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HomeMy WebLinkAbout04-4876REPORT : ZDRDOCT USER ID: CYS PAGE 1 First Judicial District RUN DATE 09/14/04 CIVIL DOCKET REPORT RUN TIME 04~05 PM CASE ID 030905089 CASE NUMBER CASE CAPTION 030905089 SELLERS VS NORFOLK SOUTHERN RAILWAY CORP FILING DATE COURT LOCATION JURY 02-0CT-2003 JS CH J CASE TYPE: PERSONAL INJURY - FELA STATUS: TRANSFER TO OTHER JURISDICTION Seq # Assoc Expn Date Type I__D 1 APLF A12798 2 1 PDTX @4796167 3 5 DFT @4796170 4 05-JAN-04 TL J326 5 ADFT A34996 6 TL J286 7 1 APLF A36411 Party Name / Address & Phone No. KELLER, WILLIAM L SUITE 1900 1528 WALNUT ST. PHILADELPHIA PA 19102 (000)735-8780 SELLERS, PAMELA MARIE RR 2 BOX 462 BOLLIDAYSBURG PA 16648 NORFOLK SOUTHERN RAILWAY COMPANY THREE COMMERCIAL PLAZA NORFOLK VA 23510 BERNSTEIN, MARK 530 CITY HALL PHILADELPHIA PA 19107 (215)686-7335 STAUDENMAIER, CRAIG J 200 NORTH THIRD STREET PO BOX 840 HARRISBURG PA 17108-0840 MOSS, SANDRA M 392 CITY HALL PHILADELPHIA PA 19107 (215)686-7910 MCELDREW III, JAMES J ONE LIBERTY PLACE SUITE 5050 MCELDREW & FULLAM PC PHILADELPHIA PA 19103 (215)563-8300 Filing Date / Time Docket Entry Date Entered REPORT : ZDRDOCT USER ID: CYS First Judicial District CIVIL DOCKET REPORT CASE ID 030905089 PAGE 2 RUN DATE 09/14/04 RUN TIME 04:05 PM Filing Date / Time 02-0CT-03 14:39:29 02-0CT-03 14:39:29 02-0CT-02 14:39:29 02-0CT-03 14:39:29 02-0CT-03 14:41:07 02-OCT-03 16:28:03 24-0CT-03 14:09:08 03-NOV-03 10:50:00 03-NOV-03 10:51:00 12-NOV-03 14:27:00 03-DEC-03 16:12:29 05-DEC-03 01:00:38 13-JAN-04 10:08:04 13-JAN-04 10:08:04 Docket Entry COMMENCEMENT CIVIL ACTION JURY JURY TRIAL PERFECTED Date Entered 03-0CT-03 KELLER, WILLIAM L 03-0CT-03 KELLER, WILLIAM L COMPLAINT FILED NOTICE GIVEN 03-0CT-03 KELLER, WILLIAM L COMPLAINT WITH NOTICE TO DEFEND WITHIN TWENTY (20) DAYS AFTER SERVICE IN ACCORDANCE WITH RULE 1018.1 FILED. SHERIFF'S SURCHARGE 1 DEFT 03-0CT-03 KELLER, WII~LIAM L WAITING TO LIST CASE MGMT CONF 03-0CT-03 KELLER, WILLIAM L ACTIVE CASE 02-0CT-03 AFFIDAVIT OF SERVICE FILED OF COMPLAINT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED UPON NORFOLK SOUTHERN RAILWAY COMPJkNY ON 10/15/2003. 30-0CT-03 ENTRY OF APPEAPS~NCE FILED 04-NOV-03 STAUDENMAIER, CRAIG J ENTRY OF APPEARANCE OF CRAIG J STAUDENMAIER FILED ON BEHALF OF DFT NORFOLK SOUTHERN RAILWAY CO ANSWER TO COMPLAINT FILED 04-NOV-03 STAUDENMAIER, CRAIG J ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER FILED BY DEFENDANT NORFOLK SOUTHERN RAILWAY CO PLTF REPLY TO NEW MATTER FILED 12-NOV-03 KELLER, WILLIAM L LISTED FOR CASE MGMT CONF 03-DEC-03 NOTICE GIVEN 05-DEC-03 CASE MGMT CONFERENCE COMPLETED 13-JAN-04 PELLETREAU, CHARLES CASE MANAGEMENT ORDER ISSUED IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION SELLERS VS NORFOLK SOUTHERN RAILWAY CORP 030905089 CASE MANAGEMENT ORDER STANDARD TRACK AND NOW, 13-JAN-2004, it is Ordered that: 1~ The case management and 13-JAN-04 REPORT : ZDRDOCT USER ID: CYS First Judicial District CIVIL DOCKET REPORT CASE ID 0309050~9 PAGE 3 RUN DATE 09/14/04 RUN TIME 04:05 PM Filing Date / Time Docket Entry Date Entered time standards adopted for standard track cases shall be applicable to this case and are hereby incorporated into this Order. 2. All discovery on the above matter shall be completed not later than 01-NOV-2004. 3. Plaintiff shall identify and submit curriculum vitae and expert reports of all expert witnesses intended to testify at trial to all other parties not later than 01-NOV-2004. Defendant an~ any additional defendants shall identify and submit curriculum vitae and expert reports of all expert witnesses intended to testify at trial not later than 06-DEC-2004. 5. All pre-trial motions shall be filed not later than 06-DEC-2004. 6. A settlement conference may be scheduled at any time after 06-DEC~2004. Prior to the settlement conference all counsel shall serve all opposing counsel and file a settlement memorandum containing the following: (a) A concise summary of the nature of the case if plaintiff or of the defense if defendant or additional defendant; (b) A statement by the plaintiff or all damages accumulated, including an itemization of injuries and all special damages claimed by categories and amount; Defendant shall identify all applicable insurance carriers, together with applicable limits of liability. 7. A pre-trial conference will be scheduled any time after 07-FEB~2005. Fifteen days prior to pre-trial conference, all counsel shall serve all opposing counsel and file a pre-trial memorandum containing the following: (a) A concise summary of the nature of the case if plaintiff or the defense if defendant or additional defendant; (b) A list of all witnesses who may be called to testify at trial by name and address. Counsel should expect witnesses not listed to be precluded from tessifying at trial; (c) A list of all exhibits the party intends to offer into evidence~ All exhibits shall be pre-numbered and shall be exchanged among counsel prior to the conference. Counsel should expect any exhibit not listed to be precluded at trial; Plaintiff shall list an itemization of injuries or damages sustained together with all special damages claimed by category and amount. This list shall include as appropriate, computations of all past lost earnings and future lost earning capacity or medical expenmes together with any other unliquidated damages claimed; and (e) Defendant shall state in position regarding damages and shall identify all applicable insurance carriers, together with applicable limits of liability; (f) Each counsel shall provide an estimate of the anticipated length of trial. 8. It is expected that the REPORT : ZDRDOCT USER ID: CYS First Judicial District CIVIL DOCKET REPORT CASE ID 030905089 PAGE 4 RUN DATE 09/14/04 RUN TIME 04:05 PM Filing Date / Time 13-JA33[-04 10:08:04 13-JAN-04 10:08:04 13-JAN-04 10:08:04 16-JAN-04 15:29:00 18-JUN-04 15:14:21 08-JUL-04 09:13:15 12-JUL-04 10:40:32 19-JUL-04 11:51:18 28-JUL-04 10:14:49 03-AUG-04 15:35:18 Docket Entry Date Entered case will be ready for trial 04-APR-2005, and counsel should anticipate trial to begin expeditiously thereafter. 9. All counsel are under a continuing obligation and are hereby ordered to serve a copy of this order upon all unrepresented parties and upon all counsel entering an appearance subsequent to the entry of this order. BY THE COURT: SANDRA MOSS, J. TEAM LEADER LISTED FOR SETTLEMENT CONF 13-JAN-04 LISTED FOR PRE-TRIAL CONF 13-JAN-04 LISTED FOR TRIAL 13-JAiq-04 ENTRY OF APPEARANCE-CO COUNSEL 20-JAN-04 MCELDREW III, JAMES J ENTRY OF APPEARANCE OF JAMES J. MCELDREW, III AS CO-COUNSEL FILED ON BEHALF OF PLAINTIFF PAMELA MARIE SELLERS ADMINISTRATRIX OF THE ESTATE OF DENNIS ROBERT SELLERS. PETITION TO TRANSFER 21-JUN-04 NORFOLK SOUTHERN RAILWAY COMPANY, 65-04061765 RESPONSE DATE: 7-08-04 ANSWER (MOTION/PETITION) FILED SELLERS, 65-04061765 ANS TO PETITION TO TRANSFER FILED. 09-JUL-04 PAMELA MARIE MOTION ASSIGNED 65-04061765 PETITION TO T93~NSPER ASSIGNED TO JUDGE MOSS ON 7-13-04. 12-JUL-04 MOTION ASSIGNMENT UPDATED PAPALINI, 65-04061765 MOTION TO TRANSFER UNDER RULE 1006(d) REASSIGNED TO JUDGE PAPALINI ON, 7-19-04. 19-JUL-04 JOSEPH I REPLY FILED 29-JUL-04 NORFOLK SOUTHERN RAILWAY COMPANY, 65-04061765 REPLY IN SUPPORT OP PETITION TO TRANSFER FILED. ORDER AND MEMOPJ~NDUM FILED 03-AUG-04 PAPALINI, JOSEPH I 65-04061765 AND NOW, THIS 30TN DAY OF JULY, 2004, IT IS HEREBY ORDERED AMD DECREED THAT THE PETITION OF DEFENDANT NORFOLK SOUTHERN RAILWAY COMPANY TO TRANFER REPORT : ZDRDOCT USER ID: CYS First Judicial District CIVIL DOCKET REPORT CASE ID 030905089 PAGE 5 RUN DATE 09/14/04 RUN TIME 04:05 PM Filin~ Date / Time 03-AUG-04 15:35:57 03-AUG-04 15:35:58 14-SEP-04 09:57:00 Docket Entry Date Entered VENUE UNDER PA.R.C.P. 1006{d) (1) ON THE GROUNDS OP FORUM NON CONVENIENS IS GRANTED; THIS CASE SHALL BE TRANSFERRED TO THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA; THE COSTS OF TttANSFER SHALL BE BORNE BY THE DEFENDANT. (MEMORANDUM OPINION FILED) BY THE COURT: HON. JOSEPH I. PAPALINI, 7-30-04. TRANSFER TO OTHER JURISDICTION SEE ORDER (MEMORANDUM OPIONION) OF 7-30-04. 03-AUG-04 MOSS, SANDRA M NOTICE GIVEN UNDER RULE 236 03-AUG-04 PRAECIPE/TRNSFER OUT OF COUNTY 14-SEP-04 STAUDENMAIER, CRAIG J PRAECIPE TO TRANSFER THE ABOVE CAPTIONED MATTER TO CUMBERLAND COUNTY FILED. * * * End of Docket * * * SEP ]-7 2004 JOSEPH H. E~ER~ IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DMSION - CML SECTION PAMELA MARIE SELLERS, Administratrix of the Estate of DENNIS ROBERT SELLERS, Deceased VS. SEPTEMBER TERM, 2003 NO. 5089 NORFOLK SOUTHERN RAILWAY COMPANY MOTION NO. 061765 ORDER AND NOW, i day of y, 2004, it is hereby ORDERED and DECREED that the Petition of Defendant Norfolk Southern Railway Company to Transfer Venue under Pa.R.C.P, tO06(d)(1) on the grounds of forum non conveniens is GRANTED; this case shall be transferred to the Court of Oommon Pleas of Cumberland County, Pennsylvania; the costs of transfer shall be borne by the Defendant. DOCKETED COP!ES SENT PURSUANT TO Pt, ;:.C.P. 236[O) BY THE COURT: JO INI, J. AUG 0 2 200~ F. CLARK DAY FORWARD MEMORANDUM OPINION Defendant Norfolk Southern Railway Company has filed a Motion to Transfer Venue on the grounds of forum non conveniens pursuant to Pa.R.C.P. 1006(d)(1). DISCUSSION Plaintiff commenced this lawsuit on October 2, 2003, in the Court of Common Pleas of Philadelphia County alleging that Plaintiffs decedent Dennis Robert Sellers, sustained fatal injuries while working at Norfolk Southern's rail facility located in Enola, Cumberland County, Pennsylvania. Sellers was performing his duties as a car repairman when he was suddenly crushed by a tractor trailer ramp. This action has been brought under the Federal Employers' Liability Act (FELA), the Safety Appliance Act and the Boiler Inspection Act. Pa.R.C.P. 1006(d)(1), provides: "For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought." In Mateu v. Scott, 819 A.2d 563 (Pa,Super. 2003), in sustaining an order transferring venue on grounds of forum non conveniens from Philadelphia to contiguous Delaware County, the Superior Court said: Our standard of review is clear, A trial court's order to transfer venue will not be reversed unless the trial 2 court abused its discretion. Borger v. Murphy, 797 A.2d 309 (Pa. Super.2002). Similarly, a trial court's order on venue will not be disturbed if the order is reasonable after a consideration of the relevant facts of the case. Id. Moreover, a petition to transfer venue, based on forum non conveniens, should not be granted unless a party has shown that venue in the chosen forum is oppressive or vexatious. Johns v. First Union Corp., 777 A.2d 489 (Pa. Super. 2001) (citation omitted). In Cheeseman v. Lethal Exterminator, Inc., 549 Pa. 200, 213, 701 A.2d 156, 162 (1997), our Supreme Court explained that a party may show that the chosen forum is vexatious by establishing that the forum was chosen to harass the party, even at some inconvenience to the party instituting the action. Alternatively, a party may show that the chosen forum is oppressive by establishing that a trial in another county would provide easier access to witnesses, to other evidence, or to the ability to view the site of the automobile accident. /d. Our Supreme Court also stressed that a party must show more than mere inconvenience in the chosen forum./ct. 819 A.2d at 565. In the case at bar, we found that the Commonwealth of Pennsylvania and the County of Philadelphia and its pool of jurors have absolutely no connection or interest in this case. Although the Defendant does business in Philadelphia and there is venue here, the injury that Plaintiff and her decedent sustained have no relationship to the operation of Defendant's trains in Philadelphia. The following additional factors, cited by the Defendant, were considered by this Court: 1. Plaintiff is a resident of Hollidayburg, Blair County, Pa., which is approximately 115 miles from Carlisle, Cumberland County, Pa. and 231 from Philadelphia. Carlisle is about 115 miles closer to Carlisle than it is to Philadelphia. 3 2. Defendant has identified fourteen key witnesses. All are located in Dauphin, Cumberland or Blair Counties. 3. Defendant may also call as witnesses Enola Police Officers. 4. The average travel distance for defense witnesses to the courthouse in Carlisle, is twenty miles; the average travel distance to Philadelphia is 113 miles. All of the witnesses live closer to Carlisle than to Philadelphia. 2. Defendant has identified fourteen key witnesses. All are located in Dauphin, Cumberland or Blair Counties. 3. Defendant may also call as witnesses Enola Police Officers, 4. The average travel distance for defense witnesses to the courthouse in Carlisle, is twenty miles; the average travel distance to Philadelphia is 113 miles, All of the witnesses live closer to Carlisle than to Philadelphia. 5. Some of the defense witnesses still work at the rail yard in Enola, and would lose more time from work than is necessary if the trial is held in Philadelphia. 6. Defendant would have to pay considerable additional costs of transportation, tolls, food and lodging if the witnesses have to appear in Philadelphia for trials. 7. It would be more expensive for the Defendant and a burden on its employees and other witnesses if they have to appear for deposition in Philadelphia. 8. Plaintiff has identified no witnesses, fact or expert, who are located in or near Philadelphia County, or who would be more convenienced by an appearance in Philadelphia than in Carlisle. 9. A view of the rail yard at Enola may be warranted. 10. One of Plaintiff's counsels is located in Pittsburgh, Pa. The other is a Philadelphia firm. 4 In response to Defendant's Petition, Plaintiff cites the following factors in support of trial in Philadelphia: 1. Three of the fourteen witnesses identified by the Defendant have no opposition to appearing in Philadelphia for trial. 2. One of the witnesses identified by the Defendant, Scott Kershaw, has been transferred to Atlanta, Georgia. 3. Plaintiff believes that one witness named by the Defendant, OSHA compliance officer Ralph Stoehr, would not appear, as the OSHA legal department would move to quash any subpoena. 4. Schlusser Enterprise, Inc. would have no opposition if only one of the two possible witnesses named by the Defendant were called to testify in Philadelphia. 5. The fact that witnesses have to travel greater distances and that Defendant will have to pay additional sums for their attendance in Philadelphia is not oppressive. 6. The accident involves a transitory condition so a viewing would not be required and is only a remote possibility; and over thirty photos exist. We note that the discovery deadline has not been reached and trial is not scheduled until April of 2005. We have concluded that Defendant has sustained its burden of proving that trial in Philadelphia would be oppressive and vexatious for it, without 5 PHILADELPHIA COURT OF COMMON PLEAS MOTION COVER SHEET FOR COURT USE ONLY ACTION ASSIGNED TO JUDGE: Control Number: 06'1765 (RESPONDING PA R TIES MUST INCLUDE THIS NUMBER ON ALL FILINGS) Do not telephone Judge Jbr status. Do not send Judge courtesy copies. September Tenn, 003 Month ~ar 005089 No. Pamela Marie Sellers, Administratrix, Estate of Dennis Sellers Name of Filing Party: VS. Norfolk Southern Railway Company Transfer Venue t~.~r_._IZ u~(d) Type of Motion: Response due: OR Response to: CASE STATUS (answer all questions) I. Is this case: A. COMMERCE PROGRAM Name of Judicial Team Leader: Applicable Motion Deadline: Has deadline been previously extended by the Court? [] Yes [] No B. DAY FORWARD/MAJOR JURY (Juo, Demand & Fee Paid) Name of Judicial Team Leader: _ Judge Sandra Moss Applicable Motion Deadline: None Has deadline been previously extended by the Court? [] Yes [] No C. NON JURY Date Listed: D. ARBITRATION Arbitration Date: E. ARBITRATION APPEAL Listed on: Norfolk Southern Railway Company (Check one) [] Plaintiff [] Defendant (Check one) [] Movant [] Respondent Has another motion been decided in this case? ~] Yes [] No ls another motion pending? [] Yes [] No IJ the answer to any of the above questions ts yes, you must identify the judge, and the relationship qf the motion(s) to the present motion, including the status of the motion(s). Please attach a separate sheet with your statement. II. OTHER PARTIES (Name, address and telephone number of all counsel of record and unrepresented parlies. Attach a stamped addressed envelope for each attorney of record and unrepresented party.) James J. McEldrew, III McEIdrew & Fullam, PC One Liberty Place, Suite 509 1650 Market Street Philadelphia, PA 19103 (215) 563-8300 Richard P. Gilardi Gilardi, Cooper & Lomupo The Benedum Trees Building, 10th Floor 223 Fourth Avenue Pittsburgh, PA 15222 (412) 391-9770 ~ Civil Adro/O/~trat/oo F. OTItER: Date Listed: By filing this document and signing below, the moving party certifies that this motion/petition, along with all documents filed in the Motions Program, will be immediately served upon all counsel and unrepresented parties, in accordance with Phila. J2~tvil Rule *206. I(C). Furthermore, moving party verifies that the answers made herin are true and correct and under- stand~'t~t sa~n~ons may be imposed for inaccurate or incomplete answers. ~.oxoXl I/~d~ Craig Staud~nmaier 34996 (Attorney Si~ature/Unrepresented Party) (Print Name) (Attorney I.D. No.) This Motion will be forwarded to the Court after the Response Date. No extension of the Response Date will be granted even if the parties so stipulate. IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SELLERS, Administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff NORFOLK SOUTHERN RAILWAY COMPANY, Defendant No. 03-09-005089 PLEADING: Petition to Transfer Action CODE: Fll ~ED ON BEHALF OF DEFENDANT COUNSEL OF RECORD FOR THIS PARTY: Craig J. Staudenmaier, Esquire Supreme Court ID# 34996 NAUMAN, SMITH, SHISSLER & HAl J., LLP 200 North Third Street, P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Telefax: (717) 234-1925 1N THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SELLERS, Administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff NORFOLK SOUTHERN RAILWAY COMPANY, Defendant : CODE: No. 03-09-005089 PLEADING: Petition to Transfer Action DEFENDANT'S PETITION TO TRANSFER VENUE UNDER PA. R.C.P. 1006(d)(1) NOW COMES the Defendant, Norfolk Southern Railway Company ("Norfolk Southern"), by and through its counsel, Nauman, Smith, Shissler & Hall LLP, and files the following petition pursuant to Pa. R.C.P. 1006(d)(1) to transfer this civil action to the Court of Common Pleas of Cumberland County for the convenience of the parties and the witnesses, for the following reasons: 1. Plaintiff, Pamela Marie Sellers, Administratix of the Estate of Dennis Robert Sellers, deceased, instituted this civil action to recover for injuries suffered by Dennis Robert Sellers while at the Enola Rail Yard in Cumberland County on November 18, 2002. 2. Petitioner Defendant, Norfolk Southern, is a Virginia corporation with its principal office in Norfolk, Virginia and a railyard and related facilities located in Cumberland County. 3. Under Pa. R.C.P. 2179, this action could have been originally brought in Cumberland County, since Norfolk Southern does business there and the accident involving Mr. Sellers occurred them. 4. While venue is lawful in this county since the Defendant has facilities within Philadelphia County, this action should be transferred to the Court of Common Pleas of Cumberland County, located in Carlisle, Pennsylvania, for the convenience of the parties and the witnesses and in the interest of judicial economy arid efficiency pursuant to Pa. R.C.P. 1006(d)(1). 5. Plaintiff resides in Hollidaysburg, Blair County, which is approximately 115 miles and two hours from Carlisle, as opposed to 231 miles and approximately four hours from Philadelphia. 6. Plaintiff's lead attorney, Richard P. Gilardi, Esquire, Gilardi, Cooper & Lomupo, is located in Pittsburgh which is approximately 189 miles and three hours from Carlisle and approximately 305 miles and five hours from Philadelphia. 7. The key witnesses in this case are all located in Dauphin County, Cumberland County or Blair County. None are located in or near Philadelphia County or its contiguous counties. Theses witnesses and summary of what their testimony is expected to cover are as follows: a. Sam Neumeyer, a retired Norfolk Southern employee, assigned Mr. Sellers the task he was conducting at the time of the incident and will 2 testify as to the events and cimumstances surrounding the nature of the task and his assignment of the task and instructions to Mr. Sellers. i. Mr. Neumeyer is now retired and lives in Altoona, which is approximately 120 miles one way and 2 hours from Carlisle and which is 236 miles one way and 4 hours from Philadelphia. ii. Having the trial in Cumberland County would provide easier access for Mr. Neumeyer given the distance between Altoona and Philadelphia. iii. Because Mr. Neumeyer is retired, as a condition of the collective bargaining agreement between Norfolk Southern and Mr. Neumeyer's craft, Norfolk Southern will be required to reimburse him $250 a day and 37.5 cents a mile, plus tolls and meals for those days he appears for deposition and trial testimony. iv. In the event that Mr. Neumeyer is needed more than one day, he will either be required to drive 8 hours for two consecutive days or to stay in Philadelphia overnight away from his family at additional expense to Norfolk Southern. b. Tom Hoffman, who is now a retired Norfolk Southern employee, will testify as to his interaction with Mr. Sellers prior to the incident. 3 i. Mr. Hoffman also lives in Altoona and would be forced to travel an additional 116 miles one way and 2 hours to testify in Philadelphia. ii. Having the trial in Cumberland County would provide easier access for Mr. Hoffman given the distance between Altoona and Philadelphia. iii. Because Mr. Hoffman is retired, as a condition of the collective bargaining agreement between Norfolk Southern and Mr. Hoffman's craft, Norfolk Southern will be required to reimburse him $150 a day and 37.5 cents a mile, plus tolls and meals for those days he appears for deposition and trial testimony. iv. In the event that Mr. Hoffman is needed more than one day, he will either be required to drive 8 hours for two consecutive days or to stay in Philadelphia overnight away from his family at additional expense to Norfolk Southern. Jeffrey Harpster, General Foreman, who was the first Norfolk Southern employee to see Mr. Sellers after his accident, will testify as to the facts and circumstances of learning of Mr. Sellers' death and the facts and circumstances regarding the condition of the scene when he arrived with a forklift to lift the ramp. i. Mr. Harpster also lives in Altoona and would be forced to travel an additional 116 miles one way and 2 hours to testify in Philadelphia. ii. Mr. Harpster continues to work at the Enola Yard, which is approximately 17 miles one way and 20 minutes from Carlisle and which is 113 miles one way and 2 hours from Philadelphia. iii. Having the trial in Cumberland County would provide easier access for Mr. Harpster given the distance between Enola and Philadelphia as compared to Enola and Carlisle. iv. Because Mr. Harpster is still employed by Norfolk Soutbem, if he were to testify in Philadelphia, given the distance, he would miss at least a full day's work each for depositions and trial. v. If the trial were in Carlisle, given the closeness to the Norfolk Southern site, Norfolk Southern would be able to notify Mr. Harpster near the time that he was needed to testify and Mr. Harpster would be able leave work to testify, thereby missing less work. Scott Kershaw, who is the Norfolk Southern Division Manager, Mechanical Operations, will testify as to the use of the ramp and his investigation of the causes of the accident. ii. iii. Mr. Kershaw resides in Mechanicsburg, Pennsylvania, which is approximately 10 miles one way and 15 minutes from Car/isle and 113 miles one way and 2 hours from Philadelphia. Mr. Kershaw continues to work at the Enola Yard, which is approximately 17 miles one way and 20 minutes from Carlisle and which is 113 miles one way and 2 hours from Philadelphia. Having the trial in Cumberland County would provide easier access for Mr. Kershaw given the distance between Mechanicsburg and Philadelphia. Because Mr. Kershaw is still employed by Norfolk Southern, if he were to testify in Philadelphia, given the distance, he would miss at least a full day's work each for depositions and trial If the trial were in Carlisle, given the closeness to the Norfolk Southern site, Norfolk Southern would be able to notify Mr. Kershaw near the time that he was needed to testify and Mr. Kershaw would be able leave work to testify or would have time to return to work after testifying, thereby missing less work. vi. Mr. Kershaw supervises both the Harrisburg and Pittsburgh divisions and is on-call for emergencies which arise on the railroad. Linda Schreffler, who was at the time of the accident the District Claim Agent, will testify as to the investigation of the incident. i. Mrs. Schreffler, lives in the Carlisle area which is approximately 7 miles one way and 10 minutes from Carlisle and which is approximately 106 miles one way and two hours from Philadelphia. ii. Mrs. Schreffler works at the Harrisburg Claims office, which is approximately 22 miles one way and 25 minutes from Carlisle and which is approximately 106 miles one way and two hours from Philadelphia. iii. If the trial were held in Philadelphia, Mrs. Schreffler would be required to either commute four hours a day or to stay in a hotel for the duration of the trial. iv. Having the trial in Cumberland County would provide easier access for Mrs. Schreffler given the distance between Harrisburg and Philadelphia. v. Mrs. Schreffler who is now the Regional Manager claims must be available to handle emergencies that arise 7 go involving accidents or incident investigations for the railroad. Paul Hartle, who is a Senior Claim Agent, will testify as to the incident on the day it occurred. i. Mr. Hartle works at the Harrisburg Claims office, which is approximately 22 miles one way and 25 minutes from Carlisle and which is approximately 106 miles one way and two hours from Philadelphia. ii. If the trial were held in Philadelphia, Mr Hartle would be required to either commute four hours a day or to stay in a hotel for the duration of the trial. iii. Having the trial in Cumberland County would provide easier access for Mr. Hartle given the distance between Harrisburg and Philadelphia. iv. Mr. Hartle must be available to handle emergencies that arise involving accidents or incident investigation for the railroad. Donald Paul, who is a Norfolk Southern Senior General Foreman, will testify to calling 911 after learning of the incident from a Schlusser Enterprise employee and his investigation. i. Mr. Paul continues to work at the Enola Yard, which is approximatelyl7 miles one way and 20 minutes from ho Carlisle and which is 113 miles one way and two hours from Philadelphia. ii. Because Mr. Paul is still employed by Norfolk Southern, if he were to testify in Philadelphia, given the distance, he would miss at least a full day's work each for depositions and trial. iii. If the trial were in Carlisle, given the closeness to the Norfolk Southern site, Norfolk Southern would be able to notify Mr. Paul near the time that he was needed to testify and Mr. Paul would be able leave work to testify, thereby not likely missing a full day's work. iv. Having the trial in Cumberland County would provide easier access for Mr. Paul given the distance between Enola and Philadelphia. v. Mr. Paul must be on-call to handle emergencies which arise on the railroad. Todd Barlett, who is a Central Penn Asphalt employee who was the first to approach Mr. Sellers after the incident, will testify as to the condition of Mr. Sellers when he approached and his subsequent informing Mr. Harpster of Mr. Sellers' whereabouts. He will also testify as to his interaction with Mr. Sellers before the incident. i. Mr. Barlett works for Central Penn Asphalt, which is not affiliated with Norfolk Southern. ii. Central Penn Asphalt is located in Harrisburg, Pennsylvania, which is approximately 22 miles one way and 25 minutes from Carlisle and which is 106 miles one way and two hours from Philadelphia. iii. If Mr. Barlett were to testify in Philadelphia, given the distance, he would miss at least a full day's work for depositions and trial. iv. If the trial were in Carlisle, given the closeness to Central Penn Asphalt's office, Norfolk Southern would be able to notify Mr. Barlett near the time that he was needed to testify and Mr. Barlett would be able leave work to testify, thereby not likely missing a full day's work. v. Having the trial in Cumberland County would provide easier access for Mr. Barlett given the distance between Harrisburg and Philadelphia. Robert Brown, who is a Schlusser Enterprise, Inc employee, was the second person to approach Mr. Sellers after the incident. Mr. Brown will testify as to the conditions of the scene prior to approaching Mr. Sellers and the events that occurred thereafter. 