2021 WL 927423

United States District Court, D. Maryland.
CARLA ORTIZ, Individually, and on behalf of her daughter J.L., a minor.
v.
BEN STRONG TRUCKING, INC.
Civil Action No. 18-3230
|
03/11/2021

Catherine C. Blake, U.S. District Court Judge

MEMORANDUM
*1 This tort action arises out of a June 18, 2018 traffic accident on Interstate 95 in Harford County, Maryland, in which John Oliver Terry, Jr., the driver of a tractor trailer operated by defendant Ben Strong Trucking, crashed into the back of plaintiff Ortiz’s car, resulting in physical injuries to Ortiz and permanently debilitating injuries to J.L, her minor daughter. There are four motions pending in this case. The first is the plaintiff’s partial motion for summary judgment against defendants Terry, Ben Strong Trucking, Inc. (“Ben Strong”), Cowan Systems, Inc. (“CSI”), Cowan Systems Transportation, LLC (“CST”) and Cowan Systems, LLC (“Cowan Systems”). (ECF 58). The second is a motion for summary judgment brought by defendants CSI and CST. (ECF 79). In the third and fourth motions, defendants CSI, CST, and Cowan Systems (“the Cowan defendants”) seek leave to file an amended answer to include cross-claims against co-defendants Ben Strong and Terry. (ECFs 53, 55). The motions have been fully briefed and no oral argument is necessary. See Local Rule 105.6 (D. Md. 2018). For the following reasons, the court will deny both of the motions for summary judgment in their entirety and grant both of the motions for leave to amend.

BACKGROUND
The plaintiff filed this action on October 17, 2018. The complaint alleges negligence as to all named defendants, including Terry, Ben Strong, and the Cowan defendants, and negligent hiring as to all defendants other than Terry, on the theory that at the time of the accident, defendant Terry was an agent or employee of Ben Strong and a statutory employee of either Cowan Systems, CSI, or CST.1 At the time of the accident, Terry was transporting a shipment requested by GAF Materials to be delivered to Southborough, Massachusetts. (ECF 1, Compl. ¶¶ 15, 17). The plaintiff alleges GAF Materials had a contract with CSI or another Cowan defendant to act as the motor carrier for the shipment, and that one or multiple of the Cowan defendants assigned Ben Strong to deliver the shipment. (Id. ¶¶ 45–50).

Following the plaintiff’s complaint, Ben Strong’s insurer, Amguard Insurance, filed a complaint of interpleader naming all parties to this action, in addition to several others, as defendants. (Civil Action No. CCB-18-3885, ECF 1). The court consolidated this case with the interpleader action in June 2020. (ECF 61). Also in June 2020, the Cowan defendants’ motions for leave to file amended answers and the plaintiff’s motion for summary judgment were filed. Thereafter, CSI and CST moved for summary judgment. Discovery in this matter is ongoing. (See ECF 106, Scheduling Order).

I. Motions for Summary Judgment

a. Standard of Review
*2 Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (emphases added). “A dispute is genuine if ‘a reasonable jury could return a verdict for the nonmoving party.’ ” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012)). “A fact is material if it ‘might affect the outcome of the suit under the governing law.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Accordingly, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]” Anderson, 477 U.S. at 247–48. The court must view the evidence in the light most favorable to the nonmoving party, Tolan v. Cotton, 572 U.S. 650, 657 (2014) (per curiam) (citation and quotation omitted), and draw all reasonable inferences in that party’s favor, Scott v. Harris, 550 U.S. 372, 378 (2007) (citations omitted); see also Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568–69 (4th Cir. 2015). At the same time, the court must “prevent factually unsupported claims and defenses from proceeding to trial.” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003) (quoting Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 1993)).

b. The Plaintiff’s Motion for Summary Judgment
The plaintiff argues that because defendant Terry pled guilty to a charge of criminal negligence, his negligence is not in dispute and summary judgment should be granted against him and his employer, Ben Strong, and thus also against the Cowan defendants as their “statutory employers” or apparent principals. (ECF 58-3, Pl.’s Mot. at 9). The court will first address the propriety of summary judgment as to Terry and Ben Strong’s negligence and then turn to whether the Cowan defendants are liable for any negligent acts of Terry and Ben Strong as a matter of law.

i. Terry and Ben Strong’s Negligence
The plaintiff seeks to establish Terry and Ben Strong’s negligence solely on the evidence of Terry’s guilty plea; she provides no other evidence to support her motion. Terry pled guilty in the Circuit Court for Harford County, Maryland to one count of criminally negligent manslaughter and one count of second-degree assault for his involvement in the June 18, 2018, accident. (ECF 58-9, Pl. Ex. 4, Terry Guilty Plea Tr. 15:23–16:4). Under Maryland law, a guilty plea in a criminal case “does not conclusively establish liability” in a subsequent civil case. Brohawn v. Transamerica Ins. Co., 276 Md. 396, 403 (1975); see also Crane v. Dunn, 382 Md. 83, 93–94 (2004). Terry’s guilty plea may be admissible as evidence in this case, see Chartis Prop. Cas. Co. v. Huguely, 243 F. Supp. 3d 615, 626–27 (D. Md. 2017); Surran v. Kuntz, No. CV L-06-1380, 2008 WL 11363275, at *4 (D. Md. June 3, 2008), but Terry and Ben Strong must be “given an opportunity to explain [Terry’s] plea[,]” Brohawn, 276 Md. at 404. Ben Strong and Terry argue Terry’s plea was motivated by a desire to avoid the risk of even greater criminal liability. Terry was facing six criminal charges, and four of these, including some felony charges, were dropped when he pled guilty. See State v. Terry, Case No. C-12-CR-19-000015 (Harford Cnty. Cir. Ct. Jul. 8, 2019), http://casesearch.courts.state.md.us/casesearch. The court views this explanation “in light of the record as a whole” to determine whether it is sufficient to create a genuine issue of material fact. Surran, 2008 WL 11363275, at *4.2 In Surran, for example, a defendant’s attempts in a civil case to claim he was innocent of his conviction for second-degree assault could not overcome the plaintiff’s summary judgment motion where the record included undisputed evidence that established the elements of the plaintiff’s claims, including physical evidence of her injuries and the defendant’s own statements. Id. But the record as to negligence in this case consists solely of the transcript of Terry’s guilty plea, in which he admits only that the State of Maryland had sufficient evidence to prove his guilt as to the charge of criminally negligent manslaughter.3 While his admission is probative evidence of his negligence in this case, he disputes its significance, and the plaintiff has not offered any other evidence regarding the accident that shows Terry’s guilty plea is beyond such dispute. Based on the present record, the credibility of Ben Strong and Terry’s explanation of the circumstances that led Terry to accept the State’s plea offer must be evaluated by the trier of fact. Accordingly, the court will deny the plaintiff’s motion for summary judgment as to Ben Strong and Terry’s negligence.

ii. Liability of the Cowan Defendants for Negligent Acts of Terry and Ben Strong
*3 The plaintiff also seeks summary judgment on the issue of whether the Cowan defendants are liable for any negligent acts committed by Terry or Ben Strong. The plaintiff asserts two theories to establish liability. First, the plaintiff argues that under the Federal Motor Carrier Safety Regulations (“FMCSRs”) and the Moving Ahead for Progress in the Twenty-First Century Act (“MAP-21 Act”), P.L. 112-141, 126 Stat. 405 (July 6, 2012), the Cowan defendants were statutory employers of Ben Strong and Terry with respect to the shipment involved in the accident, and, thus, they can be held liable for Ben Strong and Terry’s negligent acts. Second, the plaintiff contends that even assuming no statutory employer-employee relationship exists, she has established that Ben Strong and Terry were the apparent agents of the Cowan defendants with respect to the shipment.

