Rusack v. Harsha

• Citation: 470 F. Supp. 285
• Decision Date: 14 December 1978
• Docket Number: Civ. No. 77-1137.
• Parties: Samuel RUSACK v. William H. HARSHA, Stanley L. Bishop, P. J. Kanistros, Poli-Com, Inc.
• Court: U.S. District Court — Middle District of Pennsylvania

470 F. Supp. 285

Samuel RUSACK v. William H. HARSHA, Stanley L. Bishop, P. J. Kanistros, Poli-Com, Inc.

Civ. No. 77-1137.

United States District Court, M. D. Pennsylvania.

December 14, 1978.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Leon P. Haller, Harrisburg, Pa., for plaintiff.

Gregory C. Karas, Dayton, Ohio, Raymond B. Benzinger, Washington, D. C., Paul J. Killion, Asst. U. S. Atty., Harrisburg, Pa., James J. Haggerty, Scranton, Pa., Alan Raywid, Washington, D. C., for defendants.

MEMORANDUM AND ORDER

NEALON, Chief Judge.

Plaintiff has filed this defamation action, asserting the court's diversity jurisdiction. Presently before the court are three defense motions. Defendant Bishop has moved to dismiss and to quash service of process on the grounds that the court lacks both subject matter jurisdiction over the action and personal jurisdiction over him, that venue is improper, and that he was not properly served. Defendants P. J. Kanistros and Poli-Com, Inc. have moved to dismiss and to quash service of process on the grounds that the court lacks personal jurisdiction over both the movants, that venue is improper, and that neither movant was properly served. Defendant Harsha, a member of the United States House of Representatives, who is named in Counts I through III of this ten-count complaint, has moved to dismiss or, in the alternative, for summary judgment, on the grounds that (1) the conduct upon which plaintiff bases his claim in the three counts, see infra, is legitimate legislative activity and as such is absolutely privileged under the Speech or Debate Clause of the United States Constitution; (2) the conduct complained of which involved reports to government officials regarding a supposed violation of federal law is constitutionally privileged; and (3) defendant Harsha's actions are privileged under the First Amendment because plaintiff is a public official and there has been no showing of actual malice under the standards as originally set out in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The motions of defendants Bishop, Poli-Com, Inc., and Kanistros will be denied. Defendant Harsha's motion will be granted and he will be dismissed from the action.

I. THE MOTIONS OF DEFENDANTS BISHOP, POLI-COM, INC., AND KANISTROS

A. The Facts

For the purpose of ruling on these two motions the court accepts as true the facts as set out in the complaint and the exhibits attached thereto. According to the complaint plaintiff is a resident of Harrisburg, Pa. and, at the time of the alleged defamation was a United States Navy civilian employee working as a Supervisory Contract Negotiator at the United States Navy Ships Parts Control Center (SPCC), Mechanicsburg, Pa.¹ Defendant Bishop is a resident of Washington, D.C. Defendant Kanistros is a resident of Ohio and is president of defendant Poli-Com, Inc., an Ohio corporation with its place of business in Ohio. It is alleged that the amount in controversy, exclusive of interest and costs, exceeds ten thousand ($10,000) dollars.

On or about August 19, 1976, defendant Bishop composed and sent a letter to the Honorable Donald Rumsfeld, then Secretary of Defense, which allegedly contained defamatory material directed at plaintiff. A certified copy of that letter was sent to, among other places, SPCC at Mechanicsburg, Pa. It is alternatively alleged that defendant Bishop was acting both individually and as an agent for defendants Poli-Com, Inc. and Kanistros when he wrote and published the letter. It is asserted that defendant Bishop, by "republication of the said defamatory matter, has blackened the reputation of plaintiff and has exposed Plaintiff to contempt and ridicule in Plaintiff's community." See doc. No. 1, ¶ 54.

Defendant Bishop wrote another letter to Mr. Rumsfeld on or about January 11, 1977, which also allegedly contained defamatory material directed at plaintiff. A copy of this letter was sent to "SPCC." See document No. 1, exhibit E. The court accepts this as being SPCC-Mechanicsburg, Pa. In writing and publishing this letter it is claimed that defendant Bishop was acting both individually and as agent for defendants Poli-Com, Inc. and Kanistros.