10 ii. iii. iv. Vo Mr. Brown works for Schlusser Enterprise, Inc., which is not affiliated with Norfolk Southern. Schlusser Enterprise, Inc., is located in Carlisle, Pennsylvania, which is 124 miles one way and two hours from Philadelphia. If Mr. Brown were to testify in Philadelphia, given the distance, he would miss at least a full day's work for depositions and trial. As Mr. Brown is one of only seven truck drivers for Schlusser Enterprise, Inc., having trial in Philadelphia County would be a severe hardship and would adversely affect the family-owned business leaving the business unable to meet its obligations. See attached Affidavit of James E. Schlusser, Exhibit B which is incorporated herein by reference. If the trial were in Carlisle, given the closeness to Schlusser Enterprise's office, Norfolk Southern would be able to notify Mr. Brown near the time that he was needed to testify and Mr. Brown would be able leave work to testify, thereby not likely missing a full day's work. 11 vi. Having the trial in Cumberland County would provide easier access for Mr. Brown given the distance between Carlisle and Philadelphia. Jonnie Zimmerman, who is a Schlusser Enterprise, Inc. employee, who first discovered Mr. Sellers and instructed Mr. Barlett to approach Mr. Sellers while he informed Norfolk Southern personnel. Mr. Zimmerman will also testify to the scene before and after he noticed Mr. Sellers. i. Mr. Zimmerman works for Schlusser Enterprise, Inc., which is not affiliated with Norfolk Southern. ii. Schlusser Enterprise, Inc., is located in Carlisle, Pennsylvania, which is 124 miles one way and two hours from Philadelphia. iii. If Mr. Zimmerman were to testify in Philadelphia, given the distance, he would miss at least a full day's work for depositions and trial. iv. As Mr. Zimmerman is one of only seven track drivers for Schlusser Enterprise, Inc., having trial in Philadelphia County would be a severe hardship and would adversely affect the family-owned business leaving the business unable to meet its obligations. See attached Affidavit of 12 James E. Schlusser, Exhibit B, which is incorporated herein by reference. v. If the trial were in Carlisle, given the closeness to Schlusser Enterprise's office, Norfolk Southern would be able to notify Mr. Zimmerman near the time that he was need to testify and Mr. Zimmerman would be able leave work to testify, thereby not likely missing a full day's work. vi Having the trial in Cumberland County would provide easier access for Mr. Brown given the distance between Carlisle and Philadelphia. Ralph Stoehr, who is a Compliance officer with the Harrisburg OSHA office, will testify as to his investigation of the incident. i. The Harrisburg OSHA office is located approximately 20 miles one way and 20 minutes from Carlisle and which is 106 miles one way and 2 hours from Philadelphia. ii. If Mr. Stoehr were required to testify at a trial in Philadelphia, he would be required to be out of the office for at least a full day, whereas, given the closeness of the Courthouse in Cumberland County to Mr. Stoehr's office, he would not be required to miss a full day's work if the trial were held in Cumberland County. Michael Norris, from the Cumberland County Coroner's office, will testify to the cause of death and the facts and circumstances of the scene when he arrived. 13 rn. i. The Coroner's office is located in Mechanicsburg, Pennsylvania, which is approximately ten miles one way and 15 minutes from Carlisle and which is approximately 113 miles one way and 2 hours from Philadelphia. ii. The Coroner is responsible for investigating deaths which appear to have occurred in Cumberland County. iii. It would be inconvenient for the Cumberland County Coroner to attend trial in Philadelphia. See attached Affidavit of Michael Norris, Exhibit C, which incorporated herein by reference. East Pennsboro Emergency Medical Services personnel, Karen Noss and Lisa Kepes, will testify as to the condition of Mr. Sellers when they arrived and the facts and circumstances of the scene. i. East Pennsboro Emergency Medical Services office is located in Enola, Pennsylvania, which is approximately 17 miles one way and 20 minutes from Carlisle and which is approximately 113 miles one way and 2 hours from Philadelphia. ii. If the trial were held in Philadelphia, the Medical Services personnel would be required to miss at least a day of work, each for depositions and trial, whereas if the trial were held in Carlisle, the personnel would not be required to miss as much work. 14 iii. There are only 8 full-time EMTs on a 24-hour basis who work for East Pennsboro EMS, one of which is Ms. Noss. iv. Lisa Kepes is now employed by Camp Hill Fire and EMS, where she is the only full-time EMT and the supervisor. See attached Affidavit of Lisa Kepes, Exhibit C, which is incorporated herein by reference. v. Mrs. Kepes has three school-aged children and it would be a hardship for her to attend trial in Philadelphia. vi. Camp Hill Fire and EMS is located 110 miles one way and two hours from Philadelphia. East Pennsboro Police Officers will testify as to the facts and circumstances regarding the scene when they arrived. i. East Pennsboro Police Department is located in Enola, Pennsylvania, which is approximately 17 miles one way and 20 minutes from Carlisle and which is approximately 113 miles one way and 2 hours from Philadelphia. ii. If the trial were held in Philadelphia, the Officers would be required to miss at least a day of work, each for depositions and trial, whereas if the trial were held in Carlisle, the Officers would not be required to be out of the area for as long. 15 8. Petitioner, Norfolk Southern, has attached the Affidavits of Linda Schmffier, Regional Manager Claims for Norfolk Southern Railway; James Schlusser, owner of Schlusser Enterprises; Michael Norris, Cumberland County Coroner, and Lisa Kepes, EMT, as Exhibits A, B, C and D, respectively, and which affidavits are incorporated heroin by reference. 9. The time and expense of bringing these witnesser to this Court for trial or other proceeding in this action and the inconvenience to the witnesses will be substantial should this action remain in this county as set forth above. 10. The witnesses would be required to spend at least three and a half to five additional hours driving to the courthouse if depositions and the trial were in Philadelphia. 11. The witnesses would be required to drive in excess of 100 miles or more one way if the trial were held in Philadelphia. 12. Norfolk Southern would be required to pay additional mileage, meal and potentially lodging fees if the trial were held in Philadelphia. 13. In the event that a witness would be required to testify on more than one day, given that all of the witnesses live more than 100 miles one way from Philadelphia, if the witnesses were to lodge in Philadelphia, Norfolk Southern would be required to pay for the lodging, whereas, if a witness were needed on more than one day at a trial in Carlisle and as most of the witnesses live within 25 miles one way of Carlisle, the witness would be able to travel home for the night and Norfolk Southern would not be required to pay for lodging. 15 14. In the event that the jury is to view the premises where the incident occurred, it will entail great time and expense for this Court and the jurors traveling to Cumberland County, 113 miles one way away, should the action remain in Philadelphia County. 15. To be available to testify at 9:00 a.m., Messrs. Neumeyer, Hoffman and Harpster would be required to leave their homes before 5:00 a.m. to arrive at the Philadelphia Courthouse timely. 16. Additionally, having the witness stay overnight away from their families would be unduly burdensome. 17. By filing this action in Philadelphia, the Plaintiff has chosen this forum to harass Norfolk Southern by causing it unnecessary expense and by inflicting an extreme burden on its witnesses to make accommodations to travel such distance. 18. As evidenced by the location of the witnesses and evidence, trial in Cumberland County would provide easier access to the witnesses. 19. The Plaintiff will not be prejudiced or injured by a transfer of this action to Cumberland County as Cumberland County is actually closer to her home than Philadelphia County and would reduce the burden of traveling an additional two hours to court. Furthermore, Cumberland County is closer to Pittsburgh, where her lead counsel's office is located, than is Philadelphia County. 16 WHEREFORE, Norfolk Southern Railway Company, Defendant, requests this Court to transfer this action to the Court of Common Pleas of Cumberland County. Date: June 2, 2004 NAUMAN, SMITH, SHISSLER & HALL, LLP By: Cra~ , Esqmre Supreme ~ourt IDg 34996 200 North Third Street, P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Counsel for Norfolk Southern Railway Company, Defendant 17 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SELLERS, Administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff NORFOLK SOUTHERN RAILWAY COMPANY, Defendant Case No. 005089 PLEADING: Petition to Transfer Action CODE: AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA: SS: COUNTY OF DAUPHIN: I, LINDA SCHREFFLER, being duly sworn according to law, deposes and says that: 1. I am the Regional Manager Claims for Norfolk Southern Railway Company, Defendant in this proceeding. I have held that position since January, 2004. In my position, I am responsible for the supervision of 12 claim agents in 7 states, including Pennsylvania, and for the general administration of the claims department in the northern tier of Norfolk Southern Railway Company, including Pennsylvania. 2. On the date of the incident forming the basis of this lawsuit, November 18, 2002, I was the District Claim Agent for the Harrisburg Division of Norfolk Soutbem Railway Company. As District Claim Agent, I was responsible for the overall supervision of the Claims Department within the western portion, including investigations of incidents that occurred at the Enola Yard, Cumberland County, Pennsylvania. Senior Claim Agent Paul Hartle also worked with me and we both investigated the incident involving Dennis Sellers which occurred on November 18, 2002. 3. At the time of this incident and now, the Division Claims Office of Norfolk Southern is located just outside of the City of Harrisburg at 4600 Deer Path Road, Harrisburg, Dauphin County, Pennsylvania. 4. I and Paul Hartle both were present at the scene of this incident on the day it occurred and I conducted an investigation of the incident thereafter. 5. I am familiar with the various witnesses who have or may have relevant testimony with regard to this incident and which would be witnesses that would be deposed and maybe called upon to testify at the trial of this matter. 6. During the course of my investigation, the following individuals were determined to have testimony that may be relevant to claims and defenses in this matter and may be deposed by Plaintiff and/or Defendant with regard to that testimony in this proceeding, as well as be called as witnesses at thai: a. Sam Neumeyer, Tom Hoffman, Jeffrey Harpster, Scott Kershaw, Don Paul, Paul Hattie and myself were, at the time of this incident, employees of Norfolk Southern. Mr. Neumeyer would testify concerning his assignment of the work Mr. Sellers was performing at the time of his death and the instructions given concerning it. Mr. Hoffman would testify as to his interaction with Mr. Sellers prior to the incident. Mr. Harpster would testify to his notification of the incident, his obtaining a forklift to lift the ramp from Mr. Sellers and the facts in existence at that time. Mr. Kershaw would testify concerning being notified of the incident, and his going to the scene to conduct an investigation of what occurred. Mr. Paul would testify as to going to the scene of the incident and his observations there. Mr. Hartle and myself would testify as to the scene of the incident and our investigation on that day and thereafter. 7. Mr. Neumeyer and Mr. Hoffman are both retired from Norfolk Southern and reside in Altoona, Blair County, Pennsylvania. 8. Under the terms of the Collective Bargaining Agreement between Norfolk Southern and the crafts to which Mr. Neumeyer and Mr. Hoffman belong, Norfolk Southern would be required to reimburse them for mileage at the rate of 37.5 cents per mile, tolls, and meals for the days they must appear at depositions and/or trial and a per diem of $250 per day for Mr. Neumeyer and $150 for Mr. Hoffman each day required. In addition, if they were required upon more than one day, Norfolk Southern would be required to reimburse them for the costs of lodging and additional meals, plus the additional per diems. 9. Altoona, where Mr. Neumeyer and Mr. Hoffman reside, is approximately 236 miles from Philadelphia as opposed to 120 miles from Carlisle, the county seat of Cumberland County. Traveling to Philadelphia for depositions and thai would take approximately two to three hours additional time one way depending upon traffic conditions for each witness. 10. Mr. Harpster is employed as a General Foreman for Norfolk Southern and continues to work at the Enola Yard, Cumberland County, Pennsylvania. He still resides in Altoona, Blair County, Pennsylvania. The Enola Yard is approximately 17 miles from Carlisle as opposed to approximately 113 miles from Philadelphia. 3 11. If Mr. Harpster is required to travel to Philadelphia for depositions and trial, he would lose at least one full day's work for each day he would be required to be present. As opposed to being able to travel to Carlisle for depositions or trial of approximately a one hour round trip. 12. Scott Kershaw, Norfolk Southern Division Manager, Mechanical Operations for Harrisburg and Pittsburgh Division, resides in Mechanicsburg, Cumberland County, Pennsylvania approximately 10 miles from Carlisle as opposed to 113 miles from Philadelphia. In addition Mr. Kershaw continues to work out of the Harrisburg Division Office located just outside of Harrisburg. When Mr. Kershaw would be required for depositions and trial, he would miss at least a full day's work for each day of appearance. In addition, Mr. Kershaw supervises approximately 560 persons and is on-call for emergencies which arise on the railroad such as the Sellers incident. 13. Donald Paul, Norfolk Southern Senior General Foreman, continues to work in the Enola Yard which is approximately 17 miles from Carlisle as opposed to 113 miles from Philadelphia. When Mr. Paul is called to testify at depositions or trial, he would miss at least a full day's work for each appearance. In addition to his regular duties, Mr. Paul must be on-call to handle emergencies which arise on the railroad as he supervises approximately 100 persons. 14. Paul Hartle is a Senior Claim Agent for Norfolk Southern and works in the Harrisburg Claims Office which is located approximately 22 miles from Carlisle as opposed to 106 miles from Philadelphia. For each day when Mr Hartle is called to testify at depositions or trial, he would miss at least a full day's work for each appearance. In addition, Mr. Hartle must 4 be available to handle accidents or other incidents that occur on the railroad and conduct those investigations when they arise. 15. I live in Carlisle approximately 7 miles from the courthouse and work at the Harrisburg Claims Office approximately 22 miles from Carlisle as opposed to 106 miles from Philadelphia. When I am called to testify, I would miss at least one full day's work for each appearance at depositions and trial, and I must be available to handle emergencies that arise involving accident or incident investigations for the railroad. 16. In addition to the above individuals, there are numerous other witnesses, all of whom either live or work in the Carlisle or Harrisburg area, including but not limited to the following: 17. his discovery of Mr. Sellers and the actions he took thereafter. Central Penn Asphalt is not affiliated with Norfolk Southern in any manner and is based in Harrisburg, Pennsylvania, approximately 22 miles from Carlisle as opposed to 106 from Philadelphia. 18. Robert Brown and Jonnie Zimmerman are believed to be employees of Schussler Enterprises, Inc. and would testify concerning their discovery of Mr. Sellers, the surrounding circumstances and the events which occurred thereafter. Mr. Brown and Mr. Zimmerman work for Schussler Enterprises, Inc. which is not affiliated with Norfolk Southern in any manner. Schussler Enterprises, Inc. is located in Carlisle and it is believed that Mr. Brown and Mr. Zimmerman live in the Carlisle area as well, approximately 124 miles one way from Philadelphia. Todd Barlett, an employee of Central Penn Asphalt, who would testify concerning 5 19. Ralph Stoehr is a compliance officer for the Harrisburg OSHA office who would testify concerning his investigation of the incident. It is believed that Mr. Stoehr lives in the Harrisburg area and works at OSHA's office in Harrisburg. That office is approximately 106 miles from Philadelphia as opposed to 20 miles from Carlisle. 20. Michael Norris, the Cumberland County Coroner, lives and works in the Mechanicsburg area which is approximately 10 miles and 15 minutes from Carlisle as opposed to 113 miles from Philadelphia. 21. Police and emergency medical personnel from East Pennsboro Township, the township in which the Enola Yard is located, would also have relevant testimony concerning their arrival on the scene, their treatment of Mr. Sellers and surrounding circumstances. Their offices are believed to be within 17 miles of Carlisle as opposed to 113 miles from Philadelphia. 22. For each witness outside of Norfolk Southern which Norfolk Southern would be required to depose and/or call at trial, Norfolk Southern would be required to reimburse them for the ~:dditional mileage as set forth above to Philadelphia as opposed to Carlisle, thus greatly increasing the expense to Norfolk Southern of obtaining the appearance of witnesses at depositions and trial. 23. In addition, for Norfolk Southern employees, Norfolk Southern would be required to reimburse the employees as set forth above, and, in addition, would lose a full day's work for each employee for each day an appearance was required as set forth above, thus greatly increasing the expense to Norfolk Southern of obtaining the appearance of witnesses at depositions and trial. In addition, the supervisory personnel listed above would be away from 6 their supervisory and administrative duties and unable to handle those as well as emergencies that may arise while they were in appearance for an entire day or more. 24. Plaintiff, Pamela Sellers, is believed to still reside in Altoona, Pennsylvania which is approximately 115 miles from Carlisle as opposed to 231 miles from Philadelphia one way. 25. All of the investigation that took place by Norfolk Southern and upon information and belief, OSHA, occurred at the Enola Yard in Cumberland County or in Harrisburg, Dauphin County. 26. There are no known witnesses with relevant testimony who live or work in Philadelphia or in any of its contiguous counties. 27. All of the instrumentalities involved in the accident, including the ramp, are still located within Cumberland or Dauphin Counties. None are known to be located in Philadelphia County or its contiguous counties. Linda Schreffier t,,~ Regional Manager Claims Sworn to and subscribed before me this ~ day of May, 2004. My Commission Expires: NOTARIAL SEAL Jeannette Chelgren, Notary Public City of Harrisburg, County of Dauphin My Commission Expires Feb, 15, [K)O$ IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SELLERS, Administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff NORFOLK SOUTHERN RAILWAY COMPANY, Case No. 005089 PLEADING: Petition to Transfer Action Defendant : CODE: AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA : SS COUNTY OF DAUPHIN : AFFIDAVIT OF JAMES E. SCHLUSSER I, James E. Schlusser, being duly sworn according to law, deposes and says that 1. I am the owner and operator of Schlusser Enterprises, Inc. which is a dump trucking company located in Carlisle, Cmnberland County, Pennsylvania. 2. We normally have eleven truck drivers who haul material, but currently, we only have seven truck drivers employed and are short-handed. 3. Robert Brown and Jonnie Zimmerman are employees of Schlusser Enterprises, Inc. who haul material. 4. If Messers Brown and Zimmerman were required to miss days of work to attend IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SELLERS, Administratrix : of the estate of DENNIS ROBERT SELLERS, : deceased, : Case No. 005089 Plaintiff NORFOLK SOUTHERN RAILWAY COMPANY, Defendant PLEADING: Petition to Transfer Action CODE: AFHDAVIT COMMONWEALTH OF PENNSYLVANIA : COUNTY OF CUMBERLAND : SS I, Michael Noms, being duly sworn according to law, deposes and says that l. I am the Cumberland County Coroner. ! have held my position since 1982. In my position, it is my responsibility to respond to and/or investigate deaths which occur in Cumberland County. My office is located at 6375 Basehore Road, Suite 1 Mechanicsburg, Cumberland County, Pennsylvania. 2. I responded with my Chief Deputy to the call in the Enola rail yard regarding Mr. Sellers' accident and assisted with the investigation of the accident. 3. Given the distance between Mechanicsburg and Philadelphia, it would be inconvenient for me to travel to Philadelphia for trial and depositions. 4. Trial in Cumberland County Court of Common Pleas, which is less than twenty minutes from Mechanicsburg, would be more convenient for me. Sworn to and subscribed before me this 27th day of May, 2004. Notary Public My Commission Expires: Michael Norris IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COIYNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SE! J~F. RS, Administratrix of the estate of DENNIS ROBERT SEIJ.ERS, deceased, Plaintiff Vo NORFOLK SOUTHERN RAILWAY COMPANY, Defendant Case No. 005089 PLEADING: Petition to Transfer Action : : CODE: AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA : SS COUNTY OF CLrMBERLAND : AFFIDAVIT OF LISA KEPES I, Lisa Kepes, being duly sworn according to law, deposes and says that 1. I have been an Emergency Medical Technician for the past twenty-one years. 