1. Statutory Employer
The regulatory definition of an employee under the FMCSRs includes independent contractors hired by motor carriers to transport freight. See 49 C.F.R. § 390.5 (defining “employee” as “an individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety,” including “an independent contractor while in the course of operating a commercial motor vehicle”); Schramm v. Foster, 341 F. Supp. 2d 536, 548 (D. Md. 2004). The plaintiff’s theory of liability thus rests on showing that the Cowan defendants were the “motor carrier” for the shipment at issue. The Cowan defendants argue that they acted not as a “motor carrier” but as a “broker” for the shipment, by arranging for Ben Strong to transport the shipment for its frequent client, GAF. The plaintiff presents two arguments why the Cowan defendants were a motor carrier and not a broker for the shipment.

First, the plaintiff points to Federal Motor Carrier Safety Administration (“FMCSA”) records showing that Cowan Systems, LLC is “not authorized” to act as a broker. (ECF 58-12, Pl. Ex.7, SAFER Company Snapshots, at 1). Cowan Systems is required to register and be authorized as a broker in order to sell or offer to sell services that arrange for transportation by motor carrier. See 49 U.S.C. §§ 13102(2) (defining “broker”), 13901(a) (registration requirements). The plaintiff’s evidence conflicts with other FMCSA records and documents related to the shipment. Companies are identified in the FMCSA’s Safety and Fitness Electronic Records (“SAFER”) System by a USDOT Number and an “MC” Number. (ECF 58-14, Pl. Ex. 9, SAFER Data Field Names, at 1). Cowan Systems, LLC appears to have two USDOT and MC Numbers. The company is registered with the FMCSA with a USDOT Number 2217118 and MC Number 285256, (ECF 58-12 at 1; ECF 58-11, Pl. Ex. 6, FMCSA Records, at 16), and also with a USDOT Number 548880 and MC Number 271882, (ECF 58-12 at 3; ECF 58-11 at 1). While Cowan System’s brokerage authority is listed as “not authorized” and/or “inactive” in records for USDOT No. 2217118/MC No. 285256, (ECF 58-12 at 1; ECF 58-11 at 16), its brokerage authority is listed as “authorized for property” and “active” for USDOT No. 548880/MC No. 271882, (ECF 58-12 at 3; ECF 58-11 at 1). While the plaintiff argues USDOT No. 548880 is Cowan Systems’s “Motor Carrier number, not a broker’s number,” (ECF 101-2, Reply at 2), it provides no evidence to support this contention, and other evidence in the record tends to rebut it. For instance, GAF produced a license for Cowan Systems, dated May 30, 2000, authorizing it to “engage in operations…as a broker, arranging for transport of freight…by motor vehicle.” (ECF 58-6, Pl. Ex. 1, GAF Materials, at 23) (emphasis added). That license bears the MC No. 271882, which corresponds to the MC Number and USDOT Number associated with the active brokerage license for Cowan Systems in the FMCSA records. (ECF 58-6 at 23; ECF 58-11 at 1). Accordingly, the status of Cowan Systems’s brokerage license is a genuine issue of material fact.

*4 Second, the plaintiff argues that regardless whether Cowan Systems was authorized as a broker, federal law prohibits the Cowan defendants from representing themselves to GAF as both a motor carrier and a broker in order to procure a particular shipment. Under 49 U.S.C. § 13901(c), persons required to register with the FMCSA must, when they agree “to provide transportation or service for which registration is required,” “specify, in writing, the authority under which the person is providing such transportation or service.” In its answers to the plaintiff’s interrogatories, Cowan Systems described its arrangement with GAF as follows. GAF would request assistance with its transportation requirements and request pricing and capacity for shipments. Cowan Systems, LLC, acting through the employees of its property broker division, Cowan Logistics, would then advise whether the requested shipments could be transported by Cowan Systems or could be handled by Cowan Logistics acting as a broker to arrange transportation by a licensed motor carrier. (ECF 58-7, Pl. Ex. 3, Cowan Systems’s answers to the plaintiff’s interrogatories, at 29–30). The plaintiff argues that the Cowan defendants did not consistently disclose to GAF during this process when they were accepting a shipment as a motor carrier and when they were acting as a broker. In the absence of that transparency, the plaintiff contends the Cowan defendants must be treated as a motor carrier. It is not clear to the court why a registrant’s failure to indicate the source of its authority would relegate it to the status of a motor carrier, but, at any rate, the plaintiff has not shown the absence of a genuine issue of material fact as to whether the Cowan defendants sufficiently specified the authority under which they were acting with respect to the shipment at issue. A June 8, 2018, email from Frank Longo, of GAF, to Christopher Bowen, of Cowan Systems’s sales division,4 sends information regarding five shipments for June 15, 2018, including the shipment at issue. (ECF 80-7, Def. Ex. 4). And while the bill of lading for the shipment lists “Cowan Systems, Inc.” as the carrier, the signature line for the carrier is signed by a “Ben Wherry” of Ben Strong Trucking. (ECF 58-6 at 11). The document is also signed by a GAF employee, supporting the Cowan defendants’ contention that GAF was well aware that Cowan Systems brokered the shipment to Ben Strong. (Id.).

The plaintiff cites other record evidence to support the theory that the Cowan defendants held themselves out as the motor carrier for the shipment, but that evidence is also disputed. For example, the plaintiff cites an affidavit by Christopher Leonard, Senior Director of Supply Chain Operations for GAF, in which Leonard states that the shipment was accepted by Cowan under a schedule of rates used only for shipments for which Cowan was acting as a motor carrier, rather than under the schedule of rates used for Cowan’s brokerage services. (ECF 58-6 at 2). But Leonard’s understanding is contradicted by the affidavit of Christopher Bowen, Sales Director for Cowan Systems, which states that the rates quoted to GAF were always based on pickup and delivery points and did not differ based on whether the load was tendered to Cowan Systems as a motor carrier or arranged by the company as a broker. (ECF 80-2, Def. Ex. 1, at 3).

In sum, factual disputes regarding the validity of the Cowan defendants’ brokerage license and the extent to which they identified themselves as the broker for the shipment preclude summary judgment as to whether the Cowan defendants were statutory employers of Ben Strong and Terry.

