

judice, unlike in Hovatter, Mr. Robbins specifically averred the policies and 

procedures related to the decedent’s exposure to alleged chemical/cancercausing substances were developed by Consolidated Rail at its headquarters 

in Philadelphia. There was no such allegation made in Hovatter as to CSX 

Transportation (the sole defendant in Hovatter). 
J-A07036-19

- 16 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/29/19