Dayhoff Inc. v. H.J. Heinz Co.

INC., a California DAYHOFF Appellant,

corporation, Pennsylvania corpora CO., HEINZ

H.J. S.p.A.,

tion; an Italian S.p.A.,

corporation; Heinz Dolciaria S.p.A., Sperlari an

formerly known as s.r.l., an corporation;

Italian corporation; Foods

Italian corporation.

Corporation, a Delaware 95-3404, 96-3250.

Nos. Appeals, States Court

United

Third Circuit. May

Argued 24, 1996.

Decided June Limited Grant

As Amended

Rehearing

William B. (argued), Mary Mallin K. Aus tin, Ramirez, Joseph Eckert, Seamans, M. Mellott, PA, Pittsburgh, Cherin & Appel lant. L. (argued),

Thomas Alen Camp- Carla L. bell, Reed, Smith, Shaw, McClay, & Pitts- PA, burgh, Appellees. GREENBERG, ALITO,

Before McKEE, Judges. Circuit § jurisdiction under 28 U.S.C. We OF THE COURT OPINION § under U.S.C. GREENBERG, Judge. Circuit II. AND FACTUAL BACKGROUND PROCEDURAL HISTORY I. INTRODUCTION A. FACTUAL BACKGROUND initiated this diver- Appellant Dayhoff, Inc. Agreement 1. The License 29,1993, citizenship action on October sity of Ltd., Dayhoff Pty, Sperlari Australia and of tortious interfer- alleging breach Agreement into a on S.pA. entered License contract, fraud, conspira- civil and ence with 19, 1989, pursuant Sperlari to which October appellees. The cy against various of the S.pA. granted Australia exclu- of three of the termination action arose out candy Frutteto to make and sell sive license appellee Dayhoff and between contracts Day- in the States as of June United S.p involving the manufac- A. Heinz Dolciaria rights assigned hoff has its and Australia candies in the United States. ture and sale of obligations Dayhoff. under the terminations the sale of the The followed Agreement ten-year term of License The candy appellee Dolciaria business expires but the October Corporation. The district Foods permits Dayhoff to continue thereafter related to court dismissed candy Frutteto in manufacture and market of arbitration of contracts because two non-exclusive, roy- under a United States clauses, and dismissed forum selection and alty-free the agree- license. Article jurisdiction personal lack of all claims for provides govern ment that Italian law will its S.pA. Heinz against appellee Heinz Italia interpretation provides and Article corporation Heinz parent Dol- Italia is the adjudicated relating disputes to it will be turn, and, subsidiary appellee a in is ciaria proceeding Italy: in in an arbitration discovery After additional H.J. Heinz Co. 22. ARBITRATION contract, the court respect to the third with arising present All from the controversies summary judg- appellees’ motion for granted the same contract or will be remaining After ment on all claims. definitively according to the settled Recon- entry of appealed, the district court directed and Arbitration the In- ciliation Rules 54(b), Commerce, judgment final under Fed.R.Civ.P. ternational Chamber of exclud- a courts, by ing to the common law recourse appealed again. We have and then appointed in accor- one or more arbitrators disposition in appeals for consolidated the with these Rules. dance opinion.1 its The tribunal will decide on arbitration corporation with its a California matter competence to decide the in place of California. principal business validity clause. corporation Pennsylvania a H.J. Heinz Co. is apply the relevant Law Each can place Penn- principal with confirm arbitration sentence Courts to Corporation sylvania. Foods the same. or enforce execution of place corporation principal Delaware place proceedings will take Arbitration Pennsylvania. Appellees of business Milan. S.p.A., Dolciaria S.p.A., Heinz App. at 46. corporations, Sperlari are Italian s.r.l. Agreement 2. The Frutteto Distribution places of business in principal with their monetary Italy. threshold diversi- On As the met, S.pA. signed the Frutteto Distribution court had