Defendant Poli-Com, Inc., on or about July 21, 1977, sent a letter to the Honorable Neal Smith, then Chairman of the Small Business Committee, United States House of Representatives. This letter was signed by defendant Kanistros as president of Poli-Com, Inc. It is alleged that this letter also contained defamatory material directed at plaintiff. It is stated in the complaint that copies of this letter were sent to the persons "therein denoted." But there is nothing in the letter to indicate that a copy was sent to Pennsylvania or anywhere else. Nevertheless, it is alleged that defendant Poli-Com, Inc. "by republication of the said defamatory matter, has blackened the reputation of Plaintiff and has exposed Plaintiff to contempt and ridicule in Plaintiff's community." See Doc. No. 1, ¶ 76. Plaintiff also claims that defendant Kanistros, by writing and signing this July 21st letter, was acting in his own interest and that this was not authorized by Poli-Com, Inc.

Lastly, it is asserted that defendants Bishop, Kanistros, and Poli-Com, Inc. all conspired to deprive plaintiff of his good name and for the purpose of acquiring government contracts for Poli-Com, Inc. Plaintiff also contends that the allegedly defamatory statements made by defendant Harsha, see infra, were derived from the hereinbefore-mentioned letters and from other oral and written communications made to defendant Harsha. There are no allegations that any of the latter communications took place in Pennsylvania.

B. Discussion Regarding Defendant Bishop's Motion

As stated supra, defendant Bishop has moved to dismiss the complaint and quash service of process on the grounds that the court lacks both subject matter jurisdiction over the action and personal jurisdiction over him, that he was not properly served, and that venue is improper. As to the lack of subject matter jurisdiction, although it is not clear, it seems from movant's brief that this argument is not being pursued.² Furthermore, the allegations of the complaint regarding subject matter jurisdiction have not been challenged. Hence, the court may permit plaintiff to rest on those allegations. See Jaconski v. Avison Corp., 359 F.2d 931, 934 (3rd Cir. 1966). They indicate that the requirements of 28 U.S.C. § 1332 (Diversity of citizenship; amount in controversy; costs) have been met and, therefore, this court has jurisdiction over the subject matter. In addition, in determining whether the allegation of jurisdictional amount is sufficient to grant the court subject matter jurisdiction, the test is whether the allegation is made in good faith, i. e., the action will not be dismissed unless it appears to a legal certainty that the jurisdictional amount cannot be met. See Davis v. Shultz, 453 F.2d 497 (3rd Cir. 1971); Jaconski, supra, 359 F.2d at 934-935. I believe the allegations of the complaint meet that test.

Turning to the question of personal jurisdiction, the power of a federal court which is entertaining a suit based on diversity of citizenship to assert in personam jurisdiction over a nonresident or out-of-state defendant depends on two factors. First, the law of the state in which the federal court sits must confer in personam jurisdiction over the out-of-state defendant and secondly, if it does, the exercise of this in personam jurisdiction must not violate the due process requirements of the United States Constitution. See Hicks v. Kawasaki Heavy Industries, 452 F.Supp. 130 (M.D.Pa. 1978); George Transport and Rigging Co., Inc. v. International Publications Equipment Corporation, 425 F.Supp. 1351 (E.D. Pa.1977). Plaintiff has the burden of pleading and proving jurisdiction. See Kenyatta v. Kelley, 430 F.Supp. 1328 (E.D.Pa.1977).

Plaintiff relies on two sections of the old Pennsylvania Long Arm Statute, 42 Pa.Cons.Stat. § 8301 et seq.,³ as the basis for assertion of personal jurisdiction over defendant under Pennsylvania law, specifically §§ 8303 and 8305. Section 8305 provided:

Causing harm by individuals

Any nonresident of this Commonwealth who, acting outside of this Commonwealth, individually, under or through a fictitious business name, or through an agent, servant, or employee, shall have caused any harm within this Commonwealth on or after August 30, 1970, shall be subject to service of process in any civil action or proceeding instituted in the courts of this Commonwealth arising out of or by reason of any such conduct. Service of process in any such civil action or proceeding shall be effected through the Department of State as provided in this chapter.⁴

Defendant Bishop acted outside the Commonwealth of Pennsylvania when he sent the allegedly defamatory letters to Mr. Donald Rumsfeld. He was also acting outside the Commonwealth when he sent copies to SPCC, Mechanicsburg, Pa. It is claimed that the publication of the alleged defamatory material caused plaintiff harm in his Pennsylvania community.⁵ Therefore, in personam jurisdiction is proper under the old Pennsylvania long arm statute. Cf. Kurtz v. Draur, 434 F.Supp. 958 (E.D. Pa.1977).⁶

As to the constitutional question, i. e., whether the assertion of in personam jurisdiction here offends the due process clause, since defendant is a nonresident and nondomiciliary of Pennsylvania who was not present in the state when served and who has not consented to suit, the constitutional standard to be applied is the "minimum contacts" test which was first set out by the United States Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Due process requires that the defendant have "certain minimum contacts with (the forum state) such that the maintenance of the suit does not offend `traditional notions of fair play...