Wimbush v. Coastal Engineering Co.

9 Pa. D. & C.3d 398, 1979 Pa. Dist. & Cnty. Dec. LEXIS 403
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedJanuary 26, 1979
Docketno. 6521
StatusPublished

This text of 9 Pa. D. & C.3d 398 (Wimbush v. Coastal Engineering Co.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wimbush v. Coastal Engineering Co., 9 Pa. D. & C.3d 398, 1979 Pa. Dist. & Cnty. Dec. LEXIS 403 (Pa. Super. Ct. 1979).

Opinion

FORER,J.,

Laura Wimbush, a Pennsylvania resident, brought this action in trespass to recover for bodily injuries incurred on or about March 16, 1977, when her hand was crushed in a food sealing machine in Pennsylvania.

Defendant’s preliminary objections raise the question of the reach of the Pennsylvania Long-Arm Statute of November 15, 1972, P.L. 1063, sec. 8305, 42 P.S. §8305.1 The facts are not in dispute. Plaintiff was injured at her place of employment in Pennsylvania because of an alleged malfunctioning or failure in design of a machine on which she was working. This machine was designed and built by defendant, John Lysobey, a Connecticut resident, trading as Coastal Engineering. The machine was ordered by plaintiffs employer, Vita Foods, Inc., for use in its New York plant. Defendant designed and built the machine to meet the specifications of Vita and the laws of New York, and sold the machine to Vita outright in 1970 or 1971 for the [400]*400sum of $5,000. Defendant did not patent the machine. He has no rights to royalties or to control the use or operation of the machine. In 1972 or 1973, defendant supplied replacement parts for the machine, sending them to Pennsylvania as requested by Vita. This was defendant’s only notice that the machine had been moved to Pennsylvania. Until he appeared in court on this matter, defendant had never been in Pennsylvania.

Plaintiff admits that defendant is not doing business in Pennsylvania. She predicates jurisdiction on the theory that defendant’s action outside of Pennsylvania has caused harm in this Commonwealth. Both parties admit that plaintiff has a good cause of action in New York and Connecticut. Service was made on the Department of State pursuant to the Pennsylvania Long-Arm Statute. Defendant does not dispute the adequacy of the notice he received,2 but contends that his connection with Pennsylvania is too attenuated under the due process clause of the Fourteenth Amendment to the United States Constitution to justify imposing upon him the burden and inconvenience of defense in Pennsylvania.

Under the common law, plaintiff had the choice of forum: VonMehren & Trautman, Jurisdiction to Adjudicate; A Suggested Analysis, 79Harv. L. Rev. 1121 (1966). The choice, however, was limited by the necessity of obtaining personal service on defendant or by bringing an action in rem or quasi in rem in a jurisdiction where property was located: Pennoyer v. Neff, 95 U.S. 714 (1877). In personam jurisdiction was traditionally predicated on de[401]*401fendant’s domicile or his relationship with the forum, not on plaintiffs domicile or his relationship with the forum. See Hanson v. Denckla, 357 U.S. 235, 253 (1958).

With the rise of interstate travel and accidents occurring in jurisdictions which were not the domicile of either plaintiff or defendant and with the growth of multistate corporations and corporations doing business in many states, obtaining service on defendant for torts allegedly committed within the jurisdiction became a widespread and serious problem. A new mechanism was required to permit suits to be tried in a more appropriate forum than that in which personal service could be obtained. Varying forms of long-arm statutes was the response in many states.3 See, e.g.: McGee v. International Life Ins. Co., 355 U.S. 220, 226 (1957); Kitzinger v. Gimbel Bros., Inc., 240 Pa. Superior Ct. 345, 350-51, 368 A. 2d 333, 336 (1976); Faust v. Davenport, 69 D. & C. 2d 453,460(1975). See also, Currie, The Growth of the Long Arm, U. Ill. Law Forum 533, 544-60 (1963). These statutes were designed to make service of process possible, not to change the basic jurisdiction of the courts.

In International Shoe Co. v. Washington, 326 U.S. 310 (1945), the Supreme Court ruled that the jurisdictional test was that defendant must have sufficient minimum contacts with the forum so that the maintenance of the suit would not “offend traditional notions of fair play and substantial justice.” In Shaffer v. Heitner, 433 U.S. 186 (1977), this standard was applied to actions in rem. The Supreme Court most recently elucidated the [402]*402minimum contacts standard by emphasizing the “fairness” of entering an in personam judgment against a nonresident defendant: Kulko v. Superior Court of California, 436 U.S. 84 (1978). The essential criterion is now whether the quality and nature of defendant’s activity is such that it is both fair and reasonable to require that he conduct his defense in the forum. Id. at 102: Tuckman v. Aerosonic Corp., _Del__, 394 A. 2d 226, 228, n. 2 (1978). The focus of in personam jurisdiction has, therefore, shifted from a question of personal service on defendant or the situs of the property in dispute to the relationship of the forum to defendant and the litigation itself.

