Busch v. Sea World of Ohio

95 F.R.D. 336, 1982 U.S. Dist. LEXIS 13754
CourtDistrict Court, W.D. Pennsylvania
DecidedJune 7, 1982
DocketCiv. A. No. 82-0339
StatusPublished
Cited by12 cases

This text of 95 F.R.D. 336 (Busch v. Sea World of Ohio) is published on Counsel Stack Legal Research, covering District Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Busch v. Sea World of Ohio, 95 F.R.D. 336, 1982 U.S. Dist. LEXIS 13754 (W.D. Pa. 1982).

Opinion

OPINION

MARSH, District Judge.

This case has come before this court on a complaint filed by the parents of Lisa Busch, a minor, on her behalf and in their own right. The complaint alleges the minor plaintiff was injured at an amusement known as “Captain Kidd’s World” at the defendant’s amusement park in Aurora, Ohio. The plaintiffs have alleged diversity of citizenship, various injuries to the minor plaintiff, and damages in excess of $10,000.

The incident, from which this case arises, occurred on July 5, 1980. The minor plaintiff at that time was approximately three (3) years old.

The defendant, Sea World of Ohio, a corporation, has answered plaintiffs’ complaint and denied liability, the jurisdictional amount, and the personal jurisdiction of this court. The defendant has made a motion pursuant to 28 U.S.C. § 1404(a)1 for a change of venue from the United States District Court for the Western District of Pennsylvania to the United States District Court for the Northern District of Ohio, Eastern Division.

The plaintiffs are individual citizens of the Commonwealth of Pennsylvania, residing at 1709 St. James Place, Wexford, Pennsylvania. The defendant, Sea World of Ohio, is a corporation with its principal place of business in Aurora, Ohio. As such the requirement of complete diversity of parties is met and this court has jurisdiction to hear the case. 28 U.S.C. § 1332(a)(1).

The defendant corporation challenges this court’s personal jurisdiction over it claiming (1) that it does not transact any business in Pennsylvania; (2) that it has no minimum contacts with Pennsylvania; and, (3) that the injury to the minor plaintiff did not arise out of any of defendant’s conduct within Pennsylvania.

Defendant’s amusement park, “Sea World,” is the type of amusement park that developed in the 1970’s and is commonly called a “regional theme park.” This type of amusement park is based on a certain idea or motif, and located in an area that is accessible by patrons from a region of the United States, normally two or more states. This is unlike the local amusement park which draws its customers from a limited geographical area, usually surrounding towns. As such, the defendant advertised extensively in the states adjacent to Eastern Ohio, including Pennsylvania.

This court is bound by state law governing personal jurisdiction. The basis of personal jurisdiction in Pennsylvania over persons outside Pennsylvania, as “Sea World,” is governed by 42 Pa.C.S.A. § 5322. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). 42 Pa.C. S.A. § 5322 provides as follows:

“(a) ... A tribunal of this Commonwealth may exercise personal jurisdiction over a person . .. who acts directly or by an agent, as to a cause of action or other matter arising from such person:
[339]*339“(1) Transacting any business in this Commonwealth. Without excluding other acts which may constitute transacting business in this Commonwealth, any of the following shall constitute transacting business for the purpose of this paragraph:
“(i) The doing by any person in this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit ....
“(ii) The doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit .... ”

By its nature a “regional theme park” must draw patrons from an area larger than its local geographic area. In order to make potential patrons aware of the park, advertisements must be utilized. At the hearing on this motion to transfer venue, the plaintiffs introduced into evidence various examples of the extensive advertising used by the defendant in the Pittsburgh, Pennsylvania area. This evidence included:

1. A shopping bag from the Giant Eagle Super Market located in the Pine Creek Plaza, Wexford, Pennsylvania, North Hills suburban Pittsburgh, containing four (4) “$1.50 discount coupon” to “Sea World, Aurora, Ohio.” This shopping bag is headed by large print stating: “SAVE $1.50 per person AT SEA WORLD ....” (See Appendix, plaintiffs’ Exhibit P-1.)
2. An affidavit of Judith A. Wallace, Supervisor of the Pittsburgh Region Retail Marketing Office of ARCO Petroleum Products Company and a coupon reading in part “SEA WORLD ... SAVE $1.50 ... courtesy of your ... ARCO ... dealer,” and various Sea World advertisements.
3. Various advertisements for Sea World from The Pittsburgh Press.
4. Newspaper advertisements for Giant Eagle Markets which included advertisements for Sea World coupons.
5. Invoices of Giant Eagle Markets for newspaper and radio advertising to Sea World, for the years 1979 and 1980 (the year in which the incident giving rise to this case arose) in the amount of $124,-765.10.
6. Testimony of Mr. Jack Heyl, Travel Resort coordinator for The Pittsburgh Press that for the year 1979 the account for Sea World for daily linage for advertisements in The Pittsburgh Press and the Pittsburgh Post-Gazette totaled 8329 and for the Sunday editions of The Pittsburgh Press, the linage was 5673. For the year 1980, 2835 lines appeared in The Pittsburgh Press.
7. Testimony of Mr. Louis Sappowitz of the Pittsburgh television station WPXI that Sea World advertised over WPXI television in Pennsylvania during the summer of 1980. The defendant stipulated to this.
8. Testimony of Mr. Eric Zwarg, controller of KDKA, a member of Group W and. a Pittsburgh radio and television broadcasting facility, was as follows:
Defendant, paid KDKA $49,000 for television advertising in 1979; defendant paid KDKA $29,000 for radio advertising in 1979; and defendant paid KDKA $48,000 for television advertising in 1980.

From this evidence, the court concludes that the defendant has spent a large amount of money in the Pittsburgh, Pennsylvania area for advertising in order to attract patrons from Pennsylvania. As such the defendant certainly availed itself of the privilege of acting within Pennsylvania. Hart v. McCollum, 249 Pa.Super. 267, 376 A.2d 644, 647-648 (1977). Whether this was done directly or by an advertising agency, the purpose of the advertising was obviously to make the citizens of Pennsylvania aware of the facilities of the defendant, Hart, supra, thereby “realizing pecuniary benefit,”2 from the citizens of Pennsylvania.

[340]*340These advertisements by the defendant “had a ‘realistic impact’ in this forum” and the defendant “ ‘should have reasonably foreseen that the transaction would have consequences’ in Pennsylvania.” Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 382-383 (6th Cir. 1968) cited in

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Bluebook (online)
95 F.R.D. 336, 1982 U.S. Dist. LEXIS 13754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/busch-v-sea-world-of-ohio-pawd-1982.