Schiavone v. Aveta

• Decision Date: 20 March 2012
• Citation: 41 A.3d 861,2012 PA Super 68
• Parties: Louis SCHIAVONE, Appellant v. R.J. AVETA, individually and t/a Creative Pools, Appellees.
• Court: Pennsylvania Superior Court

2012 PA Super 68

41 A.3d 861

Louis SCHIAVONE, Appellant

v.R.J. AVETA, individually and t/a Creative Pools, Appellees.

Superior Court of Pennsylvania.

Argued Jan. 11, 2012.Filed March 20, 2012.

Gene E. Goldenziel, and Richard F. Goldenziel, Scranton, for appellant.

Edward S. Neyhart, Scranton, for appellee.

Before PANELLA, LAZARUS, and STRASSBURGER ^*, JJ.OPINION BY LAZARUS, J.:

Louis Schiavone appeals from the order of the Court of Common Pleas of Pike County dismissing his suit for personal injuries against R.J. Aveta for lack of personal jurisdiction. We reverse.

The trial court stated the relevant facts as follows:

The instant case stems from an automobile accident which occurred on April 11, 2002, between Plaintiff, Louis Schiavone (hereinafter “Schiavone”), and Kenneth Arnoul (hereinafter “Arnoul”). Arnoul, at the time, was an employee of Defendant, R.J. Aveta (hereinafter “Aveta”), which conducted business under the name Creative Pools. The accident occurred on State Route 590 in Lackawaxen Township, Pike County, Pennsylvania.

Aveta is in the business of constructing and maintaining swimming pools. Aveta is incorporated in New Jersey, and at the time of the accident, its corporate headquarters were located in Pequannock, New Jersey. Aveta avers that it does business exclusively in the states of New Jersey and New York. Aveta further avers that it does not conduct any business within Pennsylvania, nor does it have an office in Pennsylvania, nor does it order any products for business use from Pennsylvania. Aveta further avers that, to its knowledge, it has never constructed nor maintained a swimming pool in Pennsylvania.

Both Schiavone and Arnoul are Pennsylvania residents. At the time of the accident, Arnoul was driving home following the completion of his work day as an employee of Aveta in New Jersey. The vehicle which Arnoul was driving was owned and insured by Aveta; Aveta provided the vehicle to Arnoul for use the terms and scope of which are not disclosed by the current record.

Trial Court Opinion, 4/19/11, at 1–2.

On November 22, 2004, Schiavone filed a complaint against Aveta in the Court of Common Pleas of Lackawanna County, alleging that the accident was the result of the negligence of its agent, Arnoul. Aveta filed preliminary objections on December 1, 2004 as to venue and lack of personal jurisdiction in Pennsylvania. The trial court granted Aveta's preliminary objection as to venue, and the case was transferred to the Court of Common Pleas of Pike County.

On August 11, 2010, Aveta again filed a motion to dismiss for lack of personal jurisdiction. The trial court granted the motion on April 19, 2011, dismissing the action because Schiavone did not prove that Aveta had any contacts with Pennsylvania other than allowing Arnoul to use its vehicle to drive to and from work. The court reasoned that mere use by an employee of a company vehicle to drive to and from work in Pennsylvania does not establish the minimum contacts necessary for the court to exercise personal jurisdiction over the employer here. Schiavone filed a timely appeal raising the following issue for our review:

Did the Court of Common Pleas, Pike County, Pennsylvania wrongfully deny personal jurisdiction when it failed to find substantial minimum contacts existed against an out-of-state defendant, when the accident occurred upon a Pennsylvania roadway in Pike County, Pennsylvania; the vehicle was used from Pike County, Pennsylvania to various jobs on the way to work in New Jersey; the vehicle was driven to and from [Aveta's] agent's Pennsylvania residence as part of his employment arrangement; the personal use of the vehicle, gas, repairs, etc. were often done in Pennsylvania; and the New Jersey corporation's vehicle, as used by [Aveta's] agent, provided substantial economic benefit to the New Jersey corporation?

Brief of Appellant, 1/11/2012, at 4.

Our standard of review of a trial court's order granting preliminary objections challenging personal jurisdiction is as follows:

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. This Court will reverse the trial court's decision regarding preliminary objections only where there has been an error of law or an abuse of discretion. Once the moving party supports its objections to personal jurisdiction, the burden of proving personal jurisdiction is upon the party asserting it. Courts must resolve the question of personal jurisdiction based on the circumstances of each particular case. Gaboury v. Gaboury, 988 A.2d 672, 675 (Pa.Super.2009) (citations and quotations omitted).