2. I was an East Pennsboro Emergency Medical Services personnel and responded to a call at the Enola Rail Yard regarding Mr. Sellers' accident. 3. Currently, I am employed by Camp Hill Fire and Emergency Medical Services. 4. I am the only full-time Emergency Medical Technician and a Supervisor; therefore, it would be unduly burdensome for me to attend depositions and trial in Philadelphia. 5. I have three school aged children and, therefore, it would be a personal hardship for me to attend depositions and trial in Philadelphia. 6. It would be more convenient for me if trial were held in the Cumberland County Court of Common Pleas in Carlisle, Cumberland County. Sworn to and subscribed before me this 1st day of June, 2004. Nq~ary Public ~// Lisa Kepes IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SEI J .ERS, Administratrix of the estate of DENNIS ROBERT SEI J .ERS, deceased, Plaintiff NORFOLK SOUTHERN RAILWAY COMPANY, Defendant No. 03-09-005089 PLEADING: Petition to Transfer Action CODE: MEMORANDUM OF LAW OF NORFOLK SOUTHERN RAILWAY COMPANY, DEFENDANT, IN SUPPORT OF ITS MOTION TO TRANSFER VENUE PURSUANT TO PA. R.C.P. 1006(d)(1) I. STATEMENT OF FACTS AND PROCEDURE On October 2, 2003, Plaintiff, Pamela Marie Sellers, as Administratrix of the Estate of Dennis Robert Sellers, ("Plaintiff") filed a Complaint in the Court of Common Pleas in Philadelphia County against Norfolk Southern Railway Company ("Norfolk Southern"), which was served on October 15, 2003, Norfolk Southern timely Answered with New Matter on November 3, 2003. Plaintiff replied to Norfolk Southern's New Matter on November 10, 2003. A case management Order was issued on January 13, 2004. The Complaint contains a wrongful death and survival action from an incident which occurred at the Norfolk Southern Rail facilities located in Enola, Cumberland County, Pennsylvania on November 18, 2002. Norfolk Southern has offices in Cumberland County. The Plaintiff resides in Blair County which is approximately 115 miles closer to Cumberland County than it is to Philadelphia County. The witnesses with relevant testimony all reside and/or work in either Dauphin County, Cumberland County, or Blair County. Sam Neumeyer, a retired Norfolk Southern employee, assigned Mr. Sellers the task he was conducting at the time of the incident and will testify as to the events and circumstances surrounding the nature of the task and his assignment of the task and instructions to Mr. Sellers. Mr. Neumeyer is now retired and lives in Altoona, which is approximately 236 miles and four hours from Philadelphia. Having the depositions and trial in Cumberland County would provide easier access for Mr. Neumeyer given the distance between Altoona and Philadelphia. Because Mr. Neumeyer is retired, as a condition of the collective bargaining agreement, between Norfolk Southern and his craft, Norfolk Southern will be required to pay him $250 a day and 36.5 cents a mile, plus tolls and meals to serve as a witness. See Affidavit of Linda Schreffier, Petition Exhibit A. Tom Hoffman, who is now a retired Norfolk Southern Employee, will testify as to his interaction with Mr. Sellers prior to the incident. Mr. Hoffman also lives in Altoona and would be forced to travel an additional two hours to testify in Philadelphia. Because Mr. Hoffman is retired, as a condition of the collective bargaining agreement, between Norfolk Southern and his craft, Norfolk Southern will be required to pay him $150 a day and 36.5 cents a mile, plus tolls and meals to serve as a witness. See Affidavit of Linda Schreffler, Petition Exhibit A. Jeffrey Harpster, Mechanical Supervisor, who was the first Norfolk Southern employee to see Mr. Sellers after his death, will testify as to the facts and circumstances 2 of learning of Mr. Sellers' death and the facts and circumstances regarding the condition of the scene when he arrived with a forklift to lift the ramp. Mr. Harpster also lives in Altoona and would be forced to travel an additional two hours to testify in Philadelphia. Mr. Harpster continues to work at the Enola Yard, which is approximately 17 miles and twenty minutes from Carlisle and which is 113 miles and two hours from Philadelphia. Having the trial in Cumberland County would provide easier access for Mr. Harpster given the distance between Altoona and Philadelphia and Enola and Philadelphia. Because Mr. Harpster is still employed by Norfolk Southern, if he were to testify in Philadelphia, given the distance, he would miss at least a full day's work each for depositions and trial. If the depositions and trial were in Carlisle, given the closeness to the Enola Yard, Norfolk Southern would be able to notify Mr. Harpster near the time that he was need to testify and Mr. Harpster would be able leave work to testify, thereby missing less work and putting less of a burden on him due to his workload and less time away from his supervisory duties. See Affidavit of Linda Schreffier, Petition Exhibit A. Scott Kershaw, who is the Norfolk Southern Division Manager, will testify to his investigation of the case of the accident. His duties involve the handling of emergencies that arise in the Division. Mr. Kershaw resides in Mechanicsburg, Cumberland County, Pennsylvania, which is approximately ten miles and fifteen minutes from Carlisle and 113 miles and two hours from Philadelphia. Mr. Kershaw continues to work at the Enola Yard, which is approximately seventeen miles and twenty minutes from Carlisle and which is 113 miles and two hours from Philadelphia. Having the depositions and trial in Cumberland County would provide easier access for Mr. Kershaw given the distance between Mechanicsburg and Philadelphia and between Enola and Philadelphia. Because Mr. Kershaw is still employed by Norfolk Southern, if he were to testify in Philadelphia, given the distance, he would miss at least a full day's work each for depositions and trial. If the trial were in Carlisle, given the closeness to the Enola Yard, Norfolk Southern would be able to notify Mr. Kershaw near the time that he was needed to testify and Mr. Kershaw would be able leave work to testify or would have time to return to work after testifying, thereby missing less work and less time from his supervisory duties and/or potential emergencies. See Affidavit of Linda Schreffier, Petition Exhibit A. Linda Schreffier, who was the District Claim Agent, will testify as to the investigation of the incident. Mrs. Schreffier, lives in the Carlisle area approximately 7 miles and ten minutes from Carlisle and which is approximately 106 miles and two hours from Philadelphia. Mrs. Schreffier works at the Harrisburg Claims office, which is approximately 22 miles and 25 minutes from Carlisle and which is approximately 106 miles and two hours from Philadelphia. If the depositions and trial were held in Philadelphia, Mrs. Schreffier would be required to either commute four to five hours a day during rush hour or to stay in a hotel for the duration of the trial away from her family. Having the depositions and trial in Cumberland County would provide easier access for Mrs. Schreffier given the distance between Harrisburg and Philadelphia. Mm. Schreffier would not be required to stay at a hotel, but travel home after each day of trial. See Affidavit of Linda Schreffier, Petition Exhibit A. Paul Hurtle, who is Senior Claim Agent, will testify as to the investigation of the incident. Mr. Hattle works at the Harrisburg Claims office, which is approximately 22 miles and 25 minutes from Carlisle and which is approximately 106 miles and 2 hours from Philadelphia. If the depositions and trial were held in Philadelphia, Mr. Hartle would be required to either commute four hours a day or to stay in a hotel for the duration of the trial. Having the depositions and trial in Cumberland County would provide easier access for Mr. Hartle given the distance between Harrisburg and Philadelphia. See Affidavit of Linda Schreffier, Petition Exhibit A. Donald Paul, who is a Norfolk Southern Senior General Foreman and he has supervisory duties over persons and additionally must be available to respond to emergencies that arise. He will testify to calling 911 after learning of the incident from a Shussler Enterprise employee. Mr. Paul continues to work at the Enola Yard, which is approximately 17 miles and twenty minutes from Carlisle and which is 113 miles and two hours from Philadelphia. Because Mr. Paul is still employed by Norfolk Southern, if he were to testify in Philadelphia, given the distance, he would miss at least a full day's work. If the depositions and trial were in Carlisle, given the closeness to the Enola Yard, Norfolk Southern would be able to notify Mr. Paul near the time that he was need to testify and Mr. Paul would be able leave work to testify, thereby not likely missing a full day's work. Having the depositions and trial in Cumberland County would provide easier access for Mr. Paul given the distance between Harrisburg and Philadelphia. See Affidavit of Linda Schreffier, Petition Exhibit A. Todd Barlett, who is a Central Penn Asphalt employee was the first to approach Mr. Sellers after the incident, and will testify as to the condition of Mr. Sellers when he approached and his subsequent informing Mr. Harpster of Mr. Sellers' whereabouts. He will also testify as to his interaction with Mr. Sellers before the incident. Mr. Barlett works for Central Penn Asphalt, which is not affiliated with Norfolk Southern. Central Penn Asphalt is located in Harrisburg, Pennsylvania, which is approximately 22 miles 5 and 25 minutes from Carlisle and which is 106 miles and two hours from Philadelphia. If Mr. Barlett were to testify in Philadelphia, given the distance, he would miss at least a full day's work each for depositions and trial. If the depositions and trial were in Carlisle, given the closeness to Central Penn Asphalt's office, Norfolk Southern would be able to notify Mr. Barlett near the time that he was needed to testify and Mr. Barlett would be able leave work to testify, thereby not likely missing a full day's work each for depositions and trial. Having the depositions and trial in Cumberland County would provide easier access for Mr. Barlett given the distance between Harrisburg and Philadelphia. Robert Brown, who is a Shussler Enterprise, Inc employee, was the second person to approach Mr. Sellers after the incident. Mr. Brown will testify as to the conditions of the scene prior to approaching Mr. Sellers and the events that occurred thereafter. Jonnie Zimmerman, who is a Shussler Enterprise, Inc. employee, first discovered Mr. Sellers and instructed Mr. Barlett to approach Mr. Sellers while he informed Norfolk Southern personnel. Mr. Zimmerman will also testify to the scene before and after he noticed Mr. Sellers. Messrs. Brown and Zimmerman work for Shussler Enterprise, Inc., which is not affiliated with Norfolk Southern. Shussler Enterprise, Inc., is located in Carlisle, Pennsylvania, which is 124 m/les and two hours from Philadelphia. If Mr. Brown or Mr. Zimmerman were to testify in Philadelphia, given the distance, they would miss at least a full day's work. If the depositions and trial were in Carlisle, given the closeness to Shussler Enterprise's office, Norfolk Southern would be able to notify Mr. Brown or Mr. Zimmerman near the time that he was need to testify and they would be able leave work to testify, thereby not likely missing a full day's work each for depositions and trial. Having the depositions and trial in Cumberland County would provide easier access for Mr. Brown and Mr. Zimmerman given the distance between Carlisle and Philadelphia. Having the trial in Philadelphia County would be unduly burdensome on Schlusser Enterprises as Messrs. Brown and Zimmerman are two of the company's seven drivers and their absence would leave the company short-handed. See Petition Exhibit B, Affidavit of James Schlusser. Ralph Stoehr, who is a Compliance officer with the Harrisburg OSHA office, will testify as to his investigation of the incident. The Harrisburg OSHA office is located approximately twenty miles and twenty minutes from Carlisle and which is 106 miles and two hours from Philadelphia. If Mr. Stoehr were required to testify at depositions and trial in Philadelphia, he would be required to miss at least a full day's work for each, wbemas, given the closeness of the Courthouse in Cumberland County to Mr. Stoehr's office, he would not be required to miss a full day's work if the depositions and trial were held in Cumberland County. Mr. Stoehr is a government official and not affiliated with Norfolk Southern. Michael Norris, the Cumberland County Coroner, may be called to testify to the cause of death and the facts and circumstances of the scene when he arrived. The Coroner's office is located in Mechanicsburg, Cumberland County, Pennsylvania, which is approximately ten miles and 15 minutes from Carlisle and which is approximately 113 miles and two hours from Philadelphia. It would be more convenient if the trial were held in Cumberland County. See Petition Exhibit C, Affidavit of Michael Norris. If the depositions and trial were held in Philadelphia, the Corner would be outside Cumberland County for at a minimum six to eight hours on the day he was to testify. In the event 7 that there was an emergency during this time, he would not be available to respond. If the depositions and trial were held in Cumberland County, the Comer would be much more accessible as he would be in the county if he were needed to respond to a death and the amount of time which he would be taken away from his public duties would be reduced. East Pennsboro Emergency Medical Services personnel, Karen Noss and Lisa Kepes, will testify as to the condition of Mr. Sellers when they arrived and the facts and circumstances of the scene. East Pennsboro Emergency Medical Services office is located in Enola, Pennsylvania, which is approximately 17 miles and twenty minutes ~rom Carlisle and which is approximately 113 miles and two hours from Philadeiphia. If the depositions and trial were held in Philadelphia, the Medical Services personnel would be required to miss at least a day of work for each, whereas if the depositions and trial were held in Carlisle, the personnel would not be required to miss as much work. Mrs. Kepes is now employed at Camp Hill Fire and EMS, located 110 miles and two hours from Philadelphia. She is the only full-time EMT and the mother of three school-aged children. See Petition Exhibit D, Affidavit of Lisa Kepes. Limited paper discovery has taken place and no depositions have been taken or are scheduled to date. Defendant submits this Memorandum of Law in suppo~ of its Petition to Transfer Venue Pursuant to Pa.R.C.P. 1006(d)(1). 8 II. QUESTION PRESENTED A. WHETHER PLAINTIFF'S CHOSEN FORUM, PHILADELPHIA COUNTY, IS VEXATIOUS AND OPPRESSIVE, WARRANTING THE TRANSFER OF VENUE TO CUMBERLAND COUNTY PURSUANT TO PA. R.C.P. 1006(d)(I)? Suggested Answer in the affirmative. III. ARGUMENTS A. Standard of Review. Pennsylvania Rule of Civil Procedure 1006 allows a party to petition the court to transfer an action to an appropriate court of any other county where the action could originally have been brought based upon forum non conveniens. Defendant must establish facts on the record showing in what ways the plaintiff's chosen forum is vexatious or oppressive. Dearlove v. Genzyme Transgenics Corporation, 58 Pa. D. & C.4th 517 (Pa. Com. Pl. 2002). The Defendant must show that "the choice of forum is vexatious to him by establishing with facts on the record that the plaintiff's choice of forum was designed to harass the defendant, even at some inconvenience to the plaintiff himself... Alternatively, the defendant may meet his burden by establishing on the rezord that the trial in the chosen forum is oppressive to him; for instance, that trial iu another county would provide easier access to witnesses or other sources of proof, or to the ability to conduct a view of promises involved in the dispute." Cheeseman v, Lethal Exterminator, Inc., 549 Pa. 200, 213,701 A.2d 156, 162 (1997). Additionally, "a plaintiff's choice of forum is accorded less deference when the plaintiff does not live in the forum district and none of the operative events occurred there." Hartman v. Corporate Jet, Inc., 60 Pa. D. & C. 4th 431 (Phila. 2001). 9 B. Plaintiff's chosen forum, Philadelphia County, is vexatious and oppressive, warranting the transfer of venue to Cumberland County Plaintiff's chosen forum was designed to harass Norfolk Southern. There is no relation between this action and Philadelphia County. There are no witnesses with relevant testimony that live in or near Philadelphia. Venue is only technically proper in Philadelphia County because Norfolk Southern has railroad facilities in Philadelphia County. The incident occurred in Cumberland County. All the investigation surrounding it took place in Cumberland or adjacent Dauphin County. Norfolk Southern is a Virginia corporation with offices in Cumberland County or neighbouring Dauphin County. Ple2ntiff lives in Blair County. The witnesses either live or work in Blair, Dauphin or ' Cumberland County. None of the witnesses live or work in Philadelphia County or its contiguous counties. By filing this action in Philadelphia County, the Plaintiff has substantially increased the costs associated with Norfolk Southern defending this matter. Norfolk Southern is required to reimburse numerous witnesses for mileage, tolls, meals, and lodging if depositions and trial are held in Philadelphia. If the depositions and trial were held in Philadelphia County and a witness were required on more than one day, Norfolk Southern will be required to pay meals and lodging for that witness, whereas it would not be so required if the trial were held in Cumberland County. Additionally, having this trial in Philadelphia County will be onerous to the witnesses, who reside or work in Blair, Dauphin or Cumberland County, by forcing them to travel over 100 miles (or additional miles) to Philadelphia County during rush hour to testify. Petition Exhibits A, B, C and D. Furthermore, it is uncertain as to which witnesses may be required to stay over in 10 Philadelphia because their testimony may not complete when the Court adjourns for the day or which witnesses were not called due to time constraints. For those witnesses, requiring them to travel to Philadelphia a subsequent day or to stay in the city away from their homes and families would be oppressive and unduly burdensome. See Petition Exhibit D, Affidavit of Lisa Kepes. Choosing Philadelphia as the forum for a trial where there are only minimal contacts to Philadelphia County has been held to be oppressive and vexatious numerous times by the Philadelphia Court of Common Pleas. In Wood v. du Pont de Nemours and Company, 829 A.2d 707 (Pa. Super. 2003), a deliveryman allegedly tripped and fell while making a delivery at DuPont's plant in Bradford County. The deliveryman brought suit in Philadelphia County. DuPont filed a petition to transfer venue to Bradford County based upon forum non conveniens. The trial court concluded that A trial in Bradford County would better serve the interests of justice since it provides easier access to witnesses and also an ability for the jury to view the characteristics of the shipping lot pavement, where the alleged fall took place. Allowing this trial to proceed in Philadelphia County would not only be oppressive to [DuPont], but the monetary expenses possibly incurred, either for travel and/or lodging and meals to Philadelphia County, as compared to Bradford County, do not justify the trial of this case in Philadelphia County. Id. at 713. In upholding the lower court's decision to transfer venue, the Superior Court held that there was no abuse of discretion as DuPont placed information on the record establishing that many of its critical witnesses would have to travel over 190 miles to attend trial in Philadelphia. Other witnesses would have to travel 173 miles to Philadelphia. If the jury were to visit the site of the accident, they would be bused 190 miles which would be an 11 unnecessary burden on the jury and an unnecessary cost on the court. Further, the Court held that a trial in Bradford County would provide far greater access to the witnesses. Based upon the foregoing, the Court held that the trial court did not abuse its discretion in determining that these factors established oppressiveness and vexatiousness and justified a transfer of venue. As in Wood, three necessary witnesses in this case, Messrs. Neumeyer, Harpster, and Hoffman would be required to travel approximately 213 m~les to attend a trial in Philadelphia. Mr. Neumeyer's testimony is imperative as he was the individual who assigned the task which Mr. Sellers was completing at the time of the accident. Mr. Harpster used a forklift to lift the ramp off of Mr. Sellers after the accident. Mr. Hoffman will testify as to his interaction with Mr. Sellers prior to the accident. Petition Exhibit A, Affidavit of Linda Schreffier. The other eleven witnesses, including the Coroner, the Schussler employees who found Mr. Sellers, and the police and emergency medical personnel, would be required to travel at least 100 miles one way to attend trial. Trial in Cumberland County would provide greater access to the witnesses; and therefore, this case should be transferred to Cumberland County. Petition Exhibits A, B, C and D. In Grace Community, Inc. v. KPMG Peat Marwick, LLP, 60 Pa. D. & C. 4~ 513 (2002), Grace Community filed suit against KPMG and Horst in the Court of Common Pleas in Philadelphia county. The Plaintiffs were not located in Philadelphia County and the elderly residents of Grace facility were located in Lebanon County. KPMG was the only defendant located in Philadelphia County, but it also had Dauphin County offices. None of the events giving rise to the action occurred in Philadelphia County. The relevant documents were in Lebanon County and the witnesses were not in Philadelphia 12 County. The Court held that in addition to the location of the parties and the significant event factors, KPMG established that trial in Philadelphia would be oppressive to its employees in Dauphin County. The Court held "that it would be oppressive to require these witnesses to travel the nearly 107 miles from their homes and offices in Dauphin County or the 69 miles from Lebanon County to Philadelphia to testify." This case is directly on point. As in Grace, the only connection to Philadelphia was that the defendant did some business there. Also as in Grace, the witnesses are located in either Blair County or the Dauphin County area, more specifically, Dauphin County and Cumberland County. The plaintiff in the current case is also not located in Philadelphia~ None of the events in the current case occurred in Philadelphia County. As in Grace, it would be oppressive to require Norfolk Southern employees to travel the more than 100 miles one way from their homes and/or work to Philadelphia, as would it be oppressive to require the witnesses which are not Norfolk Southern employee to travel Petition Exhibits C and D, Affidavits of Michael Norris and Lisa such distance as well. Kepes. In Dulaney v. Consolidated Rail Corporation, 715 A.2d 1217 (Pa. Super. 1998), Dulaney, who resided in West Virginia, was injured in Ohio while working for Conrail. He was working out of Conrail's Allegheny County, Pennsylvania office at the time of the accident. Dulaney brought an FELA action against Conrail in Philadelphia County. Conrail filed a petition to transfer venue to Allegheny County which was granted. Conrail presented facts showing that the accident occurred in Ohio and that all of the witnesses lived in Ohio, West Virginia, or Western Pennsylvania. The only connection to Philadelphia is that Conrail conducts business in Philadelphia. The Superior Court 13 affirmed the trial court's holding that the facts show that Conrail has demonstrated a trial in Philadelphia would have been oppressive and that trial in Allegheny County would be more convenient because of easier access to all of the witnesses and other sources of proof. In Hartman v. Corporate Jet, Inc., 60 Pa. D.&C. 4~ 431 (Phila. 2001), the plaintiffs filed an action against the defendant to recover damages for personal injuries the plaintiff sustained in a helicopter crash in Ohio. The defendant was a Pennsylvania Corporation with its principal place of business in Pittsburgh, All witnesses worked or resided in Ohio. Venue was established in Philadelphia County because the defendant had conducted unrelated business there. The Court held that a trial in Philadelphia would be oppressive and vexatious to the parties. The Court further held that "[w]hile venue is proper in Philadelphia County, when confronted with this petition to transfer venue, however, and based solely on the fact that Defendant has conducted unrelated business transactions in Philadelphia County, without more, does not amount to a convenient forum for the parties." The Court held that "venue in Philadelphia County, while proper, constitutes a harassment to Defendant and its witness, and is also onerous and unnecessary hardship to the parties, particularly the Defendant, and to the witnesses .... More so, when there is absolutely no nexus between the alleged accident/claim and Philadelphia County" Id. In the present case, there is no nexus between the alleged accident/claim and Philadelphia County. As in Hartman and Delaney, venue was only proper because the defendant did unrelated business there. Also as in both cases, requiring the witnesses to travel to Philadelphia would be an unnecessary hardship upon them. Therefore, Norfolk 14 Southern's presence in Philadelphia County without more does not constitute a convenient forum. The Superior Court in Kyra v. EPMG of Pennsylvania, 2001 WL 1704167 (Pa. Super. 