In Mallory v. Norfolk Southern Railway Co., decided June 27, 2023, a divided Supreme Court held 5-4 that Pennsylvania can force out-of-state corporations to accept being sued in its courts on any claim, whether or not the claim has anything to do with Pennsylvania, as the price of registering to do business there.1Supreme Court of the United States. Mallory v. Norfolk Southern Railway Co. The decision revived a century-old theory known as consent-by-registration and disrupted the settled expectation, built on modern precedent, that a company generally faces open-ended lawsuits only in its state of incorporation or its principal place of business.
The Case and the Ruling
Robert Mallory worked as a freight-car mechanic for Norfolk Southern, a company incorporated and headquartered in Virginia. He was diagnosed with colon cancer in June 2016 and sued under the Federal Employers’ Liability Act, alleging that workplace exposure to carcinogens caused his illness. His employment and alleged exposure took place in Ohio and Virginia. He filed his lawsuit in Pennsylvania.
The hook was a Pennsylvania statute. Under 42 Pa. Cons. Stat. § 5301, a foreign corporation that registers to do business in Pennsylvania is subject to general personal jurisdiction there, and “any cause of action may be asserted” against it regardless of whether the claim arose in the state.2Pennsylvania General Assembly. Pennsylvania Code 42-5301 – Persons Registration itself is not optional for companies that want to do business in Pennsylvania: 15 Pa. Cons. Stat. § 411 bars a foreign corporation from operating in the state until it registers with the Department of State.3Pennsylvania General Assembly. Pennsylvania Code 15 Pa.C.S.A. 411 Norfolk Southern had been registered in Pennsylvania since 1998.
Norfolk Southern argued that forcing it into Pennsylvania’s courts on an out-of-state dispute violated the Due Process Clause of the Fourteenth Amendment. Under the modern jurisdictional framework, a corporation is generally subject to open-ended jurisdiction only where it is “at home,” meaning its state of incorporation or its principal place of business.4Justia. Daimler AG v. Bauman, 571 U.S. 117 (2014) The Pennsylvania Supreme Court agreed with the railroad and dismissed the case.
The U.S. Supreme Court reversed. Writing for the majority, Justice Gorsuch concluded that the modern minimum-contacts framework governs where there is no consent, but does not displace older, consent-based routes to jurisdiction. Because Norfolk Southern had voluntarily registered in Pennsylvania knowing the statute’s jurisdictional consequences, it had effectively consented to being sued there. The majority found the case controlled by a 1917 decision, Pennsylvania Fire Insurance Co. of Philadelphia v. Gold Issue Mining & Milling Co., which upheld a similar Missouri scheme.5Legal Information Institute. Pennsylvania Fire Insurance Co. of Philadelphia v. Gold Issue Mining and Milling Co., 243 U.S. 93 Justice Barrett dissented, joined by Chief Justice Roberts and Justices Kagan and Kavanaugh.
The Commerce Clause Question the Court Didn’t Answer
Justice Alito provided the fifth vote but wrote separately, and his concurrence is why the story isn’t over. He agreed that the Due Process Clause alone does not bar Pennsylvania’s scheme, given Pennsylvania Fire. But he flagged what he called “a good prospect” that the statute violates a different constitutional provision: the dormant Commerce Clause, which limits state laws that unduly burden interstate commerce.1Supreme Court of the United States. Mallory v. Norfolk Southern Railway Co.
Alito reasoned that conditioning market entry on submission to jurisdiction over any claim, from anywhere, imposes a heavy price on companies that operate across state lines. Norfolk Southern had not raised that argument in the courts below, so the issue was not properly before the Justices. The Supreme Court vacated the judgment and sent the case back, leaving Norfolk Southern free to press the Commerce Clause challenge on remand.
The consequence is that the constitutional picture is incomplete. If the Commerce Clause argument succeeds, Pennsylvania’s statute could still fall on different grounds. If it fails, consent-by-registration survives intact.
What the Ruling Means for Corporations Registered in Pennsylvania
For now, any out-of-state corporation registered to do business in Pennsylvania is subject to general jurisdiction in Pennsylvania’s courts. A Delaware corporation headquartered in Texas can be sued in Philadelphia over a workplace injury that happened in California. The claim needs no Pennsylvania connection.
That opens a real forum-shopping path. Plaintiffs’ lawyers can steer cases into Pennsylvania when its procedural rules, jury pools, or substantive law are more favorable than the home forum. Because so many national and multinational companies are registered in the state, the pool of potential defendants is large. Mass torts and class actions involving products liability, environmental exposure, or occupational disease are the most obvious candidates for concentration in Pennsylvania courts. Beyond verdict risk, corporate defendants face the ordinary expense of litigating far from the events and witnesses.
Options for Out-of-State Businesses
Companies now face a decision that did not exist before the ruling: accept the exposure, exit, or wait.
Withdraw the Registration
A foreign corporation can end its Pennsylvania registration by filing a Statement of Withdrawal with the Department of State. The filing fee is $70, and the corporation must obtain tax clearance certificates from both the Pennsylvania Department of Revenue and the Department of Labor and Industry showing all taxes and charges have been paid. Advertisement of the intent to withdraw is also required.6Pennsylvania Department of State. Statement of Withdrawal of Foreign Registration
Withdrawal eliminates the jurisdictional consent going forward, but not backward. Section 5301 states that discontinuing registration does not affect jurisdiction over acts or transactions that occurred while the corporation was registered.2Pennsylvania General Assembly. Pennsylvania Code 42-5301 – Persons
Weigh the Cost of Not Being Registered
A company that keeps doing business in Pennsylvania without registration runs into a separate problem. Section 411 bars an unregistered foreign corporation from filing or maintaining lawsuits in Pennsylvania courts.3Pennsylvania General Assembly. Pennsylvania Code 15 Pa.C.S.A. 411 Contracts remain valid and the company can still defend itself, but the loss of access to Pennsylvania’s courts as a plaintiff is a serious cost for any business with customers, vendors, or property in the state. For a company with substantial Pennsylvania operations, withdrawal isn’t a realistic option. For a company with lighter ties, it may be worth the trade.
Wait Out the Commerce Clause Question
Some companies will simply hold their registration and wait. If the courts eventually find that Pennsylvania’s statute burdens interstate commerce unconstitutionally, consent-by-registration collapses regardless of a company’s registration status. The trade-off is timing. Cases filed in the meantime proceed under the current framework, and the Commerce Clause resolution could take years.
How Other States Have Responded
Pennsylvania’s statute remains unusual, and the response from other states has been mixed. Georgia’s Supreme Court had already interpreted its own registration scheme to authorize general jurisdiction over registered foreign corporations before Mallory was decided. New York’s courts have held that registering in New York does not amount to consent to general jurisdiction under existing state law. New Mexico reached a similar conclusion, finding its registration statute did not “clearly, unequivocally, and unambiguously” require consent.
Illinois took a narrower path in August 2025, enacting a limited consent-by-registration provision that applies only to cases alleging injury or illness from exposure to toxic substances, and only when at least one co-defendant is already subject to jurisdiction in Illinois. Whether more states follow depends in large part on how the Commerce Clause issue is ultimately resolved.