2. Apparent Agency
The plaintiff argues that even if the Cowan defendants were not statutory employers of Ben Strong and Terry, the Cowan defendants are vicariously liable for Ben Strong and Terry’s negligence because they represented to GAF that Ben Strong and Terry were agents of a Cowan entity. “Apparent agency is an equitable doctrine, whereby a principal is held responsible for the acts of another because the principal, by its words or conduct, has represented that an agency relationship existed between the apparent principal and its apparent agent.” Bradford v. Jai Med. Sys. Managed Care Organizations, Inc., 439 Md. 2, 16 (2014). To establish apparent agency, the plaintiff must show that (1) Cowan defendants created the appearance that an agency relationship existed between them and Ben Strong and Terry; (2) GAF believed the agency relationship existed and relied on that belief in accepting the services of Ben Strong and Terry; and (3) GAF’s belief and reliance were objectively reasonable. See id. at 18–19. The plaintiff’s sole evidence of an apparent agency relationship at this stage is the Affidavit of Christopher Leonard. (ECF 58-6 at 2). As previously explained, Leonard’s affidavit is not conclusive evidence that GAF understood any Cowan entity to be the motor carrier for the shipment or that GAF believed Ben Strong or Terry to be operating under the control of any Cowan entity. Other evidence in the record indicates that GAF may have believed Cowan Systems or CSI to be acting merely as a broker with no control over the equipment or driver involved in the shipment. This evidence includes the bill of lading signed by GAF and Ben Strong; the brokerage license for Cowan Systems which was in the possession of GAF; and email correspondence between Cowan Systems and GAF showing that GAF used Cowan Systems only as a broker, and not as a motor carrier, for some shipments. (ECF 58-6 at 11, 23; ECF 58-10, Pl Ex. 5, Emails produced by Cowan Systems). Because GAF’s understanding of the Cowan defendants’ involvement remains in dispute, the plaintiff cannot establish apparent agency as a matter of law.

*5 ***

In sum, because significant factual disputes remain as to the Cowan defendants’ roles or involvement in the shipment, the plaintiff cannot prevail at this stage on either of her theories of vicarious liability. Accordingly, the plaintiff’s motion for summary judgment as to the Cowan defendants’ liability will be denied.

c. CSI & CST’s Motion for Summary Judgment
CSI and CST have renewed the same arguments made in their earlier motion to dismiss or in the alternative for summary judgment. (ECF 19). They argue judgment is warranted in their favor because neither entity was in business at the time of the accident. At the motion to dismiss stage, the court noted that while CSI and CST put forth evidence in the form of an affidavit stating that CST filed Articles of Cancellation in 2010 and CSI ceased its business activities in 2000, CSI is listed on the bill of lading as the motor carrier for the shipment and the plaintiff was not satisfied with the Articles of Cancellation for CST. (ECF 26, Memorandum at 8). The court denied the motion in favor of allowing the plaintiff to take limited discovery into which of the Cowan defendants were involved. (Id. at 8–9). CSI and CST submit the same evidence in support of the instant motion, and the plaintiff repeats her argument that the motion is premature, as she has not yet had the opportunity to depose CSI or CST’s corporate representative. CSI and CST argue that the plaintiff has waived her opportunity to depose their corporate representatives by filing her motion for summary judgment, which seeks relief against CSI and CST without the benefit of knowing the extent of their involvement in the accident.

The court finds that CSI and CST’s motion is still premature. Emails between counsel for the plaintiff and counsel for CSI and CST show that counsel for the plaintiff attempted throughout the fall and winter of 2019 and in June 2020 to schedule Rule 30(b)(6) depositions for CSI and CST’s representatives. (See ECF 102-1 at 1–3; ECF 107-1 at 3). While the plaintiff filed her motion for summary judgment in July 2020, the record shows the parties continued to negotiate scheduling the relevant 30(b)(6) depositions. The parties’ most recent consent motion to modify the court’s scheduling order states that the depositions were eventually scheduled, for December 22, 2020, and were the first to have been scheduled in this case. (ECF 115 at 1–2). CSI and CST have not opposed the taking of those depositions. Because the court continues to believe the issue of which of the Cowan defendants existed and/or had a role in the accident is better evaluated with the benefit of the discovery now underway, the court will deny CSI and CST’s motion.

II. The Cowan Defendants’ Motions for Leave to File Amended Answers
Finally, the Cowan defendants seek leave to amend their answers to add crossclaims against Ben Strong and Terry. Cowan Systems seeks to add claims against Ben Strong and Terry for contractual indemnity, common law indemnity, and contribution, (ECF 53), while CSI and CST seek to add claims for common law indemnity and contribution only, (ECF 55). Ben Strong and Terry argue that the proposed amendments were filed long after the November 1, 2019, deadline for amendments to pleadings in the court’s October 22, 2019, Scheduling Order, (ECF 35), and Cowan Systems presents no good cause to extend that deadline.

*6 When a party moves to amend after the deadline established in the scheduling order for doing so, the party must show good cause to modify the scheduling order under Rule 16(b)(4). Elat v. Ngoubene, 993 F. Supp. 2d 497, 519–20 (D. Md. 2014). If the moving party satisfies that standard, the court then evaluates the motion for leave to amend under Rule 15(a). Id. Leave to amend should be freely granted under Rule 15(a), and amendments are generally accepted absent futility, undue prejudice, or bad faith. See Foman v. Davis, 371 U.S. 178, 182 (1962); Matrix Capital Mgmt. Fund, LP v. BearingPoint, Inc., 576 F.3d 172, 193 (4th Cir. 2009) (explaining that leave to amend “should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or amendment would be futile”). An amendment is futile when the proposed amended pleading would not satisfy the requirements of the federal rules. U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008).

There is good cause to extend the deadline for the Cowan defendants to amend their pleadings, for three reasons. First, while no party sought a modification to the scheduling order before the Cowan defendants filed their motions for leave to amend, several modifications have been sought and granted since. The most recent modification to the scheduling order extended the deadline to move for joinder of additional parties and amendments of pleadings to October 1, 2020, well after the Cowan defendants filed their motions to amend. (ECF 106). Second, correspondence between counsel for the Cowan defendants, counsel for Ben Strong and Terry, and Amguard Insurance Company shows that the Cowan defendants attempted to seek Amguard, Ben Strong, and Terry’s agreement to indemnify the Cowan defendants should judgment be entered against them. (ECF 59-1–59-6, Exs. A–F). Those efforts continued through March 2020 and well explain any delay. Third, “the rights both to indemnification and to contribution, whether based on contract or tort, accrue at the time of payment and not before.” Heritage Harbour, L.L.C. v. John J. Reynolds, Inc., 143 Md. App. 698, 712–13 (Md. Ct. Spec. App. 2002) (quoting S. Md. Oil Co. v. Tex. Co., 203 F. Supp. 449, 452–53 (D. Md. 1962)). It would not serve the interests of justice to bar the Cowan defendants from pleading claims which have not yet accrued solely on the basis of deadlines in a now-superseded scheduling order. The Cowan defendants have shown good cause to file amended answers past the November 2019 deadline, Ben Strong and Terry identify no prejudice that will result from amendment, and the court identifies no such prejudice either. Accordingly, the court will grant the motions to amend.

