Hlinsky v. Ferrara

25 Pa. D. & C.3d 410, 1982 Pa. Dist. & Cnty. Dec. LEXIS 237
CourtPennsylvania Court of Common Pleas, Mercer County
DecidedSeptember 28, 1982
Docketno. 633 C.D. 1981
StatusPublished

This text of 25 Pa. D. & C.3d 410 (Hlinsky v. Ferrara) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Mercer County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hlinsky v. Ferrara, 25 Pa. D. & C.3d 410, 1982 Pa. Dist. & Cnty. Dec. LEXIS 237 (Pa. Super. Ct. 1982).

Opinion

FORNELLI,/.,

William and Sara Hlinsky, plaintiffs, have filed a complaint in trespass and assumpsit alleging that Joseph Ferrara, d/b/a Valley View Coins, converted plaintiffs gold watch chain. Defendant Ferrara has filed preliminary obj ections in the nature of a petition raising a question of jurisdiction. We must accept as true all well-pleaded facts: Union National Bank v. L.D. Pankey Institute, 284 Pa. Super. 537,426 A. 2d 624 (1980).

Plaintiffs aver their residency to be in Mercer County, Pa. They allege defendant’s place of business to be in Trumbull County, Ohio and that it consists of buying, selling, and appraising jewelry. Plaintiffs aver that Sara Hlinsky delivered a gold watch chain to defendant at his Ohio place of business for the purpose of having it appraised on November 2,1980 and that defendant wrongfully converted it by there selling the chain to United Precious Metals of Minneapolis, Minnesota.

Defendant’s preliminary objections assert that he is not a resident of Pennsylvania, does not have assets, property or a place of business in Pennsylvania, and that he has no employees, agents or representatives operating on his behalf in Pennsylvania.

Since plaintiffs have not filed an answer to the preliminary objections, which were endorsed with [412]*412a notice to plead, they are deemed to have admitted all allegations of fact therein: Action Industries, Inc. v. Wiedmon, 236 Pa. Super. 447, 346 A. 2d 798 (1975).

Defendant’s answers to plaintiffs’ interrogatories disclose the following: advertisements were placed by defendant on a regular basis from at least March of 1980 until November 2, 1980 in The Herald, a daily newspaper distributed in Mercer County.1 Defendant also placed ads in the Greenville Record Argus, another Mercer County daily newspaper, in March and April of1980. Defendant’s advertisements were also broadcast by two Mercer County radio stations, WPIC and WYFM, on a regular basis from April, 1980 to November 2, 1980.2 Each radio advertisement ended with the phrase “buying gold and silver daily.” The newspaper ads included a toll-free telephone number for Shenango Valley, Pennsylvania residents.

The due process clause of the Fourteenth Amendment requires that a defendant have adequate notice of suit and be subject to the court’s personal jurisdiction. World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286 (1980). A state court has personal jurisdiction over a defendant only if defendant has had the “minimum contacts” with that state that are prerequisite to its exercise of power over him. Hanson v. Denckla, 357 U.S. 235 (1958). This is so that “traditional notions of fair and substantial justice” are not offended. International Shoe Company v. State of Washington, 326 U.S. 310, 316 (1945).

[413]*413The concept of minimum contacts performs two related functions: it protects defendant against the burdens of litigating in an inconvenient forum, and it ensures that the states through their courts do not reach beyond the limits imposed by their status as coequal sovereigns in a federal system. World-Wide Volkswagen v. Woodson, supra. Kenny v. Alexson Equipment Co., 495 Pa. 107, 432 A. 2d 974 (1981).

The jurisdiction of Pennsylvania courts is governed by the Uniform Interstate and International Procedure Act.3 The limits of the court’s jurisdiction under the Act are defined by the Due Process Clause of the Fourteenth Amendment. See, 42 Pa.C.S.A. § 5308. The basis of jurisdiction over persons outside the Commonwealth are defined in 42 Pa.C.S.A. §5322. In particular, 42 Pa.C.S.A. §5322(a)(l)(i) and (a)(4) provide:

“(a) General rule. — 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:
(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 or otherwise accomplishing an object ....
(4) Causing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth.”