A state may exercise personal jurisdiction over a nonresident defendant based upon the specific acts of the defendant which gave rise to the cause of action or based on the defendant's general activity within the state. When a state exercises personal jurisdiction over a non-resident defendant in a suit arising out of or related to the defendant's contacts with the forum, the state is exercising specific jurisdiction.

Kubik v. Letteri, 532 Pa. 10, 614 A.2d 1110, 1113 (1992) (citing Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)).

Section 5322(a) of the Pennsylvania Long–Arm Statute enumerates certain types of contact with Pennsylvania deemed sufficient to warrant the exercise of specific jurisdiction over foreign defendants. See Gaboury, supra at 677; 42 Pa.C.S.A. § 5322(a). Section 5322(b) further provides that “specific jurisdiction may be asserted over non-resident defendants ‘to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contacts with this Commonwealth allowed under the Constitution of the United States.’ ” Kubik v. Letteri, 532 Pa. 10, 614 A.2d 1110, 1113 (1992); 42 Pa.C.S.A. § 5322(b). Thus, there are two requirements necessary for Pennsylvania courts to exercise specific jurisdiction over a non-resident defendant: first, jurisdiction must be authorized by the Pennsylvania Long–Arm Statute; and second, the exercise of jurisdiction must comport with constitutional principles of due process. See Kenneth H. Oaks, Ltd. v. Josephson, 390 Pa.Super. 103, 568 A.2d 215, 216 (1989); Gaboury, supra at 677–78.

Schiavone avers that specific jurisdiction is proper against Aveta under section 5322(a)(3) of the Pennsylvania Long–Arm Statute. That section provides:

§ 5322. Bases of personal jurisdiction over persons outside this Commonwealth

(a) General rule.—A tribunal of this Commonwealth may exercise personal jurisdiction over a person ... who acts directly or by an agent, as to a cause of action or other matter arising from such person:

* * *

(3) Causing harm or tortious injury by an act or omission in this Commonwealth[.]

42 Pa.C.S.A. § 5322(a)(3).

To establish jurisdiction against Aveta under section 5322(a)(3), Schiavone must prove that Aveta was acting through its agent, Arnoul, at the time of the accident. See 42 Pa.C.S.A. § 5322(a)(3); Gaboury, supra. Generally, in tort cases, an employer acts through its agent where the conduct of the agent occurs in the course and scope of his employment. See Costa v. Roxborough Mem'l Hosp., 708 A.2d 490, 493 (Pa.Super.1998) (employer is responsible for tortious conduct of employee that causes harm to third party, where employee's conduct occurred in the course and scope of employment); see also Fitzgerald v. McCutcheon, 270 Pa.Super. 102, 410 A.2d 1270 (1979) (“master is liable for acts of his servant which are committed during the course of and within the scope of the servant's employment”).

In the case at bar, the parties agree that the accident occurred while Arnoul was commuting home from work, and that the car he was driving was owned and maintained by Aveta. Thus, we must determine whether, as a matter of law, an employee driving directly home from work in a company-owned vehicle is acting within the scope of his employment.

Schiavone does not cite to any Pennsylvania case specifically addressing this question in the context of personal jurisdiction, and our own research has not produced any. However, this issue has been considered in the context of the Pennsylvania Workers' Compensation Act.¹ Therefore, we will look to those cases for guidance.

The Workers' Compensation Act establishes entitlement to benefits to an employee for injuries “arising in the course of his employment and related thereto[.]” 77 P.S. § 411(1). The purpose of the Act is to compensate employees for injuries sustained “while furthering the business of an employer, ‘whether upon the employer's premises or elsewhere.’ ” Mackey v. W.C.A.B. (Maxim Healthcare Services), 989 A.2d 404, 407 (Pa.Cmwlth.2010) (quoting 77 P.S. § 411(1)). “Whether an employee is injured in the course of employment is a question of law to be determined on the basis of the [Workers' Compensation Judge's] findings of fact.” Leisure Line v. W.C.A.B. (Walker), 986 A.2d 901, 906 n. 9 (Pa.Cmwlth.2009).

Generally, an employee cannot recover for injuries sustained away from an employer's premises or while coming to and going from work. Employers Mut. Cas. Co. v. Boiler Erection and Repair Co., 964 A.2d 381, 389 (Pa.Super.2008). The rationale for the “coming and going rule” is that, ordinarily, “an employee's travel to or from work does not further his employer's business.” Leisure Line, supra at 906. However, our courts have recognized exceptions to the rule in circumstances where an employee's use of a vehicle, although not directly related to his or her official duties and not located on the employer's premises, is nevertheless in furtherance of his or her employment. See Bensing v. W.C.A.B., 830 A.2d 1075,...