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SHONG CHING LAU & SON v. CHANGE

May 25, 1976

SHONG CHING LAU and SON NGON LEONG LAU
v.
JULIO CHANGE



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 During the summer of 1973, defendant, a Maryland resident, and his family were vacationing in Canada with plaintiffs, residents of Pennsylvania. *fn1" On July 10, 1973, the vacationing group was traveling within the province of Ontario on a two-lane highway in defendant's automobile. Defendant, who was driving at the time, attempted to pass a truck. Unfortunately, a vehicle was approaching from the opposite direction. Defendant took evasive action which caused the automobile to skid off the road, hit some trees and, finally, turn over.

 Plaintiffs commenced this diversity action against defendant, seeking to recover damages resulting from injuries suffered in the accident. Presently before the Court is defendant's motion to dismiss the complaint for lack of personal jurisdiction, for insufficiency of process and for insufficiency of service of process. *fn2" Plaintiffs oppose the motion but ask the Court, in the alternative, to transfer the case to the United States District Court for the District of Maryland, pursuant to 28 U.S.C. § 1404(a). For the reasons stated below, we believe that there is a lack of personal jurisdiction over defendant. However, rather than dismiss the case, the Court will grant plaintiffs' motion to transfer.

 Concerning defendant's motion, the key issue is whether this Court has personal jurisdiction over defendant. Our analysis begins with Rule 4(e) of the Federal Rules of Civil Procedure, which permits service of process upon an individual to be made in the manner prescribed by a statute of the state in which the district court is located. Plaintiffs contend that the applicable state statute is the Pennsylvania Long-Arm Statute, 42 Pa.C.S.A. § 8301 et seq. (Supp. 1975). Specifically, they cite the "causing harm" provision, section 8305. That section provides, in pertinent part, that:

 
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 . . . 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 States as provided in this chapter.

 In determining whether personal jurisdiction has been obtained by the use of a long-arm statute, two questions are presented: first, whether the relevant provisions of the statute encompass the conduct of the defendant; and, second, assuming the statute is otherwise applicable, whether the exercise of personal jurisdiction over the defendant under the particular circumstances of the case complies with the constitutional requisite of due process of law. *fn3" Zimmermann v. Zimmermann, 395 F. Supp. 719, 723 (E.D.Pa. 1975); Miller v. American Telephone & Telegraph Co., 394 F. Supp. 58, 62 (E.D.Pa. 1975), aff'd mem., 530 F.2d 964 (3d Cir. 1976); Action Industries, Inc. v. Wiedeman, 236 Pa. Super. 447, 346 A.2d 798, 801 (1975). The facts of the instant case require both these questions to be answered in the negative.

 This Court recently noted in Miller v. American Telephone & Telegraph Co., supra, 394 F. Supp. at 63 n.4, that the statutory language of § 8305 is quite broad and "requires only that 'any harm' within Pennsylvania be evident which was caused by the same conduct from which the pending cause of action arises." Literally, plaintiffs here were caused harm within Pennsylvania in the sense that they continued to experience the personal and pecuniary injuries resulting from the accident in Canada after their return to Philadelphia. This Court does not believe, however, that § 8305 was designed to take cognizance of the residual effects of out-of-state injuries. Rather, it was intended to focus on any in-state injury caused by out-of-state activity of a nonresident. To hold otherwise would allow resident plaintiffs, who suffer from the residual effects of out-of-state injuries, to pull citizens from all over the country into the courts of Pennsylvania, simply because they were involved in an activity which resulted in harm to a Pennsylvania resident.

 A most instructive case on this point is McAndrew v. Burnett, 374 F. Supp. 460 (M.D.Pa. 1974). In that case, the defendant, a New York-licensed physician, operated upon the plaintiff's husband in New York. At the time, both the plaintiff and her husband were residents of New York. After they had moved to Pennsylvania, it was discovered that the defendant had left a hemostat within the husband's abdominal cavity, the removal of which eventually resulted in his death. Despite the fact that the husband experienced the pain and suffering caused by the New York surgery while a resident of Pennsylvania the court found § 8305 to be inapplicable. The court stated:

 
. . . Defendant [cannot] be considered as having caused "any harm" in Pennsylvania within the meaning of 42 P.S. § 8305. The harm to decedent was done in New York when the hemostat was allegedly left in his body. That a continuing injury was at some point suffered by the decedent in Pennsylvania, and that the existence of the hemostat in his body was discovered here, does not in my view constitute the sort of harm which may serve as a basis for extraterritorial service under 42 P.S. § 8305.

 Id. at 463. *fn4" See Stifel v. Lindhorst, 393 F. Supp. 1085 (M.D.Pa.), aff'd mem., 529 F.2d 512 (3d Cir. 1975), cert. denied, 425 U.S. 962, 48 L. Ed. 2d 207, 96 S. Ct. 1746 44 U.S.L.W. 3624 (U.S. 1976).

 Assuming, arguendo, that § 8305 was held to be applicable in this case, this Court believes that the Due Process Clause of the Fourteenth Amendment would be violated by a finding that personal jurisdiction exists over defendant. As stated by the Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 320, 90 L. Ed. 95, 66 S. Ct. 154 (1945), whether in personam jurisdiction exists depends upon a finding that the nonresident defendant has "sufficient contacts or ties with the state of the forum to make it reasonable and just, according to our traditional conception of fair play and substantial justice, to permit the state to enforce the obligations which [the party] has incurred there." Measured by this standard, it is clear that defendant does not have the necessary contacts or ties with Pennsylvania.

 The only contact defendant has had with Pennsylvania was when he entered the state to pick up plaintiffs for the trip to Canada. In addition, plaintiffs contend that defendant has previously entered Pennsylvania for the purpose of visiting friends and relatives and will, in the future, enter Pennsylvania again for the same purpose. *fn5" Even accepting such a contention as true, defendant's contacts cannot be said to be the "minimum contacts" defined in International Shoe. While we are not prepared to say that a nonresident's solely personal contacts with Pennsylvania can never serve as a basis upon which to constitutionally assert in personam jurisdiction over that person, see Miller v. American Telephone & Telegraph Co., supra, 394 F. Supp. at 64, defendant's contacts with Pennsylvania in the instant case are too infrequent and insubstantial in nature to satisfy the requirements of the Due Process Clause. Accordingly, the Court lacks personal jurisdiction over defendant.

 At this point, we would normally dismiss plaintiffs' complaint for lack of personal jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. The plaintiffs ask the Court, however, to transfer the case to the District Court for the District ...


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