Derman v. Wilair Services, Inc.

• Decision Date: 26 April 1991
• Docket Number: No. 2203,2203
• Citation: 590 A.2d 317,404 Pa.Super. 136
• Parties: Deborah S. DERMAN, Co-Executrix of the Estates of Bernard and Beverly Derman, Deceased and Benjamin Solin, Executor of the Estates of Marvin and Sophia Meyer, Deceased, Appellants, v. WILAIR SERVICES, INC. PHILA. 1990
• Court: Pennsylvania Superior Court

Page 317

590 A.2d 317

404 Pa.Super. 136

Deborah S. DERMAN, Co-Executrix of the Estates of Bernard and Beverly Derman, Deceased and Benjamin Solin Executor of the Estates of Marvin and Sophia Meyer, Deceased, Appellants, v. WILAIR SERVICES, INC.

No. 2203 PHILA. 1990

Superior Court of Pennsylvania.

Argued March 5, 1991.

Filed April 26, 1991.

[404 Pa.Super. 138] Arthur A. Wolk, Philadelphia, for appellants.

Mary B. Stein, Philadelphia, for appellee.

Before BECK, POPOVICH and HOFFMAN, JJ.

HOFFMAN, Judge:

This appeal is from a July 30, 1990 order sustaining the preliminary objections of appellee, Wilair Services Inc. ("Wilair"), and dismissing appellants' complaint for lack of jurisdiction. Appellants, Deborah Derman and Benjamin Solin, argue that the court erred in sustaining appellee's preliminary objections because (1) appellee has sufficient minimum contacts with Pennsylvania; and (2) appellee conducted an ongoing and systematic course of business in Pennsylvania. We affirm.

The facts underlying this appeal, summarized by the trial court, are as follows.

On March 23, 1988, Flying Musketeers of Rochester, Inc. purchased a Beechcraft C24R Sierra single engine aircraft. Flying Musketeers, Inc., is partially owned by Plaintiffs' decedents, Bernard Derman and Marvin Meyer. The Defendant, Wilair Services, Inc., ("Wilair") is an aviation fixed base operator which provides maintenance and ground services to aircraft. Wilair's only facility is in Rochester, New York.

Prior to the purchase of the aircraft, Beechcraft issued Service Bulletin 2217 requiring the replacement of the auxiliary fuel pump due to deterioration of certain carbon vanes that could clog the aircraft fuel system. The fuel pump was to be replaced within twenty five flight hours. Plaintiffs' decedents were unaware of this service bulletin.

Following the purchase, Plaintiffs' decedents experienced power losses and engine roughness in the aircraft on at least four occasions. They brought these problems to the attention of Wilair after each such occurrence. Wilair performed maintenance on the aircraft on such occasions including the cleaning of foreign materials from various engine and fuel system components. All such work was Plaintiffs alleged that Wilair knew of the service bulletin and yet that Wilair never alerted Plaintiffs' decedents of [sic] the service bulletin and never repaired the auxiliary fuel pump. Plaintiffs further alleged that it was precisely the same auxiliary fuel pump problem of which the service bulletin warned that caused the fatal crash of the aircraft.

performed exclusively at Wilair's facility in Rochester, New York.

That crash occurred on October 20, 1988 as the aircraft was nearing the completion of a flight from Rochester, New York to Wings Field in Blue Bell, Montgomery County. As Plaintiff Deborah Derman, the daughter of Plaintiffs' decedents, waited for Plaintiffs' decedents to land at Wings Field, the aircraft suffered an alleged partial or complete engine failure. Plaintiffs alleged that this failure was the result of clogging and restriction of fuel flow by foreign materials migrating from the auxiliary fuel pump. Plaintiffs further allege that these factors caused the plane to crash on a field near the airport at Wings Field and that such factors were created by the negligence of Wilair. All four persons on board the plane burned to death in the post impact fire. Plaintiffs' complaint was filed on May 11, 1989, setting forth causes of action based on defendant's false representations, negligence, and breach of warranty, as well as a claim for punitive damages based on defendant's willful, wanton, and grossly negligent misconduct. Defendant subsequently filed preliminary objections to Plaintiffs' complaint, contending that this Court lacks personal jurisdiction over it.

Trial Court Opinion, October 2, 1990 at 2-3. Appellee's preliminary objections were filed on June 23, 1989, and appellants filed their response to those objections on July 13, 1989. On July 30, 1989, the trial court granted appellee's preliminary objections. This timely appeal followed.

