IN THE SUPERIOR COURT OF PENNSYLVANIA
EASTERN DISTRICT
No. 802 EDA 2018
ROBERT MALLORY,
Appellant,
v.
NORFOLK SOUTHERN RAILWAY COMPANY,
Appellee.
____________________________________________________________
RENEWED APPLICATION TO TRANSFER TO SUPREME COURT
Appellee Norfolk Southern Railway Company (“Norfolk Southern”)
respectfully requests that this Court transfer this Appeal to the Supreme Court
pursuant to Pa. R.A.P. 751(a) and 42 Pa. C.S. § 5013(a). Jurisdiction to consider
this appeal and review the trial court’s order is vested exclusively in the Supreme
Court under 42 Pa. C.S. § 722(7), because the trial court’s order is based upon a
determination that a statute of the Commonwealth is unconstitutional. The
procedural history of this appeal, and the legal bases for transferring to the Supreme
Court, are set forth below.
1. On February 7, 2018, the Court of Common Pleas of Philadelphia
County, per the Honorable Arnold New, issued an order (attached as Exhibit A)
sustaining Norfolk Southern’s preliminary objection to Plaintiff/Appellant Robert
Mallory’s Complaint based on lack of personal jurisdiction. Notably, the Order did
not contain an opinion articulating the basis for the decision.
2. Mallory timely filed a Notice of Appeal to the Superior Court from the
February 7, 2018 decision which raised the single issue of whether Norfolk Southern
had consented to jurisdiction by registering to do business in Pennsylvania, pursuant
to 42 Pa. C.S. § 5301.
3. On May 31, 2018, Judge New issued an opinion in support of his
February 7, 2018 ruling, pursuant to Pa. R.A.P. 1925(a) and (b) (attached as Exhibit
B). In this opinion Judge New held that Pennsylvania’s statutory scheme violates
Constitutional principles of Due Process and federalism by mandating that foreign
corporations waive their personal jurisdiction rights and consent to general
jurisdiction as a condition of doing business in the Commonwealth. (Exhibit B, at
14) (“Pennsylvania’s statutory scheme requiring consent to personal jurisdiction
does not comport with federalism as it encroaches our sister states’ power to render
verdicts against their corporate citizens because those corporate citizens do business
in Pennsylvania.”).
4. On September 6, 2018, Judge New issued a Supplemental Opinion
(attached as Exhibit C), that was prompted by an intervening opinion from this
Court, Webb-Benjamin, LLC v. International Rug Group, LLC, No. 1514 WDA
2017, 2018 WL 3153602 (Pa. Super. June 28, 2018). As noted by Judge New, Webb-
Benjamin held that a foreign defendant’s registration under 42 Pa.C.S. § 5301
permits Pennsylvania trial courts to exercise general personal jurisdiction over the
foreign defendant. (Exhibit C at 1) (citing Webb-Benjamin). In his Supplemental
Opinion, Judge New expressed his belief that Webb-Benjamin is distinguishable
from this case because Webb-Benjamin “did not address the federalism concerns
underlying this Court’s decision.” (Exhibit C, at 2). Thus, Judge New emphasized
that his opinion invalidating 42 Pa.C.S. § 5301 was based on constitutional grounds.
5. Accordingly, subject matter jurisdiction of this appeal is vested in the
Supreme Court pursuant to Pa. C.S. Sec. 722(7), which provides that “[t]he Supreme
Court shall have exclusive jurisdiction of appeals from final orders of the courts of
common pleas in … matters where the court of common pleas has held invalid as
repugnant to the Constitution … any statute of this Commonwealth …” (emphasis
added).1
6. Because Judge New’s May 31 and September 6, 2018 Opinions clarify
that the order on appeal is based upon a determination that Pennsylvania’s corporate
registration scheme, which mandates consent to jurisdiction, violates both
Constitutional Due Process and principles of federalism, the Supreme Court has
exclusive jurisdiction of the appeal under 42 Pa.C.S. § 722(7), and this Court should
transfer the appeal to the Supreme Court under Pa.R.A.P. 751(a) and 42 Pa.C.S. §
5103(a).