CONCLUSION
For the foregoing reasons, the court will deny the plaintiff’s motion for summary judgment, deny CSI and CST’s motion for summary judgment, and grant Cowan Systems’s and CSI and CST’s motions to amend. A separate Order follows.

3/11/2021 /S/

Date Catherine C. Blake

U.S. District Court Judge
All Citations
Slip Copy, 2021 WL 927423

Footnotes

1
The complaint also named as a defendant Alliance Trucking and Logistics, LLC and Bowman Sales and Equipment, Inc., and brought claims against all defendants for negligent infliction of emotional distress, intentional infliction of emotional distress, and punitive damages. (ECF 1, Compl.). Ben Strong and Terry and the Cowan defendants filed motions to dismiss, which the court denied as to the negligence claims, but granted with respect to the NIED, IIED, and punitive damages claims. (ECF 27). The plaintiff voluntarily dismissed Bowman from this action on August 20, 2020. (ECF 88, Marginal Order approving Stipulation of Dismissal). To date, Alliance has not responded to the plaintiff’s complaint.

2
Unpublished opinions are cited for the soundness of their reasoning and not for any precedential value.

3
It does not appear that Terry was asked to or did agree with any specific statement of facts in support of the guilty pleas. (See ECF 58-9).

4
The plaintiff also contends the Cowan defendants were unlawfully performing brokerage services through the sales division of Cowan Systems, Cowan Logistics, because Cowan Logistics is not a registered broker. (ECF 101-2, Reply at 6). But no evidence indicates Cowan Logistics was ever held out to GAF or Ben Strong as a broker. For example, the broker-carrier agreement between Ben Strong and Cowan Systems identifies Cowan Logistics as a division of Cowan Systems, and then defines Cowan Systems as the “broker” in the agreement. (ECF 80-6, Def. Ex. 3, at 11).

2021 WL 1016776
Superior Court of Pennsylvania.
Russell E. FAILOR, Jr., and Cathy Failor Appellants
v.
FEDEX GROUND PACKAGE SYSTEM, INC.
No. 3491 EDA 2019
|
Filed March 17, 2021
Appeal from the Order Entered November 6, 2019, In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 181201881
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
Opinion

OPINION BY PELLEGRINI, J.:

*1 Russell E. Failor, Jr. (Failor), and Cathy Failor (collectively, the Failors) appeal from the November 6, 2019 order in the Court of Common Pleas of Philadelphia County (trial court) dismissing their personal injury lawsuit against FedEx Ground Package System, Inc. (FedEx Ground) pursuant to Section 5322(e) of the Uniform Interstate and International Procedure Act. See 42 Pa.C.S. § 5322(e).1 The Failors contend that the trial court abused its discretion in dismissing their claim because FedEx Ground did not establish that Pennsylvania is an inconvenient forum for it. After our careful review, we vacate the order dismissing the Failors’ case.

I.
The following background facts and procedural history are taken from our independent review of the certified record and the trial court’s June 22, 2020 opinion. For the purposes of this appeal, those facts are not in dispute.

A.
On December 17, 2018, the Failors, residents of Perry County, Pennsylvania, filed a complaint against FedEx Ground in the Philadelphia County trial court. The complaint states that FedEx Ground maintains its principal place of business in Allegheny County, Pennsylvania, and regularly conducts business throughout the United States, including in Pennsylvania, specifically maintaining a shipping facility in Philadelphia County.

The complaint alleged that Failor was a tractor-trailer driver for an independent contractor that had contracted to haul freight for FedEx Ground between Hagerstown, Washington County, Maryland and Lewisberry, York County, Pennsylvania. On June 28, 2018, while at FedEx Ground’s Hagerstown facility, Failor slipped and fell on an unknown liquid substance on the rear end of a FedEx Ground trailer, sustaining injuries. He notified FedEx Ground employee, Shelley DePriest, who created an accident report and took pictures of the scene on his phone. Failor received a ride back to Pennsylvania after his injury and went to the emergency room in Mechanicsburg, Cumberland County, Pennsylvania. Doctors diagnosed Failor with a fractured right ankle and he underwent surgery in Hershey, Dauphin County, Pennsylvania, where he continues to receive treatment. He was unable to return to work.

B.
FedEx Ground filed a motion to dismiss pursuant to 42 Pa.C.S. § 5322(e) seeking dismissal for forum non conveniens. Alternatively, it requested that the case be transferred to Perry County, Pennsylvania for forum non conveniens pursuant to Pennsylvania Rule of Civil Procedure 1006(d)(1).

In support of its motion to dismiss, it alleged that:
29. The incident giving rise to this suit occurred in Washington County, Maryland and this matter has no contact with or connection to Philadelphia County.
30. The sources of proof relative to the subject incident are located in Washington County, Maryland and Perry County, Pennsylvania.
*2 31. Trial of this matter in Philadelphia County will not be easy, expeditious, or inexpensive.
32. The FedEx Ground employee(s) involved in this incident with first-hand knowledge of the events are employed in and around Washington County, Maryland.
33. The parties and non-party witnesses can more effectively, economically, and conveniently present their evidence and witnesses in Washington County, Maryland.
* * *
35. Moreover, it is common knowledge that the Philadelphia courts are inundated with litigation.
(Motion to Dismiss Pursuant to 42 Pa.C.S. § 5322(e), 4/04/19, at 5-6) (pagination provided).

FedEx Ground also provided an affidavit by Shelley DePriest in which she represented that she was the senior manager of line haul at the Fed Ground Hagerstown, Maryland facility where Failor alleged he was injured. She stated that she lived in Franklin County, Pennsylvania,2 approximately three hours from Philadelphia, and that, as a single mother, it would be inconvenient and costly for her to attend a trial in Philadelphia County and she would not be willing to attend a trial there.

Later, in a supplemental brief, FedEx Ground also represented that Ms. DePriest left employment with FedEx Ground after providing her affidavit. FedEx Ground also appended to that brief the affidavits of employees Tracy White and Tom Belasco. In his affidavit, Mr. White represented that he worked at FedEx Ground’s Winchester, Virginia plant, but on the date of Failor’s incident, he worked as a line haul manager for FedEx Ground’s Hagerstown facility. The affidavit asserted that it would be inconvenient and costly for him to attend a trial in Philadelphia County, would involve a significant time commitment, that he would not be willing to attend a trial in that location and that it would be “far more convenient and economical” to attend trial in either Washington County, Maryland or Perry County, Pennsylvania.