On appeal, appellants argue that the trial court erred in sustaining appellee's preliminary objections because Pennsylvania courts may properly exercise personal jurisdiction over appellee. Our standard of review of the granting of preliminary objections is well-settled:

When 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.... 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.

Kenneth H. Oaks, Ltd. v. Josephson, 390 Pa.Super. 103, 105, 568 A.2d 215, 216 (1989) (citations omitted); see also Delaware Valley Underwriting v. Williams & Sapp, 359 Pa.Super. 368, 373, 518 A.2d 1280, 1282 (1986). We also note that, once the defendant properly raises the issue of jurisdiction, the plaintiff has the burden of proving that jurisdiction is proper. Whalen v. Disney World Co., 274 Pa.Super 246, 252 n. 3, 418 A.2d 389, 392 n. 3 (1980).

Specifically, appellants argue that appellee has sufficient minimum contacts with Pennsylvania to allow the Commonwealth's courts to properly exercise jurisdiction under the Long Arm Statute, 42 Pa.C.S.A. § 5322 et seq. Alternatively, appellants argue that jurisdiction is proper because appellee has conducted a "continuous and systematic" part of its business in Pennsylvania in accordance with the "general jurisdiction" provision contained in 42 Pa.C.S.A. § 5301. Before we evaluate the merits of appellant's claims, we should clearly delineate the circumstances under which each of these jurisdictional provisions apply.

I. BASES FOR PERSONAL JURISDICTION

There are two types of personal jurisdiction that Pennsylvania courts may exercise over out-of-state defendants:

Jurisdiction over a non-resident defendant may be based either upon the specific acts of the defendant which gave rise to the cause of action, or upon the defendant's general activity within the forum state. In order for a Pennsylvania court to assert specific jurisdiction, the cause of action must arise out of the Skinner v. Flymo, 351 Pa.Super. 234, 239, 505 A.2d 616, 619 (1986) (emphasis in original) (citations omitted). We shall discuss these bases for jurisdiction, seriatim.

defendant's activities within the Commonwealth. General jurisdiction, on the other hand, exists regardless of whether the cause of action is related to the defendant's activities in this Commonwealth as long as the defendant's activities are "continuous and substantial."

A. In Personam Jurisdiction and 42 Pa.C.S.A. § 5322

Specific or in personam jurisdiction over non-resident defendants alleged to have caused injuries to persons in Pennsylvania is conferred upon Pennsylvania courts by the provisions of the Long Arm Statute. Generally speaking, the Long Arm Statute gives Pennsylvania courts the authority to exercise in personam jurisdiction over nonresident defendants based on the defendant's specific acts within the Commonwealth which gave rise to the cause of action. See Skinner v. Flymo, supra. The section of the Long Arm Statute which appellant claims is applicable to this case is 42 Pa.C.S.A. § 5322(a)(4), which provides that:

(a) General Rule.--A tribunal of this Commonwealth may exercise personal jurisdiction over a person (or the personal representative of a deceased individual who would be subject to jurisdiction under this subsection if not deceased) who acts directly or by an agent, as to a cause of action or other matter arising from such person:

* * * * * *

(4) Causing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth.

Id. Satisfaction of the provisions of the Long Arm Statute alone is not sufficient to allow Pennsylvania courts to exercise jurisdiction over non-resident defendants, however. Appellants must also show that our courts' exercise of jurisdiction under the Long Arm Statute conforms with federal Constitutional requirements of due process. See 42 Pa.C.S.A. § 5322(b). Section 5322(b) provides:

In addition to the provisions of subsection (a) the jurisdiction of the tribunals of this Commonwealth shall extend to all persons who are not within the scope of section 5301 (relating to persons) 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.

Id. See Hewitt v. Eichelman's Subaru, Inc., 341 Pa.Super. 589, 592, 492 A.2d 23, 24 (1985) (court's power to exercise in personam jurisdiction over non-resident defendant turns upon two considerations: (1) jurisdiction must be conferred by state long-arm statute, and, (2) the exercise of jurisdiction under statute must meet constitutional standards of due process); see also Kenny v. Alexson, 495 Pa. 107, 117, 432 A.2d 974, 980 (1981). The Due Process Clause of the fourteenth Amendment of 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. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). This minimum contacts analysis is the controlling consideration in determining whether our courts may properly exercise jurisdiction over a non-resident defendant. Kenny v. Alexson, supra (citing McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957)). A discussion of the standard pennsylvania courts apply in determining whether the requisite minimum contacts exist follows.

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