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STAMBAUGH v. STAMBAUGH

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


January 7, 1977

ESTHER S. STAMBAUGH
v.
J. H. WILLIAM STAMBAUGH

Edward R. Becker, J.

The opinion of the court was delivered by: BECKER

MEMORANDUM AND ORDER

EDWARD R. BECKER, J.

 On June 24, 1975, the plaintiff Esther S. Stambaugh filed a complaint in the Court of Common Pleas of Delaware County, Pennsylvania, against her husband, alleging fraud in the procurement of a Florida divorce decree in 1969. *fn1" The action was subsequently removed to this court pursuant to 28 U.S.C. § 1441 (1970) as within our diversity jurisdiction. All of the elements of the plaintiff's claim are alleged to have occurred by the date of the Florida decree. This memorandum addresses defendant's motion to dismiss for lack of personal jurisdiction. *fn2"

 Plaintiff in her memorandum argues that the defendant's actions amounted to the commission of "a tortious act within this Commonwealth . . ." and that therefore the defendant is subject to long-arm jurisdiction under 42 P.S. § 8303 (1976 Supp.). Plaintiff also suggests that long-arm jurisdiction may be based upon section 8304 because defendant, although domiciled in Florida, *fn3" has done business in Pennsylvania through the real estate firm of Reed & Stambaugh, both before and after the divorce decree. For the reasons expressed herein, we believe that the requirements of 8303 and 8304 have not been met and that this action must be dismissed for lack of personal jurisdiction.

 In Sussman v. Yaffee, 443 Pa. 12, 275 A.2d 364 (1971), the Supreme Court of Pennsylvania explained that provisions relating to long-arm service on nonresidents create "a procedural right to be given full effect as of the time an action is instituted." 443 Pa. at 15, 275 A.2d at 366. That case arose from the claimed fraudulent sale of property in 1970 and involved a prior version of the Pennsylvania long-arm statute (12 P.S. § 341) which provided as follows:

 

From and after the passage of this act, any nonresident of this Commonwealth who . . . shall have committed a tortious act within this Commonwealth, or any such individual who at the time of the commission of the tortious act within the Commonwealth was a resident of this Commonwealth who shall subsequently become a nonresident or shall conceal his whereabouts, shall be conclusively presumed to have designated and constituted the Secretary of the Commonwealth of Pennsylvania as his agent for the service of process in any civil action or proceedings instituted in the courts of the Commonwealth of Pennsylvania against such individual.

 Notably, there was no express time limitation on the applicability of section 341. See Kilian v. Allegheny County Distributors, 409 Pa. 344, 185 A.2d 517 (1962) (applying a still earlier long-arm provision which contained no time restrictions on applicability).

 On November 15, 1972, Pennsylvania amended its long-arm statute and repealed the section at issue in Sussman. 42 P.S. §§ 8301 et seq. (1976 Supp.). Section 8303 now extends long-arm jurisdiction to a defendant "who . . . shall have committed a tortious act within this Commonwealth on or after August 30, 1970." (Emphasis supplied.) By this change in statutory language, Sussman was in effect overruled, for upon the passage of 8303 a plaintiff who filed suit on August 31, 1970, alleging that a defendant committed a tortious act in Pennsylvania on August 29, 1970, was expressly excluded from coverage. Section 8305 similarly negated the Sussman approach by applying long-arm jurisdiction only to defendants "who, acting outside of this Commonwealth . . . shall have caused any harm within this Commonwealth on or after August 30, 1970." *fn4" (Emphasis supplied.) Thus to the extent the plaintiff herein seeks to rely upon section 8303 or, although she has not so argued, upon 8305, she plainly cannot succeed, for her cause of action arose prior to the August 30, 1970, cutoff.

 The plaintiff has, however, also invoked section 8304, which provides for long-arm jurisdiction based upon "doing business," as defined in section 8309. Section 8304 also makes reference to the August 30 date. It provides as follows:

 

§ 8304. Doing business by individuals

 

Any nonresident of this Commonwealth who, acting individually under or through a fictitious business name, or through an agent, servant or employee, shall have done any business in this Commonwealth on or after August 30, 1970, or a resident of this Commonwealth who shall have done business in this Commonwealth on or after August 30, 1970 and thereafter shall have become a nonresident of this Commonwealth or shall conceal his whereabouts, shall be conclusively presumed to have designated the Department of State as his agent for the receipt of service of process in any civil action or proceeding instituted in the courts of this Commonwealth against such individual, if and only if at the time the cause of action accrued or the harm or financial loss occurred, the nonresident or the resident who shall thereafter have become a nonresident, shall have been doing any business within this Commonwealth as heretofore provided. [Emphasis supplied.]