7. Norfolk Southern previously moved to transfer this appeal, and on
October 29, 2018, the Court denied the motion, without prejudice, to Norfolk
Southern’s right to file a new application to the panel of this Court that will decide
the merits of the appeal (attached as Exhibit D).
8. On February 15, 2019, this Court stayed resolution of this case pending
the result of this Court’s decision in Murray, et al. v. American LaFrance, LLC, et
1
Although Pa.R.A.P. 741 provides that an appellate court may find consent to jurisdiction of an
appeal filed in the wrong court if there is no objection by the date the record is received by the
appellate court, that provision by its terms is discretionary (“…unless the appellate court shall
otherwise order….”). This Court should transfer this appeal even though the objection is after the
receipt of the record, because the constitutional basis of Judge New’s decision was not apparent
until Judge New’s opinion of May 31, 2018, which was not received by Norfolk Southern until the
same day this Court received the record. Furthermore, the General Assembly was specific in
directing that the Supreme Court shall have “exclusive jurisdiction” of appeals from trial court
orders invalidating statutes on Constitutional grounds.
al., No. 2105 EDA 2016, 2020 PA Super 149 (Pa. Super. June 25, 2020). That stay
was lifted on July 10, 2020 (attached as Exhibit E). Therefore, it is expected that
this appeal will shortly be assigned to a merits panel for argument and disposition.
9. In conjunction with this renewed Motion to the panel, notice of the
constitutional challenge at this appellate level will again be given to the Attorney
General in accordance with Pa.R.A.P. 521(a).
10. Accordingly, Norfolk Southern respectfully requests this Court to
transfer this appeal to the Supreme Court.
Respectfully submitted,
BURNS WHITE LLC
By: /s/ Nina W. Gusmar
Nina W. Gusmar, Esquire
Pa. I.D. No.: 83539
Ira L. Podheiser, Esquire
Pa. I.D. No.: 46973
BURNS WHITE LLC
Firm No. 828
The Burns White Center
48 26th Street
Pittsburgh, PA 15222
Phone: 412-995-3000
Counsel for Appellee, Norfolk Southern Railway Company
IN THE SUPERIOR COURT OF PENNSYLVANIA
EASTERN DISTRICT
ROBERT MALLORY, No. 802 EDA 2018
Appellant,
v.
NORFOLK SOUTHERN RAILWAY COMPANY,
Appellee,
PROOF OF SERVICE
I hereby certify that I am this 15th day of July, 2020, serving the foregoing
Application to Transfer to Supreme Court, upon the person indicated below via the
Court’s electronic filing system, which service satisfies the requirements of Pa.
R.A.P. 121:
Daniel C. Levin, Esquire
Levin Sedran & Berman LLP
510 Walnut Street, Suite 500
Philadelphia, PA 19106
(Counsel for Appellant)
Ruxandra Maniu Laidacker, Esquire
Charles Lyman Becker, Esquire
Kline & Specter, P.C.
1525 Locust Street, 19th Floor
Philadelphia, PA 19102
(Counsel for Amicus Curiae)
Sharon L. Caffrey, Esquire
Robert L. Byer, Esquire
Robert M. Palumbos, Esquire
Theresa A. Langschultz, Esquire
Duane Morris LLP
30 South 17th Street
Philadelphia, PA 19103-4196
(Counsel for Amicus Curiae)
James M. Beck, Esquire
Reed Smith LLP
Three Logan Square
Suite 3100
1717 Arch Street
Philadelphia, PA 19103-7301
(Counsel for Amici Curiae)
Andrew J. DuPont, Esquire
Jonathan W. Miller, Esquire
Locks Law Firm
601 Walnut Street, Suite 720 East
Philadelphia, PA 19106
(Counsel for Amicus Curiae)
I also certify that I am serving the foregoing Application to Transfer Supreme
Court to upon the person indicated below via U.S. Mail, which service satisfies the
requirements of Pa. R.A.P. 121:
Honorable Josh Shapiro, Attorney General of Pennsylvania
Pennsylvania Office of Attorney General
Appellate Litigation Section
Strawberry Square
Harrisburg, PA 17120
BURNS WHITE LLC
By:/s/ Nina W. Gusmar
Nina W. Gusmar, Esquire (PA 83539)
Counsel for Appellee, Norfolk Southern Railway Company
