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ZIMMERMANN v. ZIMMERMANN

May 16, 1975

RUTH F. ZIMMERMANN
v.
EDWARD M. ZIMMERMANN



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 In 1965, while residing in Pennsylvania as husband and wife, plaintiff and defendant entered into two written contracts which required, inter alia, that defendant Edward M. Zimmermann pay plaintiff Ruth F. Zimmermann weekly installments for the maintenance, support and education of their three children, as well as for the support of plaintiff. The agreements were intended to be, and apparently were, incorporated in and made a part of the final decree of divorce which followed shortly after their execution. Following the divorce, defendant moved to the State of Florida where he currently resides.

 Plaintiff, a citizen of the Commonwealth of Pennsylvania, has brought this suit basing jurisdiction on diversity of citizenship. Plaintiff alleges that defendant has failed to make payment to her of the sums to which he agreed in the two aforementioned contracts. She asks this Court to grant judgment against defendant for the unpaid amount ($16,211 plus continuing damages from October 31, 1974, to date of judgment) plus interest and costs.

 Defendant moves to dismiss the complaint upon four grounds: first, that this "action is in the category of cases known as a domestic relations matter and as such is not within the subject matter jurisdiction of the Federal District Court and is an exception to [28] U.S.C. § 1332"; second, that the Court lacks personal jurisdiction over defendant; third, that the action is not within the subject matter jurisdiction of this Court because the amount in controversy is not in excess of $10,000, exclusive of interest and costs; and, finally, that the complaint fails to state a claim upon which relief can be granted. Alternatively, defendant moves, pursuant to Fed. R. Civ. P. 12(e), that plaintiff be required to file a more specific pleading. For the reasons stated below, this Court believes that defendant's motions to dismiss the complaint must be denied. However, plaintiff will be required to file a more definite statement.

 While it is true that federal courts have traditionally left cases involving "domestic relations" to the purview of the state courts, a reflection more of deference to expertise within our system of federalism than of any question of inherent power, Solomon v. Solomon, 516 F.2d 1018 (3rd Cir. 1975); Spindel v. Spindel, 283 F. Supp. 797 (E.D.N.Y. 1968), there is growing authority for the view that ". . . a suit to enforce a separation or property settlement agreement could be maintained in federal court after the state court had resolved all the questions of the involved parties' status and obligations to one another and any children . . . ." Solomon v. Solomon, 373 F. Supp. 1036, 1037 (E.D. Pa. 1974), rev'd, 516 F.2d 1018, (3rd Cir. 1975); Cain v. King, 313 F. Supp. 10 (E.D. La. 1970).

 This Court feels no hesitation in assuming jurisdiction over the subject matter of this suit. There is no question of child custody involved, neither any pending state court action nor an agreement to litigate in the state courts, and no evidence that the federal and state court systems are being played off against each other by the parties. Solomon v. Solomon, 516 F.2d 1018 (3rd Cir. 1975). What is presented is simply a dispute between two persons, who for over nine years have been divorced and living apart and between whom there have been no domestic relations, as to whether there has been compliance with two contracts existing between them.

 Defendant's second argument for dismissal of the instant action is that the Court lacks jurisdiction over his person due to there not having been any valid service of process upon him. Subject to a limitation to be discussed below, this Court agrees with plaintiff, however, that valid in personam jurisdiction was obtained over defendant pursuant to the "causing harm" provision of the Pennsylvania Long-Arm Statute, 42 Pa. S. § 8305 (Supp. 1974). *fn1" Rule 4(e) of the Federal Rules of Civil Procedure specifically permits service of process upon nonresident individuals to be made in the manner prescribed by a statute of the state in which the District Court is located.

 Before discussing more fully why this Court sustains as proper the service of process relied upon here, it should be noted preliminarily that our jurisdiction over plaintiff's claims is not as all-inclusive as plaintiff contends. In compliance with that most basic of rules applicable to controversies involving legislative enactments -- namely, "read the statute!" -- this Court has examined 42 Pa. S. § 8305 and discovered within it a limitation on the extent of plaintiff's cause of action in this proceeding. While neither party here has made reference to the fact, 42 Pa. S. § 8305 only validates service of process upon an individual in civil actions arising out of conduct causing harm "within this Commonwealth on or after August 30, 1970." (Emphasis added.) Thus, while plaintiff's claims have not been tolled by the normal statute of limitations, *fn2" her reliance solely on § 8305 as the basis for valid service of process upon defendant effectively acts as a statute of limitations to bar any claim for a breach of the contracts in question which occurred prior to August 30, 1970.

 This Court believes that the statutory language is clear on its face. Unlike the original "causing harm" section, *fn3" 42 Pa. S. § 8305 should not be read to validate service of process in suits based on injury resulting from acts which occurred prior to the date specifically mentioned in the statute. It is apparent that the difference in wording between 42 Pa. S. § 8305 and the statutory provision which it replaced, 12 P.S. § 343, was the result of a conscious effort to eliminate precisely that ambiguity. See Sussman v. Yaffee, 443 Pa. 12, 275 A.2d 364 (1971). If the statute were intended to permit service of process in cases where the conduct in question occurred prior to the specified date but the resulting harm continued into the covered period, we believe the Pennsylvania Legislature would have expressed that intent in clear and explicit terms. Cf. McAndrew v. Burnett, 374 F. Supp. 460, 463 (M.D. Pa. 1974).

 Apart from this limitation inherent in the substituted service statute relied upon by plaintiff, this Court believes that valid in personam jurisdiction over defendant has been established in the present case. In determining a jurisdictional issue of this sort, two questions are presented: first, whether the conduct of the defendant is within the relevant provisions of the statute; and, second, assuming the statute is otherwise applicable, whether the exercise of personal jurisdiction over the defendant under the particular circumstances of this case complies with the constitutional requisite of due process of law. This Court believes that both of these questions must here be answered in the affirmative.

 There can be no question that 42 Pa. S. § 8305 takes cognizance of economic harm, such as the type alleged here, as well as tortious injury. Rosen v. Solomon, 374 F. Supp. 915 (E.D. Pa. 1974); Aamco Automatic Transmissions, Inc. v. Tayloe, 368 F. Supp. 1283 (E.D. Pa. 1973). In fact, at least one Pennsylvania lower court has specifically sustained service of process under 12 P.S. § 343, the predecessor of 42 Pa. S. § 8305, see note 3 supra, in a suit brought against a nonresident ex-spouse by a plaintiff seeking money damages for breach of a property settlement agreement. Truxal v. Truxal, 64 Lanc. Rev. 19 (Lanc. Cty. Com. Pl. 1973).

 The only remaining question is whether the Due Process Clause would be violated by a finding that personal jurisdiction over defendant exists in the instant action. In International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945), the Supreme Court expressed the standard by which to determine the answer to that question in the following terms:

 
". . . [Due] process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not ...

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