IN THE SUPERIOR COURT OF PENNSYLVANIA

EASTERN DISTRICT

No. 802 EDA 2018

ROBERT MALLORY,

Appellant,

v.

NORFOLK SOUTHERN RAILWAY COMPANY,

Appellee.
__________________________________________________________________

APPLICATION FOR LEAVE TO SUBMIT SUPPLEMENTAL BRIEF

Appellee Norfolk Southern Railway Company (“Norfolk Southern”) applies

pursuant to Pa.R.App.P. 123 and 2501(a) for leave to file the short supplemental

brief tendered herewith, and in support thereof states as follows:

1. The sole issue in this appeal is whether interpreting Norfolk Southern’s

mandatory compliance with Pennsylvania’s business registration statute as consent

to the assertion of general jurisdiction violates the United States Constitution.

2. The parties have completed briefing of this appeal, but a date for

argument has not yet been set by the Court.

3. On December 7, 2018, this Court granted en banc reargument in

Murray v. American LaFrance, LLC, No. 2105 EDA 2016, which also raised the
issue of whether a foreign corporation that registers to do business in Pennsylvania

has consented to general personal jurisdiction.

3. Because of the similarity of legal issues involved in both appeals, on

December 20, 2018, Norfolk Southern moved for a stay of this appeal pending the

outcome of the Court’s en banc review in Murray. The application for stay was

granted on February 15, 2019.

4. Murray was subsequently decided on June 25, 2020. Murray, et al. v.

American LaFrance, LLC, et al., No. 2105 EDA 2016, 2020 PA Super 149 (Pa.

Super. June 25, 2020). In its decision, the en banc panel affirmed the lower court

decision on waiver grounds, noting that it “regrettably” could not address the

“compelling” and “competing” perspectives on the consent-to-jurisdiction issue. See

Murray, 2020 PA Super at 14 n. 6.

5. During the pendency of the stay of this matter, there have been a

number of decisions issued by courts in the Commonwealth that are instructive on

this key issue.

4. If leave is granted, Norfolk Southern will file a short supplemental brief

in the form attached as Exhibit A, in an effort to bring these new authorities to the

Court’s attention.

5. Accordingly, Norfolk Southern respectfully requests leave to file a

Supplemental Brief.
 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 for Leave to Submit Supplemental Brief, upon the persons 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)
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)
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

No. 802 EDA 2018

ROBERT MALLORY,

Appellant,

v.

NORFOLK SOUTHERN RAILWAY COMPANY,

Appellee.
____________________________________________________________

SUPPLEMENTAL BRIEF OF APPELLEE,

NORFOLK SOUTHERN RAILWAY COMPANY

Norfolk Southern Railway Company (“Norfolk Southern”) files this

supplemental brief in order to bring to the Court’s attention recent decisions

involving the central issue in this appeal, namely whether a foreign corporation

knowingly and voluntarily consents to general jurisdiction by registering to do

business under a statutory regime that conditions the right to do business on the

waiver of general jurisdiction. These cases were decided subsequent to Norfolk

Southern’s brief, which was filed on October 23, 2018, and while this case was

stayed pending the en banc decision in Murray, et al. v. American LaFrance, LLC,

et al., No. 2105 EDA 2016, 2020 PA Super 149 (Pa. Super. June 25, 2020).

7
 Notably, in declining to decide the jurisdictional issue in Murray, this Court

recognized several of these recent competing decisions, as well as the importance of

resolving the threshold constitutional question of whether registration to do business

in Pennsylvania operates as valid consent to general jurisdiction.1

We do not take this decision lightly. The argument that Plaintiffs assert
on appeal implicates an issue that has generated abundant scholarly
commentary. Further, Pennsylvania’s unique jurisdictional framework
sets it apart from other jurisdictions that have confronted the related
issue regarding whether corporate registration is tantamount to implied
consent. Indeed, recent district court decisions have taken divergent
views of this issue in relation to Pennsylvania’s jurisdictional statute.
Compare In re Asbestos Products Liability Litigation (No. VI), 384
F.Supp.3d 532, 540-41 (E.D. Pa. 2019) (“mandatory statutory regime
purporting to confer consent to general jurisdiction in exchange for the
ability to legally do business in a state is contrary to the rule in Daimler
and, therefore, can no longer stand.”), with Kraus v. Alcatel-Lucent, ––
– F.Supp.3d ––––, ––––, 2020 WL 951082, at *1 (E.D. Pa. Feb. 27,
2020) (“Pennsylvania’s consent-by-registration statute is
constitutional.”). Although the parties and amici curiae all presented
compelling arguments about this issue in their briefs to this Court,
regrettably we simply cannot address those competing perspectives
without the benefit of the trial court’s vetting of the issue in the first
instance.

