Goff v. Armbrecht Motor Truck Sales, Inc.
426 A.2d 628
Pa. Super. Ct.
1980
Check Treatment

*3 SPAETH, Before VOORT, HOFFMAN VAN der JJ. SPAETH, Judge:

This case is third of long-arm three jurisdiction cases that we today.1 decide It two comprises appeals2 from an sustaining order preliminary objections raising question dismissing complaint. true, Accepting as for the purposes of this inquiry, all facts, well—pleaded Frisch Equip. v. Alexson Corp., 423 Pa. Kingsley (Canada) Limited, The other two are and Keith et al. v. *4 al., Corp., Pa.Super. 524, Mercer International 426 A.2d 618 (1980); Pittsburgh, The Union National Bank of Exec’r v. L. D. Institute, Pankey (1980). appeals April Goff, Denny These 2. are Nos. 454 and 483 Term 1979. plaintiff below, appellant appellee is at No. 454 and at No. 483. Sales, Inc., below, appellee Armbrecht Motor Truck a defendant is in appeals. Corporation Jeep Corpo- both American and Motors Sales ration, below, appellees appellants defendants are at No. 454 and opinion, “appellant” No. 483. in As used this term refers to Goff, Denny “appellee”, Sales, the term to Armbrecht Motor Truck Inc. may be summarized (1966), complaint3 A.2d 183 Ohio. Springs, of Mineral is a resident Appellant as follows. from sells automobiles corporation is an Ohio Appellee Youngstown, Appel in Ohio. business place principal its Motors by American Jeep, manufactured purchased lant in Appellant passenger was appellee. from Corporation, with a and collided went out of control when it Appel in Pennsylvania. Route 80 on Interstate guardrail result of injuries as a permanent and severe lant sustained accident. re interrogatories appellant’s answers to Appellee’s Pennsyl in following contacts had the vealed in the Driver’s has been listed years For 36 vania. this Dealers, in which is distributed Truck Directory of GMC Youngstown newspa state; occasionally one it advertises readers, Youngs two Pennsylvania have may which per, listen stations, Pennsylvania which have may town radio residents, although ers; Pennsylvania vehicles to it has sold Ohio; accessories parts it has sent made in all sales were residents; year, than ten times a not more Pennsylvania ser notary to secure Pennsylvania it has sent officers Pennsylvania of vehicles to regarding sales vice for titles lists, residents; appellee’s not sent at factory mailing some residents; it or Pennsylvania have included request, may and accessories from parts products, of its vehicle ders some items although the centers supply two Pennsylvania; originally come may not have ordered occasion, purchased a car it has delivered at least one on resident. Pennsylvania to a Ohio original complaint fact, complaint. was The In it is an amended Equipment, change to Armbrecht Motor Armbrecht amended Sales, Truck Inc. approximately Youngstown ten miles from the States, McNally Canada and Road Atlas-United See Rand border. record, may take not of but a court This fact is Mexico county judicial geographical as the in which a facts such notice of located, city 414 Pa. 200 A.2d v. Larami or town is Emert Tisch, places, Blanning (1964), between or the distance may judicial 1974). appellate (E.D.Pa. take F.Supp. An court McCormick, as a trial court. See same extent notice of a fact to the (2nd 1972). ed. Evidence §

549 approach Our to the long-arm jurisdiction case may be seen from our other decisions today. Kingsley and Keith Limited, al., et v. (Canada) al., Mercer International 524, 284 426 A.2d 618 (1980); Union National Pittsburgh, Bank of Exec’r. v. L. D. Pankey Institute 537, 284 Pa.Super. First, 426 A.2d 624 (1980). we apply the three—part test formulated in Schwartz, Proctor & Inc. v. Co., Cleveland 12, 19, 11, Lumber 228 Pa.Super. 323 A.2d (1974), where we stated:

First, the defendant must have purposefully availed itself privilege of acting within the forum state thus invoking the benefits protections of its laws. Hanson Denckla, supra, v. U.S. S.Ct. L.Ed.2d [357 (1958)]. Secondly, the cause of action must arise from defendant’s activities within the forum state. See Indus., Inc., Southern Mach. Co. v. Mohasco 401 F.2d 374 (6th 1968); Regulator Cir. Electric Corp. Sterling v. Ex truder Corp., (D.Conn.1968). F.Supp. Lastly, the acts of the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable. International Shoe Co. v. Washington, supra, U.S. S.Ct. 90 L.Ed. [326 [66 (1945)]; see Southern Mach. Co. v. Indus., Mohasco 95] Inc., supra, (6th F.2d 374 Cir. 1968)]; see also In- [401 Flight Devices Corp. Air, Inc., Van Dusen 466 F.2d 220 (6th 1972); BBR, Cir. Kourkene v. American 313 F.2d (9th 1963). Cir. Second, satisfied, if this test is not we determine whether the non-resident defendant’s activities in Pennsylvania were “continuous and Mills, substantial.” Bork 458 Pa.

A.2d 247

-1- -a- noted, just As part the first of the Proctor test is that appear must the defendant has “purposefully availed itself of the privilege acting within [Pennsylvania].” In deciding whether the record here shows so first itself, it convenient to consider an will be

availed us urged upon by appellant. particularly argument *6 —i— him a urges selling Jeep, that in particularly Appellant acting the of within privilege availed itself of reasonably could foresee that might drive the Ohio appellant al., Volkswagen Corporation In World-Wide Woodson, Judge County, District of Creek Okla S. Charles homa, 286, 559, 100 62 L.Ed.2d S.Ct. 490 U.S. was faced with Supreme the United Court (1980), States There, two New York essentially argument.5 the same injured riding while in an automobile in residents were a They the automobile from New purchased had Oklahoma. dealer, procured who in had it from a New York York turn the dealer nor distributor had Although neither distributor. Oklahoma, York any the New resi activities engaged the New them there. The Court summarized dents sued claims as follows: York residents’ one, to base on isolated seek residents] [The inferences can be drawn there- occurrence whatever single the circumstance that a Audi from: fortuitous residents, to automobile, sold York New York in New passing through an accident while happened suffer 295, 100 at at S.Ct. Oklahoma. U.S. rejected claim because neither the distributor

The Court this “contacts, ties, or with any dealer had relations” Oklaho- nor find any The Court could not defendants’ ma. area, activities, which to the New York re- were confined purposeful privilege acting availment of the flected Oklahoma, New nor did it believe that the York within Volkswagen Supreme granted World-Wide certiorari The Court “Supreme resolve a conflict the Court of Oklahoma and between [Tilley v. Keller Truck highest courts other the of at least four states 641, Implement Corp., (1968); Granite 200 Kan. P.2d 128 Court, Volkswagen, 42, District Sales 492 P.2d 624 Colo. Sons, (1972); Pellegrini v. Sachs and (Utah 1974); 522 P.2d 704 875, v. American Oliver Motors 70 Wash.2d 425 P.2d 647 289, 4081, (1967)].” 48 LW at 444 U.S. at 100 S.Ct. at 563. “unilateral” act of driving residents’ into Oklahoma could with supply missing ties that state. The Court stated: a corporation privi- When avails itself of the ‘purposefully lege conducting State,’ activities within forum Denckla, at supra, Hanson v. at it has S.Ct. there, subject notice and can clear that it is to suit act to alleviate the risk of burdensome litigation by procuring insurance, customers, or, passing expected costs on to if the risks are too great, severing its connection U.S. at S.Ct. at 566. State.

Thus, the key inquiry is not whether is a “likelihood there product state,” will its way find into the forum but rather whether “defendant’s conduct and connection with forum State are such that he should antici- reasonably court pate being haled into there. Kulko v. Superior See Court, supra, 97-98, at 1699-70, U.S. 84 S.Ct. *7 132; Heitner, L.Ed.2d 56 Shaffer 433 supra, U.S. 186 at 216, 2586, 683; 97 id., S.Ct. 2569 at 53 and L.Ed.2d see 217-219, J., 97 (STEVENS, S.Ct. at 2586-2587 in concurring judgment).” the