ty jurisdiction the district was opinion we make refer course order under Rule in the court entered the 1. The district 54(b) appendix questioned appendix. it had entered whether This after ence to a sealed judgment a counterclaim a final because of it contained certain sensitive sealed because appeared outstanding. materials, the items which commercial order, light satisfied that we we are refer are not of character. appeals. We note over the also have therefore, provides present we will Agreement, pertain which will the facts light to these claims most favor United States distributor of be the exclusive Dayhoff. Super able to See Petruzzi’s IGA candy. The contract does Frutteto markets, Co., Darling-Delaware Inc. v. term, but, Agreement, like the License set — (3d 1224, 1230-32 Cir.), denied, cert. F.2d governing law contains a clause: -, U.S. S.Ct. 126 L.Ed.2d 455 (1993); B. LAW GOVERNING Corp. see also Berner Int'l v. Mars (3d Cir.1993). Sales 987 F.2d governed This shall be parties negotiated Candy Bulk laws of constructed accordance through numerous Italy irrevocably and the hereto between facsimiles the United States and submit to the exclusive of the Volta, Italy. Luigi June On then a (Italy). Court of Cremona long-time employee of Heinz Dolciaria and employed s.r.l., currently by Sperlari a suc- April S.p.A. App. at 49. corporation Dolciaria, cessor to Heinz in- assigned rights under the 1989 Frutteto formed that is our last “[t]his and Licensing Agreement and the 1990 Frutteto proposition.” final app. Sealed at 1011-12. Agreement Distribution to Heinz Dolciaria. 8,1992, On June Volta informed that App. at 198. agreement an was and “reachable” invited Lele, president Uday to come to Cremona, Italy, agreement. to the Candy 3. Bulk “finalize” The Distribution at Id. 1013. Agreement thereafter, Shortly Lele traveled Cre- Heinz Dolciaria executed the sign agreement. mona According the Candy July Bulk Distribution on Dayhoff, Lele negotia- understood that the agreement, Day- Pursuant this virtually tions were over and that the con- hoff became Heinz Dolciaria’s exclusive Unit- tract terms would the follow facsimiles. Italy ed States when he sign distributor certain candies other arrived in the Lele learned that Antonella Gia- candy. Candy than Frutteto The Bulk Dis- cobone, Italia, attorney an for Heinz would eight-year tribution has an term meeting, at be as would Volta Franco expires at earliest on Seletti, employee Seletti. also a former provides agreement disputes arising Dolciaria,' employed by Sperlari now litigated from it are in the United s.r.L, corporate is above Volta in the ladder. States District Court for the Dis- Western never Lele had met or dealt Giaco- Pennsylvania agreement trict of and that the bone, and there attorney had never an been Pennsyl- will be construed accordance with present during previous negotiations be- Thus, App. vania law. at 50-67. the three tween and Heinz Dolciaria their agreements provide for three different fora predecessors, or at the execution their adjudicating disputes provide for the previous contracts. given Lele had been law of apply two countries to inter- to their advance notice that Giacobone would be at pretation. see, As we shall this fractured meeting, suggested and no one had approach dispute resolution under related might bring he want lawyer. his own great expense contracts has led and confu- Dayhoff alleges that when Lele asked Giaco- and, afraid, why present, she sion bone was him we are will to do she advised continue so. protect Dayhoffs she interests as Dayhoffs Because some of claims are Dolciaria, well as those of Heinz and that she negotiation based on surrounding events attorney de facto in connection Agreement, 1992 Distribution the facts negotiation with the of the contract. negotiation agreement of that meeting, At presented Giacobone Lele require further discussion. The district Candy with a draft of the Bulk rejected Dayhoffs claims related to Agreement that during he had not seen summary judgment; this parties’ previous negotiations. The draft to mean that Heinz similar to stood provision a termination contained right 14.3,2 ultimately incorporated to termi- Dolciaria would the one section According Day- agreement. final if nate the contract Heinz Dolciaria sold or into the hoff, not discussed corporation. Heinz Dolciaria had another transferred its assets to previously. provision termination after it initiated incorporat- Thus, provision had been litigation did the assert this agreements. prior drafts or parties’ ed in termination clause entitled Heinz Dolcia- that he deposition, Lele testified hisAt to terminate the contract without com- ria provision at meaning into of this inquired Heinz Italia sold the confec- pensation when meeting: tionery business. Giacobone then testified what Giacobone I asked Antonella that she had included clause said, Lele, meant, you are Mr. she deposition, At specific purpose. her Giaco- market. Heinz in the American operating claimed that she “intended to bone further food of the most well-known one USA legal every possible ... or financial cover you to use companies, we don’t want way in confection- [Heinz Italia’s] which your company sell to some- name to sold____” app. ery could be Sealed rich man and body else and become a 1032-33. Giacobone having to holding baby the and left get however, deny, that she failed did to somebody deal don’t want to we deal specifi- when this information Lele disclose she me. That is what told with. meaning of cally questioned the section 14.3. that app. Dayhoff alleges at 743-44. Sealed specifically what Lele asked Giacobone when Three Contracts of Performance meant, provision she the termination Dayhoff consistently performed its obli- appellees could invoke tell him gations under the three contracts and creat- Dayhoff Italia rather than when Heinz clause Heinz candies in a market for Dolciaria’s ed Instead, Dayhoff alleges, sold its business. Dayhoff to the United States. have protected provision him that the advised she perform- than million in invested more $1.6 Dayhoff that Dolciaria in event Heinz proof the contracts. As its satisfac- Moreover, assigned. or assets sold its Dayhoff that tory performance, asserts as alleges Gia- that connection with Dayhoff 30, 1993, recently September Heinz Dol- as clause, told explanation of she cobone’s Dayhoff expand opera- its ciaria asked to taking of both “[s]he would be care Lele Heinz Dolciaria tions to distribute additional Dayhoff further Br. at 9. our interests.” finan- expected enormous candies. rep- claims that Volta confirmed Giacobone’s from its substantial investment. cial returns meaning of the termi- as to resentations telling provi- by clause Lele nation Three Contracts 5. Termination of protect Heinz Dolciaria was intended sion assigned or Dayhoff, sold According early the event that as as March company. Italia, assets another without H.J. Heinz and Heinz knowledge, began negotiating s one asserts that no informed Dayhoff thus Hershey. of Heinz Dolciaria’s business to sale Dol- Heinz that the clause would entitle Lele it about Dayhoff alleges that when learned com- terminate the contract without ciaria to inquired impending transaction pensation the event that contracts, Heinz Dolciaria its effect on its change a or control sold underwent there be no effect and assured Indeed, Dayhoff explana- assets. no reason terminate the there was tory to Lele Giacobone statements Yet, according H.J. inter- contracts. with such an were inconsistent Volta Italia, Heinz, then even under- Heinz pretation. Dayhoff that Lele states dation, assigns party in the event either or 14.3. Section part of its busi- the whole or substantial right party have to terminate shall Either compa- merges with ness or another or assets Agreement upon notice the oth- written undergoes change ny a control. party be- in the event that er insolvent, goes liqui- app. at 969. bankrupt, Sealed into comes ways searching terminating were terminate the Italia issued a letter Heinz Dolci- 13, 1993, September Giaco- contracts. On Dayhoff: aria’s three contracts with Hershey discussing bone sent a letter you heard, may recently As sold particular contracts detail reference confectionery all our business to the Her- provisions. to the termination letter shey Group. consequence, hereby As indicated that Lele was “well known and notify you [of] decision to forthwith (i e., Sperlari S.p.A.’s appreciated” by Heinz Agreement, terminate [License Frutte- Dolciaria’s) managers. app. sales Sealed Agreement, to Distribution and Bulk Can- 59-60. dy Agreement], The Frutteto September On Italia sold Distributorship and Bulk Candies Dis- virtually confectionery all of its tributorship your are terminated also for Hershey Holding subsidiary Company, a respectively failure to attain the Minimum $133,000,- Corporation, for Foods Quantities and the Minimum Purchases. accomplished 000. Heinz Italia sale through company, the formation of new app. Sealed at 950 (emphasis original). s.r.l.; Sperlari substantially transfer problem terminating there was no dum of the Hershey’s pur- sale shows that Candy Bulk Distribution because contracts, chase did not include the Heinz of the provision. contract’s termination On agreed Dayhoff Italia to terminate con- hand, expressed Volta concern that tracts, and agreed indemnify to justification there was no terminating for arising from liabilities from the Frutteto Agreement. Dayhoff Distribution termination of the contracts. app. Sealed at alleges that at that time Giaeobone reassured 940-41. by reminding Volta him of the contract According Dayhoff, deliberately Seletti providing forum, clause for an Italian and decided to conceal the termination decision stating Dayhoff might willing not be Hence, Dayhoff it. from claims that it was pursue rights its in Italy. app. Sealed at not informed of the termination and contin- Dayhoff 1101-04. reacted to the termination exclusively pro- ued devote itself to the by informing letter Heinz Dolciaria that the Sperlari motion of the name products and purported terminations were invalid and had and continued inform and Seletti Volta of no effect grounds because there were no for Dayhoff that,

