KENNETH H. OAKS, LTD., T/A Oaks Printing Co., Appellant, v. Paul JOSEPHSON, Individually and d/b/a The Josephson Company and The Josephson Co., Inc.
Superior Court of Pennsylvania
Argued Sept. 20, 1989. Filed Dec. 28, 1989.
568 A.2d 215
Daniel M. Replogle, III, Camden, N.J., for appellee.
Before TAMILIA, KELLY and CERCONE, JJ.
CERCONE, Judge:
This is an appeal from a final1 order of the Court of Common Pleas of Northampton County, sustaining appellee‘s (defendant‘s) preliminary objections as to jurisdiction and dismissing appellant‘s (plaintiff‘s) complaint. We reverse.
In October, 1988, appellant Kenneth H. Oaks, Ltd. (Oaks) filed a civil action complaint in the lower court alleging breach of a contractual agreement and negligence on the part of appellee The Josephson Company and Paul Josephson individually. Oaks is a Pennsylvania corporation engaged in the business of commercial printing and related services with offices in Northampton County, Pennsylvania. Paul Josephson is a resident of New Jersey and The Josephson Company is a New Jersey corporation with offices in that state. The Josephson Company (Josephson) is an advertising agency which provides services related to marketing communications.
In January, 1988, the parties entered into a contract whereby Oaks was to perform the printing of a sixty-eight page catalog for one of Josephson‘s clients. Oaks alleged costs of $29,585.00 for these services. In February, 1988,
“[W]hen preliminary objections, if sustained, would result in the dismissal of an action, such objections should be sustained only in cases which are clear and free from doubt.” Barber v. Pittsburgh Corning Corp., 317 Pa.Super. 285, 302-03, 464 A.2d 323, 332 (1983), cert. denied, 467 U.S. 1205, 104 S.Ct. 2387, 81 L.Ed.2d 346 (1984), citing Botwinick v. Credit Exchange, Inc., 419 Pa. 65, 213 A.2d 349 (1965). “Moreover, when deciding a motion to dismiss for lack of personal jurisdiction the court must consider the evidence in the light most favorable to the non-moving party.” Barber v. Pittsburgh Corning Corp., supra. Reviewing the evidence in the instant case in such a light, we find that it does not support the lower court‘s order granting appellee‘s preliminary objections.
A court may exercise in personam jurisdiction over a nonresident if (1) jurisdiction is conferred by the state long-arm statute and (2) the exercise of jurisdiction under the statute meets constitutional standards of due process. Eastern Continuous Forms v. Island Business Forms, 355 Pa.Super. 352, 513 A.2d 466 (1986). Under Pennsylvania‘s long-arm statute, the Pennsylvania courts may exercise jurisdiction over nonresident defendants “to the fullest ex-
“The Due Process Clause of the Fourteenth Amendment to the United States Constitution permits personal jurisdiction over a defendant in any State with which the defendant has ‘certain minimum contacts ... such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ Milliken v. Meyer, 311 U.S. 457, 463, [61 S.Ct. 339, 342, 85 L.Ed. 278 (1940)].‘” Eastern Continuous Business Forms, supra, 355 Pa.Super. at 354-55, 513 A.2d at 467, quoting Calder v. Jones, 465 U.S. 783, 787, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804, 810 (1984). In minimum contacts analysis, “talismanic jurisdictional formulas” are rejected and the facts of each case are weighed in determining whether personal jurisdiction will comport with fair play and substantial justice. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 485-86, 105 S.Ct. 2174, 2189, 85 L.Ed.2d 528, 549 (1985) quoting Kulko v. California Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1696-97, 56 L.Ed.2d 132, 141 (1978), reh‘g denied, 438 U.S. 908, 98 S.Ct. 3127, 57 L.Ed.2d 1150 (1978). In the context of interstate contractual obligations, the United States Supreme Court has emphasized that “parties who ‘reach out beyond one state and create continuing relationships and obligations with citizens of another state’ are subject to regulation and sanctions in the other State for the consequences of their activities.” Burger King Corp. v. Rudzewicz, supra, 471 U.S. at 473, 105 S.Ct. at 2182, 85 L.Ed.2d at 540 (1985), quoting Travelers Health Assn. v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927, 929, 94 L.Ed. 1154 (1950).
While an individual‘s contract with an out-of-state party cannot alone establish sufficient contacts with the forum state, negotiations prior to the contract, its contemplated future consequences, the terms of the contract and
Once it has been determined that the defendant has purposefully established minimum contacts with the forum state, those contacts may be considered in light of other factors to determine whether the exercise of personal jurisdiction will comport with fair play and substantial justice. Burger King Corp. v. Rudzewicz, supra, 471 U.S. at 476-77, 105 S.Ct. at 2184, 85 L.Ed.2d at 621. Those factors include the burden on the defendant, the forum state‘s interest in adjudicating the dispute, the plaintiff‘s interest in obtaining convenient and effective relief, the interstate judicial system‘s interest in obtaining the most efficient resolution of controversies, and the shared interest of the “several States in furthering fundamental substantive social policies.” Id.