In light of World-Wide we Volkswagen, agree cannot appellant selling Ohio, with that in by him a Jeep which later was involved in an accident in Pennsylvania, appellee “purposefully availed itself of the privilege acting with [Pennsylvania].”6 Granite Volkswagen, See States Inc. v. Court, District supra; Tilley v. Keller Implement Truck and supra; Corp., Pellegrini Sons, v. Sachs supra; Oliver v. American Motors Corp., supra; Kerrigan cf. v. Clarke Appellant heavily relies on several cases that have been undercut by Supreme Volkswagen. Court’s decision in World-Wide Most obviously, Supreme the Oklahoma Court’s in decision World-Wide Volkswagen Pontiac, longer Reilly Inc., is no valid. v. Phil Tolkan F.Supp. (D. 1974), Jersey 1205 N.J. which held that New had jurisdiction plaintiff over a car Wisconsin dealer sold the who jack damage Jersey, tire defective that caused in New was criticized by Supreme Volkswagen. Court in World-Wide Roch v. Floral N.J.Super. (1967), Rental 232 A.2d 162 aff'd 51 N.J. (1968), Jersey Reilly A.2d New case on which v. Phil Pontiac, Inc., based, supra, may suspect. Toikan is also be therefore Finally, Tyson Son, Inc., Me., (1979), Whitaker 407 A.2d 1 is very Volkswagen. on its facts similar to World-Wide 1975) Pa. (M.D. (Pennsylvania 71 F.R.D.

Gravely Corp., where only defendant Jersey over New jurisdiction no has that Pennsylvania Pennsylvania contact with significant repair; Knapp to defendant brought a tractor residents (Penn (W.D.Pa.1973) Co., F.Supp. 305 v. Franklin Coach performing defendant over Ohio jurisdiction has no sylvania truck is plates license where Indiana on truck with repairs there); Maloof v. has accident Pennsylvania and into driven (1976)(Arizona Inc., Ariz. 557 P.2d Sales, Raper shop repairs that repair over Indiana jurisdiction has no Bev-Mark, Arizona); down that later breaks automobile v. Summerfield Inc., Trucking Company, Tuboy d/b/a al, Co., Truck GMC garage over Indiana has no

(1979)(Pennsylvania Pennsylvania). later has accident truck that repairs that Jeep appellant, it sold the that when granted It bemay appellant might drive have foreseen appellee could Appellee an accident here. and have Jeep might drive appellant have foreseen also could states, into states farther or even neighboring into other not focus However, Volkswagen does World-Wide away. activity” of the “unilateral consequences the foreseeable on “defendant’s conduct on whether the but plaintiff, such that he should the forum are State and connection Ap haled into court there.”7 anticipate being reasonably hold that unwilling We are a resident of Ohio. pellant is antici reasonably should have Jeep, appellee him a selling Were we so into court” in being “haled pated away concept from the meaning take all to hold we should *8 himself of the avail” “purposefully defendant must that the state, concept and that acting within the forum of privilege Volkswagen. Supreme As the in World-Wide is defined if a out, concept is the essence points Court doing any business finds that the costs foreign business BRENNAN, J., opinions Indeed, suggests [refer- Court’s “[t]he 320, Savchuk, ring companion v. 444 U.S. case of Rush also to the 571, (1980)] tightly focus on the existence 62 L.Ed.2d 516 100 S.Ct. 444 and the defendant.” U.S. the forum state contacts between 298, 100 S.Ct. at 553 given state are too high, it should be able effectively sever its connection with that state. If we adopt were to appellant’s argument, appellee could never sever its connec- short going tion out of business en- tirely, any might automobile it sold be driven into and have an accident there. Nor appel- could lee its any sever connection with other state where a buyer might travel. conceivably