its alleges efforts. even as Italia, the terminations and because Heinz was Lele invited visit Milan to discuss contracts, which was not a could parties’ continuing relationship and not terminate them.4 Candy the extension of the Bulk Distribution candies, to include additional Sel- termination, Hershey Since the has an- and providing etti Volta Dayhoffs nounced to customers that Her- confidential information concerning Dayhoff s shey begin soon selling candies in the business. Dayhoff United States where has exclusive 28, 1993, By September letter dated rights. result, Dayhoff United States As a Hershey’s insistence, direction and Heinz claims that its sales have declined dramati- (the Sperlari S.p.A. 3. original party Dayhoff alleges litigation the 1989 4. that after this com- menced, Agreements) and 1990 Frutteto attempted is not the same to terminate company Sperlari Dayhoff, more, s.r.l. by sending “equal- See Inc. v. the contracts two itself ineffective,” letters, slip op. H.J. ly No. n. 2 Heinz at 4 which cited section 14.3 as (W.D.Pa. 3, 1994). Oct. basis for termination. br. at n. See only Dayhoffs position outstanding States left eally standing the United and Candy claims under the Bulk Distribution candy has been shattered. market Agreement against appellees other than HISTORY B. PROCEDURAL Heinz Italia. on this action October initiated Judge The case then was transferred complaint, In its amended Cindrich, who, granted on against alleged Heinz Doleiaria claims summary judgment appellees favor Dayhoff also all three contracts. breach of Dayhoffs remaining claims related to the against of contract claims breach asserted Day- Candy Agreement. Bulk Distribution took ground that it over Sperlari s.r.l. on appealed. exercising ple- hoff We are then Dolci- Dolciaria’s business when Heinz Heinz nary review. effectively stripped of its assets. aria aware, note as we are We insofar breach of contract does not assert order, notwithstanding the October Heinz, or Hershey, against H.J. have not instituted arbitration however, asserts claims Italia. Italy. litigation proceedings against all interference with contract tortious s.r.l., Hershey, Sperlari and H.J. Doleiaria. appellees except Heinz Heinz did not consent of the all for fraud asserts claims litigation in the arbitration in Milan or courts imposition conspiracy, and seeks of Cremona until after the district court con- proceeds from the trust on all constructive Dayhoffs ditioned dismissal claims on confectionery business of Heinz Italia’s sale Dayhoffs that consent. consent neither was proceeds all from the manufacture given. sought nor s.r.l. can- of Heinz Doleiaria sale It also seeks in the United States. dies III. DISCUSSION s.r.l., Hershey, Sperlari restitution from Doleiaria, and reformation A. THE 1989 AND 1990 AGREEMENTS n change of control termination provision of Dayhoffs argument initial Candy Agreement. Bulk dismissing district court erred in its claims originally plaintiff Australia was a agree 1989 and 1990 Frutteto related however, suit; prior Dayhoff Australia because, view, ments arbi had transferred and the institution of suit tration and forum of those selection clauses Dayhoff rights the 1989 assigned to under agreements, the on which district relied Thus, Agreement. dropped it was License result, reaching apply do not to all of plaintiff. aas and, indeed, appellees are not effective at 14, 1994, a On March made Dayhoff argument all. bases its that summary judg- joint dismiss or for motion to appel are clauses not effective as all court, ment. On October Kaplan opinion v. principally lees Ambrose, through Judge Dayhoffs dismissed Inc., Chicago, Options First 19 F.3d 1503 of Agreement on relating to the License claims (3d Cir.1994), Supreme which the Court af agreement compelled ground that Options Chicago, firmed First Inc. arising Dayhoff to all claims from arbitrate — U.S.-, Kaplan, 115 S.Ct. including had against appellees, those who all (1995).5 L.Ed.2d 985 also dis- signed not it. The district court Supreme Dayhoff asserts that the Court’s to the missed all Kaplan strongly emphasized opinion in that on the Frutteto Distribution parties required be to arbitrate a cannot Dayhoff compelled liti- ground that was they expressly dispute specifically and Cremona, unless gate those claims in the courts of It agreed have to arbitration. claims that Italy. Finally, court dismissed district holding court’s that was for district against all claims lack Thus, required jurisdiction! initial to arbitrate its claims with personal dis- respect agreements be to the issues though the should considered with 5. Even 1989 and disputes govern provide for over Italian law the arbitration and forum selection claus- under Italian fora for resolution Thus, possibility. es. we do not address that disputes, party suggests that Italian law of the no Kaplan particular- under the License because “reasonable,” ly significant one of the though Hershey even was because individual case, Kaplan, defendants Manuel party not a to the was erroneous director, president, was the and the sole Kaplan. Dayhoff fur- and inconsistent with corporation, shareholder the defendant crafting that in ther claims its standard obligated which was to arbitrate because reasonableness, ignored the district court Kaplan signed containing had a contract an proper, it is as a threshold issue whether arbitration clause on its behalf. Nonethe- law, compel Dayhoff matter of to arbitrate less, Kaplan obligated himself was not against Hershey, stranger its claims a to the against arbitrate the claims him he because Agreement, License where not has not had entered into an to arbi- Hershey. agreed to arbitrate with individually, although trate signed he had Kaplan unequivocally asserts that held agreements. Dayhoff points related out where, here, improper compulsion such if relationship or a reasonableness close there is no to arbitrate between compel were a non-party sufficient cause parties. the relevant arbitrate, Kaplan would have been a Supreme In Kaplan, Court affirmed prime candidate for arbitration. directing our decision the district court to Dayhoff rejected any notes that we test vacate an award party a determining had whether to arbi- — agreed who had not to arbitrate. at U.S. trate other than a determination of what -, Exercising S.Ct. de novo provided: the contract’s terms review, Kaplans we held that the could fundamentally Arbitration is creature compelled to pursu- arbitrate claims made contract ... ‘arbitrators derive au- their they ant to various contracts because individ- thority disputes only to resolve because ually signed specific had not contract parties agreed have in advance to sub- clause, containing although the arbitration grievances mit such to arbitration.’ they signed Kaplan, had related contracts. (quoting Techs., F.3d at 1512 AT & T Inc. 19 F.3d at 1516. Workers, v. Communications 475 U.S. Kaplans obligated to arbi- 106 S.Ct. 89 L.Ed.2d 648 (1986)). they trate agreed because had not to do so. argues Kaplan thus Supreme As the Court wrote: theory long discredits the that as as an arbi- applicable contracting tration clause is to the simply [Arbitration is a matter of contract parties, proper bring it is into arbitra- parties; way between the it is a to resolve all parties dispute tion to the even disputes those disputes— those —but though they parties are not agree- agreed have submit to ment, agreed and thus to arbitrate. arbitration. Accordingly, since — at-, (citations U.S. S.Ct. at 1924 agree arbitrate, Dayhoff not to asserts it that omitted). Further, the Court stated that: required cannot be so. to do all, objective After the basic in this area is Further, Dayhoff year notes that a after disputes not to resolve in the quickest litigation, Hershey gave commenced this its possible, manner no matter what par- consent Italy, to arbitration in after wishes, ties’ but to ensure that commercial required the district court had such consent agreements, like other con- dismissing condition of the action tracts, according ‘are enforced to their very it.6 claims that terms.’ of existence this consent underscores at-, (citations Id. at S.Ct. omit- point legal that there requir- is no basis for ted). ing Hershey Dayhoff either to arbitrate subject 6. All jurisdiction claims which relate to the 1989 and 1990 themselves to the the Ital- of purpose litigating ian Agreements Frutteto courts may by relating be asserted Plaintiff quali- will ... be dismissed. This dismissal Agreements. to the 1989 and 1990 Frutteto however, fied, on the Co., condition that and 93-1794, Dayhoff, slip Inc. H.J. No. Heinz agree (W.D.Pa. 3, 1994) added). voluntarily appear Italy op. and (emphasis Heinz at 9 Oct. defendants, including tortious interference Italy, fact that because mere Id. compelled to do so demonstrates with contractual relations. cannot be required to take that should argued The North American distributor there either. its claims that forum clause should not selection claims, arguments relating to Dayhoff applies apply particularly its tort those Licensing asserting against parties clause the 1989 the arbitration claims it was selection clause parties to the forum than Parfums who were not Gucci Agreement, the 1990 Frutteto Distribution clause. The district forum selection Kaplan would not countenance arguing that rejected argument, the court and court, foreign sending parties to a absent appeals appeals affirmed. The court of Day- agreement selecting that court. a valid that the forum selection concluded first Kaplan thus rationale of hoff claims that the apply the tort claims asserted clause clause, that the forum selection and governs distributor, stating North American Hershey’s consent to the belated “[wjhether ap- selection clause forum irrelevant, simply courts is of the Italian plies depends tort on whether reso- claims agree- no that there was except that it shows interpretation lution relates to claims Hershey to resort ment between The court of the contract.” Id. at 514. to the Italian forum. all North American concluded that of the required interpretation of distributor’s claims appellees argue that the 1989 response, fell within the the contract and therefore Licensing Agreement Frutteto scope of the contract. The court further contained, respec- concluded that the forum selection clause tively, and a valid a valid arbitration clause defendants, applied to all even those who Appellees clause. claim forum selection parties were not to the forum selection correctly relied on these the district court alleged It that “the con- clause. reasoned dismissing Dayhoffs claims relat- clauses in non-parties closely duct of the so related thereby agreements, these two relationship that the forum the contractual up- consistently precedent acted all applies selection clause defendants.” enforceability of such clauses. holds n. Id. at 514 Further, argue clauses these claims, contract only apply to breach of reasoning of the court of Belying upon the claims arising from contractu- but also tort arrow, appellees argue appeals in Manetti-F principally Appellees Br. al relations. correctly concluded the district court Ap- rely upon the decision Court that all of Ninth Manetti-Far- peals for the Circuit should 1989 and 1990 Frutteto row, America, Inc., 858 F.2d Inc. v. Gucci Inc. v. H.J. be dismissed. See Cir.1988). (9th slip op. at 9 No. 1994) (W.D.Pa. Heinz, (“Although Oct. arising Manetti-F arrow involved claims Italia, Sperlari Hershey are s.r.l. and of the North American from the termination Agreements, conduct their of Gucci Accessories. distri- distributor closely rela is so related to the contractual Ameri- between North bution Day tionship between affiliate and a Gucci Italian can distributor find forum hoff that we selection (Gucci Parfums) a forum selection included Defendants.”). Appel applies to all clause requiring litigation “any controver- clause rely on decisions of other lees further similar sy regarding interpretation or fulfillment (citing br. at 18 Coastal Steel courts. See Italy. in Id. at 511. present the contract” Ltd., Corp. 709 Tilghman v. Wheelabrator termination, Ameri- Following its the North (3d Cir.) (“[T]he 190, F.2d law of con 203 the litigation commenced in can distributor long recognized ... that third- has Parfums, tracts against United States Gucci beneficiary permit the (Guccio status does not Gucci), party an American parent Italian provisions otherwise (Gucci America), of contractual avoidance and various affiliate Gucci denied, 938, 104 enforceable.”), 464 cert. U.S. corporate de- employees and directors (1983); 349, Bonny v. 78 L.Ed.2d 315 S.Ct. The North American distributor fendants. (7th Society Lloyd’s, 162 Cir. against 3 F.3d variety a of claims these asserted 1993) subject (noncontracting defendants to forum the selection clause in Distri- integrally Agreement only by forum clause because re bution can be selection enforced signatories contracting agreements. lated to defendants such that suit to those forum), Kaplan kept single opinions controlling in prece- should in a cert. de are the be - nied, -, 127 dent thus we decline to follow the U.S. S.Ct. rea- (1994); soning Appeals L.Ed.2d TAAG Linhas de the Court of Aereas for the Ninth Airlines, Inc., Angola in v. 915 Circuit Manetti-Farrow. do Transamerica Nor we be- (9th Cir.1990) (forum any by appellees F.2d lieve of the other cases selec cited here, persuasive third-party may tion can restrict are as those clause beneficia cases all forum; distinguished ry designated to not from that us. unreason before unjust able or clause all enforce when Further, presents this case a different is- agree other defendants in the than those sue we addressed Barrow- forum); Sons, Ryan selected v. J.J. & Inc. Kidder, clough Inc., Peabody v. & Textile, S.A., Rhone Poulenc 863 F.2d (3d Cir.1985), F.2d 923 overruled on other (4th Cir.1988) (“When charges 320-21 grounds by v. Lynch, Pritzker Merrill against parent company subsidiary a and its Pierce, Smith, Inc., Fenner & 7 F.3d 1110 are based same facts and are inher (3d Cir.1993), and Lynch, Pritzker Merrill ently inseparable, may a court refer claims Pierce, Smith, Inc., Fenner & 7 F.3d 1110 against parent though to arbitration even (3d Cir.1993). In Barrowclough, upheld parent formally a to the the enforcement of an arbitration clause agreement.”)). arbitration an action a fired employee between his employer, former applying Appellees claim that neither decision of plaintiffs against his claims Supreme Court nor that of this court employer, also his claims addi- Kaplan Ap- controls the result of this ease. tional, non-signatory defendants. pellees Kaplan assert involved different Barrowclough, plaintiff signed had an legal issues and different factual circum- agreement with the New York and American First, appellees stances from those here. Exchanges required Stock him to submit Supreme opinion read the in Kaplan Court’s disputes all “arising employment out of [his] narrowly, claiming solely the case ad- or the termination employment” of [his] questions relating dressed two to standards arbitration. Id. at non-signatory 937. The applied of review be district court deci- defendants, directly who were tied to the by sions appeals. generally, courts of More plaintiffs employer, object former did not however, appellees claim that ease Moreover, arbitration. Id. at 938. the con- present before In particu- issue us. tingent beneficiaries under plaintiffs de- lar, appellees claim that: compensation plan, joined ferred who in the Mr. Kaplan agree & Mrs. did not to arbi- plaintiffs, suit present claimed no entitle- any disputes tration involving then- compensation ment to the deferred Options. Here, by with First pressed no separate from his. Id. contrast, Dayhoff explicitly agreed adju- Thus, we held their “inchoate deriv- dicate all claims to the 1989 Frut- ative claims should not entitle them main- teto License and the 1990 separate litigation tain in a forum that has Italy Frutteto Distribution by been principal beneficiary.” waived Kaplan under Italian law. Unlike where Barrowclough presented Id. 938-39. thus the issue was whether Mr. Kaplan & Mrs. vastly different factual scenario from the agreed claims, had arbitrate case before us. scope issue here is the of the Likewise, holding our in Pritzker does not and forum selection clauses entered into case, alter decision here. Dayhoff. reaffirmed idea princi- “[b]ecause '' Br. at 21. pal is bound under the terms of a valid agree Dayhoff clause, We with that the arbitration arbitration agents, employees, its and clause in Licensing the 1989 Agreement representatives and are also covered under the