2001), affirmed the Philadelphia Court of Common Pleas' holding to transfer venue from Philadelphia County to Lehigh County. The Superior Court held that all essential witnesses lived in or near Lehigh County. The incident and medical treatment rendered afterwards occurred in Lehigh County. The plaintiffs lived outside Philadelphia County. The Court reasoned that "hardship to many outweighs inconvenience or hardship to a few." Additionally, the Corot noted that "[f]orcing all essential witnesses, save one, to drive more than 60 miles, including the Schuylkill Expressway, at rush hour twice each day is more than an inconvenience. The alternative, housing everyone in the city and separating them from their families and livelihoods, is not less onerous." Requiring fourteen witnesses to drive more than 100 miles, "including the Schuylkill Expressway at rush hour twice each day is more than an inconvenience." Additionally, it would be as onerous for Norfolk Southern to house all fourteen witnesses in the city during this time period, especially in light of the fact that nine of the fourteen witnesses are not Norfolk Southern employees and would be taken away from their employment and families during this time. Two of the witnesses are Schlusser Enterprise employees and are two of the seven truck drivers. Having the two absent from work to attend depositions and trial in Philadelphia County would be a hardship on Schlusser Enterprises as they would be short-handed and unable to fulfill their obligations. Petition Exhibit 13, Affidavit of James Schlusser. One of the witnesses, Lisa Kepes, is the only full-time EMT at the Camp Hill EMS and is the supervisor. 15 Additionally, she is the mother of three school-aged children. Therefore, not only would it be a burden on her employer, but it would be a burden on her personally as well. Petition Exhibit D. The common threads in the cases cited are first that there is no real nexus between Philadelphia County and the incident or witnesses. In the current case, as well, there is no nexus between Philadelphia County and the incident or witnesses. All of the witnesses reside or work in Dauphin, Cumberland or Blair County. Second, in the cases cited, the Court considered the distance which the witnesses will be required to travel, citing 69 miles to drive as being oppressive, Grace Community, Inc. v. KPMG Peat Marwick, LLP, 60 Pa. D. & C. 4~ 513 (2002). In the present case, the witnesses will be required to drive at a minimum 100 miles. Third, the ability to view the site is also a consideration in the above cited cases. In the current case, the jury would have to travel approximately 113 miles to view the site. Fourth, the Courts cited above have also held that "a plaintiff's choice of forum is accorded less deference when the plaintiff does not live in the forum district and none of the operative events occurred there." Hartman v. Corporate Jet, Inc., 60 Pa. D. & C. 4th 431 (Phila. 2001). In the current case, the plaintiff does not live in Philadelphia County, but lives in Blair County, over two hundred miles from Philadelphia. Therefore, her choice of forum should be given less deference. 16 IV. CONCLUSION WHEREFORE, for the reasons set forth above, it is respectfully requested that the Court grant Defendant, Norfolk Southern Railway Company's Motion to Transfer Venue to Cumberland County under Pa. R.C.P. 1006(d)(1). NAUMAN, SMITH, SHISSLER AND HALL, LLP By: C~at g~j?Staudenmaier, Esquire Suprente Court IDg34996 200 North Third Street P.O. Box 840 Harrisburg, PA 17108 Telephone: 717/236-3010 Counsel for Defendant, Norfolk Southern Railway Company Date: May 28, 2004 17 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SEI .I.ERS, Administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff NORFOLK SOUTHERN RAILWAY COMPANY, Defendant No. 03-09-005089 PLEADING: Petition to Transfer Action CODE: 061765 RULE TOSHOW CAUSE AND NOW, this day of ,2004, upon consideration of the foregoing Petition, and upon motion of Craig J. Staudenmaier, Esq., attorney for Norfolk Southern Railway Company, it is hereby ORDERED that (1) a rule is granted upon the Plaintiff to show cause why this action should not be transferred to the Court of Common Pleas of Cumberland County, Pennsylvania, pursuant to Pa. R.C.P. 1006(d)(1); (2) the respondent shall file an answer to the petition within __ days of this date; (3) the petition shall be decided under Pa.R.C.P. No. 206.7; (4) depositions shall be completed within days of this date; (5) argument shall be held on Courthouse; and in Courtroom __ of the Philadelphia County (6) notice of the entry of this order shall be provided to all parties by the petitioner. BY THE COURT: IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SELLERS, Administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff No. 034)9-005089 06176S NORFOLK SOUTHERN RAILWAY COMPANY, Defendant PLEADING: Petition to Transfer Action CODE: ORDER AND NOW, on this __ day of 2004, upon consideration of Norfolk Southern Railway Company's Petition to Transfer Venue pursuant to Pa. R.C.P. 1006(d)(l), and it appearing after hearing that the convenience of the parties and the witnesses would be served thereby, it is hereby ORDERED that the said Petition is GRANTED and the action is transferred to the Court of Common Pleas of Cumberland County. It is further ORDERED that the Prothonotary shall forward the record to the Prothonotary of the Court of Common Pleas of Cumberland County as provided under Pa. R.C.P. 1006(d)(3), upon payment by Defendant of all costs and fees thereunder. SPENCER G. NAUMAN, ~R. ~. STEPHEN FEINOUR CRAIG J. STAUDENMAIER BENJAMIN C. DUNLAp~ JR. DENNIS E. BOYLE I. REN~E LIEUX LUCIN DA C. GLENN LAW OFFICES COUNSel DAVID C. EATON ~OHN C. SULLI¥~N GUy p. BENEVENT~NO Control Number William L. Keller, Esquire William. L. Keller & Associatse, P.C. Suite 1900, 1528 Walnut Street Philadelphia, PA 19102 Richard P. Gilardi, Esquire Gilardi, Cooper & Lomupo Suite 808, Grant Building Pittsburgh, PA 15219 Re: Pamela Miller Sellers, Administratrix of the Estate of Dennis Robert Sellers, deceased v. Norfolk Southern Railway Company C.C.P., Philadelphia County g005089 NS g02005019; NSSH #13968 Dear Messers. Keller and Gilardi: The Enclosed Petition to Transfer Venue Pursuant to Pa.R.C.P. 1006(d), Motion Cover Sheet, Proposed Order, Rule to Show Cause, and Memorandum of Law have been filed with the Civil Administration Unit of the Court of Common Pleas of Philadelphia County. Any response must be filed within 20 days of the filing date, on or before June ,2004. Ve?~ly yours, IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SELLERS, Administratrix of the estate of DENNIS ROBERT SE! .I.ERS, deceased, Plaintiff NORFOLK SOUTHERN RAILWAY COUNTY, Case No. 005089 Defendant 'JUL 0 200 Civil Ac/rninistration PLEADING: Affidavit of Service of Petition to Transfer Action CODE: 061765 AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA: SS: COUNTY OF DAUPHIN: I, CRAIG J. STAUDENMAIER, ESQUIRE, attorney with the firm of Nauman, Smith, Shissler & Hall, LLP, being duly sworn according to law, depose and say the following: On June 22, 2004, I forwarded to William L. Keller, William L. Keller & Associates, P.C. and Richard P. Gilardi, Gilardi, Cooper & Lomupo, attorneys for Plaintiff in the above matter, a true and correct copy of the Petition to Transfer Venue Pursuant to Pa. R.C.P. 1006(d), Motion Cover Sheet, proposed Order, Rule to Show Cause and Memorandum of Law filed with the Court on June 18, 2004, by certified mail, return receipt requested. See copy of the transmittal letter to William L Keller and receipt for certified mail No. 7003 2260 0007 0548 0213 attached hereto and marked Exhibit "A-I" and "A-2" respectively. Mr. Keller received delivery of the aforesaid documents on June 24, 2004 as evidenced by the signed, certified mail receipt attached hereto and marked Exhibit "B". As to Richard P. Gilardi, see copy of the transmittal letter and receipt for certified mail No. 7003 2260 0007 0548 0206 attached hereto and marked Exhibit "C-l" and "C-2" respectively. Mr. Gilardi received delivery of the aforesaid documents on June 24, 2004 as evidenced by the signed, certified mail receipt attached hereto and marked Exhibit "D". NAUMAN, SMITH, SHISSLER & HAIl., LLP BY C ' ier, Esquire Suprem~Court ID#34996 200 North Third Street P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Counsel for Norfolk Southern Railway Company Sworn and subscribed to before me this 30th d ay of June, 2004.  N otary Public ~7 My Commission Expires: NOTARIAL SEAL daannatte Gheigren, Nota~ Public City of Harrisburg, County of Dauphin My Commission Expires Feb, 15, 2005 June 22, 2004 Control Number 061765 William L. Keller, Esquire William L. Keller & Associatse, P.C. Suite 1900, 1528 Walnut Street Philadelphia, PA 19102 Richard P. Gilardi, Esquire Gilardi, Cooper & Lomupo The Benedum Trees Building, 10m Floor 223 Fourth Avenue Pittsburgh, PA 15222 Pamela Miller Sellers, Administratrix of the Estate of Dennis Robert Sellers, deceased v. Norfolk Southern Railway Company C.C.P., Philadelphia County ~005089 NS ~02005019; NSSH #13968 Dear Messers. Keller and Gilardi: The Enclosed Petition to Transfer Venue Pursuant to Pa.R.C.P. 1006(d), Motion Cover Sheet, Proposed Order, Rule to Show Cause, and Memorandum of Law have been filed with the Civil Administration Unit of the Court of Common Pleas of Philadelphia County. Any response must be filed within 20 days of the filing date (June 18, 2004), on or before July 8, 2004. cJs/jai Enclosures Sincerely you~ Craig J. ~/udenmaier ~HIBIT EXHIBIT 7003 2260 0007 ~XHIBIT LAW OFFICES June 22, 2004 COUNSE~ DAVID C. EATON JOHN C, SULLIVAN GUY p, BENEVENTANO Control Number 061765 William L. Keller, Esquire William L. Keller & Associatse, P.C. Suite 1900, 1528 Walnut Street Philadelphia, PA 19102 Richard P. Gilardi, Esquire Gilardi, Cooper & Lomupo The Benedum Trees Building, 10~ Floor 223 Fourth Avenue Pittsburgh, PA 15222 Re: Pamela Miller Sellers, Administratrix of the Estate of Dennis Robert Sellers, deceased v. Norfolk Southern Railway Company C.C.P., Philadelphia County g005089 NS #02005019; NSSH #13968 Dear Messers. KellerandGilardi: The Enclosed Petition to Transfer Venue Pursuant to Pa.R.C.P. 1006(d), Motion Cover Sheet, Proposed Order, Rule to Show Cause, and Memorandum of Law have been filed with the Civil Administration Unit of the Court of Common Pleas of Philadelphia County. Any response must be filed within 20 days of the filing date (June 18, 2004), on or before July 8, 2004. CJS/jai Enclosures Sincerely you~, EXHIBIT IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SELLERS, Administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff NORFOLK SOUTHERN RAILWAY COMPANY, Defendant Case No. 005089 PLEADING: CODE: PRAECIPE TO TRANSFER VENUE Please transfer the above case to the Court of Common Pleas of Cumberland County, Pennsylvania, per the Order of Judge Papalini dated July 30, 2004, a copy of which is attached hereto. NAUMAN, SMITH, SHISSLER & HALL, LLP BY: Craig J. ~taudenma~er, Esqmre Supr~m~Eourt ID# 34996 200 North Third Street, P. O. Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Counsel for Norfolk Southern Date: September 10, 2004 CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Craig J. Staudenmaier, Esquire, of the finn of Nauman, Smith, Shissler & Hall, LLP, hereby certify that I this day served the foregoing "Praecipe to Transfer Venue "by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed to the following: Richard p. Gilardi, Esquire Gilardi, Cooper & Lomupo The Benedeum Trees FIn~I~I~,,~ CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Craig J. Staudenmaier, Esquire, of the firm of Nauman, Smith, Shissler & Hall, LLP, hereby certify that I this day served the foregoing "Praecipe to Transfer Venue" by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Permsylvania, addressed to the following: Richard P. Gilardi, Esquire Gilardi, Cooper & Lomupo The Benedeum Trees Building Tenth Floor 223 Fourth Avenue Pittsburgh, PA 15222 James J. McEldrew, III, Esquire MeEldrew & Fullam, P.C. 1650 Market Street Suite 5050 One Liberty Place Philadelphia, PA 19103 Date: September 10, 2004 NAUMAN, SMITH, SHISSLER & HALL, LLP By: ~- Crai J. Staudenmaier, Esquire Suprpme Court ID# 34996 - (9 © IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CIVIL SECTION PAMELA MARIE SELLERS, Administratrix of the Estate of DENNIS ROBERT SELLERS, Deceased SEPTEMBER TERM, 2003 NO. 5089 VS. NORFOLK SOUTHERN RAILWAY COMPANY : MOTION NO. 061765 ORDER "~ ' ~ of ' · AND NOW, is .. C. l'"~t day .Jr. ~ 'Y, 2004, it is hereby ORDERED and DECREED that the Petition of Defendant Norfolk Southern Railway Company to Transfer Venue under Pa.R.C.P. 1006(d)(1) on the grounds of forum non conveniens is G~NTED; this case shall be transferred to the Court of Common Pleas of Cumberland County, Pennsylva~ia; tLe costs of transfer shall be borne by the Defendant· COP!ES SENT PU'RSUA~!T 'i"'; i.:'~ F .C.P. 236{b) BY THE COURT: PHILADELPHIA COURT OF COMMON PLEAS MOTION COVER SHEET FOR COURT USE ONLY ACTION ASSIGNED TO JUDGE: FILED Do not telephone Judge/br status, "JUL 0 8 2004 Do not send Judge courtesy copi~il,~ulntstratiorI Pamela Maire Sellers Administratrix - Estate of Dennis Sellers Control Number: (RESPONDING PARTIES MUS T INCL UDE THIS NUMBER ON ALL FILINGS) No. SEPTEMBER Term, 2003 005089 Name of Filing Party: VS, Norfolk Southern Railway Company Type of Motion: Response due: 7- ~ OR Motion to Transfer Venue Response to: CASE STATUS (answer all questions) E ls this case: A. COMMERCE PROGRAM Name of Judicial Team Leader: Applicable Motion Deadline: Ilas deadline been previously exteuded by the Court? [] Yes [] No B. DAY FORWARD/MAJOR JURY (du~v Delnand & Fac Paid) Name of Judicial Team Leader: __ Hon. Sandra Moss Applicable Motion Deadline: 12/1/04 ltas deadline been previously exteaded by tbe Court'? [] Yes C. NON JURY Date Listed: ...... D. ARBITRATION Arbitration Date: (Check one) [] Plaiutiff [] Defendant (Check one) [] Movam [] Respondent Has another motion been decided in this case? [] Yes [] No ls another motion pending? [] Yes [] No lf the answer to any qf the above questions is yes. you il/list identi~i' the judge, and the relation.vhip q/'the motion(s) to the present . motion, including the status of the motion(s). Please attach a separate sheet with your statement. II. OTHER PARTIES Craig J. Staudenmaier, Esquire Nauman, Smith, Shissler & Hall, LLP 18th Floor 200 North Third Street Harrisburg, PA 17108 (Counsel for Defendant) James J. McEldrew, III, Esquire McEIdrew & Fullam, P.C. One Liberty Place, Suite 5050 Philadelphia, PA 19103 (Co-Counsel for Plaintiff) E. ARBITRATION APPEAL Listed on: F. OTHER: [)ate Listed: By filing this document and signing below, the moving party certifies that this motion/petition, along with all documents filed in the Motions Program, will be immediately served upon all counsel and unrepresented parties, in accordance with Phila. Civil Rule *206. I(C). Furthermore, moving party verifies that the answers made herin are true and correct and under- stands that sanctiops may be imposed fo( inaccurate or incomplete answers. ( ' Richard P. Gilardi, Esq. /466973 ~ _ (.4ttorne~ Signature/Um'epresented Party) (Print Name) (Attorney LD No) This Motion will be forwarded to the Court after the Response Date. No extension of the Response Date will be granted even if the parties so stipulate. IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY CIVIL TRIAL DIVISION ~°AMELA MARIE SELLERS, Administratrix of the Estate of DENNIS ROBERT SELLERS VS. NORFOLK SOUTHERN RAILWAY COMPANY ORDER CIVIL ACTION NO. 030905089 AND NOW, this day of ,2004, upon consideration of Defendant's Petition to Transfer Venue, and Plaintiff's response thereto, it is hereby ORDERED and DECREED that Defendant's Petition is DENIED, and that Defendant's Petition to Transfer Venue Under Pa.R.C.P. 1006(d)(1) is hereby DISMISSED, and the instant suit filed at the above caption and case number shall remain filed in the Court of Common Pleas of Philadelphia through the conclusion of said suit. BY THE COURT: IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA PAMELA MARIE SELLERS, administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff, NORFOLK SOUTHERN RAILWAY COMPANY, Defendant. CIVIL DIVISION CASE NO. 03-09-005089 CODE: 061765 PLEADING: PLAINTIFF'S REPLY TO DEFENDANTS PETITION TO TRANSFER VENUE UNDER PA. R.C.P. 1006(d)(1) FILED ON BEHALF OF: Plaintiff COUNSEL OF RECORD FOR THIS PARTY: Richard P. Gilardi, Esquire PA I.D. # 66973 GILARDI & COOPER The Benedum Trees Building, 10th Floor 223 Fourth Avenue Pittsburgh, PA 15222 (412) 391-9770 James J. McEIdrew, III, Esquire McEIdrew & Fullam, P.C. Suite 5050 1650 Market Street One Liberty Place Philadelphia, PA 19103 (215) 563-8300 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SELLERS, administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff, VS, NORFOLK SOUTHERN RAILWAY COMPANY, Defendant. Case No. 005089 REPLY TO DEFt:NDANT'S PETI'T]'ON TO TRANSFER VENUE UNDER PA.R.C.P. 1006 NOW COMES the plaintiff by and through her attorneys, Gilardi, Cooper & Lomupo and Richard P. Gilardi, and McEIdrew & Fullam and .]ames .]. McEIdrew, III, Esquire and files the following Reply To Defendant's Petition to Transfer Venue Under Pa.R.C.P. 1006: 1. Paragraph 1 is denied as stated. Plaintiff, Pamela Marie Sellers, Administratrix of the Estate of Dennis Robert Sellers, deceased, instituted this Wrongful Death and Survival action to recover all damages to which she and any other beneficiaries of the decedent would be entitled to under those acts. It is admitted that the decedent was injured and killed while working for the defendant at the Enola Rail Yard in Cumberland County, Pennsylvania on November 18, 2002. 2. Paragraph 2 is admitted. By way of further reply it is averred that the defendant has rail yards and related facilities throughout the Commonwealth of Pennsylvania and in Philadelphia County. 3. Paragraph 3 is admitted. 4. Paragraph 4 is admitted in part and denied in part. It is admitted that the venue chosen by plaintiff, Philadelphia County, is lawful and this case was properly filed in this venue. It is denied that this case should be transferred to the Court of Common Pleas of Cumberland County pursuant to Pa.R.C.P. 1006(d)(1). 5. Paragraph 5 is admitted. 6. Paragraph 6 is admitted. 7. Paragraph 7 is denied as stated. Plaintiff does not know which witnesses will be "key" witnesses and therefore, plaintiff is unable to admit or deny that the witnesses listed by defendant will in fact be "key" witnesses. Moreover, the depositions of Sam Neumeyer, Tom Hoffman, .]effery Harpster, Scott Kershaw, Linda Schreffier, Paul Hartle, Donald Paul, Todd Bartlett, Robert Brown, Jonnie Zimmerman, Ralph Stoehr, Michael Norris, Karen Noss, Lisa Kepes and any police officer from Enola have not been taken and at this time plaintiff does not know what their testimony will be. In response to the averments concerning each witness, plaintiff responds as follows: Sam Neumeyer: a. Plaintiff is unable to admit or deny Paragraph 7(a) in that Mr. 2 Neumeyer's deposition has not been taken as plaintiff does not know what he will testify to. Paragraph 7(a)(i) is admitted. Paragraph 7(a)(ii) is denied as conclusory in that there is no affidavit or other testimony from Mr. Neumeyer to substantiate this averment. Plaintiff is without sufficient information to admit or deny Paragraph 7(a)(iii); by way of further reply, the fact that defendant must reimburse Mr. Neumeyer $250.00 per day for his appearance at a deposition or for trial is an irrelevant consideration in that defendant would be required to pay lVlr. Neumeyer $250.00 per day if the case were in Cumberland County or Philadelphia County. Paragraph 7(a)(iv) is denied; by way of further reply, in the event Mr. Neumeyer is required to testify for more than one day, defendant would be required to pay him $250.00 for each day he spent in Cumberland County or in Philadelphia County. Tom Hoffman: b. Plaintiff is unable to admit or deny Paragraph 7(b) in that Hoffman's deposition has not been taken as plaintiff does not know what he will testify to. Paragraph 7(a)(i) is admitted in part and denied in part. ]~t is admitted that Mr. Hoffman lives in Altoona. It is denied that Mr. Hoffman would be forced to travel to testify in Philadelphia. On the contrary, Mr. Hoffman has specifically stated that traveling to Philadelphia to provide testimony would not be oppressive or unduly burdensome on him. (See affidavit of Thomas Hoffman attached hereto as Exhibit"A'~. Paragraph 7(a)(ii) is denied. On the contrary, Mr. Hoffman has specifically stated that traveling to Philadelphia to provide 3 testimony would not be oppressive or unduly burdensome on him. (See affidavit of Thomas Hoffman attached hereto as Exhibit "A'~. Plaintiff is without sufficient information to admit or deny Paragraph 7(a)(iii); by way of further reply, the fact that defendant must reimburse Mr. Hoffman $150.00 per day for his appearance at a deposition or for trial is an irrelevant consideration in that defendant would be required to pay Hr. Hoffman $150.00 per day if the case were in Cumberland County or Philadelphia County. Paragraph 7(a)(iv) is denied; by way of further reply, in the event Mr. Hoffman is required to testify for more than one day, defendant would be required to pay him $150.00 for each day he spent in Cumberland County or in Philadelphia County. 3effrey Harpster: c. Plaintiff is unable to admit or deny Paragraph 7(c) in that Mr. Harpster's deposition has not been taken as plaintiff does not know what he will testify to. Paragraph 7(d)(i) is admitted. Paragraph 7(c)(ii) is admitted; by way of further reply, Mr. Harpster presumably travels 120 miles and 2 hours from his home in Altoona to his work in Enola every day for the defendant. Paragraph 7(c)(iii) is denied as conclusory in that there is no affidavit or other testimony from Mr. Harpster to substantiate this averment. Plaintiff is without sufficient information to admit or deny Paragraph 7(c)(iv); by way of further reply, it is not necessarily true that Mr. Harpster would miss a full days work by traveling to Philadelphia, additionally, a deposition of Mr. Harpster can be performed in Enola, Harrisburg or Altoona, requiring little or no missed time from work. 4 Paragraph 7(c)(v) is denied as stated; if Mr. Harpster would be called by the plaintiff he would have to be subpoenaed to appear and his attendance would possibly be required in Cumberland County for the entire day; therefore, it is very likely that Mr. Harpster would miss the same amount of work if he were testifying in Cumberland County or in Philadelphia County. Scott Kershaw: d. Plaintiff is unable to admit or deny Paragraph 7(d) in that IVlr. Kershaw's deposition has not been taken as plaintiff does not know what he will testify to. Paragraph 7(d)(i) is denied. From information and belief it is averred that IVlr. Kershaw has been transferred to the Atlanta, Georgia office of Norfolk Southern. (See Affidavit of .~ohn Woodward attached hereto as Exhibit "B"). It is further believed that Mr. Kershaw currently resides in the Atlanta, Georgia area. Paragraph 7(d)(ii) is denied. From information and belief it is averred that Hr. Kershaw has been transferred to the Atlanta, Georgia office of Norfolk Southern. (See Affidavit of John Woodward attached hereto as Exhibit "B'~. Paragraph 7(d)(iii) is denied. On the contrary, Mr. Kershaw will have to travel over 600 miles to appear in either Philadelphia County or Cumberland County. By way of further reply, plaintiff avers that it would be more convenient for Mr. Kershaw to fly into Philadelphia International Airport than to commute to Harrisburg or Carlisle. Paragraph 7(d)(iv) is admitted. By way of further reply, Mr. Kershaw would have to miss a full days work if the case were tried in Cumberland County or in Philadelphia County as he would now have to travel from Atlanta, Georgia. 5 Paragraph 7(d)(v) is denied; because Mr. Kershaw now works in the Atlanta Georgia office it would be impossible for defendant to call Mr. Kershaw to testify in Cumberland County without him missing at least one day of work. Plaintiff is without sufficient information to admit or deny Paragraph 7(d)(vi); by way of further reply, Mr. Kershaw has been transferred to the Atlanta, Georgia office of Norfolk Southern and it is believed he no longer has responsibility for emergencies in Harrisburg and Pittsburgh. Linda Schreffler: e. Plaintiff is unable to admit or deny Paragraph 7(e) in that Ms. Schreffier's deposition has not been taken as plaintiff does not know what she will testify to. Paragraph 7(e)(i) is admitted. Paragraph 7(e)(ii) is denied as stated; Harrisburg is approximately 120 miles from Philadelphia. Paragraph 7(e)(iii) is denied; Ms. Schreffier would not be required to commute four hours per day, Ms. Schreffler would only have to attend the trial in the event she would be called to testify, any additional time Ms. Schreffier spends at the trial is of her own choosing and expense. Paragraph 7(e)(iv) is denied as stated. Plaintiff is without sufficient information to admit or deny Paragraph 7(e)(v). By way of further reply is it averred that Ms. Schreffier holds the title of Claims Manager for Norfolk Southern's North Region, and supervises claims offices in Pittsburgh, Buffalo, Harrisburg, New .]ersey, and Philadelphia, as well as others. She travels to these locations in the regular course of her business. 