Mr. Belasco’s affidavit stated that since Ms. DePriest left her FedEx Ground employment, he was the line haul manager at FedEx Ground’s Hagerstown facility; that he resided in Boonsboro, Maryland, approximately three-and-one-half hours from Philadelphia; that attending trial in Philadelphia would be inconvenient and costly; and that he would not be willing to attend a trial there as it would be much more convenient and economical to attend a trial in Perry County, Pennsylvania or Washington County, Maryland.

Paragraphs nine through twelve of his affidavit stated that Ms. DePriest could not be compelled to testify since she is no longer a FedEx Ground employee and that this would adversely affect FedEx Ground’s defense of this matter and would be inconvenient and costly for members of the cleaning and maintenance staff to attend trial in Philadelphia because they live in or around Hagerstown. Finally, the affidavit stated that the absence of Mr. Belasco and other members of his staff would be oppressive and vexatious to the Hagerstown, Maryland operations.

Furthermore, in its supplemental brief, FedEx Ground argued that its only connection to Philadelphia County is that it has a shipping facility there; the site of the underlying incident occurred in Hagerstown, Maryland; the Failors’ residence and the medical providers were in another Pennsylvania county; and that the known FedEx Ground or non-party witnesses reside in or near Hagerstown, Pennsylvania.

C.
*3 In response to FedEx Ground’s motion to dismiss, the Failors admitted that Failor received medical treatment in Harrisburg and Hershey, Pennsylvania, and they noted that the only thing in Washington County, Maryland relative to this litigation is the empty trailer lot where Failor fell. They maintained that FedEx Ground regularly conducts business in Philadelphia in receiving and sending packages and that Philadelphia courts are more than capable of handling the high case volume.

The Failors noticed the depositions of Ms. DePriest, Mr. White and Mr. Belasco. During discussions between counsel, they confirmed that Ms. DePriest was no longer employed with FedEx Ground and that she now lives in Virginia. She did not appear for her deposition, but the Failors did depose Mr. White and Mr. Belasco.

At his deposition, Mr. White admitted that he has no personal knowledge of the Failor incident. Mr. White stated that he did not know how far it was from his West Virginia home to Philadelphia, only that it was a couple of hours away. Contrary to the affidavit’s language, he admitted that he would attend a trial in Philadelphia if subpoenaed to do so and that it would be inconvenient whether the trial was held there or in Hagerstown, Maryland. Despite the inconvenience of attending a trial in Philadelphia because of his work schedule and daughter’s extracurricular activities, Mr. White admitted he could make other arrangements if required to do so.

In his deposition, Mr. Belasco testified that he took over the position of line haul manager after Ms. DePriest left the company. He conceded that FedEx Ground’s attorney prepared his affidavit and he signed it without making any changes, although he did not actually know if paragraphs nine through thirteen were correct. Specifically, he did not know if Ms. DePriest could be compelled to testify at trial or if her absence would adversely affect FedEx Ground’s defense, whether it would be inconvenient for the cleaning staff to attend trial in Philadelphia, or if trial in Philadelphia would be oppressive and vexatious since he did not know what “vexatious” meant and he only meant that attending trial in Philadelphia would be inconvenient.

Although he testified that it was three-and-one-half hours from his home in Boonsboro, Maryland to Philadelphia, he admitted that this estimate was in the affidavit when he received it from counsel. He did not disagree that Google Maps showed the distance was two hours and forty-five minutes. He admitted that he would appear to testify if he were subpoenaed to do so and that the inconvenience was the distance to Philadelphia. Mr. Belasco stated that any information he could provide could also be provided by Mr. White since it would be about FedEx Ground policies and procedures at the Hagerstown facility, not the Failor incident, since he was not there at the time of its occurrence.

D.
Pursuant to 42 Pa.C.S. § 5322(e), the trial court granted FedEx Ground’s motion and dismissed the Failors’ complaint without prejudice to be re-filed in Maryland or other appropriate jurisdiction.3 The trial court reasoned that:
The facts of this case strongly favor dismissal pursuant to § 5322(e) and transfer to Maryland. Plaintiff’s slip and fall incident occurred at Defendant’s facility located in Hagerstown, Maryland. Plaintiffs reside in Perry County, Pennsylvania, which is approximately 130 miles from Philadelphia and approximately 70 miles from Hagerstown, Maryland. Plaintiff has not received any medical treatment in Philadelphia relative to injuries allegedly sustained as a result of the incident. Rather, Plaintiff received all of his medical treatment in either Dauphin County or Cumberland County, Pennsylvania. The known potential witnesses with firsthand knowledge of the incident or the premises thereon are either former or current employees for FedEx Ground at the Hagerstown, Maryland facility. Specifically, in addition to Plaintiff, it is apparent from the record that there are three individuals who the parties may potentially call as witnesses: Shelley DePriest, Tracy White, and Tom Belasco. All three individuals reside near Hagerstown, Maryland.[a] The facts make it clear that the majority, if not all, of the potential witnesses and sources of proof with any connection to the underlying case either reside or are located near Hagerstown, Maryland, thereby establishing Maryland as a more convenient forum where the litigation could be conducted more easily, expeditiously, and inexpensively.
*4 [a] It is undisputed that Tracy White resides in Falling Waters, West Virginia, which is approximately 190 miles from Philadelphia and approximately 13 miles from Hagerstown, Maryland. Similarly, it is undisputed that Tom Belasco resides in Boonsboro, Maryland, which is approximately 170 miles from Philadelphia and approximately 11 miles from Maryland. Defendant submitted an affidavit signed by Shelley DePriest to which she affirmed that she resides in Franklin County, Pennsylvania, which is approximately 160 miles from Philadelphia and approximately 22 miles from Hagerstown, Maryland. Plaintiffs contend that Ms. DePriest moved to Virginia and thus aver that Ms. DePriest’s affidavit is no longer accurate. However, Plaintiffs fail to present this [c]ourt with any evidence in regard to whether Ms. DePriest has in fact moved to Virginia, and if so, where in Virginia she currently resides.
Plaintiffs aver that Defendant conducts “relevant corporate actions” in Philadelphia that justify denial of a motion under forum non conveniens. However, the fact that Defendant conducts such business in Philadelphia seems to be the only connection that a Philadelphia jury would have to the instant case. … Washington County, Maryland, is available as an alternative forum. The slip and fall incident giving rise to this litigation occurred in Hagerstown, Washington County, Maryland, on June 28, 2018. In Maryland, a civil lawsuit for personal injury must be filed within three years from the date it accrues. Md. Code, Cts. and Jud. Proc. § 5-101. Accordingly, Plaintiffs are well within the statute of limitations under Maryland law to re-file this case in Washington County, Maryland.
(Trial Court Opinion, 6/22/20, at 4-5) (pagination provided) (case citations, quotation marks and one footnote omitted).4 The Failors timely appealed.5 They and the court have complied with Rule 1925. See Pa.R.A.P. 1925.