1297 Hershey in it unacceptable, that under 1121. sitian F.3d at agreements.” of such terms (as non-signatories the well as the other to agree- arbitration that an also held there We option accept reject agreement) the to has plan trustees and pension ment between clauses, and forum selection the arbitration sis- applied to the broker’s broker securities opin- while under the district court’s the acted as broker’s corporation that ter ion, Hersbiey’s compelled to accede to know- allegedly participated that advisor and very The that fact wishes.7 fiduciary to duties owed ingly in breaches the of an have such a choice belies existence corporation though the sister plan. Even Dayhoff Hershey, an and between agreements, signed the arbitration had not purportedly lies at the basis that finding in agency logic that applied we reason, appellees’ argument. For this we directly corporation’s interests sister district court reverse the decision will to, upon, the bro- predicated if not related to to dismiss all of claims related claims that the trustee’s conduct and ker’s agreements 1990 Frutteto the 1989 and subject compul- to therefore against it were non-signatories agree- those to theory Clearly, agency ments, s.r.l., this sory except Sperlari, arbitration. for succes- us. before sor Heinz Dolciaria.8 applicable to the facts is not and point out that Heinz Italia alsoWe Dayhoff urges that next us hold by their Agree should not reason the arbitration clause in License H.J. Heinz clause in the ment and forum selection relationship with Heinz Dolciaria corporate not Frutteto Distribution should and forum the arbitration able to invoke be in favor of even Heinz Dolciaria be enforced clauses, for is no more reason there selection Sperlari Dayhoff s.r.I. such corporate structure with disregard the “ in ‘trial clauses will not be enforced where there would be respect to such claims as gravely contractual forum will be diffi so legal disregard respect to mat- with it party] [the cult and inconvenient that will Heinz wanted If Heinz Italia and H.J. ters. purposes deprived day practical [its] all fo- to invoke the arbitration and to be able ” (quoting in Br. at 27 Bremen court.’ M/S clauses, they di- should have rum selection Zapata U.S. Off-Shore appropriate to include rected Heinz Dolciaria (1972)). S.Ct. L.Ed.2d agreements in 1989 and 1990 language Dayhoff precisely appellees that seek asserts allowing them to do so. prevent pursuing it from its that result: course, liability for their rights and to evade all recognize that Of we wrongful at 27. conduct. Br. agree the arbitration and forum selection Kaplans clauses, had Kaplan whereas these claims district addressed agreed forum 3,1994 arbitration or selec- opinion. not its In that court in October alia, stated, inter that the enforce- appellees’ po- we find tion clause. Rather, by agreements. we not bound do principally We as the briefs consider discussion, however, two issues. reach these way. are written that Our Dayhoif's pleading is consis- We note that nonsignatory as applies to the other brief, argues Sperlari tent as it there well, with except Sperlari s.r.l. s.r.l., nonparty as a License Agreement, and the Frutteto Distribution According closing be- memorandum relying their and fo- barred from Hershey, tween Heinz Italia Brief at 18. We do not rum selections clauses. agreements transfer the between did not so, ways it at this see how can have both Sperlari s.r.l. Sealed Dolciaria app. Thus, pleadings. point, we we will hold it to its Nevertheless at 940-41. being Sperlari position as in the same treat s.r.l. complaint charged Sperlari s.r.l. amended respect as Dolciaria with to the arbitration Sperlari alleged s.r.l. breach of contract However, we do and forum selection clauses. rights "has to the contract and duties succeeded seeking preclude to amend the from agreements under three of Heinz Dolciaria” drop complaint breach in the district court to course, as in this case. Of inasmuch involved s.r.l., against Sperlari and to contract Sperlari forum s.r.l. relies on the arbitration and Sperlari clear it does not claim make it action, do we selection clauses as defenses this regard, agreements. s.r.l. is bound by taking prejudice Dayhoff’s as it claim might point be controlled out that issue to the extent that is consistent all, accurate Sperlari's Sperlari by up Dolciaria, set law. After s.r.l. was Italian understood, We are not to be defense. Italy acquired the assets of Heinz however, Furthermore, suggesting corporation. s.r.l. is an Italian agreements provide in- any respect that Ital- the three and 1990 interpretation. governs suggest their it is ian law in this case nor do volved Therefore, merit of the forum selection clause be finding would able. we will affirm its Italian unreasonable because courts would litigate any relating must claim authority preliminary have no to enforce to the 1989 and 1990 Frutteto agreements injunctive permanent relief the United according to the arbitration and the forum States, only and that in the United States agreements. selection clauses of those How- complete, courts could receive con- ever, court, holding unlike the of the district sistent, meaningful relief. Inc. holding apply only Dayhoffs will Co., 93-1794, slip op. v. H.J. Heinz No. 6at (and Heinz Doleiaria its suc- (W.D.Pa. 1994). 3, Oct. carefully After re- cessor, s.r.L), because of our earlier arguments, viewing these the district court holding that the clauses not apply do to non- found that it is not unreasonable enforce agreement. signatories of the the forum selection clauses:9 reaching point, our result on this parties Agreements were so- recognize Dayhoff emphasizes may it phisticated people and there nois litigate have to its claims three different aware, indication that Plaintiff was not rules, fora with three different sets and it aware, could not itself have made expectation asserts that it “no has reasonable consequences that would result from in- being rights able to enforce its even after cluding the forum selection clauses in the it has rulings.” secured favorable Br. at 28. Agreements including whether the chosen impressed by arguments. We are not these forum was adequate and convenient. Sim- agree While we with that it did not ply unhappy, because Plaintiff is in retro- agree on arbitration and forum selection spect, designated about it the forum is clauses respect to all the appellees, it finding insufficient to warrant a agree litigate Sperlari S.p.A. clauses are unenforceable. It would be Doleiaria three different fora. Fur- patently unfair to allow Plaintiff to avoid thermore, why, we do if not see it is success- the mandates of the forum selection claus- forum, in any ful it could enforce its es due to inconvenience because though rights, might require enforcement an- merely shifting the burden of inconve- cillary litigation and comity the extension of nience to Agree- to the foreign judgments.10 Undoubtedly, ment, corporation. an Italian alsoWe be- factors, procedural problems facing Dayhoff are lieve that weigh heavily which daunting enforcing bargaining favor when it the forum selection entered into clauses the three include fact that is the agreed that cause of that. govern Italian law would Agreements Agreements and that the are B. THE 1992 AGREEMENT have, international in character and most, relationship a tenuous to the West- Dayhoff next asserts that the resolu ern Pennsylvania. District of tion of its claims regarding the unlawful ter Id. at 7. Candy mination of the Bulk Agreement and allegedly the iraud that ac agree We with the analysis district court’s companied issue, termination centers factu of this except that agree- we think the disputes, including credibility issues, al ments relationship have more than a tenuous that the district court therefore should Pennsylvania, Western District of contemplate the contracts decided its claims performance in the agreement United on a summary judgment States. But this narrow area of dis- motion. reject presented by Dayhoff, does lead us to As supports the facts district court’s conclusions that the arbitra- claim that the termination clause was tion and forum selection clauses are enforce- included in the executed contract fraud Co., analyzed 9. The district this issue as con Culver 417 U.S. 94 S.Ct. cerning Day two "forum selection clauses.” See (1974), 41 L.Ed.2d 270 characterized an hoff, slip op. Inc. H.J. No. specified arbitrate before tribunal (W.D.Pa. 3, 1994). While, at 6-7 Oct. technical specialized as “a kind forum-selection clause.” ly, one clause concerns arbitration and one clause, truly a forum selection the distinction course, predict litiga- Of we cannot how this purpose irrelevant reviewing for our play acknowledge merely tion will out. We analysis. district court’s contract We note as probably complicated. will continue to be Supreme well Court Scherk v. Alberto-