6 Paul Hartle: f. Plaintiff is unable to admit or deny Paragraph 7(f) in that Mr. Hattie's deposition has not been taken as plaintiff does not know what he will testify to. Paragraph 7(f)(i) is admitted. Paragraph 7(0(ii) is denied as stated; Harrisburg is approximately 120 miles from Philadelphia. Paragraph 7(0(iii) is denied; Mr. Hartle would not be required to commute four hours per day to the trial, Hr. Hartle would only have to attend the trial in the event he would be called to testify, any additional time Mr. Hattie spends at the trial is of his own choosing and expense. Plaintiff is without sufficient information to admit or deny Paragraph 7(0(iv). Donald Paul: g. Plaintiff is unable to admit or deny Paragraph 7(g) in that Mr. Paul's deposition has not been taken as plaintiff does not know what he will testify to; by way of further reply, anything Mr. Paul heard from a Schlussler employee would constitute hearsay and would not be admissible testimony. Paragraph 7(g)(i) is admitted. Plaintiff is without sufficient information to admit or deny Paragraph 7(g)(ii); by way of further reply, it is not necessarily true that Mr. Paul would miss a full days work by traveling to Philadelphia, additionally, a deposition of Hr. Paul can be conducted in Enola, Harrisburg or wherever Hr. Paul currently resides (defendant did not indicate Mr. Paul's residence in its petition), requiring little or no missed time from work. Paragraph 7(g)(iii) is denied as stated; if Mr. Paul would be called by the plaintiff he would have to be 7 subpoenaed to appear and his attendance would possibly be required in Cumberland County for the entire day; therefore, it is very likely that Mr. Paul would miss the same amount of work if he were testifying in Cumberland County or in Philadelphia County. Plaintiff is without sufficient information to admit or deny Paragraph 7(g)(iv). Plaintiff is without sufficient information to admit or deny Paragraph 7(g)(v). Todd Barlett: h. Plaintiff is unable to admit or deny Paragraph 7(h) in that Mr. Barlett's deposition has not been taken as plaintiff does not know what he will testify to. Plaintiff is without sufficient information to admit or deny Paragraph 7(h)(i). Plaintiff is without sufficient information to admit or deny Paragraph 7(h)(ii). Paragraph 7(h)(iii) is denied; by way of further reply, it is not necessarily true that Mr. Barlett would miss a full days work by traveling to Philadelphia, additionally, a deposition of Mr. Barlett can be conducted in Enola, Harrisburg or wherever Mr. Barlett currently resides (defendant did not indicate Mr. Barlett's residence in its petition), requiring little or no missed time from work. Paragraph 7(h)(iv) is denied as stated; if Mr. Barlett would be called by the plaintiff he would have to be subpoenaed to appear and his attendance would possibly be required in Cumberland County for the entire day; therefore, it is very likely that Mr. Paul would miss the same amount of work if he were testifying in Cumberland County or in Philadelphia County. Paragraph 7(h)(v) is denied as conclusory in that there is no affidavit or other testimony from Mr. Barlett to 8 substantiate this averment. Robert Brown: i. Plaintiff is unable to admit or deny Paragraph 7(i) in that Mr. Brown's deposition has not been taken and plaintiff does not know what he will testify to. Plaintiff is without sufficient information to admit or deny Paragraph 7(i)(i). Plaintiff is without sufficient information to admit or deny Paragraph 7(i)(ii). Paragraph 7(i)(iii) is denied; by way of further reply, it is not necessarily true that Mr. Brown would miss a full days work by traveling to Philadelphia, additionally, a deposition of Mr. Brown can be conducted in Carlisle, Enola, Harrisburg or wherever Hr. Brown currently resides (defendant did not indicate Mr. Brown's residence in its petition), requiring little or no missed time from work. Plaintiff is without sufficient information to admit or deny Paragraph 7(i)(iv); by way of further reply, if Hr. Brown would be called by the plaintiff he would have to be subpoenaed to appear and his attendance would possibly be required in Cumberland County for the entire day; therefore, it is very likely that Mr. Brown would miss the same amount of work if he were testifying in Cumberland County or in Philadelphia County. Additionally, ]ames Schlusser has indicated to counsel for plaintiff that if only one of his employees were called to testify in Philadelphia County his business would not be unduly burdened or oppressed. Paragraph 7(i)(v) is denied as stated, if Hr. Brown would be called by the plaintiff he would have to be subpoenaed to appear and his attendance would possibly be required in Cumberland County for the entire day; therefore, it 9 is very likely that Hr. Brown would miss the same amount of work if he were testifying in Cumberland County or in Philadelphia County. Paragraph 7(i)(vi) is denied. On the contrary, it is averred from information and belief that if Mr. Brown were called to testify in Philadelphia County he would not be unduly burdened or oppressed. 3onnie Zimmerman: j. Plaintiff is unable to admit or deny Paragraph 7(j) in that Mr. Zimmerman's deposition has not been taken and plaintiff does not know what he will testify to. Plaintiff is without sufficient information to admit or deny Paragraph 7(j)(i). Plaintiff is without sufficient information to admit or deny Paragraph 7(j)(ii). Paragraph 7(j)(iii) is denied; by way of further reply, it is not necessarily true that Mr. Zimmerman would miss a full days work by traveling to Philadelphia, additionally, a deposition of Mr. Zimmerman can be conducted in Carlisle, Enola, Harrisburg or wherever Hr. Zimmerman currently resides (defendant did not indicate Mr. Zimmerman's residence in its petition), requiring little or no missed time from work. Plaintiff is without sufficient information to admit or deny Paragraph 7(j)(iv); by way of further reply, if Mr. Zimmerman would be called by the plaintiff he would have to be subpoenaed to appear and his attendance would possibly be required in Cumberland County for the entire day; therefore, it is very likely that Hr. Zimmerman would miss the same amount of work if he were testifying in Cumberland County or in Philadelphia County. Additionally, _]ames Schlusser has indicated to counsel for plaintiff that if only one 10 of his employees were called to testify in Philadelphia County his business would not be unduly burdened or oppressed. Paragraph 7(j)(v) is denied as stated, if Mr. Zimmerman would be called by the plaintiff he would have to be subpoenaed to appear and his attendance would possibly be required in Cumberland County for the entire day; therefore, it is very likely that Mr. Zimmerman would miss the same amount of work if he were testifying in Cumberland County or in Philadelphia County. Paragraph 7(j)(vi) is denied. On the contrary, it is averred from information and belief that if Mr. Zimmerman were called to testify in Philadelphia County he would not be unduly burdened or oppressed. Ralph Stoehr: k. Plaintiff is unable to admit or deny Paragraph 7(k) in that Mr. Stoehr's deposition has not been taken and plaintiff does not know what he will testify to. Plaintiff is without sufficient information to admit or deny Paragraph 7(k)(i). Paragraph 7(k)(ii) is denied; by way of further reply, it is the policy of OSHA to move to quash any subpoena served upon its officers and investigators to appear in court. Therefore, it is very likely that Mr. Stoehr would not appear to testify in Cumberland County or in Philadelphia County. Michael Norris: I. Plaintiff is unable to admit or deny Paragraph 7(I) in that Mr. Norris' deposition has not been taken and plaintiff does not know what he will testify to. Plaintiff is without sufficient information to admit or deny Paragraph 7(I)(i). Paragraph 7(I)(ii) is admitted. Paragraph 7(I)(iii) is admitted in that one of Mr. 11 Norris' affidavits does state that it would be inconvenient. It is specifically denied that mere inconvenience of a witness is sufficient grounds on which to base a Petition to Transfer Venue. By way of further reply, Mr. Norris has signed an additional affidavit which indicates that providing testimony in Philadelphia County would not be oppressive to him. (See affidavit of Michael Nords attached as Exhibit "C'~. East Pennsboro EMS: m. Plaintiff is unable to admit or deny Paragraph 7{m) in that Ms. Noss' and Ms. Kepes' depositions have not been taken and plaintiff does not know what they will testify to. Plaintiff is without sufficient information to admit or deny Paragraph 7(m)(i). Paragraph 7(m)(ii) is denied; by way of further reply, it is not necessarily true that Ms. Noss and Ms. Kepes would miss a full days work by traveling to Philadelphia, additionally, by way of further reply, if Ms. Noss or Ms. Kepes would be called to testify by the plaintiff they would have to be subpoenaed to appear and their attendance would possibly be required in Cumberland County for the entire day; therefore, it is very likely that Ms. Noss and Ms. Kepes would miss the same amount of work if they were testifying in Cumberland County or in Philadelphia County. By way of further reply it would not be unduly burdensome or oppressive to Ms. Noss to provide testimony in Philadelphia County. (See affidavit of Karen Noss attached as Exhibit "D"). Plaintiff is without sufficient information to admit or deny Paragraph 7(m)(iii); by way of further reply it would not be unduly burdensome or oppressive to Ms. 12 Noss to provide testimony in Philadelphia County. (See affidavit of Karen Noss attached as Exhibit "D"). Paragraph 7(m)(iv) is admitted as an accurate statement of IHs. Kepes' affidavit. Paragraph 7(m)(v) is admitted in that Ms. Kepes' affidavit does state that it would be a hardship. It is specifically denied that a hardship on one witness is sufficient grounds on which to base a Petition to Transfer Venue. Plaintiff is without sufficient information to admit or deny Paragraph 7(m)(vi). Furthermore, the testimony of Ns. Noss and Ns. Kepes would be identical, therefore, defendants would be able to obtain the testimony of Ms. Noss in Philadelphia County. (See affidavit of Karen Noss attached as Exhibit "D" and the EMS report signed by Ns. Noss attached as Exhibit "E"). East Pennsboro Police Officers: n. Plaintiff is unable to admit or deny Paragraph 7(n) in that the depositions of any investigating officers have not been taken and plaintiff does not know what they will testify to. Plaintiff is without sufficient information to admit or deny Paragraph 7(n)(i). Paragraph 7(n)(ii) is denied; by way of further reply, it Js not necessarily true that a police officer called to testify would miss a full days work by traveling to Philadelphia, additionally, by way of further reply, if an officer would be called by the plaintiff he or she would have to be subpoenaed to appear and their attendance would possibly be required in Cumberland County for the entire day; therefore, it is very likely that an officer would miss the same amount of work if they were called to testify in Cumberland County or in Philadelphia County. 13 8. Paragraph 8 is admitted. Additionally, plaintiff has obtained the affidavits of Mr. Hoffman, .John Woodward, Michael Norris, and Karen Noss. These affidavits are attached hereto. 9. Paragraph 9 is denied. On the contrary, the additional time and expense to defendant amounts to approximately $150.00 in additional mileage paid to Hr. Neumeyer and Hr. Hoffman. Additionally, mere inconvenience is not a sufficient basis on which to base a Petition to Transfer Venue. 10. Paragraph 10 is admitted in part and denied in part. It is admitted that there is some additional driving for witnesses. It is denied that the additional mileage constitutes vexatiousness or oppressiveness to the defendant. 11. Paragraph 10 is admitted in part and denied in part. It is admitted that there is approximately 100 miles between Carlisle and Philadelphia. Tt is denied that the additional mileage constitutes vexatiousness or oppressiveness to the defendant. 12. Paragraph 12 is denied. On the contrary, according to Ms. Schreffier's affidavit, defendant is required to pay only two witnesses, Hr. Neumeyer and Hr. Hoffman. Additionally, those per diem expenses would be incurred if the trial were held in Cumberland County or Philadelphia County. The only additional expense incurred by defendant would be $150.00 in mileage fees. (approximately 200 additional miles round trip from Carlisle to Philadelphia for travel expenses for Mr. Neumeyer and Mr. Hoffman, ~,00 miles at $.375 per mile is $150.00). All other witnesses subpoenaed by defendant are entitled to a 14 witness fee of $5.00 per day and mileage of $.07 per mile. Pa.C.S.A. § 5903(b) and 5903(c). The total additional expense incurred by defendant for each witness listed amounts to $247.00. (13 potential witnesses, $5.00 per day and 2600 additional miles round trip at $.07 per mile). 13. Paragraph 13 is admitted in that if a party subpoenas a witness and they are required to testify more than one day the party must pay for lodging and meals. By way of further reply, it is plaintiff's position that it would be highly unlikely that a witness would be required to spend more than one morning or one afternoon in the Courtroom. 14. Paragraph 14 is denied as stated. While plaintiff agrees that it would be cumbersome to have the jury travel 113 miles to view the site, in this particular case there is no reason that a view of the site would be necessary. Additionally, defendant has not presented any evidence or other information which would indicate that a site view would be required in order to present their defense of this case. 15. Plaintiff is without sufficient information to admit or deny paragraph 15. By way of further reply, Mr. Hoffman has indicated that it would not be oppressive to him to travel to Philadelphia County. (See affidavit Exhibit "A"). 16. Plaintiff denies paragraph 16. Several witnesses have indicated that it would not be unduly oppressive to provide testimony in Philadelphia County. 17. Paragraph 17 is denied. On the contrary, as admitted by defendant, plaintiff chose a proper forum to file her case. 16 18. Paragraph 18 is denied. On the contrary, several witnesses have indicated that it would not be unduly oppressive to provide testimony in Philadelphia County. Additionally, at least one witness is now residing in Atlanta, Georgia and any witness from OSHA will not appear pursuant to the policies of the United State Department of Labor. 19. Paragraph 19 is denied. On the contrary, plaintiff would be injured by removing her case from the forum which she rightfully and legally chose. Moreover, the travel to Philadelphia is not an inconvenience to plaintiff, her counsel or her witnesses. WHEREFORE, the plaintiff respectfully requests that this Honorable Court deny defendant's petition to transfer venue to the Court of Common Pleas of Cumberland County. Respectfully submitted, GILARDI, COOPER & LOMUPO Richard P. Gilardi Attorney for Plaintiff 16 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA PAMELA MARIE SELLERS, administratrix of the estate of DENNIS ROBERT SELLERS, deceased~ Plaintiff, VS. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant. CIVIL DIVISION Case No. 005089 Code: 061765 BRIEF IN SUPORT OF PLAINTIFF'S REPLY TO DEFENDANT'S PETITION TO TRANSFER VENUE UNDER PA.R.C.P. 1006 NOW COMES the plaintiff by and through her attorneys, Gilardi, Cooper & Lomupo and Richard P. Gilardi, and McEIdrew & Fullam and James .1. McEIdrew, III, Esquire and flies the following Bdef in Support of her Reply to Defendant's Petition to Transfer Venue: Counter-Statement of the Case This case arises out of an industrial accident which occurred on November 18, 2002 at the Norfolk Southern Rail Yard in Enola, Pennsylvania. The decedent, Dennis Sellers was a 49 year old man who was employed by the Defendant as a carman. On that day the decedent was performing his duties as a car repairman when he was suddenly and unexpectedly crushed by a tractor trailer ramp with the result that decedent, sustained severe and serious injuries 1 which ultimately caused his death. The plaintiff, Pamela Marie Sellers, is the decedent's widow and resides in Hollidaysburg, Blair County, Pennsylvania. The plaintiff is the administratrix of the estate of Dennis Robert Sellers, deceased, having been appointed by the Register of Wills of Blair County, Pennsylvania, on December 9, 2002, at Number 2002-00751. Defendant, Norfolk Southern Railway Company, is a railroad incorporated in the State of Virginia and doing business in Philadelphia County, Philadelphia, Pennsylvania. Plaintiff brought this wrongful death and survival action under the provisions of the Federal Employers' Liability Act, the Safety Appliance Act and the Boiler Inspection Act. The instant case was filed on October 2, 2003 and served on the defendant on October 15, 2003. There is no dispute that venue is proper in Philadelphia County pursuant to Pa.R.C.P. 2179. Defendant has filed the instant Petition to Transfer Venue based on Pa.R.C.P. :]L006(d)(1). Defendant claims that plaintiff's choice of forum was designed to harass Norfolk Southern and that no witnesses with relevant testimony live in Philadelphia County.1 Defendant has identified 15 "key" witnesses who they state that they intend to call as witnesses in their case. Defendant claims that the additional travel which may be imposed upon a ~ Contrary to defendant's assertion, Plaintiff has identified Andrew Verzilli, Ph.D., from Philadelphia County as an economic expert who will be providing relevant testimony in this action. The retention of Dr. Verzilli, as well as liability expert Vince Gal~agher of Audubon, was pursuant to ]Interrogatories and Request for Production of Documents served upon Plaintiff by defendant, asking that experts be identified. 2 number of these "key" witnesses is oppressive and vexatious and requires the transfer of this matter to the Court of Common Pleas of Cumberland County. Plaintiff's disputes that the perceived inconvenience by defendants is sufficient to sustain their burden of proof on this issue and that the Petition to transfer should be denied. Legal Argument A. Plaintiff's choice of venue is proper under Pennsylvania Law and not vexatious or oppressive to defendant. Under Pennsylvania law a trial court must give deference to the plaintiff's choice of forum. Cheeseman v. Letha/Exterrn/nator, .mc., 701 A.2d 156, 162 (Pa. 1997). The issue of the plaintiff's residency is irrelevant. The issue before the court is only whether the choice of forum is oppressive or vexatious to the defendant. _rd. at 162, n.6. The plaintiff's choice of forum should "rarely be disturbed" by the grant of a petition under Rule 1006(d)(1)..rd. at 162. A petition to transfer venue should not be granted unless the defendant meets its burden of proof, demonstrating, with detailed information on the record, that the plaintiff's choice of forum is oppressive or vexatious to the defendant..rd. The defendant bears a heavy burden of proof in seeking to transfer a case, as the plaintiff's choice of forum is entitled to deference..rd. The defendant may meet this burden in one of two ways: (1) by showing with facts on the record that the plaintiff's chosen forum was designed to harass the defendant, even at some inconvenience to the plaintiff himself; or (2) by showing on the record that tr/a/in the chosen forum is oppressive to him; for 3 instance, that trial in another county would provide easier access to witnesses or other sources of proof2, or to the ability to conduct a view of premises involved in the dispute. _rd. In the instant case defendant has not demonstrated any proof that plaintiff's choice of forum was chosen to harass defendant. It is agreed by all parties that because Norfolk Southern regularly conducts business in Philadelphia County, plaintiff has selected a legally proper forum under Pennsylvania law. See Pa.R.C.P. 2179. Likewise, because the forum is proper, defendant can not demonstrate that plaintiff's choice of venue was vexatious.3 Thus, defendant must prove to the court, by detailed information in the record, that plaintiff's choice of forum is oppressive to the defendant. Cheesernan at 162. irt must be stressed that the defendant must show more than that the chosen forum is merely inconvenient to him. Demonstrating that no significant aspect of the case involves the chosen forum, and that litigating in another forum would be more convenient do not amount to a showing that the chosen forum is oppressive or vexatious. _rd. In the instant case, defendant has demonstrated nothing more than mere inconvenience to the defendant and some of their proposed witnesses. Defendants have listed the proposed testimony of 15 witnesses. (14 2 It should be noted that defendant was required to produce extensive documentation to OSHA. Defendant retained the law firm of Nanko, Gold, Katcher & Fox, out of Bala Cynwyd, Pennsylvania, in Delaware County for representation in the OSHA proceeding stemming from this accident. There has been no claim herein that the defendant would be oppressed by producing "other sources of proof" if the case were tried in Philadelphia County. 3 Vexatious is defined as without reasonable or probable cause or excuse. Obviously plaintiff has reasonable cause under the rules of civil procedure to file her case in Philadelphia County. 4 named witnesses and the Enola Police Officers as a group). Again, under £heesrnan, and its progeny, Defendant must show that a trial in Philadelphia is oppressive. Three of the fifteen witnesses identified by defendant are Thomas Hoffman (Norfolk Southern employee), Michael Norris (Cumberland County Coroner) and Karen Noss (East Pennsboro EMS). Attached to Plaintiff's Response to Defendant's Petition to Transfer Venue as Exhibit "A" is an affidavit from Hoffman stating that he would not be oppressed by a tdal in Philadelphia. Plaintiff also attaches as Exhibit "C" to her Response to Defendant's Petition to Transfer Venue an affidavit from Cumberland County Coroner Michael Norris, stating that a trial in Philadelphia would not be oppressive to him. Additionally, plaintiff attaches as Exhibit "D" to her Response to Defendant's Petition to Transfer Venue an affidavit of Karen Noss stating that she would not be oppressed by a trial in Philadelphia.4 Certainly, if these three witnesses themselves are not oppressed by a trial in Philadelphia, the defendant can not claim oppression on their behalf. Defendant has also listed OSHA compliance officer Ralph Stoehr as a witness they would intend to call in their case. Counsel for plaintiff has contacted the Harrisburg OSHA office, as well as the U.S. Department of Labor ~ Exhibit "E" to Plaintiff's Response to Defendant's Petition to Transfer Venue is a copy of the East Pennsboro EMS report from the decedent's accident. As indicated in the report, the two person EMS crew, in responding to the call, searched for a pulse and felt none, listened for heart tones and heard none, and called the coroner, as Sellers was pronounced dead on the scene. Their only other involvement in the case was transferring the body to the morgue after the coroner finished his work. Solicitor's Office (the legal arm of OSHA) and has been notified that if Ralph Stoehr were subpoenaed to testify, by any party, the OSHA legal department would move to quash the subpoena and Mr. Stoehr would not appear at trial? Thus, because Mr. Stoehr would not appear in any courtroom to testify, any discussion concerning Mr. Stoehr's testimony is irrelevant to this petition to transfer venue, and Defendant cannot claim any oppression on account of Stoehr. Defendant has listed Norfolk Southern employee Scott Kershaw as a potential witness. Mr. Kershaw was the Division Manager for Mechanical Operations at the time of this incident - the leading supervisor at the Enola Yard. Defendant has indicated that Mr. Kershaw currently resides in Mechanicsburg, and would be inconvenienced by traveling to Philadelphia to testify. Counsel for plaintiff has been notified that Scott Kershaw has recently been promoted to the position of Director of Mechanical Field Operations and has been transferred to the Atlanta, Georgia. (See affidavit of .lohn Woodward attached to Plaintiff's Response to Defendant's Petition to Transfer Venue marked as Exhibit "B'~. Obviously Mr. Kershaw will be required to travel over 600 miles to Pennsylvania whether this case is tried in Philadelphia County or in Cumberland County. Thus, IVlr. Kershaw would be equally inconvenienced regardless of the venue of this instant action and this Court should give no weight to the potential inconvenience which would be sustained by Mr. Kershaw. s OSHA routinely moves to quash any subpoena served upon its officials. This is done in order to keep OSHA and its investigators impartial and fair in their determinations of OSHA violations. Plaintiff has also spoken with ]ames Schlusser of Schlusser Enterprise, 1'nc.6 Mr. Schlusser has indicated to plaintiff that if only one of his employees were required to testify concerning their knowledge of the events in question he would not be unduly burdened or oppressed. Additionally, Schlusser employees Robert Brown and ]onnie Zimmerman have very limited knowledge of decedent's accident - stating that they are not aware of any events leading up to the death of Dennis Sellers, nor do they have any knowledge concerning his condition when they discovered Mr. Sellers. Thus, the testimony of rflr. Brown and Mr. Zimmerman would not offer the defendants any proof on any issue in this case. Additionally, if defendant insists on introducing this evidence at trial, because both witnesses have the exact same knowledge of this matter defendant would not be prejudiced by calling only one of these two witnesses. Furthermore, by calling on only one of the two witnesses an undue hardship would not be imposed upon Mr. Schlusser. Of the eight remaining witnesses, the defendants have failed to demonstrate how requiring their testimony in Philadelphia would constitute harassment or oppressiveness. Under Pennsylvania law, the mere fact that witnesses must drive over 100 miles is not perse evidence of oppressiveness. See M/i/er v. Sommer Maid Creamery, 821 A.2d 141 (Pa. Super. 