Moreover, we are persuaded by appellant’s not citation of upholding jurisdiction several cases foreign over manufac state, shipped goods turers that had into a sometimes highly g., Sears, indirect manner. See e. Coulter v. Roebuck Co., (5th 1970); 426 F.2d 1315 Cir. Eyerly Aircraft Co. v. Killian, (5th 1969); 414 F.2d 591 Cir. Hicks v. Kawasaki Industries, Heavy (M.D. 1978); 452 130 F.Supp. Pa. Keene v. Ltd., (E.D. Multicore Soldiers F.Supp. 1974); 379 1279 Pa. Co., Benn v. F.Supp. (E.D. 1971); Linden Crane 995 Pa. Buckeye Superior Boiler v. Angeles Court of Los County, 893, 113, Cal.2d 80 Cal.Rptr. (1969); 458 P.2d 57 Duignan v. Co., 134, A. H. Robins 98 Idaho (1977); 559 P.2d 750 v. Gray American Radiator and Standard Sanitary Corp., Ill.2d 432, (1961); N.E.2d Andersen v. National Presto Industries, Inc., 911, 257 Iowa (1965); 135 N.W.2d 639 Ehlers 56, v. U. Heating Cooling Mfg. Corp., S. 267 Minn. (1963); Matic, Inc., N.W.2d 824 Metal v. The Eighth Judicial Court, 263, District 82 Nev. (1966); P.2d 617 Washington v. Corp., 482, Suzuki Motor 257 Pa.Super. 390 A.2d 1339 (1978); Kitzinger Bros., Inc., Gimbel 240 Pa.Super. (1976); Zilber, 368 A.2d 333 Deere v. 234 Pa.Super.

A.2d 615 (1975); McCrory Corp. Girard Rubber aff’d, (1973), 459 Pa. 327 A.2d among

The seminal case these Gray v. American Radia- tor Sanitary There, and Standard Corp., supra. foreign manufacturer of valves had installed a valve in a water heater, Illinois, which was then shipped where it explod- ed and caused The Illinois injury. upheld jurisdic- court its manufacturer, tion over the stating: *9 arises, as in this case the alleged liability the Where in sold contem products presumably of manufacture the here, purchase it not matter that of use should plation that some an middleman or independent was made from the this shipped product than defendant one other (Emphasis 22 Ill.2d at 176 N.E.2d at state. added). in dictum Volkswagen, suggested the Court

In World-Wide case before it: Gray distinguishable from the that was of a or sale of a manufacturer product Hence if the Volkswagen simply not an as Audi or distributor such occurrence, of from the efforts isolated but arises indirectly, to serve or directly manufacturer or distributor States, in other is not unreason- product the market for its if it to in one of those its subject to suit States able has there been the source allegedly defective merchandise or others. The forum state does injury to its owner to if under the Due Process Clause it powers not exceed its that personal jurisdiction corporation over a deliv- asserts products its into the stream commerce ers in they purchased by will be consumers expectation that the forum State.

444 U.S. at 100 S.Ct. at 566. it was not “foreseeable” but manu- Gray only Since up its valve would end “expectation” facturer’s Illinois, should “reasonable” that the manufacturer be was there.” “haled into court seeking between deáler or distributor to

This distinction a market, the New York distributor and serve a limited like Volkswagen, and a manufacturer dealer World-Wide market, larger like the manufacturer in seeking serve In Developments-Juris- has endorsed elsewhere. Gray, been diction, 909, 929, (1960), writer 73 Harv.L.Rev. com- mented: subject

It does seem desirable to the California dealer not jurisdiction to a who has tires tourist sold However, it does seem that in Pennsylvania. tire upheld should be over California manufacturer who as thought doing cannot be business within state. by While it is foreseeable both their defendants up wares will be used in one is to do set *10 the locally depends upon foreign business whereas other Thus, would consumption. it seem to force unreasonable prepared the dealer to be on local to defend suits a scale, while the nationwide national manufacturer which depends upon a national market can be so prepared. Here, the appellee appellant part did not sell of Jeep to as to serve any Pennsylvania effort market or consum- any ers here.

-ii- appellee’s Our conclusion that of sale cannot Jeep by support finding itself that appellee “purposefully acting availed of the privilege itself of within [Pennsylva does not end our inquiry, for we must still determine nia]” whether in other appellee ways privi availed itself of the lege.

Unlike the automobile distributor and dealer in World- Wide Volkswagen, appellee had a of variety contacts with We above, have identified these when we appellee’s summarized appellant’s interrogato- answers to ries; enough it is therefore to refer to them point at this only generally. Of appellee’s Pennsylvania, contacts with most are that Youngs- advertised in media-one town newspaper Youngstown and two radio likely stations audience; to reach Pennsylvania it that sold vehicles to residents; that Pennsylvania it has performed various serv- sales; ices in Pennsylvania pursuant to those and that it is on dependent Pennsylvania suppliers for various vehicle products, parts, accessories. evidence,

On the basis this we it think to say reasonable that has “purposefully availed itself of the privilege of acting within [Pennsylvania].” Its various contacts with Pennsylvania represent sort “affiliating” circumstanc- es for necessary jurisdiction, state court to which the Court alluded in World-Wide Volkswagen, U.S. at S.Ct. at but which were not present in that case.

