Opinion
J-A22021-18 No. 432 EDA 2018
02-22-2019
BRUCE RHYNE AND JANICE RHYNE, H/W Appellants v. UNITED STATES STEEL CORPORATION, SUNOCO, INC. (R&M) F/K/A SUN COMPANY, INC. AND F/K/A SUN OIL COMPANY, INC., RADIATOR SPECIALTY COMPANY, EXXON MOBILE CORPORATION, CHEVRON U.S.A., INC. AS SUCCESSOR IN INTEREST TO GULF OIL COMPANY, SAFETY-KLEEN SYSTEMS, INC., CRC INDUSTRIES, INC., UNIVAR USA, INC. F/K/A CHEMCENTRAL CORP. AND VAN WATERS & RODGERS, INC., ASHLAND, INC., KANO LABORATORIES, INC., THE STECO CORPORATION, ACUITY SPECIALTY PRODUCTS GROUP, INC., THE SAVOGRAN COMPANY, TURTLE-WAX, INC., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO MARVEL OIL COMPANY, INC.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated December 20, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 00228 January Term, 2016 BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E. MEMORANDUM BY NICHOLS, J.:
Former Justice specially assigned to the Superior Court.
Appellants Bruce Rhyne (Rhyne) and Janice Rhyne appeal from the order granting the motion to dismiss without prejudice based on forum non conveniens, pursuant to 42 Pa.C.S. § 5322(e), filed by Appellees United States Steel Corp., Sunoco, Inc. (R&M), Radiator Specialty Co., Exxon Mobile Corp., Chevron U.S.A., Inc., Safety-Kleen Sys., Inc., CRC Indus. Inc., Univar USA, Inc., Ashland, Inc., Kano Lab., Inc., The Steco Corp., Acuity Specialty Prods. Grp., Inc., The Savogran Co., and Turtle Wax, Inc. Appellants contend the trial court erred by prematurely granting Appellees' motion. We affirm.
We adopt the facts and procedural history set forth in the trial court's opinion.
[Appellants] are North Carolina Residents. [Appellant] Bruce Rhyne was employed by Duke Energy Corporation ("Duke") from 1976 to 2015 in various parts of North and South Carolina. During his employment at Duke, [Mr. Rhyne] alleges that he was exposed to a number of products containing the chemical Benzene. [Mr. Rhyne] further alleges that as a result of this exposure he contracted acute myeloid leukemia. . . .Trial Ct. Op., 4/16/18, at 1-2 (citations and some capitalization omitted).
On January 5, 2016[, Appellants] filed a complaint against nineteen corporate defendants—[Appellees]—bringing claims of (1) negligence and gross negligence; (2) breach of warranty; (3) strict liability; (4) battery and fraud; and (5) loss of consortium.
On June 21, 2017, [Appellee] Acuity Specialty Products Group, Inc. filed a motion to dismiss for forum non conveniens. On July 11, 2017, [Appellee] Safety-Kleen Systems, Inc. joined in [Appellee] Acuity Specialty Products Group, Inc.'s motion.
On July 13, 2017, the trial court ordered that affidavits be submitted to opposing counsel within thirty days and depositions prompted by the received affidavits must occur before September 15, 2017, the deadline for supplemental briefs:
[A]ll counsel are ordered to submit supplemental briefs on the issue of venue by September 15th, 2017. . . .Order, 7/17/17.
All parties are permitted to conduct discovery limited to the issue of venue, to include both affidavits and depositions as the parties deem necessary. All affidavits must be submitted to opposing counsel no later than thirty (30) days from the date of this Order. If the party receiving an affidavit wishes to depose the affiant on venue related issues, said deposition must occur between the date the affidavit is produced and the date briefs are due. Nothing in this Rule shall prevent the parties from taking venue-related depositions prior to the production of an affidavit. If the parties deem that discovery related to issues other than venue is necessary, they are granted leave to petition the court for permission to conduct such discovery.