2003)(reversing and remanding trial court opinion from Philadelphia County where the Court took 6 Defendant has provided the affidavit of Mr. Schlusser which indicates if two of his seven employees were required to miss work and testify in Philadelphia it would be a hardship on his business. Plaintiff has contacted I',lr. Schlusser and has obtained a second affidavit which is contrary to his previous position and indicates if only one employee were called he would not be oppressed or unduly burdened. judicial notice of a 125 mile difference between forums and granted defendant's petition to transfer venue; see Mi#er v. $ommer Plaid Creamery, 60 Pa. D. & C. 4th 197, 203-204 (Phila. cry., 2002). The first witness listed by defendant is retired Norfolk Southern employee, Sam Neumeyer. Mr. Neumeyer currently resides in Altoona, Pennsylvania. He would be required to travel 120 miles in order to testify in Carlisle. He would have to travel an additional 120 miles to testify in Philadelphia County. This would require an additional 2 hours of travel time and additional mileage of 240 miles. Norfolk Southern would be required to reimburse Mr. Neumeyer an additional $87.00 over and above what they would have to pay if he provided testimony in Carlisle.7 Thus, the added time, travel and expense to Mr. Neumeyer can be considered no more than an inconvenience and a minor expense and not sufficient basis to support a petition to transfer venue. The next witness listed by defendant is .]effery Harpster who likewise lives in Altoona. As stated above, the witness will be required to travel at least 120 miles to provide testimony in Carlisle. IVlr. Harpster is not entitled to any mileage reimbursement by Norfolk Southern, nor is he entitled to any per diem payment? Thus, the added time, travel and expense to Mr. Harpster can be considered no more than an inconvenience and a minor expense to Norfolk Southern and not sufficient basis to support a petition to transfer venue. 7According to the affidavit of Linda Schreffler, Norfolk Southern would have to pay ~lr. Neumeyer $250.00 per diem for testifying in Cumberland County or in Philadelphia County. Therefore no consideration should be given to this arrangement under the collective bargaining agreement. 8 Mr. Harpster would be entitled to $5.00 per day and $0.07 per mile pursuant to 42 Pa.C.S.A. § 5903. The additional mileage charge to Norfolk Southern would total $16.24. 8 The next three witnesses listed by defendant are two claims agents (Linda Schreffler and Paul Hattie) and the senior general foreman (Donald Paul). Defendant states that Ms. Schreffler and Mr. Har~le will both testify as to the investigation regarding decedent's accident. Plaintiff submits that having two claim agents both testify as to the same investigation would be a needless presentation of cumulative evidence and objectionable under Pa.R.E. 403. Therefore, this court should consider only whether providing testimony in this case would be oppressive to one of these witnesses. It is submitted by plaintiff, that traveling to Philadelphia by Ms. Schreffier or IVlr. Hartle would be nothing more than inconvenient and not oppressive? Defendant indicates that IVlr. Paul will testify that he called 91:L alter learning of the incident from a Schlusser employee. Again, assuming defendants call one of the ElvlS personnel (presumably Ms. Noss since she is more readily available) the need for this testimony is not required. Additionally, the travel time and small additional expense on defendant is nothing more than a mere inconvenience. Finally, defendants intend on calling Todd Bartlett of Central Penn Asphalt and police officers from Enola, Pennsylvania. The depositions of these witnesses have not been taken, nor have any affidavits been provided. According to defendant Mr. Bartlett will provide testimony concerning his interaction with Mr. Sellers prior to the accident, his condition when he was found, and who he 9 Indeed, Shreffler holds the title of Claims Manager for Norfolk Southern's North Region, and supervises claims offices in Pittsburgh, Buffalo, Harrisburg, New .lersey, and Philadelphia, as well as others. She travels to these locations in the regular course of her business. 9 informed. Once again, given the other witnesses listed by defendant, this type of testimony from a lay witness would be cumulative and not necessary. Thus, the court should not give any weight to the inconvenience caused to this particular witness in determining this petition. Likewise, Enola police officers can only testify to matters alter the fact of this incident. Again, this testimony can be elicited from several different witnesses who are able and willing to testify in Philadelphia County without undue burden or oppressiveness. informed. Once again, given the other witnesses listed by defendant, this type of testimony from a lay witness would be cumulative and not necessary. Thus, the court should not give any weight to the inconvenience caused to this particular witness in determining this petition. Likewise, Enola police officers can only testify to matters after the fact of this incident. Again, this testimony can be elicited from several different witnesses who are able and willing to testify in Philadelphia County without undue burden or oppressiveness. When closely reviewing defendant's petition to transfer venue, it becomes apparent that 5 of defendant's witnesses can offer testimony in Philadelphia County without any undue burden or oppressiveness. Defendant's "key" witness from OSHA will not appear at any trial and their other "key" witness has moved to Atlanta, Georgia. Thus, no consideration should be given to the inconvenience caused to these witnesses. The other witnesses defendant relies upon in support of its petition are merely inconvenienced and not unduly burdened. Therefore, defendants have failed to meet their burden of proof to transfer this case and defendant's petition must be denied. Finally, defendant has also indicated that if a viewing of the scene would be required, it would be oppressive to bus a jury 120 miles from Philadelphia to Enola for a viewing. While plaintiff tends to agree that this would be inconvenient for ail involved, plaintiff respectfully submits that in this particular case a viewing of the scene of this accident will not be required. Initially it must be noted that site views are seldom necessary. See Johns v. F/rst Un/on 10 £orporat/on, 777 A.2d 489, 492 (Pa. Super. 2001). This is especially true in the instant case. The decedent was killed when a 3900 pound steel ramp fell and crushed his mid section. Thus this accident involves a transitory condition which a viewing would not be required. A viewing of the accident site would not provide the jury with any additional information or insight which would assist them in resolving this case. Additionally, there have been over 30 photographs taken of the scene and the ramp in question. A site view is a very remote possibility and that factor should be given little weight by this Court in determining this petition to transfer venue. WHEREFORE, the plaintiff respectfully requests that this Honorable Court deny defendant's petition to transfer venue to the Court of Common Pleas of Cumberland County. Respectfully submitted, GILARDI, COOPER & LOMUPO Richard P. Gilardi Attorney for Plaintiff 11 CERT~'F?CATE OF SERVZCE ! hereby certify that a true and correct copy of BR]EF IN SUPPORT OF PLAINTIFF'S REPLY TO DEFENDANTS PE'IT~ON TO TRANSFER VENUE UNDER PA. R.C.P. 1006(d)(1) was served upon the following via first class mail, postage prepaid on this 7th day of.1uly, 2004: TO: Craig .1. Staudenmaier, Esquire Nauman Smith Shissler & Hall, LLP 200 North Third Street, P. O. Box 840 Harrisburg, PA 17108-0840 Richard P. Gilardi, Esquire Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA PAMELA MARIE SELLER, administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff, vs. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant. Case No. 005089 AFFIDAVTI- OF THOMAS HOFFMAN COMMONWEALTH OF PENNSYLVANIA COUNTY OF BLAIR SS : I, Thomas Hoffman, being duly sworn according to law, deposes and says that 1. I currently reside in Blair County, Pennsylvania. 2. I was employed by Norfolk Southern Railway Company on November 18, 2002. 3. I have knowledge of facts and circumstances that occurred prior to Mr. Sellers' accident, and I have knowledge of facts and circumstances subsequent to Mr. Sellers' accident. 4. If I were called to testify at a deposition or trial in Philadephia County regarding this matter it would not be oppressive. THOMAS H~AN SWORN TO and subscribed before me this ~/~6 day of ~ ,2004 MY COMMISSION EXPIRES: NOTARIAL SEAL NANCY A, FORR, Notary Public City of Altoona, Blair County My Commission Expires December 12, 200! IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA PAMELA MARIE SELLER, administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff, VS, NORFOLK SOUTHERN RA]~LWAY COMPANY, De~ndant. Case No. 005089 AFFIDAViT OF JOHN COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ' SS John Woodward, being duly sworn according to law, deposes and says that 1. I am currently an employee of Norfolk Southern Railway Company. 2. ! have been employed by Norfolk Southern Railway Company since .lune 1, ][999. 3. I have worked at the Enola Yard facility in the Maintenance of Equipment Division for Norfolk Southern since June 1, 1999. 4. Scott Kershaw served as my supervisor at Enola in the capacity of DMMO (Division Manager). 5. Scott Kershaw no longer works out of the Harrisburg or En0ta office. Kershaw was promoted director ol: Mechanical Field Operations in mid-June 2004. In his new capacity as director of Mechanical Field Operations, Kershaw works Out of Norfolk Southern's Atlanta, Georgia office. SWORN TO and subscribed before me this &~ day of .. ~.~/~,~/-- . ,2004 '- Notary Public ~ MY COMMISSION EXPIRES: IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA PAMELA MARIE SELLER, administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff, VS. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant. CIVIL DIVISION Case No. 005089 AFFIDAVIT OF MICHAEL NORRIS COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS : I, Michael Norris, being duly sworn according to law, deposes and says that 1. I am the Cumberland County Coroner. I have held my position since 1982. In my position, it is my responsibility to respond to and/or investigate deaths which occur in Cumberland County. My office is located at 6375 Basehore Road, Suite 1, Mechanicsburg, Cumberland County, Pennsylvania. 2. I responded with my Chief Deputy to the call in the Enola Rail Yard regarding Mr. Sellers' accident and assisted with the investigation of the accident. 3. If I were called to testify at deposition and/~se jn Philadelpia County it would not be oppressive. ~//~ ~ MICHAEL NORRIS SWORN TO and subscribed before me this Notary Public /./ MY COMMISSION EXPIRES: Anne Carmod,~ Notary Publ c [~echgnicsburg Boro, Cumberland Coun Y ": "Con,mission Expires Expires Mar. 11, 2036 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA PAMELA MARIE SELLER, administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff, VS. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant. ] ] ] ] ] ] ] ] ] ] ] Case No. 005089 AFFIDAVIT OF KAREN NOSS COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND : SS I, Karen Noss, being duly sworn according to law, deposes and says that 1. I am currently employed by the East Pennsboro Ambulance Service as an Emergency Medical Technician. 2. I was employed by the East Pennsboro Ambulance Service as an Emergency Medical Technician on November 18, 2002. 3. I responded to a call at the Enola Rail Yard regarding Dennis Sellers on November 18, 2002. 4. I was part of a two member crew with Lisa Kepes. 5. If I were called to testify in this matter a,t a~n orltrial~n Philadephia County it would not be oppressive· ~~y Karen Noss cNTO and subscribed before me this day of ~/Jz..~/¢~- ,2004. ~ Notary Public (,/ MY COMMISSION EXPIRES: r,'echanicsburg Boro, Cumberland County J i"~] C( rnmission Expires Expires Mar. 11,2oo61 Pennsylvania EMS Report Service Name Unit No. East Pennsboro Ambulance Service 2101802 Incident Location MCD Norfolk/Southern Train Yard, Class I, Trlpg784 21909 Patient Name Phone No. ~ Dearns Sellers (814) 695-8054 ~ Street Address ~ R R 2, Box 462 A #1 Noss, Karen ~l~ City State Zip A #2 Kepes, Lisa Hollidaysburg PA 16648 A #3 g ALS Unit Membership A #4 " I ~ No ~ Private Physician Out On-Scene 116469 116471 Transporting Assist Units I OS Time I Medical Command Physician Chief Complaint: I DOA Current Meds: not known Allergies (reeds): not knoval PCR No. 0201866 Receiving Agency Holy Spirit Hospital Age Date of Birth 49 Yeats 01/17/1953 Crew E 144927 E 000866 Dest. In 116~76 116479 MCC County Incid. NO. Date 117893 111/18/2002 Social Sec. No. Sex 64-44-4238 Ma e Times Dispatch I1:35 Enroute 11:36 Arrive Scene l 1:43 Contact 11:45 Depart Scene 12:52 Arrive Facility 13:04 Available 13:10 In Quarters 13:15 Narrative PMHx: not known DID class one along with Medic 85 to the above location for immediate response due to unknown conditions. Additional information: Train yard, car shop in the middle of yard, male, something fell on him. Unknown if trapped. While enroute to the incident county came back and advised that they did lift the object off the man with a fork-lift. Could be a class 4 patient. AOS: To find a 49 y/o male lying underneath a metal ramp which was being held up by a fork-lift. The man was not moving and was making no sounds upon our approach. There was a wrench lying in the crook of his R arm, resting on his side/stomach area. HPI: A co-worker on the scene stated that someone came to get him and told him that there was a man lying underneath a steel ramp in the yard. The man, who stated that he was a supervisor, ran around the yard and found his co-worker lying under the ramp. The supervisor ran and got a fork-lift which he used to lift the ramp, which he stated weighed about 8,000 to 9,000 pounds, off the man. 911 was called. PE: The male was lying on his back underneath a steel ramp which was lifted off him approximately 1 to 2 feet. A carotid pulse was assessed by A2 and none was found. A radial pulse was also checked to find none. A1 auscultated the male's chest and negative head tones were heard. At that time EMS called county and requested the coroner to the scene.¥EMS remained on the scene awaiting the coroner. PD arrived on the scene and offered any help. Once the coroner arrived, all the information EMS had obtained was relayed to him. The coroner then asked EMS if we could transport the body to the hospital morgue as he didn't want to call a funeral home and have them drive their vehicle to our location as it was in the middle of the train yard. EMS agreed, and once the coroner was finished with his work the body was placed into a body-bag, lifted onto the litter, secured and placed into the back of the ambulance. The body was then taken to the back loading area of the hospital. The coroner had alerted security and a member of the security staff met us at the entranceway and with his assistance the bodywas taken into the morgue. Ambulance 2-75 then went available without incident. kmn144927 11:45 11:47 12:47 I2:52 / / crew in contact with male crew body assessed for sign of al/a2 life/none found body into bag, on litter, into crew/cot back of ambulance oner depart for HSH morgue ~x. crew Printed On: 11/18/2002 13:55 EMStat Reporting(e) 1998-2002, Meal-Media, Inc All Rig Provider CERTZFTCATE OF SERVZCE I hereby certify that a true and correct copy of PLAINTIFF'S REPLY TO DEFENDAN'I"S PETITION TO TRANSFER VENUE UNDER PA. R,C.P. 1006(d)(1) was served upon the following via first class mail, postage prepaid on this 7th day of July, 2004: TO: Craig ]. Staudenmaier, Esquire Nauman Smith Shissler & Hall, LLP 200 North Third Street, P. O. Box 840 Harrisburg, PA 17108-0840 Richard P. Gilardi, Esquire Attorney for Plaintiff Sent By: G21and2 Coopen Lomupo; 412 391 9780; Jul-B-04 2:18PM; Page 3/6 IN THE COURT OF COMMON PLF_ASOF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SELLERS, administratri× of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff, VS. NOPJ:OLK SOUTHERN RAILWAY COMPANY, Defendant. Case No, 03-09-005089 Control Number: 061765 PLAI'NTI'FF'S SUPPI I::MI::NTAL EXHI'BTI' TO _HER REPLY TO DFFFNDANT'S PETZTZON TO TRANSFI::R VI::NUE UNDER PA.ILC.P. 1006 NOW COMES the plaintiff by and through her attomeys, Gilardi, Cooper & Lomupo and Richard P. Gilardi, and McEIdrew & Fullam and .lames 3. McEIdrew, III, Esquire and files the following Supplemental Exhibit to Plaintiffs Reply To Defendant's Petition to Transfer Venue Under Pa.R.C.P. 1006: 1) Letter of Mark V. Swirsky, Attorney for the Department of Labor, Philadelphia, Pennsylvania Branch. Respectfully submitted, GILARDI, COOPER & LOMUPO Richard P. Gilardi Attorney for Plaintiff Court of Common Pleas of Philadelphia County Trial Division Civil Cover Sheet PAMELA MARIE SELLERS, ADMINSTRATRIX R.R. 2, BOX 462 Hollidaysburg, PA 16648 SEPTEMBER 200, 005059 NORFOLK SOUTHERN RAILWAY COMPANY Three Commercial Plaza Norfolk, VA 23510 AMOIJNT IN CONTROVERSY COURT PROGRAMS [] $50,00000 or less [] Arbitration [] More than $50,00000 [] Jury ] Non-Jury -'1 Other: [] Complaint [] Petition Action [] Notice of Appeal [] Writ of Summons [] Iransfer From Other Jurisdictions [] Mass Tort [] Commew~e [] Settlement [] Savings Action [] Minor Cour~ Appeal [] Minors [] Petition [] Statutory Appcals [] W/D/Survival 2F Personal Injury - FELA STATUTORY BASIS FOR CAUSE OF ACTION (SEE INSTRUCTIONS) TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Plaintiff/Petitioner/Appellant: Papers may be served at the address set forth below. William L. Keller, Esquire (215) 735-8780 12,798 [ (215) 735-5126 Philadelphia, PA 19102 DATE October 1, 2003 Yes No IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA PAMELA MARIE SELLERS, administratrix of the estate of DENNIS ROBERT SELLERS, deceased, PLAINTIFF, NORFOLK SOUTHERN RAILWAY COMPANY, Defendant. CZVI'L DTVZSI'ON 8EiaTEMBER ~)007 CASE NO. 005089 PLEADING: COMPLAINT CODE: 005 FILED ON BEHALF OF: Plaintiff COUNSEL OF RECORD FOR THIS PARTY: Richard P. Gilardi, Esquire PA I.D. # 66973 GILARDI & COOPER The Benedum Trees Building, 10th Floor 223 Fourth Avenue Pittsburgh, PA 15222 (412) 391-9770 William L. Keller, Esquire William L. Keller & Associates, P.C. Suite 1900, 1528 Walnut Street Philadelphia, PA 19102 (215) 735-8780 PAMELA MARIE SELLERS, adminstratrix of the estate of DENNIS ROBERT SELLERS, deceased, R.R. 2, Box 462 Hollidaysburg, PA 16648 V. NORFOLK SOUTHERN RAILWAY COMPANY Three Commerce Plaza Norfolk, VA 23510 COURT OF COMMON PLEAS PHILADELPHIA COUNTY TERM, 2003 NO. SEPTEMBER 2003 Civil Action 2F - Personal Injury - FELA NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney, and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. PHILADLEPHIA BAR ASSOCIATION Lawyer Referral and Information Service One Reading Center Philadelphia, Pennsylvania 19107 Telephone: (215) 238-1701 AVISO Le ban demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las p~iginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha do la demanda y la notificaci6n. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escdta sus defensas or sus objeciones a las demandas en contra de su personA. Sea avisado que si usted no se defiende, la corte tornar:i medidas y puede continuar la demanda en contra suya sin previo aviso o notificaci6n. Adem,Ss, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero or sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICO, VAYA EN PERSONA O LLAME POR TELI~FONO A LA OFICINA CUYA DIRECCI(SN SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. ASOCIACI(SN DE LICENCIADOS DE FILADELFIA Servicio De Referencia E lnformaci6n Legal One Reading Center Filadelfia, Pennsylvania 19107 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SELLER, administratrix of ] the estate of DENNIS ROBERT SELLERS, ] deceased, ] 1 Plaintiff, ] ] VS. l ] NORFOLK SOUTHERN RAILWAY ] COMPANY, ] ] Defendant. ] Case No. SEPTEMBER 200? COMPLA?NT NOW COMES the plaintiff by and through her attorneys, Gilardi, Cooper & Lomupo and Richard P. Gilardi, and William L. Keller & Associates, P.C., and William L. Keller, Esquire andclaims damages of the defendant upon the following cause of action; FIRST: The plaintiff, Pamela Marie Sellers, is an adult individual who resides in Hollidaysburg, Blair County, Pennsylvania, at all times relevant hereto. The plaintiff is the administratrix of the estate of Dennis Robert Sellers, deceased, having been appointed by the Register of Wills of Blair County, Pennsylvania, on December 9, 2002, at Number 2002-00751. SECOND: Defendant, Norfolk Southern Railway Company, is a railroad incorporated in the State of Virginia and doing business in Philadelphia County, Philadelphia, Pennsylvania, at all times relevant hereto. THIRD: At all times relevant to this suit, the defendant was a common carrier of freight for hire and by rail and was engaged in interstate commerce. FOURTH: At all times relevant to this suit, the plaintiff and the defendant were engaged in interstate commerce or in activities which substantially affected or were in the furtherance of interstate commerce. FIFTH: Jurisdiction is conferred upon this court under and by virtue of the provisions of the Federal Employers' Liability Act, the Safety Appliance Act and the Boiler Inspection Act. SIXTH: All of the property, equipment, and operations involved in the accident herein referred to were owned and under the control of the defendant, its agents, servants and/or employees. SEVENTH:. On or about November 18, 2002, Plaintiff was employed by Defendant as a carman at Defendant's Enola Rail Yard. On the aforementioned date, Plaintiff was performing his duties as a car repairman when he was suddenly and unexpectedly crushed by a tractor trailer ramp with the result that Decedent, Dennis Robert Sellers, sustained severe and serious injuries which ultimately caused his death. E]-G/-IT~ The injuries and damages which the plaintiff has suffered as hereinafter set forth were caused by the negligence of the defendant, acting through its agents, servants and employees who were then and there engaged within the scope of their employment, contributing in whole or in part to the plaintifCs injuries and damages, in general and in the following particulars: a) Zn negligently violating the Federal Employers' Liability Act, the Safety 2 Appliance Act, the Boiler Inspection Act, and federal safety regulations; b) In negligently failing to provide the decedent with a reasonably safe place in which to work; c) In negligently failing to warn the plaintiff of the existence of the dangerous condition of the tractor trailer ramp; d) In negligently failing to make the equipment reasonably safe to work upon; e) In negligently failing to maintain the said equipment which would protect and safeguard plaintiff; f) In negligently assigning plaintiff work outside of his craft; g) In negligently failing to have a specific Iockout/tagout procedure for working on a tractor trailer ramp; h) In negligently failing to utilize energy control procedures; i) Tn negligently failing to warn the plaintiff of energy-related hazards associated with work on the tractor trailer ramp; j) In failing to provide the plaintiff with locks, tags, chains, wedges, key blocks, adapter pins, self-locking fasteners or other hardware necessary to isolate, secure and block the tractor trailer ramp from energy sources; k) In negligently failing to provide plaintiff-decedent with any means of controlling energy sources; I) Tn negligently failing to eliminate stored or residual energy from the tractor trailer ramp; m) l:n negligently failing to utilize a safe and sufficient energy control procedure; n) Tn negligently failing to appropriately train the plaintiff with respect to energy control on the tractor trailer ramp; o) In negligently failing to conduct a job briefing prior to assigning the decedent to work on the tractor trailer ramp; p) In negligently failing to retrain the decedent prior to changing the decedent's job assignment and assigning him to the tractor trailer ramp; q) In negligently failing to assign the decedent with the appropriate man power with which to do the job; r) In failing to warn, handle or discuss with the decedent certain hazards associated with work on the tractor trailer ramp when the defendant knew, or in the exercise of reasonable care, should have known that work on the ramp presented a danger; s) In failing to provide plaintiff was locks and tags to be used on the tractor trailer ramp for the purpose of eliminating energy; t) In negligently failing to train the plaintiff on hydraulics; and u) In negligently failing to use due care under the circumstances. NZNTM As a direct and proximate result of the defendant's negligence as aforesaid, the plaintiff sustained severe and serious which caused him conscious pain and suffering and which ultimately led to his death. 