Plaintiff urges that subparagraph (4) in and of [414]*414itself is sufficient to impart jurisdiction. However, plaintiffs’ interpretation of the statutory language of this subparagraph appears to be broader than constitutionally permissible. The U.S. Supreme Court has again reaffirmed that more is required to establish the requisite minimum contacts than an isolated act outside the Comonwealth causing harm within the Commonwealth. World-Wide Volkswagen Corp. v. Woodson, supra; See also, Danhart v. Whitt, 20 D. & C. 3d 115, 118 (1981) and Jacobs v. Flight Extendors, 21 D. & C. 3d 440, 444 (1980).

Generally, the courts have used the three part test4 formulated in Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa. Super. 12, 323 A. 2d 11, 15 (1974), to determine whether a tribunal in this Commonwealth has jurisdiction over an out-of-state defendant:

“ . . . we can find certain guidelines which aid in the factual analysis necessary to make the determination of whether the requisite ‘minimum contacts’ are present in a given case. First, defendant must have purposefully availed itself of the privilege of acting within the forum state thus invoking the benefits and protections of its laws. Hanson v. Denckla, supra. Secondly, the cause of action must arise from defendant’s activities within the forum state. See Southern Mach. Co. v. Mohasco Indus., Inc., 401 F. 2d 374 (6th Cir. 1968); Electric Regulator Corp. v. Sterling Extruder Corp., 280A Supp. 550 (D. Conn. 1968). Lastly, the acts of the defendant must have a substantial enough connection with the forum state to make the exercise of juris[415]*415diction over treasonable. International Shoe Co. v. Washington, supra; see also, In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F 2d 220 (6th Cir. 1972); Kourkene v. American BBR, Inc., 313 F. 2d 769 (9th Cir. 1963).”

The first prong of the Proctor test has been met in this case. Defendant through his continuous advertising in Mercer County has significantly promoted and purposefully availed himself of the privilege of acting within the forum state. In Garfield v. Homowack Lodge, Inc., 249 Pa. Super. 392, 378 A. 2d 351 (1977), the court held that the appellant had purposefully availed itself of the privilege of acting within Pennsylvania by its intensive and continuous advertising in a Pennsylvania newspaper, its maintenance of a toll-free telephone number in Pennsylvania for lodge reservations, and its arrangements with Pennsylvania travel agents on a ten percent commission basis for referrals to its resort.

Hart v. McCollum, 249 Pa. Super. 267, 376 A. 2d 644, 647-648 (1977) stated:

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Related

International Shoe Co. v. Washington
326 U.S. 310 (Supreme Court, 1945)
Hanson v. Denckla
357 U.S. 235 (Supreme Court, 1958)
World-Wide Volkswagen Corp. v. Woodson
444 U.S. 286 (Supreme Court, 1980)
Kenny v. Alexson Equipment Co.
432 A.2d 974 (Supreme Court of Pennsylvania, 1981)
Kingsley & Keith (Canada) Ltd. v. Mercer International Corp.
435 A.2d 585 (Superior Court of Pennsylvania, 1981)
Hart v. McCollum
376 A.2d 644 (Superior Court of Pennsylvania, 1977)
Goff v. Armbrecht Motor Truck Sales, Inc.
426 A.2d 628 (Superior Court of Pennsylvania, 1980)
Union National Bank v. L. D. Pankey Institute
426 A.2d 624 (Superior Court of Pennsylvania, 1980)
Action Industries, Inc. v. Wiedeman
346 A.2d 798 (Superior Court of Pennsylvania, 1975)
Garfield v. Homowack Lodge, Inc.
378 A.2d 351 (Superior Court of Pennsylvania, 1977)
Bork v. Mills
329 A.2d 247 (Supreme Court of Pennsylvania, 1974)
Proctor & Schwartz, Inc. v. Cleveland Lumber Co.
323 A.2d 11 (Superior Court of Pennsylvania, 1974)

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Bluebook (online)
25 Pa. D. & C.3d 410, 1982 Pa. Dist. & Cnty. Dec. LEXIS 237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hlinsky-v-ferrara-pactcomplmercer-1982.