In the instant case, the facts, viewed in the light most favorable to the non-moving party, show that The Josephson Company solicited quotations from Oaks for the printing work for which the parties eventually contracted. In connection with the contract, Josephson mailed and “faxed” bid specifications to Oaks at its place of business in Northampton County, Pennsylvania. Oaks prepared its bid quotation in Pennsylvania in response to Josephson‘s solicitation, and purchase orders by Josephson were mailed to Oaks in Pennsylvania. Numerous telephone calls between
In addition, the exercise of personal jurisdiction over appellee would not offend any notions of “fair play and substantial justice.” Appellant is a Pennsylvania corporation with whom appellee initiated contact in order to conduct business in the form of a contract to be performed in Pennsylvania. Appellee also maintained telephone and mail contact with appellant at its Pennsylvania office, and visited Pennsylvania in order to monitor and assess the progress on its work. Such circumstances do not lead us to the conclusion that appellee‘s contacts with Pennsylvania were “attenuated.” Rather, they were purposeful and continuous enough such that appellee could reasonably have anticipated “being haled into court” here. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490, 501 (1980) (“the foreseeability analysis that is critical to due process ... is that the defendant‘s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there“).
Our conclusion is supported by the following cases in which jurisdiction was found in Pennsylvania over non-resident corporate defendants who sought dismissal of actions
Similarly, in Controlled Metals, Inc. v. Non-Ferrous Intern. Corp., 410 F.Supp. 339 (E.D.Pa.1976), sufficient contacts were found to exercise jurisdiction over a New York corporation on the basis of telephone contacts with plaintiff‘s agent in Pennsylvania out of which the parties’ contract was formed, acceptance of defendant‘s offer to buy was made by plaintiff‘s agent in Pennsylvania, and performance was to take place in this state. Id. at 343. The court also found the exercise of jurisdiction over this non-resident corporation to be fair and reasonable because defendant initiated the communications with plaintiff that led to their agreement, and mailed shipping materials to plaintiff demonstrating a recognition of plaintiff‘s obligation as well as an expectation of performance. Such conduct, the court held, evidenced defendant‘s active role in dealing with plain-
The Controlled Metals court also found that Pennsylvania had an interest in protecting its resident by providing a forum, via the Pennsylvania long-arm statute, for its citizens to seek redress for harm caused by foreign corporations which have availed themselves of the privilege of doing business in Pennsylvania. Controlled Metals, Inc., supra 410 F.Supp. at 344. The fact that the New York corporation had no office or business facility in Pennsylvania, no bank accounts or mailing address, no telephone listing or employees within Pennsylvania was not significant in light of the other factors cited.
A similar result was also reached in Packard Press Corp. v. Com Vu Corp., 584 F.Supp. 73 (E.D.Pa.1984). In that case, the court held that the fact that the New York corporate defendant sought out the Pennsylvania plaintiff to print its prospectus, that the prospectus was used in a public offering, that plaintiff billed and made extensive communications by mail and telephone with defendant and that defendant voluntarily communicated with plaintiffs in Pennsylvania to amend and correct the prospectus before its final printing were sufficient contacts to establish in personam jurisdiction in Pennsylvania.
We do not find persuasive the lower court‘s holding that the case of Eastern Continuous Business Forms, Inc. v. Island Business Forms, Inc., supra, is distinguishable from the instant case. In that case, Eastern (plaintiff) sought to recover, in a Pennsylvania court, for various materials and services which it had allegedly supplied to Island (non-resident defendant), who had refused to pay the balance due on the parties’ contract. The lower court sustained Island‘s preliminary objections on the grounds of lack of personal jurisdiction over Island. On appeal, a panel
The instant case is similar. Although Island may have made more visits to Pennsylvania than did the appellee herein, thereby “strengthening” its contacts with the forum, Eastern Continuous Business Forms v. Island Business Forms, supra, 355 Pa.Super. at 357, 513 A.2d at 469, the Eastern court found more significant the two factors just noted: (1) that Island “reached out” beyond the boundaries of its home state to negotiate and contract with a Pennsylvania corporation, and (2) that Island‘s refusal to make payments under the contract caused foreseeable injuries to the Pennsylvania corporation. Both of these factors are present in the instant case. In addition, although Island may have made more visits to Pennsylvania than did appellee herein, the number of visits is non-decisive in a minimum contacts analysis. See Sterling Industrial Corp. v. Telephone, Inc., supra.
We conclude that the lower court erred in sustaining appellee‘s preliminary objections on the basis of lack of personal jurisdiction over appellee. Therefore, we reverse the lower court‘s order and remand for further proceedings consistent with this memorandum.
Order of the lower court reversed; case remanded for further proceedings consistent with this memorandum; jurisdiction relinquished.
KELLY, J., files a concurring statement.
I join in Judge Cercone‘s well-reasoned opinion. I note that I find the analysis of in personam jurisdiction contained therein entirely consistent with the analysis of the same subject, in a different context, in Scoggins v. Scoggins, 382 Pa.Super. 507, 555 A.2d 1314 (1989) (per Kelly, J., Beck & Hester, JJ., join).