ORDER
The plaintiff filed her complaint on January 19, 2006 and served it on March 8,2006. Plaintiff alleged counts of breach of contract, promissory estoppel, quantum
Plaintiff is a resident of Wayne, Pennsylvania, located in Delaware and Montgomeiy counties. Defendant in this case is a Louisiana corporation with its principal place of business in the state of Mississippi, registered to do business in the state of Mississippi and the state of Texas. Defendant is not registered to do business in Pennsylvania and neither owns nor leases any real estate in Pennsylvania. Defendant has no employees in Pennsylvania.
Defendant sells children’s apparel. It sells its products through a catalog, website, and “home parties” in customer’s homes. All of defendant’s salesmen are independent contractors. In 2005 Kelly’s Kids contracted with 554 independent contractor salesmen, only six of whom did any business in Pennsylvania. Defendant’s gross sales in 2005 totaled $13,278,011.78, less than 1 percent ($96,556.42) from Pennsylvania. Defendant had 108,595 total orders in 2005 but only 848 (0.78 percent) came
Defendant’s website permits users to view and purchase merchandise, apply to be a sales representative, sign up to host a home party, sign up for a personal shopping account, request a catalog, and contact the defendant via e-mail. Kelly’s Kids received 4,499 orders over its website in 2005, only 28 of which originated in Pennsylvania (0.62 percent).
In July 2005 plaintiff entered into a contract to consult for the defendant. The contract was not created in Pennsylvania.
On September 2, 2005, plaintiff met with Carol Follmer, the general manager, at defendant’s offices in Mississippi. They discussed extending the contract for an additional year. Plaintiff e-mailed a proposal containing the terms of the contract extension to Ms. Follmer on September 13,2005. Plaintiff may have sent the e-mail
Pennsylvania courts’ jurisdiction over non-residents is governed by 42 Pa.C.S. §5322(b). “[T]he jurisdiction of the tribunals of [Pennsylvania] shall extend... to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.” In International Shoe Co. v. Washington, the Supreme Court of the United States held that traditional notions of justice govern the constitutional standards of jurisdiction. “[D]ue process requires . . . that... if [the defendant] [is] not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”
It is well-established that “[Pennsylvania] courts may exercise two types of in personam jurisdiction over a non-resident defendant. . . . general jurisdiction, which is founded upon a defendant’s general activities within the forum as evidenced by continuous and systematic contacts with the state . . . [and] specific jurisdiction, which ... is focused upon the particular acts of the defendant that gave rise to the underlying cause of action.”
The Supreme Court of the United States in Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984), held that the defendant must engage in continuous and systematic general business contacts with the forum state in order for the exercise of general jurisdiction to be constitutionally exercised. This requirement can be satisfied by the presence of a company office,
Defendant Kelly’s Kids’ traditional business contacts with Pennsylvania are limited to commercial transactions amounting to a tiny percentage of its total sales. It is not registered to do business in Pennsylvania. It maintains no property in Pennsylvania. It has no employees in Pennsylvania. It has no offices in Pennsylvania. It has no permanent or continuous presence in Pennsylvania whatsoever, except its perpetual potential to be contacted via the world-wide web. There are no brick and mortar continuous and systematic general business contacts with Pennsylvania. The exercise of jurisdiction in this case can only be proper if the same due process requirements of general jurisdiction, namely systematic
“[T]he Internet [is] a global ‘super-network’ of over 15,000 computer networks used by over 30 million individuals, corporations, and educational institutions worldwide.”
In Zippo Mfg. Co. v. Zippo Dot Com Inc, 952 F. Supp. 1119, 1123 (W.D. Pa. 1997), a manufacturer of cigarette lighters sued an internet news service for trademark infringement. The defendants contracted with 3,000 Pennsylvania residents to provide access to its news service. To do so, it utilized seven internet service providers in Pennsylvania. These business contacts were all made while the defendant was illegally using the plaintiff’s trademark. The defendant’s only contacts with Pennsylvania were over the Internet. Nonetheless, the Zippo court held that the exercise of specific jurisdiction was permissible.