Murray, 2020 PA Super 149 at 14 n. 6.

While state and federal courts “have struggled to divine the applicability of

Daimler to the Pennsylvania registration scheme with mixed results,” the most

comprehensive analysis of the issue comes from a decision issued last year by the

1
As previously articulated in Norfolk Southern’s brief, the Court in Webb-Benjamin,
LLC v. International Rug Group, 192 A.3d 1333 (Pa. Super. 2018) did not address
the federalism concerns at issue herein.
7
U.S. District Court for the Eastern District of Pennsylvania in In re Asbestos

Products Liability Litigation (No. VI), 384 F. Supp. 3d 532, 534 (E.D. Pa. 2019). In

a well-reasoned opinion, Judge Robreno held that (1) the Pennsylvania jurisdiction-

by-registration statutory scheme “impermissibly re-opens the door to nation-wide

general jurisdiction that Daimler firmly closed” and therefore “violates the Due

Process Clause and is unconstitutional”; and (2) the Third Circuit’s pre-Daimler

decision in Bane v. Netlink, Inc., 925 F.2d 637 (3d Cir. 1991) is irretrievably

irreconcilable with the teachings of Daimler, and can no longer stand. Id. at 543-45.

Notably, Judge Robreno was wholly unpersuaded by the fact that

Pennsylvania’s statute, unlike others, is explicit on the jurisdictional effect of

registering to do business. Id. at 541. In focusing on whether the consent to

jurisdiction that foreign corporations give under Pennsylvania’s statutory regime is

knowing and voluntary and, thus, valid, he determined that the consent extracted by

this statutory scheme “presents a foreign corporation with a Hobson’s choice:

consent to general personal jurisdiction or be denied the benefits of doing business

in Pennsylvania.” Id. at 541.2 In other words, the statutory scheme “conditions the

benefit of certain privileges of doing business in Pennsylvania upon the surrender of

2
Judge Robreno also noted that while a foreign corporation could do business
illegally without the protection of the court system, “the choice of doing business
illegal[ly] is no more of a choice than not doing business in the state at all.” Id. at
541 n.10.
7
the constitutional right, recognized in Daimler, to be subject to general personal

jurisdiction only where the corporation is ‘at home.’” Id. “Given the fundamental

importance of the ability to engage in interstate commerce, ... the mandatory nature

of the statutory consent extracted by [§ 5301] is, in fact, functionally involuntary.”

Id. at 542. As a result, the purported “consent” to general jurisdiction via registering

to do business in Pennsylvania “is not true consent at all.” Id.

It is for that reason that Judge Robreno found that the Pennsylvania statutory

scheme violates the unconstitutional conditions doctrine. As the Court explained,

“the Supreme Court has recognized that the state cannot condition a benefit generally

available to others in the state on the surrender of a constitutional right.” Id. at 541.

The Pennsylvania statutory scheme, however, does exactly that. All persons and

entities appearing before any court in the United States are entitled to certain Due

Process rights. U.S. Const. Amend. V & XIV. As the Supreme Court held in

Daimler, among those Due Process rights is an out-of-state corporation’s right to be

subject to general personal jurisdiction only where it is “at home”—not in every

jurisdiction where it “engages in a substantial, continuous, and systematic course of

business.” Daimler, 571 U.S. at 122, 138-39. To nonetheless deem a foreign

corporation to be subject to general jurisdiction in Pennsylvania simply because it

registered to do business here would “eviscerate[]” Daimler’s constitutional

pronouncement. In re Asbestos, 384 F. Supp. 3d at 540.