1299 undergoes a company or with another following. Heinz Dolciaria invit- include the change of control. negotia- Italy the final Lele to come ed Co., No. Dayhoff, Inc. v. H.J. Heinz 93- See agreement that he of an and execution tions 1995). (W.D.Pa. 10, July 1794, 7 slip op. at essentially a was led believe had been provi appellees that this The have contended arrival, Lele Upon his deal.” “done applica directly straightforward sion Giacobone, attorney an confronted a the here involved. Since ble to situation Italia, him that she would be who told Heinz place from Heinz Dol transfer of assets took well Dayhoffs interests as representing s.r.l., stock whose ciaria Dolciaria. those of Heinz 1993, September acquired on triggering ap the argue that the conditions Lele the termination meeting, this saw At satisfied; plication of section 14.3 were did not the first time. Lele provision for September 1993 letter ef Heinz Italia’s meant, therefore it what understand fectively agreements the three terminated meaning. clarify its She Giacobone to asked Dayhoff; that all protect it was there Heinz explained that Agree of the 1992 to termination underwent case Dolciaria response, In are foreclosed. ment therefore confirmed that change control. Volta upon allegations its factual relies explana- upon this meaning Lele. Based presented asserts that fraud bars above and tion, Dayhoff clause and accepted the devot- the 1992 Distribution the termination of energies to the exclusive distributor- its ed Agreement. by provided the contract. Giacobone ship noted, appellees point As the district court that, contrary to what subsequently testified Agreement 1992 out that him, put the she had claims she told Lele integration clause11 that bars contains an provision modify so that Heinz Dolci- any attempt contract the terms of the by pre-agreement agreement reference to in the event get out of contract aria could is, by pro negotiations or discussions Moreover, Volta was sold. —that hibiting parol Dayhoff, Inc. v. evidence. H.J. position meaning took this as to later Co., 93-1794, slip op. at No. evidence, accord- provision as well. This (W.D.Pa. 10, 1995). Dayhoff responds July Dayhoff, supports the conclusion ing to apply rule does not parol evidence execution of the “fraud there was fraudulently ob because find jury could so after or at least provi inclusion of the termination tained the assessing credibil- weighing evidence and sion. Br. at ity.” Br. at 33. correctly found that The district court opinion, the district In its Dayhoffs argument conflicts with two recent courts, arguments in assess- Pennsylvania these court addressed which decisions of agree controlling parties on summary judgment state’s law the motion appellees’ Liberty issue. HCB Contractors agreement. dispute regarding the 1992 Assoc., Pa. 652 A.2d Hotel Place agree- 14.3 of the around section revolves (1995), appellant general contractor ment, final clause executed termination buildings against four it mechanics’ liens filed parties, which states: by the building helped Appellees, the erect. had right to termi- party shall have the Either owners, to the claims successfully demurred Agreement upon notice to written nate this separate ground that HCB in two on the party in the event that the other documents had provisions in the contract insolvent, goes or bankrupt, party becomes liens, limiting to file instead agreed not such in the event that either liquidation, into recovery to the owners’ inter- potential assigns whole or substantial argued appeal had ests. HCB fraudulently sign the waiver merges been induced or assets or part of its business hereby affect or provides: cancelled and shall not ties are Section 18.1 of the obligations modify any set of the terms or forth the entire under- This contains except standing spect hereto with re- between written previ- subject All matter hereof. parties. between documents, undertakings ous No. Inc. v. H.J. See matter, subject respect whether with verbal, written, to this 10, 1995). (W.D.Pa. July slip op. at 9 n. 3 otherwise, par- between question on appeal of liens. The was wheth- cel in properties subject the list of to most- favored-nation treatment. The trial allegedly representations false oral er could applied parol entering evidence rule in express alter of liens in the waiver con- judgment for Bell. question tract. contract contained an The integration Superior affirmed, clause. Cherry The Court St., 653 A.2d at explaining Pennsylva- Pennsylvania Supreme Court found nia’s distinction between fraud in the execu- parol rule barred evidence consider- tion and fraud in the inducement. Fraud prior representations concerning ation of applies par- execution to situations where in the matters covered written even agree ties to include certain terms in an alleged those been made fraudulent- agreement, but such terms are not included. Thus, ly, representations party unless the were fraudu- the defrauded is mistaken toas physical contents of the lently Otherwise, document the contract. omitted from signing. is Parol evidence is admissible in parol evidence rule ‘“would become a ” such a case provi- show that certain mockery,’ (quoting id. 652 A.2d at 1279 supposed sions were inbe Palmer, Nicolella v. 432 Pa. 248 A.2d 20 fraud, but accident, were omitted because of (1968)), integrated contracts could be inducement, or mistake. Fraud in the on the by avoided differing or modified claims of hand, does not involve terms omitted prior representations. agreement, from allegations an but rather oral representations on which the other upon by The second decision relied - entering relied in into the court, Cherry Partnership district St. contrary which are express to the terms Inc., Properties, Pa.Super. Bell Atlantic agreement. It is clear that al- — denied, appeal 653 A.2d Pa. leges case, fraud in the inducement in this -, (1995), 664 A.2d 976 addressed the despite protestations contrary. same issue found in HCB and here.12 1726 seeking distinguish HCB and 1726 Cherry acquisition St. concerned Bell’s St, Cherry Dayhoff argues that the facts parcels Appellants, several of land. the own- differ, particularly here in its claim that “an parcels, ers one of the wanted theirs to be attorney something said simply was not acquired, believing last that this order of true, moreover, attorney stated that bring sale price would them a better than representing Dayhoff, she was another un- they They otherwise would obtain. Br. truth.” at 35-36. we agree persuaded to sell their land sooner the with the district court differing facts inclusion of a so-called “most favored nation” here do affect the holdings broad of HCB clause in the contract retroactively which Cherry St. in significant way. adjust price upward their if Bell ac- Alternatively, asserts, Dayhoff again as it did quired specified parcels high- certain other at court, in the district Supreme Court prices. er Id. 653 A.2d Pennsylvania expressly rejected has not fraud in the exception inducement as an Bell acquired paid later higher price parol Again agreeing evidence rule. for land known as the