Slota v. Moorings, Ltd.

• Citation: 494 A.2d 1,343 Pa.Super. 96
• Parties: Robert E. SLOTA and Deanna L. Slota and Norman J. Shachoy and Maryellen S. Shachoy, Appellants, v. The MOORINGS, LTD., Appellee.
• Decision Date: 28 June 1985
• Court: Pennsylvania Superior Court

Page 1

494 A.2d 1

343 Pa.Super. 96

Robert E. SLOTA and Deanna L. Slota and Norman J. Shachoy and Maryellen S. Shachoy, Appellants, v. The MOORINGS, LTD., Appellee.

Superior Court of Pennsylvania.

Argued July 12, 1984.

Filed April 26, 1985.

Reargument Denied June 28, 1985.

Robert E. Slota, Bryn Mawr, for appellants.

Leslie A. Miller, Philadelphia, for appellee.

Before WIEAND, OLSZEWSKI and POPOVICH, JJ.

WIEAND, Judge.

Robert E. Slota and his wife, Deanna, together with their friends, Norman and Maryellen Shachoy, commenced an action against The Moorings, Ltd. to recover burglary losses sustained while they were guests at a hotel owned by the defendant, from whom they had also chartered a yacht, in St. Lucia, British West Indies. The Slotas are residents of Pennsylvania; and the Shachoys are residents of Massachusetts. The Moorings, Ltd. is a corporation organized under the laws of the British Virgin Islands; it has neither office nor place of business in Pennsylvania. The trial court sustained preliminary objections raising questions of jurisdiction; and the plaintiffs have appealed. We affirm.

Appellants argue first that the trial court acted prematurely and without an adequate record because depositions were not taken and submitted pursuant to Pa.R.C.P. 209. ¹ This rule, however, applies to petitions and answers. It does not apply to preliminary objections. A preliminary objection is a pleading, not a petition. Preliminary objection procedure is governed by Pa.R.C.P. 1028, which provides, in subsection (c), that "[t]he court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall take evidence by depositions or otherwise."

In the past, both the Supreme Court and this Court have said that where facts are controverted, the trial court must "resolve the dispute by receiving evidence thereon through interrogatories, depositions or an evidentiary hearing." Holt Hauling and Warehousing Systems, Inc. v. Aronow Roofing Co., 309 Pa.Super. 158, 161, 454 A.2d 1131, 1133 (1983), quoting Luitweiler v. Northchester Corp., 456 Pa. 530, 535, 319 A.2d 899, 902 (1974). In the instant case, the evidence was submitted via affidavit. This is not a recommended procedure. It would have been preferable to proceed by depositions or written interrogatories. However, the facts attested to in the affidavit are clear and specific. The deposition of Robert Slota, on the other hand, discloses that the information to which he testified was nothing more than rumor, surmise and conjecture. He made no effort to substantiate any of his assertions with depositions, interrogatories, affidavits or documentary evidence. We conclude, therefore, that the trial court did not err in finding that the facts were as set forth in appellee's affidavits and that appellants had failed to show facts sufficient to allow the courts of Pennsylvania to exercise in personam jurisdiction in the Pennsylvania courts. There is no need to remand for the taking of depositions or the filing of interrogatories. See: Buxbaum v. Peguero, 335 Pa.Super. 289, 294-295, 484 A.2d 137, 140-141 (1984); Bensalem Township v. Terry, 317 Pa.Super. 380, 464 A.2d 371 (1983). See also and compare: Szekely v. Abilene Flour Mills Co., 211 Pa.Super. 442, 237 A.2d 242 (1967) (where disputed facts not resolved by affidavits, case will be remanded "to present evidence by deposition, interrogatories, or otherwise"). Nor was it essential in this case that appellee's personnel come into Pennsylvania for an evidentiary hearing.

Appellants ask this Court to find jurisdiction in the courts of Pennsylvania (1) because the contract for lodging was entered and partially performed in Pennsylvania; and (2) because, in any event, The Moorings allegedly conducted business continuously and systematically in Pennsylvania. There is no merit in either contention.

Jurisdiction of the Pennsylvania courts may be exercised with respect to all persons, including corporations, "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." 42 Pa.C.S. § 5322(b). A state may exercise personal jurisdiction over a nonresident defendant only so long as there exist "minimum contacts" between the defendant and the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Kenny v. Alexson Equipment Co., 495 Pa. 107, 117-118, 432 A.2d 974, 980 (1981). The due process clause "does not contemplate that a state may make a binding judgment in personam against an individual or corporate defendant with which the state has no contacts, ties or relations." International Shoe Co. v. Washington, supra, 326 U.S. at 319, 66 S.Ct. at 160, 90 L.Ed. at 104. "[M]aintenance of suit against a non-resident defendant must not offend traditional notions of 'fair play and substantial justice.' " Kenny v. Alexson Equipment Co., supra, 495 Pa. at 118, 432 A.2d at 980.

