James M. Beck of Reed Smith.

Dismissals and venue transfers on the basis of forum non conveniens—otherwise known as “inconvenient forum”— are frequent candidates for interlocutory appeal. Thus, appellate practitioners are well-advised to understand the nuances of this doctrine, because they can turn on significantly different requirements, and produce significantly different results.

First, the criteria for the appealability of forum non conveniens orders starts with Pa. R.A.P. 311(b-c), but may well not end there. Rule 311(c) allows an interlocutory appeal as of right from any order “in a civil action … changing venue … or declining to proceed in the matter on the basis of forum non conveniens …,” with no other preconditions. Rule 311(b) allows a limited immediate interlocutory appeal from “an order in a civil action … sustaining the venue,” conditioned on either the other side’s record consent, Section (b)(2) (prevailing party can force an “election”), or a court order that the venue question is “substantial.”

Of course, this would not be Pennsylvania if there were not a quirk. While Rule 311(c) explicitly includes forum non conveniens, Rule 311(b) is silent. So, can orders denying a forum non conveniens motion be appealed under Rule 311(b)? Nobody knows for sure:

Contrasted with the specific mention of the doctrine of forum non conveniens in Rule 311(c), such omission in Rule 311(b) appears to be deliberate. Absent the inclusion of forum non conveniens as a basis for an appeal as of right, the appealability of the instant order pursuant to Rule 311(b) is not clear, see Centerre Bank of Kansas City v. Arthur Young & Co., 502 A.2d 251, 253 (Pa. Super. 1985).

Over 30 years later, this uncertainty persists. Thus, as to denials of forum non conveniens motions, would-be appellants may, in addition, seek interlocutory appeal by permission under Pa. R.A.P. 1311, or else wait until an appealable final order is entered., as in Betz v. Pneumo Abex, 44 A.3d 27, 54 (Pa. 2012) (“an appeal of a final order subsumes challenges to previous interlocutory decisions”).

On the merits, the Pennsylvania Superior Court recently discussed the significant differences between the two major types of forum non conveniens in Wright v. Consolidated Rail, ___ A.3d ___, (Pa. Super. July 19, 2019). Wright was a FELA case, and the plaintiff had never worked in Pennsylvania. Rather, the alleged injury occurred in New York, where all of the relevant witnesses were also located.  The defendant-appellants in Wright thus sought a forum non conveniens dismissal requiring the plaintiff to refile in New York, but that motion was denied.

On appeal, the Superior Court reversed, holding that the trial judge had failed to distinguish between the forum non conveniens standard to dismiss a complaint by an out-of-state plaintiff under 42 Pa. C.S.A. Section 5322(e), and the standard for transferring venue between two Pennsylvania counties under Pa. R.A.P. 1006(d). The standard under Rule 1006(d) is considerably more “plaintiff-friendly” because: “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 claims. When 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.”

The plaintiff-friendly intrastate forum non conveniens standard requires a defendant to “show more than that the chosen forum is … inconvenient.” A defendant must also show that the plaintiff’s chosen forum is “oppressive and vexatious.” “The trial court must give great weight and deference to the plaintiff’s choice of forum, and the defendant seeking a change of venue bears a heavy burden in justifying the request.”

In contrast, when an interstate forum non conveniens motion under Section 5322(e) is made, dismissal should be granted if “there is a more convenient forum where the litigation could be conducted more easily, expeditiously and inexpensively.” Thus, it was error to “give great deference to … the plaintiff’s choice of forum and to incorporate ‘plaintiff-friendly’ Pa. R.C.P. 1106(d) standards into the analysis” under Section 5322(e).

The trial court should have given less deference to the plaintiff’s choice of Pennsylvania as a forum and should have sought to determine whether there is a more convenient forum where the litigation could be conducted more easily, expeditiously and inexpensively. Determining whether the plaintiff’s chosen forum was “merely inconvenient” to the defendants was not the proper standard for the trial court in ruling on their interstate forum non conveniens motion.

The distinction Wright drew between the forum non conveniens standards of Section 5322(d) and Rule 1006(d), is of relatively recent vintage. Several older Superior Court decisions, applied the pro-plaintiff Rule 1006(d) to both. See Jones v. Borden, 687 A.2d 392, 394 (Pa. Super. 1996); Shears v. Rigley, 623 A.2d 821, 824 (Pa. Super. 1993); Alford v. Philadelphia Coca-Cola Bottling, 531 A.2d 792, 794 (Pa. Super. 1987). The standards diverged in Page v. Ekbladh, when the Superior Court adopted the federal rationale distinguishing between plaintiffs suing in foreign, as opposed to their resident, forums in Section 5322(e) dismissal cases. Next, Poley v. Delmarva Power & Light, 779 A.2d 544, 546-47 (Pa. Super. 2001), followed Page. Then, Humes v. Eckerd, 807 A.2d 290 293-94 (Pa. Super. 2002), in turn followed Polley. Now Wright has followed Humes, and done so with considerably the most extensive treatment of the issue. It should also be pointed out that the Supreme Court’s seminal forum non conveniens decision, Cheeseman v. Lethal Exterminator, 701 A.2d 156 (Pa. 1997), solely involved Rule 1006, and makes no mention of Section 5322. Nonetheless, the older Pennsylvania precedent exemplified by Jones, Shears and Alford has never been expressly overruled.

Finally, on the merits, Wright found the facts before it indistinguishable from a prior decision requiring forum non conveniens dismissal in Hovatter v. CSX Transportation, 193 A.3d 420 (Pa. Super. 2018), another FELA case involving a nonresident claiming only out-of-state injuries.  Wright recognized that: “In considering the public interest as it relates to a plaintiff’s choice of forum under Section 5322(e), our case law recognizes that imposing jury duty and court costs on communities with no relation to the plaintiff’s claim weighs in favor of transferring a case,”(citing Engstrom v. Bayer, 855 A.2d 52, 56 (Pa. Super. 2004) (“Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation.”)).

These same “public interest” concerns resonate far beyond their limited forum non conveniens invocation in Wright.

James M. Beck, a member of the Reed Smith life sciences health industry group, focuses his practice on complex personal injury and products liability litigation. He has experience in developing legal defenses, master briefs and dispositive motions in numerous mass torts, and has prepared amicus briefs on behalf of a variety of national organizations.