CIGNA Parcel. The court, the district we argument find this mer- parties had not named the CIGNA Parcel Accordingly, itless. plain because the terms Cherry the 1726 so St. contract Bell did not of section 14.3 by DayhofPs cannot be altered consider paid itself price bound raise the inducement, factual claims of fraud in the Cherry to the 1726 St. owners. The owners DayhofPs true, even if assertions are brought fraud, reformation, suit or re- agree holding with the of the district court scission, claiming orally that Bell had mis- provision the termination of the 1992 represented purchase intention not to the Bulk binding upon Parcel; otherwise, they CIGNA would have parties. Consequently, as the termi- insisted on the inclusion of the Par- provision CIGNA nation absolutely clear and is Cherry 12. The court stated ing agreements, the issue in 1726 St. as alleged to written where the parol precludes "whether evidence misrepresentations subject rule ad- specifically concern St., mission allegedly of evidence agreements.” fraudulent mis- Cherry dealt with in the representations during negotiations made lead- 653 A.2d at 664. imposition Dayhoffs of a con- here, summary claims for will affirm the applicable damages for civil con- trust and for on its structive granted judgment interference, and restitution. improperly spiracy, terminat- tortious Agree- Candy Distribution Bulk ed the 1992 Dayhoff. Viewing partially agree We ment.13 light most favorable to it as facts in the say us to party, also leads we cannot non-moving on this issue result Our judgment genuine court’s dismiss- no of material fact district there are issues affirm the with con- jury tortious interference in this case. that a should evaluate trust, tract, conspiracy, Thus, respect, civil this unlike the district constructive in predicated court, summary the termi- claims on are not satisfied that restitution agreement. against There no judgment granted of the 1992 should have been nation termination Dayhoff particular that the conditions claim related to doubt on this agreement met.14 Further- Agreement. of 1992 Bulk the 1992 Distribution more, wrong request- Therefore, Hershey nothing in reverse the district court’s will summary terminated. After grant judgment be of to the limited all, candy acquiring Heinz Italia’s busi- Dayhoff pro- it was it from precluded extent that Dayhoff candy a ceeding predicated it did not want as claim ness and with its fraud why it had no reason it allegations distributor. There was that it was defrauded when role, Dayhoff Hershey in that at least with would retain was assured sale to agreement. the 1992 Further- respect with Heinz Dolciaria. not affect contracts more, the claim for refor- Dayhoffs possible we will not allow we limit recov- either, Dayhoff was proceed ery respect mation to the 1992 all, being 14.3was includ- damages, agreement, well aware that section as that after was lawfully. agreement. in the 1992 will af- ed terminated We otherwise summary judgment firm entered on the however, claims, appel Dayhoff time, agreement. At this we do not 1992 limited to the execution of fraud was not lees’ consider the effect of our reversal on claims there also was fraud agreements, as to the 1989 and 1990 falsely assured that the Dayhoff when the court dismissed those claims without con- not affect its con sale sidering their merits. To the extent them on rejected that claim tracts. The district regarding litigation those summary granted appellees as well when court, in the district the effect continues part in on the judgment. Dayhoff relies may be considered on remand. reversal following allegations making this second constantly claim of fraud. Seletti Volta JURISDICTION C. PERSONAL Lele was no reason to reassured that there OVER HEINZ ITALIA and that the terminate contracts Dayhoff disputes confectionery Finally, the district of Heinz Italia’s sale court’s decision dismiss all no effect on those contracts. would have fact, jurisdiction. that, personal lack Heinz Italia for Volta told Lele Dayhpff claims the transaction that worry. confectionery Italia business is not the sub Bros., (3d Veronica F.2d 554 Cir. ject litigation.” Moreover, of this Id. 1993). court found that “provided had no 4(e), ap Under Fed.R.Civ.P. we will evidence which would indicate that activ ply Pennsylvania jurisdictional law to the ities formation of or breach Pennsylvania’s long-arm issue. statute au this or the part actions on the of personal thorizes the of exercise (who Dayhoff or Heinz Italia is not even a over nonresidents “to the fullest extent al party Agreements) to the were directed to lowed under the of Constitution the United ward this forum.” Id. at 14-15. States ... based on most minimum con disagree We with the conclusion of the with tact this Commonwealth allowed under conclude, instead, district court. We the Constitution of the United States.” court took too narrow a view of “subject 5322(b) (1981). § Pa. Cons. Stat. Ann. Sec of litigation.” view, this litigation our 5322(a) variety tion examples sets forth is intimately concerned with Heinz Italia’s contact, of sufficient “[transacting such as confectionery sale of its business to any business in this Commonwealth.” Id. alleges, apparently (Purdon’s good with 5322(a)(1) § Supp.1995). Section reason, that sale 5322(b) precipitated itself potential expands further bases termination of agreements. jurisdiction. Further- for personal jurisdiction When more, agreements performed in the solely is based on minimum contacts under States, United and Heinz Italia was the long-arm statute, it is limited to “a cause who September 28, 1993, sent the letter of of action or other arising matter from acts” terminating Moreover, them. jurisdiction. 5322(c). § which confer accus- Id. As alia, Italia, es Heinz noted, inter the district court tortious “[sjpeeific jurisdic inter- ference with plaintiffs alleging tion arises when claim relat is Italia ed out interfered with its arises of the contracts with Heinz defendant’s contacts Dolciaria in with the forum.” order to v. sell Inc. H.J. Heinz (W.D.Pa. Hershey.15 No. It slip op. very seems to us that Oct. these 1994) (East) against (quoting PSFS, “subject Mellon Bank are the Farino, (3d of litigation,” N.A. v. merely 960 F.2d the contracts Cir.1992)). A plaintiff between must demonstrate Heinz Dolciaria. We defendant purposefully has see no point established need to discuss this further “sufficient minimum contacts the forum because we think it according clear that state that reasonably anticipate our “subject ‘should litigation,” view the of this ” being haled into court there.’ DiVeronica has demonstrated that Heinz Italia Bros., 983 F.2d at 554. many has Pennsylvania. contacts with Ae- opinion 15. This issue corporations precludes foreclosed a tortious interference agreement. to the 1992 We do not now consider against claim H.J. Heinz Heinz Italia. relationship among whether the the three Heinz incorporated purposes Amendments will the order cordingly, we reverse against publication.] dismissing all claims district jurisdiction. personal Italia lack