On appeal, the Failors contend that the trial court erred as a matter of law and abused its discretion in dismissing this action pursuant to 42 Pa.C.S. § 5322(e). First, it argues that our decision in Page v. Ekbladh, 590 A.2d 1278, 1280 (Pa. Super. 1991), prohibits forum non conveniens dismissals where both the plaintiff and the defendant are Pennsylvania citizens. Second, they contend that the trial court misapplied 42 Pa.C.S. § 5322(e) and erred in finding that the public and private factors used to determine whether a forum is inconvenient do not weigh strongly against their chosen forum.6

II.
*5 Pursuant to Section 5322(e), “[w]hen a tribunal finds that in the interest of substantial justice the matter should be heard in another forum, the tribunal may stay or dismiss the matter in whole or in part on any conditions that may be just.” 42 Pa.C.S. § 5322(e).
A plaintiff’s choice of forum is entitled to deference, but to a somewhat lesser degree when the plaintiff’s residence and place of injury are located somewhere else. See Bochetto v. Piper Aircraft Co., 94 A.3d 1044, 1056 (Pa. Super. 2014). In any event, the trial court may grant a motion to dismiss on the grounds of forum non conveniens only if “weighty reasons” support disturbing a plaintiff’s choice of forum and an alternative forum is available. See Jessop v. ACF Industries, LLC, 859 A.2d 801, 803 (Pa. Super. 2004). “Furthermore, a court will … not dismiss for forum non conveniens unless justice strongly militates in favor of relegating the plaintiff to another forum.” Poley v. Delmarva Power and Light Co., 779 A.2d 544, 546 (Pa. Super. 2001) (emphasis in original).
McConnell v. B. Braun Medical Inc., 221 A.3d 221, 227 (Pa. Super. 2019).

When determining if “weighty reasons” exist to overcome a plaintiff’s forum choice, the court considers both private and public factors. Private factors include:
the relative ease of access to sources of proof; availability of compulsory process for attendance for unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of the premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.
Id. (citation omitted). In analyzing public factors, the trial court must consider that:
administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. There is an appropriateness, too, in having the trial … in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.
Id. at 227-28 (citation omitted).

In establishing that dismissal based on forum non conveniens is warranted, a defendant must establish it is inconvenient for him. Therefore, “it is difficult for a defendant to show that convenience is a factor that weighs in favor of dismissal where it is headquartered in the chosen forum, even if the plaintiff resides elsewhere.” Id. at 228 (citation omitted). “Importantly, the party seeking dismissal has the burden of proof.

When we conduct our review of the trial court’s decision, if the trial court “shift[s] that initial burden to the party opposing dismissal and mak[es] presumptions about the evidence against the non-moving party [that would be] an abuse of discretion because it is a misapplication of the governing legal standard.” Id. (citation omitted). It is also an error of law if the trial court makes an analysis based on the inconvenience of one county to another state because “[a] case’s lack of connection to one county does not justify dismissal from the entire state.” Id. at 231 n.12. That is so because the proper consideration is between the two states, not specific counties within them. See id. at 228; see also Page, supra at 1280-81. Moreover, the trial court abuses its discretion and commits and error of law if it “misapplies the law in this context by incorrectly weighing the public and private factors.” McConnell, supra at 228 (citations omitted).

III.
A.
*6 We first address the Failors’ allegation that the trial court erred in dismissing their case based on forum non conveniens because Page mandates that a motion to dismiss be denied when both parties are citizens of the same state.

Ekbladh, the defendant in Page, was a Virginia-based obstetrician who provided care to the mother of a child who was born in Virginia with serious injuries. Mother also resided in Virginia at the time. Thereafter, both the child’s parents and the obstetrician moved to Pennsylvania and resided there when the parents commenced a lawsuit in Pennsylvania against Ekbladh for their child’s injuries. The court granted Ekbladh’s motion to dismiss based on forum non conveniens and directed the Pages to file the action in Virginia where the alleged negligence and injuries occurred. See Page, supra at 1278-79.

The Failors point to the following language of Page to support their claim:
The record reveals that the Pages have sued Ekbladh in Pennsylvania solely because it is their home forum, as well as the home forum of Ekbladh. We can find no case law, either in this Commonwealth or in the federal courts, where, although both the plaintiff and the defendant have been citizen-residents of the original forum, the trial court dismissed the action because another forum appears more convenient. The fact that both the plaintiffs and the defendant presently reside in Pennsylvania would warrant the retention of jurisdiction by the trial court over this action.
Id. at 1280 (emphases omitted). They go on to contend that while Page did conduct a factors analysis, it did so “in the alternative to consider the traditional considerations for dismissing a suit for forum non conveniens.”

However, Page does not stand for the proposition that the forum non conveniens inquiry ends when it is determined that both parties are Pennsylvania residents because we reached no such conclusion at all based on the above-quoted foregoing language. The fact that none of the parties resided in Virginia when the action was brought was just one of the many factors we reviewed in Page before determining that “Ekbladh [had not] met the burden necessary to overcome the Pages’ choice of their own forum to litigate this action.” Id. at 1282 (citation omitted); see also id. at 1280-82 (reviewing public and private factors). Because Page did not reach its holding based solely on the fact that the parties were “citizens” of the same state but considered that factor as one of many in determining that Pennsylvania was not an inconvenient forum, the trial court did err on this basis.

B.
Next, we turn to the Failors’ contention that trial court misapplied the law and abused its discretion in dismissing their Pennsylvania action because there were no “weighty reasons” to override their choice to sue a Pennsylvania-based company in their own home state of Pennsylvania.

Here, the trial court found that “the majority, if not all, of the potential witnesses and sources of proof with any connection to the underlying case either reside or are located near Hagerstown, Maryland, thereby establishing Maryland as a more convenient forum where the litigation could be conducted more easily, expeditiously, and inexpensively. (Trial Ct. Op., at 4) (quotation marks and citation omitted; pagination provided). However, the court premised this decision on the basis that Hagerstown, Maryland was a more convenient forum than Philadelphia, Pennsylvania, not Maryland and Pennsylvania as a whole, whose state line borders Maryland, and is approximately only seven miles from Hagerstown.

*7 Specifically, the court observed that the Failors’ residence in Perry County, Pennsylvania, as well as their medical witnesses in Dauphin and Cumberland Counties, Pennsylvania, are closer to Hagerstown, Maryland than Philadelphia, Pennsylvania, and that FedEx Ground’s potential witnesses, Mr. White and Mr. Belasco, lived closer to Hagerstown, Maryland than Philadelphia, Pennsylvania.7 However, it made no finding as to whether Pennsylvania is an inconvenient forum for FedEx Ground based on where their proposed witnesses reside, and it would be difficult to imagine that a seven mile distance to the Pennsylvania border from their employer or approximately twenty miles from their homes would render it inconvenient and strongly favor overriding the Failors’ forum choice.