7
 In Reynolds v. Turning Point Holding Co., 2020 WL 953279 (E.D. Pa. Feb.

26, 2020) (Wolson, J.), Judge Robreno’s holding was explicitly adopted. Id. at *5

(“... having reviewed the decisions cited above, this Court agrees with and adopts as

its own Judge Robreno’s analysis in In re Asbestos ... The Pennsylvania statutory

scheme requiring foreign corporations to consent to general personal jurisdiction in

Pennsylvania by virtue of registering to do business here violates the Due Process

Clause.”); see also Fend v. Allen-Bradley Co., 2019 WL 6242119 (E.D. Pa. Nov. 20,

2019) (Judge Robreno affirmed his prior ruling that “Pennsylvania’s statutory

scheme requiring foreign corporations to register to do business and, therefore, to

consent to general personal jurisdiction, offends the Due Process Clause and is

unconstitutional”); Pennington v. U.S. Steel Corp., 2019 WL 4131843, at *2-3 (Pa.

Com. Pl. June 27, 2019) (Shreeves-Johns, J.) (opining that the consent-by-

registration statute violates the Due Process Clause and requesting a “clear ruling

from the Superior Court” on the issue).

Other federal decisions in Pennsylvania have likewise recognized the merits

of Judge Robreno’s position, but have felt constrained by the holding in Bane. See,

e.g., Replica Auto Body Panels v. Intech Trailers, Inc., 2020 WL 1891890 (M.D. Pa.

Apr. 16, 2020) (Brann, J.) (“Were I deciding this issue on a blank slate, I would be

inclined to follow Judge Robreno’s decision in In re Asbestos. However, Bane

remains controlling law in this Circuit”); Berk v. Equifax, 2020 WL 868128 (E.D.

7
Pa. Feb. 21, 2020) (Diamond, J.) (“I agree with Judge Robreno that the ‘consent’

compelled by Pennsylvania’s registration scheme, however explicit it may be, would

effectively ‘approve the exercise of general jurisdiction in every State in which a

corporation engages in’ any business—an impermissibly broader formulation than

that the Supreme Court has condemned… Although Judge Robreno’s analysis is

plainly correct, in the circumstances presented, I will err on the side of caution and

follow Bane, which remains the law of this Circuit.”); Winters v. Azko Nobel Surface

Chemistry, LLC, 2020 WL 2474428 (E.D. Pa May 13, 2020) (Schmehl, J.) (“Until

there is a change in the applicable Third Circuit law, we are bound by the rulings of

the Third Circuit and the Supreme Court”); Youse v. Johnson & Johnson, 2019 WL

233884, at *4 (E.D. Pa. Jan. 19, 2019) (Baylson, J.) (“Without the Third Circuit

overruling Bane or distinguishing Daimler, we follow these decisions and conclude

that registration to do business in Pennsylvania is sufficient to create general

personal jurisdiction”); Smith v. NMC Woolard, Inc., 2020 WL 1975074 (E.D. Pa.

Apr. 24, 2020) (Beetlestone, J.) (same); Kraus v. Alcatel-Lucent, 2020 WL 951082

(E.D. Pa. Apr. 24, 2020) (Savage, J.) (same); Williams v. Takeda Pharms. Am. Inc.,

2019 WL 2615947, at *3 (E.D. Pa. June 26, 2019) (Pappert, J.) (same); Healthcare

Services Group v. Moreta, 2019 WL 6117353 (E.D. Pa. Nov. 15, 2019) (DuBois, J.)

(same).

7
 Because this Court is not constrained by the holding in Bane, which found

“consent” without any analysis and without the benefit of the U.S. Supreme Court’s

subsequent interpretations of the limits of the exercise of personal jurisdiction, the

comprehensive analysis offered by Judge Robreno is instructive. Norfolk Southern

has not voluntarily consented to jurisdiction in Pennsylvania. Therefore, the exaction

of “consent” under § 5301 is invalid and violates the Due Process Clause of the

Fourteenth Amendment.

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
Daniel B. Donahoe, Esquire (PA 58822)
dbdonahoe@burnswhite.com
Firm No. 828
The Burns White Center
48 26th Street
Pittsburgh, PA 15222
Phone: 412-995-3000

SCHNADER HARRISON SEGAL & LEWIS LLP

Ralph G. Wellington, Esquire (PA 10069)
rwellington@schnader.com
1600 Market Street, Suite 3600
Philadelphia, PA 19103
Phone: 215 751-2000
Facsimile: (215) 751-2205

Counsel for Appellee, Norfolk Southern Railway Company

7