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December 28, 1979

LOUISA Z. LEU, Plaintiff,

The opinion of the court was delivered by: COHILL


On September 13, 1979, Louisa Z. Leu filed a complaint in this Court against her former husband, Jean-Pierre Leu. The plaintiff resides in Fox Chapel, Pennsylvania; the defendant resides in Canton deVald, Switzerland and is a citizen of that country. The plaintiff rests subject matter jurisdiction on diversity of citizenship pursuant to 28 U.S.C. § 1332(a)(2) (1976). Service of process was accomplished by registered mail.

 The complaint contains three counts. In Count One, the plaintiff claims a breach of contract, alleging that on September 14, 1977, Jean-Pierre Leu and she entered into a written contract (hereinafter referred to as the "Agreement"). In the Agreement, the defendant promised, Inter alia, to ship certain household items from the former family homestead in Switzerland to the plaintiff's new residence in Pennsylvania. The plaintiff claims that the defendant has failed to ship these items, thus breaching the contract.

 Count Two asserts a claim grounded on the tort of conversion. In this count the plaintiff alleges that she made a demand of the defendant to comply with the Agreement, that the defendant has failed to ship the specified items to her, and that he has converted the items to his own use.

 Count Three presents a claim based on the tort of fraudulent misrepresentation. The plaintiff alleges that on or about December 11, 1977, the defendant, in Pennsylvania, told the plaintiff, in response to her inquiry, that he would soon ship to her the items in question. She avers that the defendant had no intention on December 11, 1977 of ever conveying the goods to her.

 Plaintiff's counsel consented to an Order of Court granting the defendant sixty days from the date of service of summons to file an answer. Within this period, defendant's counsel filed a motion to dismiss for lack of subject matter jurisdiction and for lack of jurisdiction over the person pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. After reviewing the briefs of counsel and after hearing oral argument, we have determined that this Court has jurisdiction over the subject matter of this action but lacks jurisdiction over the person of the defendant.

 Section 1332(a) of Title 28 of the United States Code empowers a federal district court to hear a lawsuit between a citizen of a state and a citizen or subject of a foreign nation if the amount in controversy, excluding interest and costs, exceeds $ 10,000. The defendant admits that he is a citizen of Switzerland and that the plaintiff resides in Pennsylvania. He asserts, however, that the amount in controversy does not exceed $ 10,000.

 A district court may not dismiss a complaint for failure to satisfy the jurisdictional amount requirement unless it appears to a legal certainty that the value of the claim is $ 10,000 or less. See St. Paul Mercury Indemnity Co. v. Red Cab Company, 303 U.S. 283, 288-89, 58 S. Ct. 586, 82 L. Ed. 845 (1938); Nelson v. Keefer, 451 F.2d 289, 292-93 (3d Cir. 1971). The plaintiff attached to her complaint a detailed list of the items that allegedly are covered by the Agreement. After carefully reviewing the list, we cannot say that the plaintiff acted in bad faith by assessing the value of the property at more than $ 10,000 or that the property definitely is not worth more than $ 10,000. We believe that a hearing on the question of jurisdictional amount, at which both parties undoubtedly would parade their respective appraisers before the Court, would serve no benefit. Therefore, we hold that the plaintiff has satisfied the jurisdictional amount requirement of section 1332(a).

 Jurisdiction Over the Person

 For the purpose of addressing the defendant's motion to dismiss for lack of jurisdiction over the person, we will take the allegations set forth in the plaintiff's complaint as true and we will accept certain indisputable facts. See Marketing Showcase, Inc. v. Alberto-Culver Co., 445 F. Supp. 755, 760 (S.D.N.Y.1978). The plaintiff must rely on the Pennsylvania long-arm statute, 42 Pa.Cons.Stat.Ann. § 5322 (Purdon's 1979 Pamphlet), to obtain personal jurisdiction over the defendant. In addition to specifying a limited number of particular bases of personal jurisdiction, section 5322(b) permits a Pennsylvania court to exercise personal jurisdiction over a person "to the fullest extent allowed under the Constitution of the United States."

 At the core of this case lies a possible breach of contract. We will not recognize the attempt by the plaintiff to bring this case within the Pennsylvania long-arm statute by recasting a failure to comply with the contract as a conversion. Moreover, any conversion would have occurred in Switzerland, not in Pennsylvania, because the plaintiff maintains that the goods remain with the defendant in Switzerland. We also decline to accept the characterization of a simple acknowledgment of existing obligations under the Agreement as a fraudulent misrepresentation. The defendant admits that he entered into a contract. He either fulfilled that contract or he breached it. On the facts alleged in the complaint, the plaintiff can prosecute only an action for a breach of contract.

 Support for our rejection of Counts Two and Three of the complaint as bases for personal jurisdiction comes from Judge Weinstein's opinion in Stanat Manufacturing Co. v. Imperial Metal Finishing Co., 325 F. Supp. 794 (E.D.N.Y.1971). The plaintiff in Stanat Manufacturing, a New York corporation, filed suit in the Eastern District of New York against a California corporation. The defendant had ordered a machine from plaintiff to be used in California. All negotiations occurred in California and the defendant accepted the plaintiff's offer in California. The defendant was not licensed to conduct business in New York, and it did not do any business in New York.

 After the parties had signed the contract, but before shipment of the equipment, the defendant telephoned the plaintiff in New York and "obtained a modification of the terms of payment in the contract. Instead of payment of sixty percent of the purchase price prior to shipment of the machinery, twenty percent was to be paid prior to shipment and forty percent was to be paid immediately upon delivery." 325 F. Supp. at 795. Subsequently, the plaintiff delivered the machine but the defendant failed to pay the ...

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