Moreover, even if the court did not err in considering Hagerstown, Maryland vis a vis Philadelphia, Pennsylvania, it was error for it to consider the relative convenience of the two locations for the Failors, including their evidence and witnesses, because that was an improper reason to overrule their choice of forum. See Estate of Vaughan v. Olympus America, Inc., 208 A.3d 66, 77 (Pa. Super. 2019) (“[A]ny difficulty a plaintiff faces in securing evidence necessary to prove a cause of action is not a valid reason to override the plaintiff’s forum preference.”) (emphasis in original).

Based on the foregoing, we conclude that the court abused its discretion by misapplying the law. Determining forum non conveniens required the court to consider the relative convenience of Pennsylvania and Maryland, not Philadelphia and Hagerstown. See McConnell, supra at 231 n.12. Because the trial court applied the incorrect standard in determining that Pennsylvania is an inconvenient forum for FedEx Ground, it misapplied the law and abused its discretion in dismissing the Failors’ case. See Bochetto, supra at 1079; see also McConnell, supra at 231 (“The trial court abused its discretion … because it disregarded Pennsylvania’s interests and improperly focused on whether Philadelphia is a convenient forum.”) (emphasis in original).

C.
1.
Not only did the trial court err in doing a Pennsylvania to Maryland analysis, neither the private nor public factors strongly weigh against the Failors’ chosen forum to justify dismissal of their action in Pennsylvania. As to the private factors at the time of the incident and at all times thereafter, the Failors have lived in Pennsylvania; Failor received all medical treatment in Pennsylvania; the trailer he was driving was scheduled to return to Pennsylvania; Shelley DePriest, the only FedEx Ground employee with firsthand knowledge of the incident, resided in Pennsylvania at the time of giving her affidavit;8 Mr. White and Mr. Belasco only work twenty miles from the Pennsylvania border; and FedEx Ground’s principal place of business is in Pennsylvania. (See id. at 22-24).

*8 FedEx Ground concedes that its primary place of business is in Pennsylvania and that it conducts business here. It also agrees that the Failors reside in Pennsylvania and all pertinent medical records and physicians are located here. However, it argues that because the incident underlying the complaint occurred in Hagerstown, where its known witnesses are employed and near where they reside, there are substantial reasons to dismiss this case.9 It also points to the affidavits from its employees in which they maintain that a trial in Philadelphia would be vexatious and that they would not attend. In response to same, the Failors provided deposition testimony of Mr. White and Mr. Belasco that conflicts in some respects with the affidavits.

Our review of the evidence before the court reveals that the affidavits fail to establish that a trial in Maryland would be more expeditious and inexpensive than in Pennsylvania. In fact, although they maintain that trial in Philadelphia would be inconvenient because of its distance, they speak nothing to Pennsylvania as a whole and, in fact, maintain that trial in Perry County, Pennsylvania would be convenient.

FedEx Ground also fails to establish that it would be easier to obtain sources of proof in Maryland where it concedes that the Failors and the relevant medical records and physicians are in Pennsylvania, and the location on which the incident occurred is a moveable trailer that is no longer at the Hagerstown, Maryland facility.

Finally, Mr. Belasco conceded that he had no personal knowledge about the Failor incident prior to being approached by FedEx Ground’s counsel and that any information he could provide about FedEx Ground’s policies and procedures could also be provided by Mr. White. Contrary to FedEx Ground’s argument, the affidavits failed to provide weighty evidence that Maryland is a more convenient forum than Pennsylvania or even which of its witnesses is necessary or where their testimony would be cumulative.10 At best, this testimony established that a trial in Philadelphia would be inconvenient because of the distance but that the men would attend.

Based on this evidence, we conclude that even had the trial court properly applied the law and considered whether there were weighty reasons to dismiss this case in Pennsylvania, FedEx Ground did not provide sufficient evidence of private factors necessary to support dismissal of the Failors’ case. See Vaughan,11 supra at 76-77; see also McConnell, supra at 229-30 (trial court abused its discretion in granting motion to dismiss where defendant failed to establish private factors where its employees lived and worked in Pennsylvania, it had corporate offices here and difficulty of plaintiff in securing evidence was not relevant concern).

2.
*9 We now turn to our analysis of the public factors supporting dismissal of the Failors’ case for forum non conveniens. The only public factor that the trial court based its decision on is that “the only connection that a Philadelphia jury would have to the instant case” is that FedEx Ground maintains a distribution center there. (Trial Ct. Op., at 5).12 We already concluded that the trial court abused its discretion in considering Philadelphia specifically rather than Pennsylvania as a whole. Moreover, FedEx Ground failed to provide weighty evidence of public factors to support dismissal where it does not suggest what, if any, public factors support dismissing the Failors’ case for forum non conveniens. (See FedEx Ground’s Brief, at 7-12). Conversely, the Failors argue that Pennsylvania has a strong interest in ensuring that FedEx Ground maintains its trailers in safe condition for its employees and that its residents injured by Pennsylvania companies receive compensation. (See The Failors’ Brief, at 25, 26-27).

In analyzing the public factors, we agree that Maryland has an interest in an injury that occurs at a FedEx Ground facility within its borders. We also are aware that Mr. White and/or Mr. Belasco could have a slightly longer commute to Pennsylvania. However, where FedEx Ground likewise maintains several of such facilities in Pennsylvania, in addition to its corporate headquarters, and the Failors, the injured plaintiffs, reside here, it appears that Pennsylvania’s interest is at least equal to if not stronger than that of Maryland, and FedEx Ground has not provided any evidence to the contrary.13 Hence, we conclude that FedEx Ground failed to provide sufficient evidence of public factors to support overriding the Failors’ choice of forum. See Vaughan, supra at 77-78; see also McConnell, supra at 231 (finding public factors did not support dismissal for forum non conveniens where, although other states had interest, Pennsylvania had interest in whether defendant, with principal place of business and headquarters here, marketed and distributed allegedly injurious product).

*10 Based on the foregoing, we conclude that the trial court abused its discretion in finding that private and public interest factors supported dismissal pursuant to forum non conveniens. See Bochetto, supra at 1079. FedEx Ground, as the party moving for dismissal, did not carry its burden of providing weighty reasons to override the Failors’ choice of forum in Pennsylvania. Therefore, we vacate the court’s order.

However, while we vacate the trial court’s order, because it did not make any finding about FedEx Ground’s alternate ground for relief that it transfer the case to Perry County based on Rule 1006(d)(1), we remand the matter to the trial court to address that issue. See McConnell, supra at 232 (vacating and remanding on Section 5332(e) issue but allowing court to consider open Rule 1006(d)(1) motion to transfer from Philadelphia County to Lehigh County).

Order vacated. Case remanded. Jurisdiction relinquished.

All Citations
— A.3d —-, 2021 WL 1016776, 2021 PA Super 45

Footnotes

*
Retired Senior Judge assigned to the Superior Court.

1
42 Pa.C.S. § 5322 (e) provides “When a tribunal finds that in the interest of substantial justice the matter should be heard in another forum, the tribunal may stay or dismiss the matter in whole or in part on any conditions that may be just.”