The standard by which any commercial activity must be measured for general jurisdiction purposes is the systematic and continuous contacts standard. “[T]he likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.”
Plaintiff urges this court to interpret Zippo and its progeny as establishing a sliding scale whereby any website of sufficient interactivity in the middle of the sliding scale permits the exercise of general personal jurisdiction. By this logic, any organization or individual in the world that operates a minimally interactive website would be subject to personal jurisdiction in Pennsylvania regarding any cause of action whatsoever.
Although the court in Zippo dealt with specific jurisdiction, the Superior Court of Pennsylvania has applied the same approach to general jurisdiction in Mar-Eco Inc. v. T & R Sons Towing and Recovery Inc., 837 A.2d 512 (Pa. Super. 2003). In Mar-Eco a Pennsylvania motor vehicle dealer sued a Maryland motor vehicle dealer, claiming that personal jurisdiction was appropriate. “[The defendant] regularly conducted] business in Pennsylvania through ... its [website] . . . where customers can order parts, schedule service, apply for financing, calculate payments, search [defendant’s new and used vehicle inventory and apply for employment.”
Since the Mar-Eco virtual dealership website was the middle ground of interactivity, the Kelly’s Kids website falls on the low end of interactivity. While the Mar-Eco website simulated nearly every activity which a customer could conduct at the physical dealership, Kelly’s Kids’ website is little more than catalog orders which can be transmitted instantaneously. The contact made over the website flows entirely from the customer to Kelly’s Kids. Customers receive no feedback from the website. Customers merely select items for purchase, place an order, provide payment,
Kelly’s Kids’ Pennsylvania website contacts are initiated solely by its customers. These contacts are irregular, not systematic.
This court does not have jurisdiction over the defendant. Defendant’s preliminary objections are therefore sustained.
. Plaintiff offered no evidence to demonstrate that the contract was created in Pennsylvania. This court must conclude that it was not.
. Affidavit of Carol Follmer, the general manager of Kelly’s Kids.
. Defendant’s exhibit O contains this e-mail, as well as an e-mail sent by plaintiff two days later from Kansas. The second e-mail indicates that plaintiff’s flight to Philadelphia was delayed. There is no evidence of any Pennsylvania connection.
. The court assumes that these facts, as plead by plaintiff, are hue for the purpose of determining preliminary objections.
. 326 U.S. 310, 316 (1945). (citations omitted)
. Mar-Eco Inc. v. T & R Sons Towing and Recovery Inc., 837 A.2d 512, 515 (Pa. Super. 2003).
. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 438-39, 445-46 (1952) (jurisdiction was proper over a Philippine mining company that was ran out of an office in Ohio during WWII).
. Helicopteros, 466 U.S. at 416 (jurisdiction was not proper over a Colombian corporation that repeatedly purchased training, services, and equipment in Texas, and trained its employees there).
. 430 F. Supp.2d 431, 439 (E.D. Pa. 2006).
. 430 F. Supp.2d at 440.
. Zippo Mfg. Co. v. Zippo Dot Com Inc., 952 F. Supp. 1119, 1123 (W.D. Pa. 1997).
. Id. at 1125-26.
. 471 U.S. 462, 476 (1985).
. 952 F. Supp. at 1124.
. Zippo, 1119 F. Supp. at 1125-26. (emphasis in original)
. Given the pervasiveness of interactive websites in the global economy, this interpretation would transform Pennsylvania into the
. 837 A.2d at 514.
. Id. at 514.
. Although there is no evidence that credit card information can be received via the website, the court assumes this interactivity.
. The mere potential to conduct business in a systematic way is not equivalent to actually conducting systematic business contacts.
. Being continuously available to business is not the same as continuously conducting business. Maintaining a telephone line to accept orders does not mean that business is continuously being conducted over that telephone line.