-b- recalled, test, Proctor it will be part The second of action “the cause that appear that it must [arose] 228 Pa.Su the forum state.” within activities defendant’s the present the basis of at 15. On 19, 323 A.2d per. has been requirement that this record, we cannot conclude Route 80 in sure, on Interstate the accident To be satisfied. con might injured, was appellant which contacts appellee’s one of related to have been ceivably suggests record in the nothing but Pennsylvania; an Ohio appellant, sale of Appellee’s was. Pennsyl solicitation in any resident, product was not the services in vania; no appellee performed sale; is no evidence and there to the pursuant appellant by appellee part purchased by any was caused the accident *11 supplier. Pennsylvania from a -2- the Proctor test concluded that Having not satisfied has been foreign defendant appellant as over whether appellant’s we must determine parts, all of its and sub been “continuous have Pennsylvania activities (Cana and Keith Mills, Kingsley supra; v. Bork stantial.” al., et al., Corp., International v. Mercer da) Limited et Exec’r., v. Pittsburgh, Bank of The Union National supra; Whalen v. al., Whalen and supra; Institute et Pankey D.L. of North Company Company Insurance Disney World Walt Lebkuech (1980); A.2d 389 America, Pa.Super. (1978); 389 A.2d 143 Pa.Super. Loquasto, v. er Pa.Super. Ct. Lodge, v. Homowack Garfield (1977). A.2d 351 Keith Kingsley cases in and we stated these have Since al., et Limited, al., Mercer International (Canada) enough say It is them here. we need not discuss supra, record, we are unable present of the that on the basis in “continuous appellee engaged determine whether hand, this state. On the one activities” within substantial “con- appear to have been activities in this state appellee’s tinuous”, appear to have occurred over a considera they other, it is difficult to period ble of time. On the determine “substantial”, whether these activities have been for we do relationship know the between the activities and appel not example, lee’s business as a whole. For the evidence that sold ten vehicles to residents meaning knowing last has little without what year percent age of the total sales these sales The same represent. may be said the evidence regarding concerning appellee’s adver tising purchase parts its from Pennsylvania suppliers. shall therefore remand this to the We case lower court so determine, it may proceedings after such further as may appropriate, be whether has conducted “contin uous and activities” within this g., substantial state. See e. Weinhardt, Envirosystems Corporation v. 271 Pa.Su 66, 412, per. (1979); Laffey Lehigh A.2d 577 Dairy Val. Co-Op.,

The order of the lower court is vacated and the case is remanded for further proceedings consistent with this opin- party may appeal ion. Either take a new pro- such ceedings.

HOFFMAN, J., concurs in the result. VOORT, J., VAN dissenting opinion. der files a VOORT, Judge, VAN der dissenting: I concur with the in that majority part opinion which deals with the Proctor test for determining jurisdic- *12 tion over foreign defendant. dissent, however,

I respectfully from that part of the decision majority which remands the case to deter- mine whether has conducted continuous and sub- stantial activities within this state so as to make reasona- ble for us to jurisdiction. exercise

In my judgment, not did the only pleadings allege fail to sufficient jurisdiction, facts to warrant our exercise of but the record below contains already enough evidence for a determination that has not conducted the “substan- jurisdic- to exercise for this state necessary activities tial” Mills, 458 of action. Bork v. unrelated cause tion over an 228, 329 A.2d Pa. below the order of Court I would affirm

Therefore objections. appellee’s preliminary sustains which KOENIG, Appellant, William BOILERMAKERS, BROTHERHOOD OF INTERNATIONAL BLACKSMITHS, BUILDERS, AND FORGERS IRON SHIP Lodge HELPERS, 5. Local No. and Boilermakers AFL-CIO BROMMAGE, Appellant, Robert BOILERMAKERS, OF BROTHERHOOD INTERNATIONAL BLACKSMITHS, BUILDERS, AND FORGERS IRON SHIP Lodge HELPERS, No. 5. and Boilermakers Local AFL-CIO Superior Court

Argued Dec.

Filed Nov.