4 COUNT ! SURVIVAL ACTION Pamela Marie Sellers, administratrix of the estate of Dennis Robert Sellers, deceased v. Norfolk Southern Railway Company TENTH:. Paragraphs First through Ninth are incorporated as if more fully set forth herein. ELEVENTh. Plaintiff brings this survival action under 20 Pa. C.S.A. Section 3372 and 42 Pa. C.S.A. Section 8302. TWELTI-~. As a direct and proximate result of the negligence of the defendant as aforesaid, the decedent suffered and the defendant is liable to plaintiff for the following damages: a) Decedent's pain and suffering between the time of his injuries and the time of his death; b) Decedent's total estimated total future earning power less his estimated past personal maintenance; c) Decedent's loss of railroad retirement and social security income; d) Decedent's other financial losses as a result of his death; e) Decedent's loss of enjoyment of life; f) Such other damages as are permitted in a survival action. WHEREFORE, the plaintiff claims damages of the defendant in an amount in excess of Fifty Thousand ($50,000.00) Dollars, exclusive of costs and interest. _JURY TRIAL DEMANDED. COUNT I! WRONGFUl. DEATH ACT:~ON Pamela I~larie Sellers, administratrix of the estate of Dennis Robert Sellers, deceased v. Norfolk Southern Railway Company THZRTEENTH: Paragraphs First through Twelfth are incorporated as if more fully set forth herein. FOIJRTEENT~ Plaintiff brings this wrongful death action pursuant to 42 Pa. C.S.A. 8301 and Pa. R.C.P. 2202. ?:ZFTEE'NT~ Decedent is survived by his wife, Pamela Marie Sellers. $~'X7-EENT~ Plaintiff-administratrix is the surviving spouse of decedent and brings this action by the virtue of her appointment as personal representative for the benefit of those persons entitled by law to recover damages for such wrongful death. SEVE/VTEE/VTI-f. The decedent did not bring an action for personal injuries during his lifetime and no other action for the death of the decedent has been brought against the defendant. E.[G:HTEENT~ As a direct and proximate result of the joint and several negligence of the defendants as aforesaid, the plaintiff suffered and the defendants are liable for the following damages: a) Funeral expenses for the decedent; 6 b) Expenses of administration related to the decedent's injuries; c) The plaintiffs' deprivation and injury as a result of the loss of the support, consortium, comfort, counsel, association, care and services of the decedent; d) Such other damages as are permitted in a wrongful death action. WHEREFORE, the plaintiff claims damages of the defendant in an amount in excess of Fifty Thousand ($50,000.00) Dollars, exclusive of costs and interest. JURY TRI~AL DEMANDED. Respectfully submitted, GILARDI, COOPER 8, LOMUPO Richard P. Gilardi, Esquire Attorney for Plaintiff Gilardi Cooper & Lomupo The Benedum Trees Building, 10th Floor 223 Fourth Avenue Pittsburgh, PA 15222 (412) 391-9770 William .]. Keller, Esquire William L. Keller & Associates, P.C. Suite 1900, 1528 Walnut Street Philadelphia, PA 19102 (215) 735-8780 7 VERIFICATION Ch-I~C-OA O~;/¢f-CJ2~ says that ~V¢.~- is the plaintiff in the foregoing action; that the attached Civil Action Complaint is based upon information which ~6: has furnished to ~ counsel and information which has been gathered by ~ counsel in the preparation of the lawsuit. The language of the Complaint is that of counsel and not of plaintiff. Plaintiff has read the Complaint and to the extent that the Complaint is based upon information which ~(: has given to ~----.¢- counsel, it is true and correct to the best of ~ Knowledge, information and belief. To the extent that the content of the Complaint is that of counsel,~ has relied upon counsel in making this verification. I understand that my statements are made subject to 18 Pa. C.S. §4904 providing for criminal penalties for unsworn falsification to authorities. OCT o a'i)~~/~ ~u03 ~ ~4c/Vb./L WILLIAM L. KELLER & ASSOCIATES, P.C. By: William L. Keller, Esquire Identification No.: 12798 Suite 1900 1528 Walnut Street Philadelphia, PA 19102 (215) 735-8780 Attorney for Plaintiff PAMELA MARIE SELLERS, administratrix of the estate of DENNIS ROBERT SELLERS, deceased VS. NORFOLK SOUTHERN RAILWAY COMPANY :COURT OF COMMON PLEAS : PHILADELPHIA COUNTY : SEPTEMBER TERM, 2003 : NO. 005089 RETURN OF SERVICE Service of original process was made by U.S. Certified Mail, Return Receipt Requested, on October 15, 2003, during ordinary business hours upon an agent designated by Defendant, Norfolk Southern Railway Company c/o CT Corporation at their offices located at 1515 Market Street, Suite 1210, Philadelphia, PA 19102. Attached hereto is a copy of the return receipt signed by Defendant's authorized agent. WILLIAM L. KELLER & ASSOCIATES, P.C. WILLIAM L. KELLER, ESQUIRE Attorney for Plaintiff r · CompleteJtems 1, 2, and 3. A so comp eta · item 4 if Restricted Delivery is desired. · Print your name and address on the reverse so that 'we can return the card to you. · Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: ~' b~ I~1 o , 2, Article Number I (Trans~.r from service label) PS Form 381 1, August 2001 A. Signatur~ x. James C. Pierce [] Agent [] Addressee B. Received[b~C(]P~,~d~) C. Date of Delivery D. Is deli . item 17 I f y E"S ,~ Cd ererer~f~r(~b elo w:[] r-lyes No 3. Se ice Type ~[~Certified Mail [] [~xpress Mail [] Registered [~Return Race pt for Merchand se; [] Insured Mail [] C,O,D. 4. Restricted Delivery? (Extra Fee) [] Yes 7002 0510 0~301 0257 4651 Dom~ Receipt .. 102595-01 -M-2509 I / t .... Craig J. Staudenmaier, Esquire Supreme Court ID# 34996 NAUMAN, SMITH, SHISSLER & HALL, LLP 200 North Third Street, P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Telefax: (717) 234-1925 Norfolk Southern Railway Company IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SELLERS, Administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff NORFOLK SOUTHERN RAILWAY COMPANY, Defendant PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Craig J. Staudenmaier, Esquire, and Dennis E. Boyle, Esquire, of Nauman, Smith, Shissler & Hall LLP on behalf of Norfolk Southern Railway Company in the above-referenced proceeding. All documents in this matter should be served on me at the address set forth below. Date: October_c~,~., 2003 NAUMAN, SMITH, SHISSLER & HALL, LLP By: Cra~, Esquire Supreme~ourt ID# 34996 200 North Third Street, P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Counsel for Norfolk Southern Railway Company, Defendant CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Craig J. Staudenmaier, Esquire, of the firm of Nauman, Smith, Shissler & Hall, LLP, hereby certify that I this day served the foregoing "Praecipe for Entry of Appearance" by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed to the following: Richard P. Gilardi, Esquire Gilardi, Cooper & Lomupo The Benedeum Trees Building Tenth Floor 223 Fourth Avenue Pittsburgh, PA 15222 William L. Keller, Esquire William L. Keller & Associates, P.C. Suite 1900, 1528 Walnut Street Philadelphia, PA 19102 Date: October ~.~,K. ~, 2003 NAUMAN, SMITH, SHISSLER & HALL, LLP By: Cr~, Esquire Supreme Court ID# 34996 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SELI~RS, Administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaimiff NORFOLK SOUTHERN RAILWAY COMPANY, Defendant Case No. 005089 PLEADING: Answer to Complaint with New Matter CODE: FILED ON BEHALF OF DEFENDANT COUNSEL OF RECORD FOR THIS PARTY: Craig J. Staudenmaier, Esquire Supreme Court ID# 34996 NAUMAN, SMITH, SHISSLER & HALL, LLP 200 North Third Street, P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Telefax: (717) 234-1925 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SELLERS, Administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff NORFOLK SOUTHERN RAILWAY COMPANY, Defendant Case No. 005089 PLEADING: Answer to Complaint with New Matter CODE: TO: NOTICE TO PLEAD Pamela Made Sellers, Administratrix of the Estate of Dennis Robert Sellers, deceased, and to her attorneys, Richard P. Gilardi, Esquire, and William L. Keller, Esquire You are hereby notified to plead to the enclosed New Matter within twen .ty (20) days from the service hereof or a default judgment may be entered against you. NAUMAN, SMITH, SHISSLER AND HALL, LLP Date: October 31, 2003 by: aier, Esquire Suprefiae Court ID#34996 200 North Third Street P.O. Box 840 Harrisburg, PA 17108 Telephone: 717/236-3010 Counsel for Defendant, Norfolk Southern Railway Company 1N THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SELLERS, Administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff NORFOLK SOUTHERN RAILWAY COMPANY, Defendant Case No. 005089 PLEADING: Answer to Complaint with New Matter CODE: DEFENDANT, NORFOLK SOUTHERN RAILWAY COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER NOW COMES the Defendant, Norfolk Southern Railway Company ("Norfolk Southern'), by and through its counsel, Nauman, Smith, Shissler & Hall LLP, and files the following Answer with New Matter to Plaintiff's Complaint: 1. After reasonable investigation, Norfolk Southern is without knowledge or information sufficient to form a belief as to the truth of these averments, and proof there of is demanded. 2. Admitted in part and denied in part. It is admitted that Norfolk Southern Railway Company is a railroad incorporated in the State of Virginia and that it, from time to time, does business within Philadelphia County, Pennsylvania. It is denied that any transaction or occurrence involved in this lawsuit occurred within Philadelphia County, and it is further denied that Philadelphia County is a proper venue for the action. To the contrary, Philadelphia County is a 1 burdensome and oppressive venue for the action as all of the witnesses and other relevant evidence in the case occurred or are located in and around Cumberland County, Pennsylvania. 3. Admitted. 4. The averments of Paragraph 4 are legal conclusions to which no responsive pleading is required. To the extent a answer may be determined to be required, they are denied in accordance with Pa.R.C.P. 1029(e). 5. The averments of Paragraph 5 are legal conclusions to which no responsive pleading is required. To the extent a answer may be determined to be required, they are denied in accordance with Pa.R.C.P. 1029(e). 6. After reasonable investigation, Norfolk Southern is without knowledge or information sufficient to form a belief as to the truth of the averments, as Plaintiff has failed to specify what "property, equipment and operations" are alleged, and proof thereof is demanded. 7. Admitted in part and denied in part. It is admitted that on or about November 18, 2002, Dennis Sellers was employed by Norfolk Southern as a carman at its Enola Rail Yard. It is further admitted that on or about November 18, 2002, Dennis Sellers died. As to the remaining averments of paragraph 7, after reasonable investigation, Norfolk Southern is without knowledge or information sufficient to form a belief as to the truth of the averments, and proof thereof is demanded. 8. The averments of paragraph 8 are denied in accordance with Pa.R.C.P. 1029(e). By way of further answer, it is specifically denied that at any time relevant hereto, Norfolk Southern or any of its agents, servants or employees, acted or failed to act in a negligent manner or that any act or omission of Norfolk Southern, its agents, servants or employees, caused or contributed in any manner to the injuries and death of Plaintiff's decedent. 9. It is specifically denied that at any time relevant hereto, Norfolk Southern or any of its agents, servants or employees, acted or failed to act in a negligent manner or that any act or omission of Norfolk Southern, its agents, servants or employees, caused or contributed in any manner to the injuries and death of Plaintiff's Decedent. As to the remaining averments o fparagraph 9, after reasonable investigation, Norfolk Southern is without knowledge or information sufficient to form a belief as to the truth of the averments, and proof thereof is demanded. 10. reference. 11. COUNT I SURVIVAL ACTION Pamela Marie Sellers, administratrix of the estate of Dennis Robert Sellers, deceased v. Norfolk Southern Railway Company The answers set forth in paragraphs 1 through 9 above are here incorporated by The averments of paragraph 11 are legal conclusions to which no responsive pleading is required. To the extent a answer maybe determined to be required, they are denied in accordance with Pa.R.C.P. 1029(e). It is further denied that Plaintiff possesses any cause of action against Norfolk Southern under the statute set forth. 12. The averments of paragraph 12 are legal conclusions to which no responsive pleading is required. To the extent an answer may be determined to be required, it is denied that any act or omission of Norfolk Southern, its agents, servants or employees was negligent, and it is further specifically denied that any act or omission of Norfolk Southern, its agents, servants or employees, 3 caused or contributed, in whole or in part, to the injuries or death of Plaintift?s decedent. The averments of paragraph 12 are further denied in accordance with Pa.R.C.P. 1029(e). WItEREFORE, Norfolk Southern Railway Company, Defendant, demands judgment in its favor and against Pamela Made Sellers, Admin/stratrix of the Estate of Dennis Robert Sellers, Deceased, Plaintiff, as to any and all claims set forth in Count I of the Complaint. COUNT II WRONGFUL DEATH ACTION Pamela Marie Sellers, administratrix of the estate of Dennis Robert Sellers, deceased v. Norfolk Southern Railway Company 13. reference. 14. The answers set forth in paragraphs 1 through 12 above are here incorporated by The averments of paragraph 14 are legal conclusions to which no responsive pleading is required To the extent a answer may be determined to be required, they are den/ed in accordance with Pa.R.C.P. 1029(e). It is further denied that Plaintiff possesses any cause of action against Norfolk Southern under the statute set forth. 15. After reasonable investigation, Norfolk Southem is without knowledge or information sufficient to form a belief as to the truth of the averments, and proof thereof is demanded. 16. After reasonable investigation, Norfolk Southern is without knowledge or information sufficient to form a belief as to the truth of the averments, and proof thereof is demanded. 17. Upon information and belief, paragraph 17 is admitted. 18. The averments of paragraph 18 are legal conclusions to which no responsive pleading is required. To the extent a answer may be determined to be required, it is specifically denied that 4 any act or omission of Norfolk Southern, its agents, servants or employees was negligent, and it is further specifically denied that any act or omission of Norfolk Southern, its agents, servants or employees, caused or contributed, in whole or in part, to the injuries or death of Plaintiff's decedent. The averments of paragraph 18 are further denied in accordance with Pa.R.C.P. 1029(e). WHEREFORE, Norfolk Southern Railway Company, Defendant, demands judgment in its favor and against Pamela Made Sellers, Administratrix of the Estate of Dennis Robert Sellers, Deceased, Plaintiff, as to any and all claims set forth in Count II of the Complaint. 19. referenced. 20. NEW MATTER The answers set forth in paragraphs 1 through 18 above are here incorporated by Plaintiff has failed to state a cause of action against Norfolk Southern upon which relief can be granted. 21. Norfolk Southern denies that the Federal Safety Appliance Act, 45 U.S.C. §§ 1-21 inclusive has any application to the within proceeding. 22. Norfolk Southern denies that the Federal Boiler Inspection Act, 45 U.S.C. § 22, et seq., has any applicability to the within proceeding. 23. Plaintiff has failed to state a cause of action under the provisions of the Federal Employers Liability Act, 45 U.S.C. § 51, et seq. If Plaintiff and/or Plaintiff's decedent suffered injuries, damages and/or losses, all such injuries, damages and/or losses being specifically denied, said injuries, damages and/or losses were caused, either in whole or in part, by the negligence, carelessness and/or recklessness of Plaintiff, s decedent. 24. To the extent any wage loss and/or medical or other expense of Plaintiffs decedent has been reimbursed by Norfolk Southern, Plaintiff may not assert a claim for such payments. 25. Any action or failure to act on the part of Norfolk Southern, its agents, servants or employees, was not a cause, either in whole or in part, of any injuries, damages and/or losses alleged to have been sustained by Plaintiff and/or Plaintiff's decedent, all such injury, damage and/or loss being specifically denied. At all times relevant hereto, Plaintiff s decedent was provided with a reasonably safe 26. place to work. 27. The incident alleged, if in fact it occurred as alleged by the Plaintiff, was not the result of the carelessness, recklessness, negligence and/or other fault on the part of Norfolk Southern, its agents, servants or employees, but was due to the carelessness, recklessness, negligence and/or other fault of others over whom Norfolk Southern had no control and is moreover the responsibility of others over whom Norfolk Southern had no control. 28. In the event that the Plaintiff and/or Plaintiffs decedent suffered injuries, damages and/or losses alleged to have been sustained, all such injuries, damages and/or losses being specifically denied, Norfolk Southem avers that such injuries, damages and/or losses were not caused, either in whole or in part, by any act or omission of Norfolk Southern, its agents, servants or employees, but rather by the intervening acts and/or omissions of persons and/or entities other than Norfolk Southern, for whose acts or omissions Norfolk Southem is in no way liable, and therefore Plaintiff and/or Plaintiff's decedent is not entitled to recover from Norfolk Southern. 29. Plaintiff's claims are barred by the statute of limitations. 6 WHEREFORE, Norfolk Southern Railway Company, Defendant, demands judgment in its favor and against Pamela Marie Sellers, Administratrix of the Estate of Dennis Robert Sellers, Deceased, Plaintiff, as to any and all claims set forth in the Complaint. NAUMAN, SMITH, SHISSLER & HALL, LLP By: e r aig j.~S~2~er, -~ squire Supreme ~ourt ID# 34996 200 North Third Street, P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Counsel for Norfolk Southern Railway Company, Defendant Date: October ~ [ ,2003 7 VERIFICATION I, PAUL J. HARTLE, Senior Claim Agent, Norfolk Southern Corporation, am authorized to make this verification on behalf of Norfolk Southern Railway Company, lessee and operator of certain assets allocated to Pennsylvania Lines LLC, successor in interest to Consolidated Rail Corporation, and do make the following statement subject to penalties of 18 Pa.C.S. §4904, relating to unsworn falsifications to authority, and do state that as Senior Claim Agent for Norfolk Southern Corporation, the facts set forth in the foregoing ANSWER WITH NEW MATTER are true and correct to the best of my knowledge, information and belief. Date: October 31, 2003 Senior Claim Agent CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Craig ,l. Staudenmaier, Esquire, of the firm of Nauman, Smith, Shissler & Hall, LLP, hereby certify that I this day served the foregoing "Answer to Complaint with New Matter" by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed to the following: Richard P. Gilardi, Esquire Gilardi, Cooper & Lomupo The Benedeum Trees Building Tenth Floor 223 Fourth Avenue Pittsburgh, PA 15222 William L. Keller, Esquire William L. Keller & Associates, P.C. Suite 1900, 1528 Walnut Street Philadelphia, PA 19102 Date: October 31, 2003 NAUMAN, SMITH, SHISSLER & HALL, LLP Cr ' ier, Esquire Supreme Court ID# 34996 9 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA PAMELA MARIE SELLERS, administratrix of the estate of DENNIS ROBERT SELLERS, deceased, PLAINTIFF, NORFOLK SOUTHERN RAILWAY COMPANY, Defendant. CIVIL DIVISION CASE NO. 005089 PLEADING: PLAINTIFF'S REPLY TO NEW MAI-rER CODE: 005 FILED ON BEHALF OF: Plaintiff FILED PRO PROTHY fl0V 1 ~ 2003 K. LAULE'rrA COUNSEL OF RECORD FOR THIS PARTY: Richard P. Gilardi, Esquire PA I.D. # 66973 GILARDI & COOPER The Benedum Trees Building, 10th Floor 223 Fourth Avenue Pittsburgh, PA 15222 (412) 391-9770 William L. Keller, Esquire William L. Keller & Associates, P.C. Suite 1900, 1528 Walnut Street Philadelphia, PA 19102 (215) 735-8780 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SELLER, administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff, VS. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant. Case No. 005089 REPLY TO NEW IqAI'rER NOW COMES the plaintiff by and through her attorneys, Gilardi, Cooper & Lomupo and Richard P. Gilardi, and William L. Keller & Associates, P.C., and William L. Keller, Esquire and files the following Reply To New Matter: 18. Paragraph 18 of Defendant's New Matter is an incorporation clause to which a responsive pleading is not required. 19. Paragraph 19 of defendant's new matter is hereby denied pursuant to Pa.R.C.P. 1029(e). 20. Paragraph 20 of defendant's new matter is hereby denied pursuant to Pa.R.C.P. 1029(e). 21. Paragraph 21 of defendant's new matter is hereby denied pursuant to Pa.R.C.P. 1029(e). 22. Paragraph 22 of defendant's new matter is hereby denied pursuant to Pa.R.C.P. 1029(e). 23. Paragraph 23 of defendant's new matter is hereby denied pursuant to Pa.R.C.P. 1029(e). By way of further reply, the plaintiff's injuries, damages, and losses did not result from his own conduct but rather, in whole or in part, by defendants' negligence. 24. Paragraph 24 of defendant's new matter is hereby denied pursuant to Pa.R.C.P. ~.029(e). 2§. Paragraph 25 of defendant's new matter is hereby denied pursuant to Pa.R.C.P. 1029(e). By way of further reply, the plaintiff's injuries, damages, and losses resulted, in whole or in part, by defendants' negligence. 26. Paragraph 26 of defendant's new matter is hereby denied pursuant to Pa.R.C.P. 1029(e). By way of further reply, the plaintiff's injuries, damages, and losses did not result from his own conduct but rather, in whole or in part, by defendants' failure to provide plaintiff with a reasonably safe place in which to work. 27. Paragraph 27 of Defendant's New Matter is denied. Defendant's negligence was a factual and legal cause of the Plaintiff's injuries and damages. By way of further reply, it is averred that plaintiff's injuries and damages did not result from the acts of others or from conditions over which defendant had no control. On the contrary, it is averred that decedent's injuries and damages were caused by defendants' negligent breach of its non-delegable duties under the Federal Employers' Liability Act. Accordingly, the Defendant is responsible for the Plaintiff's accident and his resulting injuries, death, losses and damages. 28. Paragraph 28 of Defendant's New Hatter is denied. Defendant's negligence was a factual and legal cause of the Plaintiff's injuries and damages. By way of further reply, it is averred that plaintiff's injuries and damages did not result from the acts of others or from conditions over which defendant had no control, On the contrary, it is averred that decedent's injuries and damages were caused by defendants' negligent breach of its non-delegable duties under the Federal Employers' Liability Act. Accordingly, the Defendant is responsible for the Plaintiff's accident and his resulting injuries, death, losses and damages. 29. Paragraph 24 of defendant's new matter is hereby denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, the plaintiff claims damages of the defendant in an amount in excess of Twenty Five Thousand ($25,000.00) Dollars, exclusive of costs and interest. AFFIDAVIT COMMONWEAL TH OF PENNSYLVANIA ] CO UNTY OF ALLEGHENY ] SS: BEFORE ME, the undersigned authority, a Notary Public, in and for said County and Commonwealth, personally appeared, /0~rl~Z4/3 t~,J' who being duly sworn according to law, deposes and says that the averments of fact contained in the foregoing ~ql~'~t~l'l~/t ~eP/-,~ t(~.ZI./~'I/~ TT~ are true and correct to the best of his knowledge, information ahd belief. Sworn to and subscribed before me this My CommissionExpires: McELDREW & FULLAM, P.C. By: James J. McEldrew, III, Esquire Attorney I.D. 36411 One Liberty Place, Suite 5050 1650 Market Street Philadelphia, PA 19103 (215) 563-8300 Co-Counsel for Plaintiff PAMELA MARIE SELLERS, Administratrix of the Estate of DENNIS ROBERT SELLERS VS, NORFOLK SOUTHERN RAILWAY COMPANY COURT OF COMMON PLEAS PHILADELPHIA COUNTY TO THE PROTHONOTARY: NO. 030905089 ENTRY OF APPEARANCE Kindly enter my appearance as co-counsel for Plaintiff Pamela Marie Sellers, Administratrix of the Estate of Dennis Robert Sellers in the above-captioned matter. Dated: 1/15/04 McELDREW & FULLAM, P.C. JA; ~. i~IcELDREW, III /,/ FII~D O. ~US~LLO IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA PAMELA MARIE SELLERS, administratrix of the estate of DENNIS ROBERT SELLERS, deceased, PLAINTIFF, NORFOLK SOUTHERN RAILWAY COMPANY, Defendant. CIVIL DIVISION CA-SE NO. 005089 PLEADING: NOTICE OF SERVICE OF PLAINTIFF'S ANSWERS TO DEFENDANTS INTERROGATORIES AND RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS CODE: 005 FILED ON BEHALF OF: Plaintiff COUNSEL OF RECORD FOR THIS PARTY: Richard P. Gilardi, Esquire PA I.D. # 66973 GILARDI & COOPER The Benedum Trees Building, 10th Floor 223 Fourth Avenue Pittsburgh, PA 15222 (412) 391-9770 William L. Keller, Esquire William U Keller & Associates, P.C. Suite 1900, 1528 Walnut Street Philadelphia, PA 19102 (215) 735-8780 1N THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA C1VIL DIVISION PAMELA MARIE SELLER, administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff, VS. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant. Case No. 005089 NOTICE OF SERVICE OF PLAINTI]TF'S ANSWERS TO DEFENDANT'S INTERROGATORIES AND RESPONSES TO REOUEST FOR PRODUCTION I hereby certify that Plaintiff's Answers to Defendant's Interrogatories and Responses to Defendant's Request for Production of Documents has been served on the following counsel of record on this 5th day of February, 2004, via first class mail, postage prepaid: Craig J. Staudenmaier, Esquire Nauman Smith Shissler & Hall, LLP 200 North Third Street, P. O. Box 840 Harrisburg, PA 17108~0840 GILARDI COOPER & LOMUPO BY: Richard P. Gilardi Attorney for Plaintiff PHILADELPHIA COURT OF COMMON PLEAS PETITION/MOTION COVER SHEET FOR COURT USE ONLY ASSIGNED TO JUDGE: ANSWER/RESPONSE DATE: Do not send Judge courtesy copy of Petition/Motion/Answer/Response. Status may be obtained online at http://courts.phila, gov Pamela Marie Sellers, Administratrix, Estate of Dennis Sell~jb ~ S 2004 VS, Norfolk Southern Railway Company INDICATE NATURE OF DOCUMENT FILED: [] Petition (Anach Rule to Show Cause) [] Motion [] Answer to Petition [e'] Response to Motion TYPE OF PETITION/MOTION (soo list on reverse sido} CONTROL NUMBER: (RESPONDING PARTIES MUST INCLUDE THIS NUMBER ON ALL PILINGS) September Term, 200~3 Month Year No. 005089 Name of Filing Party: Norfolk Southern Railway Company (Check one) [] Plaintiff [] Defendant CivilAdministration(Ch~k one) ~] Movaat [] Respo.dent Has another petition/motion been decided in tiffs ease? [] Yes [] No ls another petition/motion pending? [] Yes [] No If the answer to either question is yes, you must identify the judge(s): Brief in Response to Plaintiffs Brief in Reply to Motion to Transfer Venue 1. CASE PROGRAM II. PARTIES MT'II~R Is this ease in the (answer all questions): A. COMMERCE PROGRAM Name of Judicial Team Leader: Applicable Petition/Motion Deadline: Has deadline been previously extended by the Court? []ve~ []No B. DAY FORWARD/MAJOR JURY PROGRAM -- Year .__ Name of Judicial Team Leader: Hon. Sandra Moss Applicable Petition/Motion Deadline: 12./6/2004 Has deadline been previously extended by the Court? C. NON JURY PROGRAM Date Listed: D. ARBITRATION PROGRAM Arbitration Date: E. ARBITRATION APPEAL PROGRAM Date Listed: F. OTItER PROGRAM: Date Listed: III. OTIIER (Name, address and telephone number of all counsel of record and unrepresented parties. Attach a stamped addressed envelope for each attorney of record and uttrepresented party.) James J. McEIdrew, HI McEldrew & Fullam, PC One Liberty Place, Suite 509 1650 Market Street Philadelphia, PA 19103 (215) 563-8300 Richard P. Gilardi Gilardi, Cooper & Lomupo The Benedum Trees Building, 10th Floor 223 Fourth Avenue Pittsburg, PA 15222 (412) 391-9770 By filing this document and signing below, the moving party certifies that this motion, petition, answer or response along with all documents filed, will be served upon all counsel and unrepresented parties as requited by rules of Court (see PA~ R,C.P~ 206.6, Note m 208.2(a). and 440). Furthermore, moving party verifies that the answers made herein are true and correct and understands that sanctions may be imposed for inaccurate or incomplete Renee Liens 84906 (Attorney Signature/Unrepresented Party) (Date) (Print Name) (Attorney I.D. No.) The Petition, Motion and Answer or Response, if any, will be forwarded to the Court after the Answer/Response Date. No extension of the Answer/Response Date will be grant~l even if the parties so stipulate. IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SELLERS, Administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff NORFOLK SOUTHERN RAILWAY COMPANY, No. 03-09-005089 PLEADING: Petition to Transfer Action Defendant : CODE: BRIEF OF NORFOLK SOUTHERN RAILWAY COMPANY, DEFENDANT, IN RESPONSE TO PLAINTIFF'S BRIEF IN REPLY TO DEFENDANT'S MOTION TO TRANSFER VENUE PURSUANT TO PA. R.C.P. 1006(d)(1) I. ARGUMENT The burden which a defendant must meet in a petition to transfer venue is either to show that the plaintiff's choice of forum is vexatious or to show that the choice of forum is oppressive. Cheeseman v. Lethal Extermbmtor, Inc. 549 Pa. 200, 213,701 A.2d 156, 162 (1997). Contrary to Plaintiff's assertion, the chosen forum in Philadelphia County is vexatious and oppressive and is clearly shown in the present case. The Pennsylvania Supreme Court, in Cheese~nan, determined that a vexatious forum is established by showing that the plaintiff's choice of forum was designed to harass the defendant even at some inconvenience to the plaintiff. With the exception of Plaintiff's expert witnesses, all other witnesses are located in Dauphin, Cumberland, or Blair Counties and at least 100 miles away from Philadelphia. The accident occurred in Cumberland County. Plaintiff resides in Blair County and is approximately 230 miles away from Philadelphia, and it should be noted that Plaintiff did not provide an affidavit that it was not oppressive, a hardship or inconvenient for her to attend trial in Philadelphia. There is no logical reason to bring this action in Philadelphia County other than to harass Defendant. This is reiterated by Plaintiff's primary argument against the motion to transfer which is that Defendant should only call the three witnesses~ who do not believe that trial in Philadelphia would be unduly oppressive to them. As previously explained by the Court of Common Pleas of Philadelphia County, in Hartman v. Corporate Jet, Inc., 2001 WL 492444 (2001), the plaintiff's choice of forum is vexatious and constitutes harassment to the Defendant when trial in another county is more convenient to all parties and the majority of the witnesses and all parties and witnesses would expend significant amount of money either for travel and/or lodging and meals. The court noted that the plaintiff's expert was from Philadelphia County; however, no medical care or assistance was provided to Plaintiff in Philadelphia County. The court, therefore, held that venue in Philadelphia County constituted a harassment to ~ These are the coroner (although he did indicate it was inconvenient in Defendant's previously filed affidavit), one EMS technician, and a former Norfolk Southern employee. It would exclude the person who gave Mr. Sellers the work assignment, those persons who initially found him who were not employed by Norfolk Southern, Norfolk Southern employees who responded when they heard of the accident or investigated the accident, as well as, the police officers who responded. the defendant and its witnesses and is also onerous and an unnecessary hardship to the parties. Plaintiff's argument that "because the forum is proper, defendant can not [sic] demonstrate that plaintiff's choice of venue was vexatious" is not supported by law, nor can Plaintiff cite any legal support. If this argument had merit, them would be no need for the Supreme Court to create a "designed to harass" test as defendants would simply argue that the forum was not proper under Pa.R.C.P. 1006(a). In fact, a motion for transfer of venue based upon forum non conveniens assumes that venue was proper in the original jurisdiction. Jackson v. Laidlaw Transit, Inc., 822 A.2d 56, 59, fn. 4 (Pa. Super. 2003). As the Cheeseman Court explained, a thai court, when deciding a petition under Pa.R.C.P. 1006(d)(1), "is faced with the question of whether a transfer of venue of an action, apl>ropriately flied with that forum, to another court in a county of this Commonwealth is necessary for the convenience of parties and witnesses." Id. at 212 (emphasis added). Therefore, Plaintiff's argument that a Plaintiff's forum which is proper cannot be vexatious lacks merit. Furthermore, it should be noted that Plaintiff's denial of Defendant's assertion that she filed her action in Philadelphia County to harass Defendant is answered with a general denial and a statement indicating that venue was proper. Defendant's Motion, p. 17; Plaintiff's Reply, p. 17. Plaintiff does not specifically deny that she did not file her action in Philadelphia County to harass Defendant nor does she provide any other explanation why she filed in Philadelphia County nor any indication of how filing in Philadelphia would be convenient to any of the parties. Plaintiff only improperly argues 3 that it is not vexatious because the venue was proper. Therefore, Plaintiff's choice of forum was chosen to harass Defendant. As an alternative argument in favor of its motion to transfer venue, Plaintiff's choice of forum is oppressive to Defendant. The defendant may meet its burden by establishing on the record that trial in the chosen forum is oppressive to it by showing "that trial in another county would provide easier access to witnesses or other sources of proof, or to the ability to conduct a view of premises involved in the dispute." Cheeseman v. Lethal Exterminator, Inc. 549 Pa. 200, 213, 701 A.2d 156, 162 (1997). Plaintiff argues that "defendant has demonstrated nothing more than mere inconvenience to the defendant and some of their proposed witnesses." Plaintiff's Brief, p. 4. Cheeseman does not require the defendant to prove that trial in the plaintiff's chosen forum is oppressive to all witnesses. In fact, a motion to transfer venue under Pa.R.C.P. 1006(d)(1) is a motion to transfer venue pursuant to forum non conveniens, that is forum not convenient. The standard expressed in Cheeseman is oppressive to the defendant as trial in another county would provide easier access to the witnesses. Trial in Cumberland County would clearly provide "easier access to witnesses." Again, all witnesses, with the exception of Plaintiff's two expert witnesses, are located in Cumberland, Dauphin, or Blair County, which is at least a two-hour drive from the courthouse in Philadelphia. Plaintiff attached affidavits from three of Defendant's fifteen proposed witnesses indicating that trial in Philadelphia would not be oppressive to them. Plaintiff's affidavits did not indicate whether or not trial in Philadelphia would be a hardship on the three witnesses. If fact, Mr. Norris, who is one of the three individuals who signed an affidavit 4 for Plaintiff, previously signed an affidavit which is attached to Defendant's Petition and which indicated that it would be inconvenient for him to travel to Philadelphia. Notwithstanding Plaintiff's affidavits, the burden of traveling to Philadelphia County to testify should not be imposed upon Defendant's other witnesses. As stated in Grace Community, Inc. v. KPMG Peat Marwick, LLP, 60 Pa.D. & C.4th 513 (2002), "it would be oppressive to require these wimesses to travel the nearly 107 miles from their homes and offices in Dauphin County or the 69 miles from Lebanon County to Philadelphia County to testify." Furthermore, as explained by the Court of Common Pleas of Philadelphia County, in Mundy v. Lake Mountain Co., 59 Pa.D.&C. 4th 424 (2001), plaintiff's chosen forum of Philadelphia was an oppressive and vexatious forum where the Carbon County courthouse was only 20 miles from the scene of the accident, whereas the Philadelphia County courthouse was 100 miles from the accident. The court also noted that two of the potential witnesses lived in the Philadelphia area and two lived in West Chester. The defendant had identified 22 wimesses none of which lived in Philadelphia or surrounding counties. The court also noted that "[t]hose employees would have to miss excessive periods from work if they have to travel to Philadelphia for the trial. They could be on- call to come to the courthouse in Jim Thorpe." Id. at 429. The court also reasoned that "plaintiffs offered no evidence that Philadelphia County would be a more convenient forum for anyone but their attorney. We concluded that trial in Philadelphia would be oppressive and vexatious to the defendants." Id. This case is directly on point. The Court of Common Pleas in Cumberland County is approximately a 20 minute drive for the majority of the witnesses and the witnesses could be on-call to testify. The court in Cumberland County is also less than 20 miles from the scene of the accident. Philadelphia would be more than a 100 m/le drive for all of the witnesses, with the exception of Plaintiff's experts, and it would be impossible for any witness to be on-call for testimony. Plaintiff argues that the additional time and expense to the witnesses to drive to Philadelphia "can be considered no more than an inconvenience.., and not sufficient basis to support a petition to transfer venue." As Defendant indicated in its Brief in Support of its motion to transfer and as cited above, there are many cases which have held to the contrary. See, Grace Community, Inc. v. KPMG Peat Marwick, LLP, 60 Pa.D. & C.4th 513 (2002)( 69 rmles was oppressive); Wood v. du Pont de Nemours and Company, 829 A.2d 707 (Pa. Super. 2003) (173 miles was oppressive); Mateu v. Stout, 819 A.2d 563 (Pa. Super. 2003) (trial in Philadelphia was oppressive to the defendant where Delaware County would have provided easier access to the witnesses); Kyra v. EPMG of Pennsylvania, 2001 WL 1704167 (Pa. Super. 2001) ("[f]orcing all essential witnesses, save one, to drive more than 60 miles, including the Schuylkill Expressway, at rush hour twice each day is more than an inconvenience."). Therefore, Plaintiff's argument is without merit. Plaintiff argues that the OSHA compliance officer's testimony is irrelevant to the petition to transfer because Plaintiff's counsel spoke with "someone" who indicated that OSHA would move to quash any subpoena. However, this statement is not supported by any documentation and is contradicted by the letter attached to Plaintiff's brief which indicates that a written application for the compliance officer's testimony must be made to the Department of Labor. 6 Plaintiff also indicates that she has spoken with James Schlusser of Schlusser Enterprise, Inc. and incorporates statements allegedly made by him and by Messers Brown and Zimmerman, but does not attach any affidavits in support thereof, even though in Plaintiff's answer she indicates that an affidavit exists. Plaintiff thereafter argues that it is not necessary for Defendant to call these witnesses. Defendant disagrees and submits that it is Defendant who determines which witnesses the defense will call, not the Plaintiff. Plaintiff spends an inordinate amount of time in her brief specifying what Defendant's trial strategy should be, suggesting the testimony of some of the witnesses would not be necessary, and suggesting which witnesses Defendant should call. Surely, every plaintiff would welcome the opportunity to choose which witnesses a defendant may call at trial. Fortunately, our judicial system is not so prejudiced and the defendant has the right to call any witness which has relevant testimony. Furthermore, defendant ' s requirements for a motion to transfer venue are to plead the name of the proposed witness and facts to which defendant's proposed witness will testify. Argument on the relevance of the testimony is not appropriate during the motion to transfer venue. Furthermore, Plaintiff's argument that "it is very likely" that the witnesses would miss the same amount of work if called to testify in Philadelphia or in Carlisle belies logic. If a person is required to drive an additional four hours, not accounting for rush hour traffic, how would that person miss the same amount of work if he or she drove only a half an hour? Plaintiff also unilaterally decides that a viewing of the scene is not required. However, Plaintiff fails to realize that it is the trial court who decides whether or not a viewing is necessary and not the Plaintiff'. Wood v. du Pont, 829 A.2d 707 (Super. 2003). Mr. Sellers was injured by a piece of equipment which is not easily conceptualized by the average person and the trial judge may determine that a site visit may be necessary for the jury to understand what occurred. Other than Cheeseman, one of the only cases which Plaintiff cites in support of her position is Miller v. Sommer Maid Creamery, 821 A.2d 141 (Pa. Super. 2003) for the proposition that "the mere fact that witnesses must drive over 100 miles is not per se evidence of oppressiveness." However, this case may not be cited as precedent as it was a memorandum opinion. In fact, the citation provided above is the table which specifically provides "[t]hese memorandum opinions cannot be considered as precedent, nor can they be cited for any purpose, except when relevant under the doctrine of law of the case, res judicata, or collateral estoppel .... "Attachment A. As Cumberland County would provide easier access to the witnesses and for the jury to view the site of the accident, Plaintiff's choice of forum was oppressive and venue should be transferred to Cumberland County. II. CONCLUSION Cheeseman sets forth a standard for transfer of venue which may be met by satisfying one of a two prong test. The defendant may either show that the chosen forum is vexatious by showing that it was chosen to harass the defendant, even at an inconvenience to the plaintiff, or the defendant may show that the chosen forum is oppressive to the defendant by showing that the defendant would have easier access to the witnesses and other sources of proof or the jury would have easier access to view the 8 accident site. In the current case, Norfolk Southern has met both tests. The plaintiff's chosen forum was designed to harass Defendant as there is no relation between the current action and the county of Philadelphia. The accident occurred in Cumberland County and all of the witnesses, including the Plaintiff reside and/or work in Cumberland, Dauphin or Blair counties. There is no logical reason, and Plaintiff does not present any reason, to have filed this action in Philadelphia County other than to harass Defendant. Also, the plaintiff's chosen forum is oppressive to the Defendant. Trial in Philadelphia County would require all of the witnesses, with the exception of Plaintiff's expert witnesses, to drive over 100 miles and at least two additional hours one way. It is certain that trial in Cumberland County, which is closer to all of the witnesses, with the exception of PlaintifFs two expert witnesses, and within 30 miles of a majority of the witnesses, would provide easier access to all witnesses. Therefore, it is respectfully requested that the Court grant Defendant, Norfolk Southern Railway Company's Motion to Transfer Venue to Cumberland County under Pa. R.C.P. 1006(d)(1). Date: July 27, 2004 NAUMAN, SMITH, SHISSLER AND HALL, LLP By: Supreme Court IDg34996 Ren6e Lieux, Esquire Supreme Court ID #84906 200 North Third Street P.O. Box 840 Harrisburg, PA 17108 Telephone: 717/236-3010 Counsel for Defendant, Norfolk Southern Railway Company 9 821 A.2d 141 (Table) 821 A.2d 141 (Table) (Cite as: 821 A.2d 141) Page 1 I.I (The decision of the Court is referenced in the Atlantic Reporter in a table captioned "Superior Court of Pennsylvania Decisions Without Published Opinions". Reports of cases decided by the Superior Court in which the order, decree, judgment or decision of the court below was affirmed or otherwise disposed of without opinion or without extended opinion. Beginning with the March 1979 session, the Superior Court adopted a practice of affirming per curiam some cases without a published opinion. However, in most cases a memorandum opinion has been prepared and filed. Copies of these memorandum opinions may be obtained at the clerk's office of the Superior Court in the district in which the case arose. These memorandum opinions cannot be considered as precedent, nor can they be cited for any purpose, except when relevant under the doctrine of the law of the case, res judicata, or collateral estoppel and the memorandum is relevant to a criminal action or proceeding because it recites issues raised and reasons for a decision affecting the same defendant in a prior action or proceeding. When an unpublished memorandum is relied upon, a copy of it must be furnished to the other party and to the Court. (Pa. Super. Ct.R. 65.37.) Superior Court of Pennsylvania. Miller Sommer Maid Creamery NO. 01262EDA02 February 26, 2003 Appeal From: 2049 February T., 2001 (Philadelphia) Disposition: Reversed and Remanded. 821 A.2d 141 (Table) END OF DOCUMENT ATTACHMENT A Copt. © West 2004 No Claim to Orig. U.S. Govt. Works CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Ren6e Lieux, Esquire, of the firm of Nauman, Smith, Shissler & Hall, LLP, hereby certify that I this day served the foregoing "Brief of Norfolk Southern Railway Company, Defendant, in Response to Plaintiff's Brief in Reply to Defendant's Motion to Transfer Venue Pursuant to PA. R.C.P. 1006(d)(1)" by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed to the following: Richard P. Gilardi, Esquire Gilardi, Cooper & Lomupo The Benedeum Trees Building Tenth Floor 223 Fourth Avenue Pittsburgh, PA 15222 William L. Keller, Esquire William L. Keller & Associates, P.C. Suite 1900, 1528 Walnut Street Philadelphia, PA 19102 NAUMAN, SMITH, SHISSLER & HALL, LLP Supreme Court IDg 84906 )ate: July 28, 2004 COURT OF COMMON PLEAS PHILADELPHIA COUNTY PROTHONOTARY'S OFFICE Dear Sir/Madam: By order of the FIRST JUDICIAL DISTRICT, Philadelphia County, COURT OF COMMON PLEAS, the enclosed case(s) are transferred to the COURT OF COMMON PLEAS OF / '///"7,~2,c',~ / ,~//'-/ COUNTY. Accordingly, 1 am enclosing all related filings. I would appreciate the return of the attached green receipt addressed to the attention of: THE PROTHONOTARY'S OFFICE CERTIFICATION UNIT ROOM 266 CITY HALL PHILADELPHIA PA 19'107 ATTENTION: JOSEPH MANGINI If you have any questions, please call 215-686-6663. Very truly yours, Joseph Manglni IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PAMELA MARIE SELLERS, Administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff, Vo NORFOLK SOUTHERN RAILWAY COMPANY, De~ndant. CIVIL DIVISION CASE NO. 04-4876 CODE: PLEADING: PETITION FOR PERMISSION TO VOLUNTARILY DISMISS A DEATH CASE WITHOUT PREJUDICE FILED ON BEHALF OF: Plaintiff COUNSEL OF RECORD FOR THIS PARTY: Richard P. Gilardi, Esquire PA I.D. # 66973 GILARDI, COOPER & LOMUPO The Benedum Trees Building, 10a Floor 223 Fourth Avenue Pittsburgh, PA 15222 (412) 391-9770 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SELLERS, Administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff, VS. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant. Case No.: 04-4876 PETITION FOR PERMISSION TO VOLUNTARILY DISMISS A DEATH CASE WITHOUT PREJUDICE TO: THE HONORABLE JUDGES OF SAID COURT: AND NOW comes the plaintiff, by and through their attorneys, Gilardi, Cooper & Lomupo, and Richard P. Gilardi, Esquire and files the following Petition: 1. This case arises out of an industrial accident which occurred on November 18, 2002 at the Norfolk Southern Rail Yard in Enola, Pennsylvania. The decedent, Dennis Sellers was a 49 year old man who was employed by the Defendant as a carman, and on that day the decedent was performing his duties as a car repairman when he suffered injuries which resulted in his death. 2. This Federal Employers Liability Act (45 UCS §51, et.seq.) case was originally filed in Philadelphia County and was transferred to Cumberland County pursuant to Defendant's Petition to Transfer based on Pa.R.C.P. 1006(d)(1). 3. Plaintiff wishes to have her case heard and tried in the United States District Court for the Middle District of Pennsylvania. The Statute of Limitations in a Federal Employers Liability Act claim is three (3) years from the date of the accident. The Statute of Limitations in this case tolls on November 18, 2005. 4. Plaintiff has filed a complaint with that Court and has been assigned docket number CA No. 4:04-CV-2720. Defendant was served with the Federal Court Complaint on December 17, 2004. 6. Plaintiff respectfully requests this Honorable Court enter an order dismissing plaintiff's state court case without prejudice. 7. There is no prejudice to the Estate of Decedent nor is there any prejudice to the defendant, as the case has been re-filed in the Middle District within the Statute of Limitations. 8. Defense counsel does not have an objection to this Petition. WHEREFORE, plaintiffs request that this case be permitted to be voluntarily dismissed without prejudice pursuant to Pa. R.C.P. §229. Respectfully submitted, GILARDI, COOPER & LOMUPO Richard P. Gilardi, Esquire Attorney for Plaintiff AFFIDAVIT COMMONWEAL TH OF PENNS YL VANIA } CO UNTY OF ALLEGHENY SS: BEFORE ME, the undersigned authority, a Notary Public, in and for said County and Commonwealth, personally appeared, PAM SELLERS who being duly sworn according to law, deposes and says that the averments of fact contained in the foregoing PETITION FOR PERMISSION TO VOLUNTARILY DISMISS A DEATH CASE WITHOUT PREJUDICE are tree and correct to the best of her knowledge, information and belief. PAM SELLERS Sworn to and subscribed before me this ~'~day of %'[Md~, 20~)~ My Commission Expires: Notarial Seal Tara L. Batlaglia, Notaq/Public City Of Pittsburgh, Allegheny County My C, on'~ission Expires Dec. 30, 2006 Member. Pennsylvania Association Of Notaries CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of PETITION FOR PERMISSION TO VOLUNTARILY DISMISS A DEATH CASE WITHOUT PREJUDICE was served upon the following via first class mail, postage prepaid on this 3rd day of January, 2005: TO: Craig J. Staudenmaier, Esquire Nauman Smith Shissler & Hall, LLP 200 North Third Street, P. O. Box 840 Harrisburg, PA 17108-0840 Richard P. Gilardi, Esquire Attorney for Plaintiff \f' JAN 0 6 Z005~. \ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PAMELA MARIE SELLERS, Administratrix of the estate of DENNIS ROBERT SELLERS, deceased, Plaintiff, Case No.: 04-4876 vs. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant. ORDER OF COURT AND NOW, to-wit this ~ day o~, 2005 upon consideration of the foregoing Petition, it is hereby ORDERED, ADJUDGED AND DECREED that the above-captioned case is hereby dismissed without prejudice pursuant to Pa.R.C.P. 229. BY TH~ COURT: / 3 Jf-l , '0~ ~ 1 ~L ~ ~~ ~ f ~ f '" '- "- "- "" '" , b I -c. ! j '~.....', C:; [,r.tf SODZ /\t:-~''l.C(:C: :__':X;d ~:;Hl :t,\ :~<)L-jJO-Q31l:j -