The trial court discussed the subsequent events as follows:
The parties timely responded. On September 19, 2017, [Appellees] ExxonMobil Corporation, Radiator Specialty Company, Chevron USA, Inc., CRC Industries, Inc., Univar USA Inc., and Kano Laboratories, Inc. joined the pending motion. On September 28, 2017, [Appellee] Turtle Wax, Inc. also joined in Acuity's pending motion to dismiss. On December 19, 2017, this court granted [Acuity's] motion and dismissed the matter without prejudice to be filed in another jurisdiction.
On January 19, 2018, [Appellants] filed a motion for reconsideration of this court's December 19, 2017 order. Contemporaneously, [Appellants] filed an appeal to the Superior
Court . . . . On January 26, 2018, [Appellees] filed briefs in opposition to [Appellants'] motion for reconsideration arguing both that the trial court did not err in granting [Appellees'] motion to dismiss and that [Appellants] precluded this court from ruling on the motion for reconsideration by contemporaneously filing this appeal. On January 30, 2018, this court denied [Appellants'] motion for reconsideration and on February 7, 2018, [Appellants] appealed that decision. This second appeal was subsequently quashed on March 20, 2018.Trial Ct. Op. at 1-2 (citations and some capitalization omitted).
Appellants did not ask the trial court to delay its ruling on Appellees' motion due to purported outstanding discovery issues.
Appellees had stipulated that they would consent to jurisdiction in North Carolina and that the filing date of the North Carolina complaint would be identical to the filing date of the Pennsylvania complaint.
Appellants timely filed a court-ordered Pa.R.A.P. 1925(b) statement. Appellants raise the following issues, which we have reordered:
1) Did the [trial] court abuse its discretion by prematurely issuing its order granting a motion to dismiss under forum non conveniens where Appellants did not have a reasonable opportunity to present Safety-Kleen discovery that was relevant for forum non conveniens that had been ordered by the lower court, nor the opportunity to present a relevant key deposition?Appellants' Brief at 3.
2) Did the [trial] court abuse its discretion by granting a motion to dismiss to North Carolina under forum non conveniens where two cases in this Court, Wright and Hunter , govern this appeal, where the public factors weigh strongly in favor of retaining this case in Pennsylvania and Philadelphia County because, inter alia, the crux of the litigation pertains to decisions by manufacturers to use benzene in their products, more Defendants/Appellees are located here than in any other State, all Defendants/Appellees are alleged to conduct business here, over 50 witnesses are located in or near Philadelphia, and where the private factors do not strongly weigh in favor of dismissal?
We note that several of Appellees' briefs cited to non-precedential decisions of this Court, which violates 210 Pa. Code. § 65.37.
In support of their first issue, Appellants raise two arguments. First, Appellants argue that the trial court erred by not permitting them the opportunity to supplement their briefs in opposition to the motion to dismiss for forum non conveniens. Id . at 61. Appellants note that the court granted their motion to compel Appellee Safety-Kleen to produce documents on November 6, 2017. Id. According to Appellants, Safety-Kleen produced over 6,000 pages of documents on November 22, 2017. Appellants continue: "This was just 27 days before the [trial] court granted the motion to dismiss without prior warning on December 19, 2017. If [Appellants] had known they would have only 27 days, they could have put a rush on the review." Id. at 62 (citation omitted).
Second, Appellants assert that Mr. Rhyne's co-worker and purported sole eyewitness, Johnny Couch, had testified at his December 7, 2017 deposition that he was prepared to travel from North Carolina to Philadelphia to testify. Id. In Appellants' view, Couch's willingness to travel was a "relevant fact," but they did not receive Couch's deposition transcription until December 18, 2017, the day before the court granted Appellees' motion to dismiss. Id. at 62-63. Appellants reason that had they known the court was going to rule on the motion to dismiss on December 19, 2017, they could have expedited the transcription and filed it with the court before December 19th. Id. at 63.
