McAndrew v. Burnett, Civ. A. No. 74-30.

• Decision Date: 20 April 1974
• Docket Number: Civ. A. No. 74-30.
• Citation: 374 F. Supp. 460
• Parties: Frances C. McANDREW, Executrix of the Estate of Anthony J. McAndrew, Plaintiff, v. James J. BURNETT, M.D., Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

374 F. Supp. 460

Frances C. McANDREW, Executrix of the Estate of Anthony J. McAndrew, Plaintiff, v. James J. BURNETT, M.D., Defendant.

Civ. A. No. 74-30.

United States District Court, M. D. Pennsylvania.

April 20, 1974.

John R. Lenahan, Lenahan, Dempsey & McDonald, Scranton, Pa., for plaintiff.

Lewis S. Kunkel, Jr., Fred Speaker, Harrisburg, Pa., for defendant.

OPINION

MUIR, District Judge.

Plaintiff, a citizen of Pennsylvania and executrix of the estate of her husband, filed this medical malpractice action against James J. Burnett, M.D., a citizen of New York, to recover for the wrongful death of her husband and to recover for damages incurred by decedent's estate as a result of his death. Jurisdiction is based upon diversity of citizenship. Before the Court is Defendant's motion to dismiss for lack of personal jurisdiction and for failure to state a claim within the applicable statute of limitations.

The complaint alleges that while Plaintiff and her decedent were citizens of New York, the Defendant, a New York licensed physician, operated upon decedent on March 9, 1970 and negligently left a hemostat within the patient's abdominal cavity. The operation was performed in a New York hospital. The complaint further alleges that following surgery, Defendant continued to treat decedent and, despite his complaints of pain and discomfort, Defendant negligently failed to take X-rays of decedent's abdominal area. Plaintiff alleges that decedent suffered much expense, pain, and ultimately death as a result of this negligence.

Uncontested portions of the complaint and uncontroverted affidavits of both parties reveal these additional facts: Plaintiff and decedent moved to and became citizens of Pennsylvania in November, 1972, the existence of the hemostat in decedent's body not yet having been discovered. Thereafter, decedent came under the care of Dr. Thomas J. McDonnell, Dunmore, Pennsylvania. Dr. McDonnell took X-rays of decedent and discovered the hemostat in his body. The Defendant, Dr. Burnett, was informed of this finding, and he had at least one telephone conversation with Plaintiff about it. In late January or early February, 1973, Dr. Burnett travelled to Scranton to view the X-rays, and also visited Plaintiff and decedent at their residence to discuss the case. Following this meeting, there was no further contact between the parties. On March 12, 1973, decedent underwent surgery, apparently by Dr. McDonnell, for the removal of the hemostat at a Pennsylvania hospital. Decedent died on June 12, 1973. Dr. Burnett is not licensed to practice in Pennsylvania. He treats all of his patients in New York, and has no Pennsylvania residents referred to him as patients. Process was served upon Dr. Burnett in New York pursuant to Pennsylvania's Long-Arm Statute 1972, Nov. 15, P.L. ___, No. 271, § 8301 et seq., 42 P.S. § 8301 et seq.

F.R.Civ.P. 4(e) provides that service may be made upon an out-of-state party pursuant to a statute of the state in which the district court sits. Therefore, the issue in this case is whether Defendant was properly served under the Pennsylvania Long-Arm Statute. Plaintiff cites three sections of the statute which she contends sanction the service upon Dr. Burnett. 42 P.S. § 8304, provides for service upon non-resident individuals who "shall have done any business in this Commonwealth on or after August 30, 1970." 42 P.S. § 8303, provides for service upon non-residents "who shall have committed a tortious act within this Commonwealth on or after August 30, 1970." 42 P.S. § 8305 provides for service upon non-residents who "shall have caused any harm within this Commonwealth on or after August 30, 1970." The Pennsylvania Long-Arm Statute has not yet been interpreted by the Pennsylvania courts, but it is reasonable to assume that the statute will be interpreted so as to extend the jurisdiction of Pennsylvania courts over non-residents to the fullest extent possible consistent with due process under the Constitution of the United States. See 42 P.S. § 8309(b).

In my view, personal jurisdiction over Dr. Burnett is consistent neither with the Pennsylvania Long-Arm Statute, nor with due process. Dr. Burnett can in no way be considered as having done any business in Pennsylvania. His only business-related contacts with Pennsylvania were the January, 1973 telephone conversation between Plaintiff and Dr. Burnett concerning the X-rays of the decedent, and the February, 1973 visit of Dr. Burnett to the Scranton office of Dr. McDonnell and to Plaintiff's residence to review the X-rays. There is no indication that the decedent was billed for this visit by Dr. Burnett. Such minimal business contacts do not constitute "doing business" in Pennsylvania, even under the liberal definition of that term in the Pennsylvania statute. 42 P.S. § 8309. The emphasis of the statute is upon doing something in Pennsylvania for the purpose of making a profit. 42 P.S. § 8309(a)(2). A contrary interpretation of the statute would be unconstitutional, for due process requires "some act by which the defendant purposefully avails itself of the privilege of conducting...