In Pennsylvania, jurisdiction over a nonresident may be constitutionally exercised if one of two tests is met. Barber v. Pittsburgh Corning Corp., 317 Pa.Super. 285, 293, 464 A.2d 323, 328 (1983) (allocatur denied December 27, 1983), cert. denied, 467 U.S. 1205, 104 S.Ct. 2387, 81 L.Ed.2d 346 (1984); Beatrice Foods Co. v. Proctor & Schwartz, Inc., 309 Pa.Super. 351, 357, 455 A.2d 646, 649 (1982). The first test for exercising jurisdiction has been stated as follows:

First, the defendant must have purposefully availed itself of the privilege of acting within the forum state thus invoking the benefits and protections of its laws. Hanson v. Denckla [357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) ]. Secondly, the cause of action must arise from defendant's activities within the forum state. Lastly, the acts of the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable. International Shoe Co. v. Washington [326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ].

Koenig v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, 284 Pa.Super. 558, 568, 426 A.2d 635, 640 (1980) (citations omitted), quoting Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 19, 323 A.2d 11, 15 (1974). See also: Hart v. McCollum, 249 Pa.Super. 267, 273, 376 A.2d 644, 647 (1977). If it appears that jurisdiction does not exist by application of this test, then jurisdiction can be exercised only if the nonresident defendant's activities in Pennsylvania, though unrelated to the cause of action, are "continuous and substantial." Bork v. Mills, 458 Pa. 228, 329 A.2d 247 (1974). If defendant's activities in Pennsylvania are of the latter type, then personal jurisdiction of the defendant exists for all purposes. Union National Bank v. L.D. Pankey Institute, 284 Pa.Super. 537, 542, 426 A.2d 624, 627 (1980); 42 Pa.C.S. § 5301.

Appellants argue first that the courts of Pennsylvania can exercise in personam jurisdiction over The Moorings by virtue of the standard defined in Koenig and Proctor & Schwartz. They argue that The Moorings entered into a contract with appellants which was formed in Pennsylvania by Slota's signature and that it was "substantially performed" by appellants in Pennsylvania when they issued and sent to The Moorings a check drawn on a Pennsylvania bank. These facts, however, are woefully inadequate to support the exercise of in personam jurisdiction under the three-part test recited in Koenig and Proctor & Schwartz.

In order that a nonresident defendant have "purposely availed itself of the privilege of acting within [Pennsylvania]," it must appear, first, that the performance of the contract will have significant effects in the forum state. McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Koenig v. International Brotherhood of Boilermakers, supra, 284 Pa.Super. at 569, 426 A.2d at 640. Obligations entered into by foreign corporations must have "a realistic economic impact on the commerce of this Commonwealth" such that "the defendant should reasonably have foreseen that the transaction would have consequences in this Commonwealth." In the absence thereof, a foreign corporation cannot be said to have "purposely availed itself of the privilege of acting within the Commonwealth...." Proctor & Schwartz, Inc. v. Cleveland Lumber Co., supra, 228 Pa.Super. at 19-20, 323 A.2d at 15. "[I]t is the defendant's contacts with the forum state that confer jurisdiction over him, and not 'the mere "unilateral activity of those who claim some relationship with [him]." ' " Koenig v. International Brotherhood of Boilermakers, supra, 284 Pa.Super. at 571, 426 A.2d at 641 (emphasis in original), quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298, 100 S.Ct. 559, 567, 62 L.Ed.2d 490, 502 (1980). See also: United Farm Bureau Mutual Insurance Co. v. United States Fidelity and Guaranty Co., 501 Pa. 646, 657, 462 A.2d 1300, 1305 (1983).

Appellants' action is based upon what is alleged to be an implied condition in an "innkeeper's contract" to provide adequate security. Whether such an agreement arose in Pennsylvania, where appellants unilaterally made reservations and drew a check to pay appellee therefor, is doubtful. The duty to provide secure accommodations, in any event, could be performed only upon appellants' arrival in St. Lucia. By accepting reservations from Pennsylvania residents and receiving pre-payment of rent from them, appellee did not produce "significant effects" or "a realistic economic impact" in Pennsylvania such that it can be said to have purposely availed itself of the privilege of acting within this Commonwealth. See: Kenny v. Alexson Equipment Co., supra, 495 Pa. at 125, 432 A.2d at 983-984. There was here nothing more than unilateral activity by appellants.

It is also...