Appellants acknowledge the trial court's contention that they waived the issue by failing to timely act. Id. Appellants counter by noting that the court's October 2, 2017 order permitted them to supplement their briefs-in-opposition with additional discovery. Id. In Appellants' view, the court should have acknowledged its October 2, 2017 order and, essentially, delayed ruling on the motion to dismiss. Id. at 63-64.
Pennsylvania Rule of Appellate Procedure 302 provides that "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). A necessary corollary is that if a court is unaware of a particular issue, then it cannot act on it. Here, Appellants were aware that the trial court could have ruled on Appellees' motion to dismiss on any day after September 15, 2017. We agree with the trial court that if Appellants believed that the Safety-Kleen discovery or the Couch deposition would have assisted the court in ruling on Appellees' motion, then Appellants could have filed the appropriate motion to continue discovery. Appellants "never made such a request to" the court. Because Appellants did not alert the trial court to such issues, they have waived them for appellate review. See id.; see Takes v. Metropolitan Edison Co., 695 A.2d 397, 400 (Pa. 1997) (stating that the "waiver rule prevents the trial from becoming a mere dress rehearsal and ensures trial counsel is prepared to litigate the case and create an adequate record for appellate review").
Trial Ct. Op. at 8 (stating, Appellants "seem to contend that [the trial c]ourt should have been able to divine that [Appellants] needed additional time to review documents and that [Appellants] also wanted to provide this [c]ourt with additional information—even though [Appellants] never made such a request to this [c]ourt.").
In support of their second issue, Appellants raise several arguments. Appellants contend that the trial court should have weighed the public and private factors in their favor. Appellants' Brief at 30. For example, in Appellants' view, Pennsylvania has the strongest connections to the suit because three of the corporate Appellees are incorporated in Pennsylvania. Id. Further, according to Appellants, numerous witnesses are in the greater Philadelphia area. Id. Appellants claim "[m]ost discovery is complete," they submitted expert reports, they opposed Appellees' motions for summary judgment, and that Pennsylvania law would govern this case under choice-of-law principles. Id. at 31. In support, Appellants rely on Hunter v. Shire US , Inc., 992 A.2d 891 (Pa. Super. 2010), and Wright v. Aventis Pasteur , Inc., 905 A.2d 544 (Pa. Super. 2006), which we summarize below.
"A trial court's decision to dismiss based on forum non conveniens will not be disturbed absent an abuse of discretion." Bochetto v. Dimeling , Schreiber & Park , 151 A.3d 1072, 1079 (Pa. Super. 2016) (citation omitted).
A trial court will have abused its discretion when in reaching its conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will. If there is any valid basis for the trial court's decision, the decision will not be disturbed.Id. (quotation marks, brackets, and citations omitted). "A finding by an appellate court that it would have reached a different result than the trial court does not constitute a finding of an abuse of discretion." Harman ex rel. Harman v. Borah , 756 A.2d 1116, 1123 (Pa. 2000).
Section 5322(e) of the Judicial Code addresses a motion to dismiss based on interstate forum non conveniens:
(e) 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. § 5322.
The two most important factors look to the court's retention of the case. They are (1) that since it is for the plaintiff to choose the place of suit, his choice of a forum should not be disturbed except for weighty reasons, and (2) that the action will not be dismissed in any event unless an alternative forum is available to the plaintiff. Because of the second factor, the suit will be entertained, no matter how inappropriate the forum may be, if defendant cannot be subjected to jurisdiction in other states. The same will be true if plaintiff's cause of action would elsewhere be barred by
the statute of limitations, unless the court is willing to accept defendant's stipulation that he will not raise this defense in the second state.Plum v. Tampax , Inc., 160 A.2d 549, 560-61 (Pa. 1960) (citation omitted); accord Rini v. N.Y. Cent. R.R., 240 A.2d 372, 373-74 (Pa. 1968) (plurality) (affirming dismissal of case brought, in part, by Ohio plaintiffs based on Plum factors).
