Hicks v. Kawasaki Heavy Industries

• Decision Date: 15 June 1978
• Docket Number: Civ. A. No. 76-1373.
• Citation: 452 F. Supp. 130
• Parties: James HICKS, Plaintiff, v. KAWASAKI HEAVY INDUSTRIES, Defendant. KAWASAKI MOTORS CORPORATION, U. S. A., Defendant and Third-Party Plaintiff, v. Cindy Lee BOYER, Third-Party Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

452 F. Supp. 130

James HICKS, Plaintiff, v. KAWASAKI HEAVY INDUSTRIES, Defendant.

KAWASAKI MOTORS CORPORATION, U. S. A., Defendant and Third-Party Plaintiff, v. Cindy Lee BOYER, Third-Party Defendant.

Civ. A. No. 76-1373.

United States District Court, M. D. Pennsylvania.

June 15, 1978.

Lawrence G. Frank, Killian & Gephart, Harrisburg, for plaintiff.

James Carl, Metzger, Wickersham, Knauss & Erb, Harrisburg, Pa., for Kawasaki Motors Corp. USA.

McNees, Wallace & Nurick by G. Thomas Miller, Harrisburg, Pa., for Cindy Lee Boyer.

Nauman, Smith, Shissler & Hall by David C. Eaton, Harrisburg, Pa., for Kawasaki Heavy Industries Ltd.

MEMORANDUM

HERMAN, District Judge.

This matter is before the Court on the motion of Defendant, Kawasaki Heavy Industries, Ltd., to dismiss for lack of personal jurisdiction. The complaint alleges that on August 14, 1975, Plaintiff, James Hicks, was operating his 1973 Kawasaki motorcycle in Lower Swatara Township, Dauphin County, Pennsylvania, when a 1968 Dodge station wagon operated by Cindy Lee Boyer exited a private drive directly into the path of Plaintiff's motorcycle. The complaint further alleges that a collision occurred during which a spring-loaded hinged gasoline tank cap on the motorcycle came open, the gasoline spilling out, igniting and causing Plaintiff to suffer second and third degree burns over seventy to eighty per cent of his body. Plaintiff instituted this action on November 5, 1976, alleging breach of warranty, negligence and strict liability. The motorcycle involved in the accident was manufactured by Kawasaki Heavy Industries, Ltd., and distributed by Kawasaki Motors Corporation, U. S. A., to Teter's Farm Supply, Millersburg, Pennsylvania, and sold to Ray Woll who in turn sold it to Plaintiff. The action comes into this Court on the basis of diversity. 28 U.S.C. § 1332.

Defendant Kawasaki Heavy Industries, Ltd., has indicated that it is a corporation organized and existing under the laws of Japan, engaged in the manufacture of motorcycles and other products. Kawasaki Heavy Industries, Ltd., sells motorcycles to Kawasaki Motors Corporation, U. S. A., a Delaware Corporation. They indicate that all sales by Kawasaki Heavy Industries, Ltd. of motorcycles for the American market are made in Japan pursuant to order placed by Kawasaki Motors Corporation, U. S. A. Deliveries are made by Kawasaki Heavy Industries, Ltd. to Kawasaki Motors Corporation in Japan. Kawasaki Heavy Industries, Ltd. contends that it is not doing business in Pennsylvania, that Kawasaki Motors Corporation, U. S. A. is not its agent in Pennsylvania, and that it has insufficient minimum contacts with Pennsylvania to satisfy due process, and therefore this Court lacks personal jurisdiction over it.

Plaintiff relies on Pennsylvania's long-arm statute, 42 Pa.Cons.Stat.Ann. § 8301 et seq. (Purdon), as the basis for personal jurisdiction over Defendant Kawasaki Heavy Industries, Ltd.¹ Section 8302 deals with non-qualified foreign corporations and provides generally that any such corporation ". . . which shall have done any business in this Commonwealth without procuring a certificate of authority . . ." is presumed to have designated the Pennsylvania Department of State as its attorney for service of process. Section 8309 more specifically provides:

"(a) General Rule. — Any of the following shall constitute `doing business' for the purposes of this chapter:

(1) 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.

(2) The doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object with the intention of initiating a series of such acts.

(3) The shipping of merchandise directly or indirectly into or through this Commonwealth.

(4) The engaging in any business or profession within this Commonwealth, whether or not such business requires license or approval by the Commonwealth or any of its agencies.

(5) The ownership, use or possession of any real property situate within this Commonwealth.

(b) Exercise of full constitutional power over foreign corporations. — In addition to the provisions of subsection (a) of this section the jurisdiction and venue of courts of the Commonwealth shall extend to all foreign corporations and the powers exercised by them to the fullest extent allowed under the Constitution of the United States.

(c) Exception. — . . . none here applicable."

The power of a federal court entertaining a suit based on diversity of citizenship to exercise in personam jurisdiction over a nonresident defendant turns on two considerations. The law of the state in which a federal court sits must confer in personam jurisdiction over the defendant, and if it does, exercise of jurisdiction under state law must comport with basic due process requirements of the United States Constitution. George Transport & Rigging Co., Inc. v. International Publications Equipment Corp., 425 F.Supp. 1351 (E.D.Pa.1977). A Plaintiff must state sufficient facts in the complaint to invoke jurisdiction, and once jurisdiction has been denied, the plaintiff has the burden of proving such facts. Kenyatta v. Kelley, 430 F.Supp. 1328, 1330 (E.D.Pa.1977); Parise v. AAA Warehouse Corp., 384 F.Supp. 1075, 1079 (W.D.Pa. 1974).

To satisfy constitutional due process a defendant must have certain minimum contacts with the forum such that maintenance of 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). Pennsylvania's long-arm statute has been construed to be as broad as the standard of constitutional due process. Proctor & Schwartz, Inc. v. Cleveland Lumber Company, 228 Pa.Super. 12, 323 A.2d 11 (1974). Kitzinger v. Gimbel Brothers, Inc., 240 Pa.Super. 345, 368 A.2d 333 (1976). The rule of International Shoe does not lend itself to mechanical application, and while the interests of the forum state and of the plaintiff in proceeding with the cause in the plaintiff's forum of choice are to be considered, McGee v. International Life Insurance Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), the court must determine on an ad hoc basis whether the quality and nature of the defendant's "affiliating circumstances" are such that it is reasonable and fair to require him to conduct his defense in that state. Kulko v. California Superior Court, ___ U.S. ___, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978, per Marshall, J.); Hanson v. Denckla, 357 U.S. 235, 246, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Because Section 8309(b) of the Pennsylvania long-arm statute, 42 Pa.Cons.Stat.Ann. § 8309(b) (Purdon), makes the statutory reach co-extensive with requirements of due process we must decide whether Defendants had sufficient contacts with the forum state to make exercise of jurisdiction constitutionally permissible. See Kitzinger v. Gimbel Brothers, Inc., 240 Pa.Super. 345, 368 A.2d 333 (1976); Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 323 A.2d 11 (1974).

To determine whether necessary minimum contacts for establishing jurisdiction over a nonresident corporation are present, the Court should consider whether the corporation has purposefully availed itself of the privilege of acting within the forum state thus invoking benefits and protections of its law, whether the cause of action arose from the corporation's activities within the forum state, and whether the corporation's connection with the forum state was substantial enough to make exercise of jurisdiction over it reasonable. Hart v. McCollum, Pa.Super., 376 A.2d 644 (1977); Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 323 A.2d 11 (1974).

The factual background of the jurisdictional issue appears from an affidavit by Ichiro Tamura, Senior Manager of the Quality...