The opinion of the court was delivered by: BRODERICK
Plaintiff, Laura Davis, brought this action against W. Douglas Davis to recover allegedly overdue payments for the support of plaintiff and her children under a "Separation Agreement" signed by plaintiff and defendant. Since plaintiff is a citizen of Pennsylvania and defendant is a citizen of North Carolina, and the amount in controversy exceeds $10,000, this Court has diversity jurisdiction based on 28 U.S.C. § 1332. Defendant has moved, pursuant to Fed.R.Civ.P. 12(b)(2), to dismiss the complaint for lack of in personam jurisdiction. For the reasons hereinafter discussed, defendant's motion will be granted.
Plaintiff alleges in her complaint that she and defendant were married in Pennsylvania in 1950 and that two children were born of the marriage; one in 1954 and the second in 1956. Attached to plaintiff's complaint is an agreement between plaintiff and defendant dated April 1, 1965, wherein defendant identifies himself as a resident of New York and plaintiff states that she is a resident of Pennsylvania. The agreement was signed by defendant in New York and was signed and recorded by plaintiff in Pennsylvania. The agreement provides, inter alia, for the support of plaintiff and the two children. It further provides that the agreement shall be construed and governed in accordance with the laws of New York. Plaintiff alleges that sometime after April 1, 1965, the date of the agreement, defendant notified plaintiff that he had obtained a Mexican divorce and that he had become a resident of North Carolina. Plaintiff further alleges that defendant mailed support payments to her from places outside of Pennsylvania until June 26, 1972, at which time he ceased making payments. Plaintiff contends that she and the two children are entitled to support payments and that defendant has breached and continues to breach the April 1, 1965 agreement.
Plaintiff obtained service of the complaint in this case pursuant to the Pennsylvania long-arm statute, 42 Pa. C.S.A. § 8301 et seq. (1977 Supp.).
Plaintiff claims in personam jurisdiction over defendant by virtue of 42 Pa. C.S.A. § 8305 and/or 42 Pa. C.S.A. § 8304.
In determining whether there is in personam jurisdiction over Mr. Davis in this case, two issues are presented: first, whether the nonresident defendant's activities come within the relevant statutory provisions, and, second, if the statutory requirements are found to be satisfied, whether this Court's exercise of jurisdiction would violate due process of law. Columbia Metal Culvert Co. v. Kaiser Industries Corp., 526 F.2d 724, 730 (3d Cir. 1975); George Transport & Rigging Co. v. International Publications Equipment Corp., 425 F. Supp. 1351, 1353 (E.D. Pa. 1977).
Any nonresident of this Commonwealth who, acting outside of this Commonwealth . . . shall have caused any harm within this Commonwealth . . . shall be subject to service of process in any civil action or proceeding instituted in the Courts of this Commonwealth arising out of or by reason of any such conduct. . . .
Plaintiff contends that defendant's alleged failure to mail support payments into this Commonwealth after June 26, 1972 from outside of Pennsylvania meets the statutory requirement of a nonresident "who, acting outside of this Commonwealth . . . shall have caused any harm within this Commonwealth." Plaintiff relies upon Zimmermann v. Zimmermann, 395 F. Supp. 719 (E.D. Pa. 1975), wherein the court found that there was "in personam jurisdiction", pursuant to § 8305 of the Pennsylvania long-arm statute, over a nonresident former husband in connection with an action for sums due under a separation agreement. In 1976 however, the Third Circuit, in determining how the Pennsylvania courts would resolve the question, held that § 8305 requires affirmative misconduct and that mere nonfeasance would not satisfy the statute. Witt v. Scully, 539 F.2d 950 (3d Cir. 1976).
Witt involved the failure of a nonresident corporate director to fulfill his fiduciary obligations to a Pennsylvania corporation. The Witt holding has been interpreted to bar relief under § 8305 where the nonresident defendant's alleged nonfeasance was the failure to pay a debt due on a promissory note. Moffitt v. Wallace, 430 F. Supp. 1133 (E.D. Pa. 1977).
In the instant case plaintiff contends that it was defendant's failure to make support payments under the "Separation Agreement", and not any affirmative misconduct, which caused harm within this Commonwealth. Thus, plaintiff has failed to allege facts from which this Court can conclude that the defendant, "acting outside of this Commonwealth . . . caused any harm within this Commonwealth." Therefore, we find that defendant's alleged failure to make payments under the "Separation Agreement" does not subject him to in personam jurisdiction pursuant to § 8305.
Section 8304 of the Pennsylvania long-arm statute provides, in pertinent part:
Any nonresident of this Commonwealth who . . . shall have done any business in this Commonwealth on or after August 30, 1970 . . . 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 . . . shall have been doing business within this Commonwealth as heretofore provided.
Plaintiff also claims in personam jurisdiction over defendant on the ground that defendant did business in this Commonwealth after August 30, 1970. She bases this contention on the definition of "doing business" contained in § 8309(a)(1) of the long-arm statute, which reads:
Any of the following shall constitute "doing business" for the purposes of this Chapter:
(1) The doing by any person in this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit or ...