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 v. Phila. Coca-Cola Bottling Co., 531 A.2d 792, 794 (Pa. Super. 1987) (citing the extensive scholarly historical background of the doctrine in Westerby v. Johns-Manville Corp., 32 Pa. D. & C.3d 163, 165-71 (Phila. C.C.P. 1982)). The doctrine addresses the issue of plaintiffs bringing "suit in an inconvenient forum in the hope that they will secure easier or larger recoveries or so add to the costs of the defense that the defendant will take a default judgment or compromise for a larger sum." Norman v. Norfolk & W. Ry. Co., 323 A.2d 850, 854 (Pa. Super. 1974) (citing Restatement (Second) of Conflict of Laws § 84 cmt. a).
With respect to the first factor, "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." Aerospace Fin. Leasing , Inc. v. New Hampshire Ins. Co., 696 A.2d 810, 814 (Pa. Super. 1997) (citing Piper Aircraft Co. v. Reyno , 454 U.S. 235, 255 (1981)). "[W]hen the home forum has been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable." Id. (quoting Piper Aircraft , 454 U.S. at 255).
As for the "weighty reasons" referenced in the first factor, the Bochetto Court noted as follows:
To determine whether "weighty reasons" exist, a trial court must examine both the private and public factors announced by Gulf Oil Corp. v. Gilbert , 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947). The private factors [set forth by the Supreme Court] include:
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
action; 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 fair trial.
With respect to public factors, the Supreme Court advised:
Bochetto , 151 A.3d at 1079-80 (citations, brackets, and ellipses omitted).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 an 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 in some other forum untangle problems in conflict of laws, and in law foreign to itself.
With respect to practical considerations that make a case "easy, expeditious and inexpensive" to try, Plum , 160 A.2d at 553, the trial court considers whether discovery has been substantially complete and the state of pre-trial preparation. See Wright , 905 A.2d at 552; D'Alterio v. N.J. Transit Rail Operations , Inc., 845 A.2d 850, 854 (Pa. Super. 2004). The fact of substantially complete discovery, however, may be outweighed by, among other things, the fact that such discovery could be used in the new forum. See Jessop v. ACF Indus., LLC , 859 A.2d 801, 805 (Pa. Super. 2004). The trial court may also consider the timing of the motion to dismiss. See Beatrice Foods Co. v. Proctor & Schwartz , Inc., 455 A.2d 646, 650 (Pa. Super. 1982).
In Wright , the plaintiffs, Texas residents, sued multiple manufacturers of "various immune globulin products and vaccines" in Philadelphia. Wright , 905 A.2d at 546. It was uncontested that Texas was where the vaccine was administered. Id. As summarized by the Hunter Court:
The defendants in Wright moved for dismissal under 42 Pa.C.S. § 5322(e), alleging that Pennsylvania was an inconvenient forum in which to litigate the matter. Defendants agreed to consent to jurisdiction and service in Texas and to waive any defense premised upon expiration of the statute of limitations. The trial court granted that motion, and on appeal, we reversed.Hunter , 992 A.2d at 894 (stating holding of Wright ).
The Hunter Court summarized the rationale of the Wright Court as follows:
[The Wright Court] conducted an examination of the private and public factors in that case. [It] noted that the crux of the litigation pertained to the decisions by the manufacturers, which decisions were made in the Philadelphia area, to use and market the substance that allegedly caused the injuries in question when they sold their vaccines and blood products. The defendants countered that since the medical care at issue was rendered in Texas and since Texas law would probably apply, the trial court's decision was correct.
After weighing the private and public factors, we concluded that the trial court had abused its discretion in dismissing the action under § 5322(e). We stated, "none of the appellees-defendants [has] corporate headquarters in Texas. Thus, there is no basis upon which to conclude that Texas would be a more convenient forum for appellees' corporate employee witnesses. In fact, Philadelphia County, with its proximity to the relevant corporate offices of four appellees-defendants, appears to be quite a convenient jurisdiction for the trial of the case."