IV. CONCLUSION reasons, will affirm foregoing

For the 3, 1994, and of October the court’s orders America, STATES of UNITED orders extent that those Plaintiff-Appellee district court’s conclusions reflect fo- by the bound 1989 and 1990 clauses of the rum selection Eugenio MOSKOVITS, Alexander against respect to its claims Defendant-Appellant. successor, and its judg- summary 94-1990 and 95-1048. will affirm the Nos. We also s.r.l. Dayhoff on its claims based ment Appeals, United States Court claim agreement, except upon Third Circuit. alleged assur- respect fraud with the sale ance it that Argued Oct. Dolciaria. with Heinz its contracts affect 25, 1996. Decided June fraud, if recovery for that we limit Otherwise, established, damages. it is the orders October

will reverse case will remand the July proceedings for further the district court particular, opinion. with this

consistent may proceed

the case Sperlari s.r.l. Heinz Dolciaria and

other than regard court without district and forum selection clauses and the district agreements,

1989 and over

court will exercise may fraud proceed for

Italia. The action termination

claims related limited extent we own The will bear their

described. appeal.

costs on this BE- PETITION FOR REHEARING

SUR PANEL ORDER

FORE ORIGINAL

AMENDING SLIP OPINION rehearing by the filed petition S.p.A.,

appellees, H.J. Heinz S.p.A., Sperlari, s.r.l. and Dolciaria above Corporation, Foods having matter submitted

captioned been participated in the judges who decision panel having determined

this court and the grant petition extent panel opinion. Note:

amending [Editor’s notes Italia did not men- all the assets and of the confection- Candy tion section liabilities 14.3 the Bulk Distribu- s.r.l.; ery business to and the sale September tion in the Sperlari’s Hershey Holding Compa- stock to termination letter. ny.3 sale, Hershey As a condition of that Giaeobone called Volta after she saw the insisted termination of the con- September 1993 termination to ex- letter tracts, Hershey purchased when thus press regarding Dayhoff her likely concern s confectionery business the contracts reaction. Volta assured Giaeobone that closing included. The memoran-

Notes

thus notes he should predicate for all of its claims state serves as appellees made fraudulent $133,000,000 litigation is the sale of improperly that the district court ments and (Heinz confectionery business interpret weigh the evi Heinz Italia’s attempted to Dolciaria) ap- Hershey, with the advance allegations. concerning these dence participation proval and of H.J. genuine issues of fact that numerous asserts Pittsburgh. Dayhoff claims that Heinz Italia to the fraudulent conduct relate aspects directly participated in all of this regard to the the Bulk termination transaction, participation it claims which Candy Agreement. specific jurisdiction directly sufficient to confer of fact relate claims that these issues course, above, questions of we do not reach the termi- 14. Of Dolciaria also 13. As we note agreements were whether the 1989 and 1990 supra. agreement. See footnote nated the properly. terminated 1302 Pennsylvania’s long- over Heinz Italia under argues that Heinz Italia has arm statute. range had a wide Pennsylvania contacts in support that would the district court’s exer deciding a to dismiss for motion jurisdiction cise of over it. The district court personal jurisdiction, lack of we take the found, however, that assuming even that all allegations complaint as true. Narco true, s allegations are none of the Avionics, Mkt., Inc., Sportsman’s Inc. v. gave related, contacts any way, rise (E.D.Pa.1992). F.Supp. But once a litigation. Inc. v. H.J. Heinz jurisdictional defense, defendant has raised (W.D.Pa. slip op. No. at 14 Oct. plaintiff proving by bears the burden 3, 1994). The court concluded that the con competent affidavits evidence that tacts between Heinz Italia and re proper. (citing Id. North garding confectionery the sale of the busi Corning Corp., Penn Gas Co. Natural Gas ness properly could not be considered in a (3d denied, Cir.), 897 F.2d cert. personal determination of whether there was 847, U.S. S.Ct. L.Ed.2d 101 jurisdiction, because “the sale of the Heinz (1990)); (East) see also Mellon Bank v. Di-

Case Details

Case Name: Dayhoff Inc. v. H.J. Heinz Co.

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 24, 1996

Citation: 86 F.3d 1287

Docket Number: 95-3404, 96-3250

Court Abbreviation: 3rd Cir.