2
There is no dispute that Ms. DePriest now lives in Virginia and she no longer works for FedEx Ground.

3
The court made no finding as to FedEx Ground’s alternative request to transfer the case for forum non conveniens pursuant to Rule 1006(d)(1).

4
FedEx Ground notes that via the June 23, 2020 writ of summons, the Failors commenced a second lawsuit related to the June 28, 2018 incident in Perry County, Pennsylvania, at Docket No. CV-WF-2020-448. (See FedEx Ground’s Brief, at 3). We draw no conclusion from this filing and include it only to provide a full history of this matter.

5
Absent an abuse of discretion, we cannot reverse a trial court’s decision to dismiss based on forum non conveniens. See Bochetto v. Dimeling, Shreiber & Park, 151 A.3d 1072, 1079 (Pa. Super. 2016). A trial court abuses its discretion if, “in reaching [its] conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will.” Id. (citation omitted).

6
The Pennsylvania Association for Justice (PAJ) has filed an amicus curiae brief in support of the Failors’ arguments and raises a new issue alleging that Section 5322(e) is not applicable in this matter because all parties are Pennsylvania citizens. However, we cannot consider this argument because the PAJ is not a party and the Failors did not raise it. See Solomon v. U.S. Healthcare Systems of Pennsylvania, Inc., 797 A.2d 346, 349 n.3 (Pa. Super. 2002); see also Pa.R.A.P. 531(a).

7
The court also observed that Ms. DePriest lived in Franklin County, Pennsylvania at the time of signing her affidavit, which is approximately 160 miles from Philadelphia and twenty-two miles from Hagerstown. It noted that the Failors failed to provide evidence that Ms. DePriest moved to Virginia, thus making her affidavit inaccurate. (See Trial Ct. Op., at 4 n. 1). However, it was not the Failors’ burden to prove that Ms. DePriest’s Virginia residence was convenient, but FedEx Ground’s burden to prove that her new residence rendered Pennsylvania inconvenient. See McConnell, supra at 228 (“[T]he party seeking dismissal has the burden of proof.”). FedEx Ground agrees that Ms. DePriest has moved to Virginia and has not provided any evidence about her relative proximity to either Maryland or Pennsylvania.

8
As stated previously, both parties agree that Ms. DePriest has since moved to Virginia and no longer works for FedEx Ground.

9
In its brief in support of the motion to dismiss, FedEx Ground also alleged that trial in Philadelphia County would not be “inexpensive” because FedEx Ground’s employees are employed in Maryland. (FedEx Ground’s Brief in Support of Motion to Dismiss, at 5). However, it failed to provide any evidence of how much more expensive it would be for its employees to drive the approximate seven miles from their employer or approximate twenty miles from their homes to Pennsylvania. Nor did it provide evidence that it would be exorbitant for FedEx Ground to incur such expenses.

10
Also before the court was the deposition testimony of Mr. White and Mr. Belasco. Mr. White testified that he merely signed the affidavit provided by FedEx Ground’s counsel without making any changes thereto, and that, contrary to the affidavit’s language, he would attend a Philadelphia trial if subpoenaed to do so, despite the inconvenience. He also stated that he had no personal knowledge of the incident involving Mr. Failor, although he was employed by FedEx Ground at the relative time and at the Hagerstown facility. Mr. Belasco stated that a trial in any location would be an inconvenience, but that he could arrange to be there. He also conceded that he had no personal knowledge about Failor’s incident prior to being approached by FedEx Ground’s counsel and that any information he could provide about FedEx Ground’s policies and procedures could also be provided by Mr. White. Neither man testified as to whether Pennsylvania would be inconvenient.

11
In Vaughan, the decedent underwent a procedure in North Carolina in which an Olympus scope was used. The scope was contaminated and the decedent died from an infection. Her estate brought a cause of action in Philadelphia County against Olympus Medical System Corp. (OMSC), Olympus America, Inc. (OAI) and Olympus Corporation of America (OCA). OMSC is a Japanese corporation with a principal place of business in Tokyo. OCA and OAI are New York corporations with a principal place of business in Center Valley, Lehigh County, Pennsylvania. OCA was OMSC’s agent. The trial court granted the defendants’ motion to dismiss for forum non conveniens. This Court reversed, finding that the defendants failed to provide weighty reasons to disturb Vaughan’s choice of forum. We found that OCA and OAI conducted business across Pennsylvania, including in Philadelphia, Vaughan’s evidence was in Pennsylvania since OCA acted as OMSC’s agent, the court’s concern that Vaughan’s fact witnesses were located in North Carolina was not a valid concern, significant evidence could be found in Pennsylvania, Pennsylvania had an interest in the litigation where the defendants made critical marketing decisions here and that a Pennsylvania court was more than capable of applying the appropriate law. See Vaughan, supra at 70, 76-78. Similarly, here, FedEx Ground maintains its corporate headquarters in Pennsylvania and conducts business across the Commonwealth, the Failors and their evidence are in Pennsylvania, Pennsylvania has a significant interest in the outcome of this case where FedEx Ground operates its trucks here and, even if Maryland law were applicable, a Pennsylvania court would be more than capable of applying it.

12
FedEx Ground and the trial court rely heavily on Wright v. Consolidated Rail Corp., 215 A.3d 982 (Pa. Super. 2019), to support dismissal pursuant to Section 5322(e) because Wright concluded that the trial court abused its discretion when it did not dismiss a case for forum non conveniens even though the corporate defendant had a principal place of business in Pennsylvania. (See FedEx Ground’s Brief, at 5, 7, 10-12); (Trial Ct. Op., at 2-3, 5); see also Wright, at 991. This reliance is misplaced because Wright is factually distinguishable. In Wright, the plaintiff worked for defendant corporation exclusively in New York and his medical treatment occurred and medical records were all located in that forum. The plaintiff was a long-time resident of New York who “never resided, worked, or owned property in Pennsylvania” and had moved to South Carolina in 2016. Wright, supra at 995. Here, the Failors are Pennsylvania residents, Failor worked for FedEx Ground in Pennsylvania and his medical providers and records are all located in Pennsylvania. Furthermore, while the accident occurred and FedEx Ground’s witnesses are located in Maryland, it is undisputed that there can be no jury view of the scene because it occurred on a FedEx Ground trailer that is no longer there and, although FedEx Ground employees signed affidavits in which they represented travel to Philadelphia would be inconvenient and that they would not be willing to attend, they clarified in their depositions that trial would be inconvenient even if it occurred in Maryland and that they would attend if subpoenaed. Likewise, the affidavits say nothing about the relative convenience of Pennsylvania compared to Maryland.

13
In its motion to dismiss, FedEx Ground argued that Philadelphia courts have a significant backlog justifying dismissal pursuant to Section 5322 and that a Pennsylvania jury would be incapable of applying Maryland law. It has abandoned these arguments here.