Turning to the "public factors," we observed that the suit involved the actions of pharmaceutical companies that marketed their products in Pennsylvania; in light of that fact, the conclusion that
the citizens of this state had no interest in the action was unsubstantiated. We were unconvinced that the potential applicability of Texas law militated in favor of transfer to Texas, stating that there was "no basis upon which to conclude that the law determined to be applicable [was] beyond the ken of a Philadelphia trial judge."Id. at 896 (citations omitted and some brackets in original).
In Hunter , the plaintiff, a resident of Georgia, sued Shire US, Inc., a corporation with headquarters in Chester County, Pennsylvania. Id. at 892. Shire purportedly "promoted, manufactured, and distributed" a drug that injured the plaintiff, who had prescribed, purchased, and ingested it in Georgia. Id. Shire moved to, among other items, dismiss the suit under 42 Pa.C.S. § 5322(e), because the plaintiff, who resides in Georgia, was prescribed and took the drug in Georgia. Id. at 893. According to the Hunter Court, the plaintiff countered as follows:
that the circumstances of his ingestion of [the drug] and ensuing medical care are largely settled and that the central issue in this case does not involve his consumption of that drug. [The plaintiff] continues that this action primarily concerns [Shire's] development, marketing, testing, and knowledge of the risks of heart attacks associated with its use. [The plaintiff] notes that [Shire] marketed [the drug] throughout the United States and that its principal place of business is located in Pennsylvania. [The plaintiff] continues that it is undisputed that all of [Shire's] employees who have been identified as possessing knowledge about the development, marketing, labeling and safety of [the drug] are located in Pennsylvania. Furthermore, all documentation produced regarding [the drug] was generated from [Shire's] offices in Pennsylvania. Thus, the witnesses and documents pertinent to the central issue herein, [Shire's] development and testing of its drug, are actually located in Pennsylvania.Id. at 893-94.
The Hunter Court noted that Shire raised the exact same arguments raised and rejected by the Wright Court:
In the case at bar, [Shire] raises the same arguments considered and rejected by this Court in Wright . There is no question that the central issue herein relates to [Shire's] development, testing, and marketing of [the drug], and its knowledge of and warnings about the risks of heart attack from ingesting that drug. The events relating to these activities were conducted by [Shire's] employees in Pennsylvania.Id. Accordingly, the Hunter Court affirmed the court's order denying Shire's motion to dismiss. Id. at 892.
Here, the trial court weighed the private and public factors and found the factors weighed in Appellees' favor. See Trial Ct. Op. at 3-7. Appellants have argued that the facts of this case are more aligned with the facts in Hunter and Wright , as summarized above, and therefore, the court abused its discretion. Any such similarities, however, do not compel the conclusion that the court abused its discretion. See Bochetto , 151 A.3d at 1079. It was within the court's discretion to weigh some factors more heavily than others. See id. That this Court may have weighed the factors differently and arrived at a different result, does not mean the trial court abused its discretion. See Harman , 756 A.2d at 1123. Because Appellants have not met their burden, we affirm.
We note that although the trial court initially stated that "few of the relevant sources of proof are located in Philadelphia," see Trial Ct. Op. at 5, the court appropriately addressed the existence of sources of proof in Pennsylvania. See id. at 5-6.
For example, in Hunter and Wright , it was largely unchallenged as to when and where the victim ingested the drug at issue, unlike here, in which Appellees challenge when and where Mr. Rhyne was purportedly exposed to benzene. See Trial Ct. Op. at 1 (noting that Mr. Rhyne alleged exposure to benzene between 1976 and 2015 in North and South Carolina).
Order affirmed. The Savogran Company's Application for Admission Pro Hac Vice is granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/22/19
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