 After a careful reading of this section, we are persuaded that 8304 is available only when the cause of action accrued or harm or loss occurred after August 30, 1970. To be more specific, 8304 makes a nonresident defendant subject to long-arm jurisdiction if he has done business in Pennsylvania on or after August 30, 1970, and if "at the time the cause of action accrued or the harm or financial loss occurred" the defendant "shall have been doing any business within this Commonwealth as heretofore provided." (Emphasis supplied.) Doing business "as heretofore provided" must mean doing business on or after August 30, 1970, since that is the only previous reference in 8304 to doing business.

 If 8304 did not mean that plaintiff's cause of action and defendant's "doing business" must concur at a time on or after August 30, 1970, then it would have to mean that for causes of action accruing before that date a defendant is subject to long-arm jurisdiction if he is doing business (1) at the time the cause of action arises and (2) sometime (anytime) after August 30, 1970. We think the legislature did not intend such a peculiar construction, but rather intended to limit the application of 8304 to causes of action arising after August 30, 1970, precisely as it did in 8303 and 8305. *fn5" Cf. 1 P.S. § 1922 (1) (1976-77 Supp.).

  We are aware that our view of 8304 may be asserted to conflict with the decision in Deere v. Zilber, 234 Pa.Super. 273, 338 A.2d 615 (1975), where 8304 jurisdiction was upheld against a defendant who did business in Pennsylvania apparently no later than in 1966. However, Deere is distinguishable from the present case in two important respects. First, the defendant in that case (a California general partnership) was treated as a foreign corporation which did business in Pennsylvania in 1966 by selling and shipping sauna bath heaters to a customer in Pennsylvania. Secondly, the cause of action arose out of a claimed defect in a sauna heater and thus arose directly out of the defendant's business activity in Pennsylvania. Because section 8309(b) extends long-arm jurisdiction over corporations to the full reach consistent with due process, the Superior Court may have been saying (although not expressly) that the legislature did not intend the time limitation in 8304 to apply in such circumstances. In the case before us, however, the defendant has been sued in his capacity as an individual on a cause of action unrelated to his asserted business activities in Pennsylvania. The Pennsylvania Supreme Court has instructed that in such a setting substantial business activities must be shown before 8304 long-arm jurisdiction will attach. Bork v. Mills, 458 Pa. 228, 329 A.2d 247 (1974). If the time limits expressed in section 8304 are to have any meaning at all, they must be applied in the circumstances of this case, and thus there is justification for declining to extend the holding of Deere.

 Alternatively, however, if Deere is not distinguishable, we believe that its reliance upon Sussman was mistaken in view of the plain requirement in section 8304 that the "doing business" must occur on or after August 30, 1970. See Kader v. First National Bank of Fort Myers, 387 F. Supp. 535, 537 (W.D. Pa. 1975). Sussman itself was an interpretation of the now repealed section 341. And the Sussman court itself, in interpreting that long-arm statute, remarked: "We cannot change the clear language of the Act." 443 Pa. at 15, 275 A.2d at 366. We believe that there is ample indication that the Pennsylvania Supreme Court would decline to follow Deere in the circumstances of this case. See Pritchard v. Liggett and Myers Tobacco Co., 350 F.2d 479, 485 (3d Cir. 1965), cert. denied, 382 U.S. 987, 15 L. Ed. 2d 475, 86 S. Ct. 549 (1966).

 For the above reasons, the plaintiff's action must be dismissed for want of personal jurisdiction. An appropriate order follows.

 EDWARD R. BECKER, J.

 ORDER

 AND NOW, this 7th day of January, 1977, upon consideration of the foregoing memorandum, it is ORDERED that plaintiff's complaint is hereby DISMISSED for lack of personal jurisdiction. *fn1"

 BY THE COURT:

 EDWARD R. BECKER, J.


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