Concurrent with the growth of long-arm statutes has been the extension of protection to consumers of defective goods under Restatement, 2d, Torts, §402A. Under Pennsylvania law: “[P]olicy considerations suggest that in personam jurisdiction, as far as permissible under due process, should be concomitant with the scope of §402A.” Kitzinger v. Gimbel Bros., Inc., 240 Pa. Superior Ct. at 353, 368 A. 2d at 337.

“To decide whether appellant is subject to the in personam jurisdiction of Pennsylvania courts, we must answer two questions a) whether appellant’s conduct was within the relevant provision of the long-arm statute and b) whether the exercise of jurisdiction over appellant under the particular circumstances of this case complies with the constitutional mandate of due process of law.” Monroeville Land v. Sonnenblick-Goldman, 247 Pa. Superior Ct. 61, 66, 371 A. 2d 1326, 1328-29 (1977). See also Com. v. Bisland, 29 Pa. Commonwealth Ct. 388, 371 A. 2d 529, 530 (1977); Milliken v. Meyer, 311 U.S. 457, 463-64 (1940).

[403]*403Applying these standards to the case at bar, it is clear that plaintiffs pleadings raise allegations which, when considered in the light most favorable to plaintiff, literally comply with section 8305. Defendant is a nonresident who, under a fictitious business name, allegedly caused harm within this Commonwealth. The instant case turns, therefore, on whether in personam jurisdiction exercised by Pennsylvania over this defendant offends due process.

The present action differs markedly from those cases in which:

a. The nonresident defendant is actually doing business within the forum state: Ar-Con Bldg. Specialties, Inc. v. Famco, Inc., 480 F. 2d 162 (5th Cir. 1973) (foreign corporation solicited orders for its products within the forum, warranted fitness of the products sold, and entered into contracts in the forum), and Myers v. Mooney Aircraft, Inc., 429 Pa. 177, 240 A. 2d 505 (1967) (regular or systematic course of activities carried on by a foreign corporation in the forum).

b.

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Related

Pennoyer v. Neff
95 U.S. 714 (Supreme Court, 1878)
Hess v. Pawloski
274 U.S. 352 (Supreme Court, 1927)
Milliken v. Meyer
311 U.S. 457 (Supreme Court, 1941)
International Shoe Co. v. Washington
326 U.S. 310 (Supreme Court, 1945)
Mullane v. Central Hanover Bank & Trust Co.
339 U.S. 306 (Supreme Court, 1950)
McGee v. International Life Insurance
355 U.S. 220 (Supreme Court, 1957)
Hanson v. Denckla
357 U.S. 235 (Supreme Court, 1958)
Shaffer v. Heitner
433 U.S. 186 (Supreme Court, 1977)
Ar-Con Building Specialties, Inc. v. Famco, Inc.
480 F.2d 162 (Fifth Circuit, 1973)
People Ex Rel. Jeffers v. Gibson
508 P.2d 374 (Supreme Court of Colorado, 1973)
Tuckman v. Aerosonic Corp.
394 A.2d 226 (Court of Chancery of Delaware, 1978)
McCrory Corp. v. Girard Rubber Corp.
307 A.2d 435 (Superior Court of Pennsylvania, 1973)
Aiken v. Lustine Chevrolet, Inc.
392 F. Supp. 883 (District of Columbia, 1975)
Braasch v. Vail Associates, Inc.
370 F. Supp. 809 (N.D. Illinois, 1973)
Uppgren v. Executive Aviation Services, Inc.
304 F. Supp. 165 (D. Minnesota, 1969)
Hart v. McCollum
376 A.2d 644 (Superior Court of Pennsylvania, 1977)
Gray v. American Radiator & Standard Sanitary Corp.
176 N.E.2d 761 (Illinois Supreme Court, 1961)

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Bluebook (online)
9 Pa. D. & C.3d 398, 1979 Pa. Dist. & Cnty. Dec. LEXIS 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wimbush-v-coastal-engineering-co-pactcomplphilad-1979.