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April 2, 1980

ROBERT VANNAARDEN and RENEE VANNAARDEN, his wife 247 Clearview Avenue Huntingdon Valley, Pa. 19006
RICHARD A. GRASSI and JOSEFA GRASSI, his wife 2112 Placido Court Carlsbad, Calif.

The opinion of the court was delivered by: DITTER

The question in this diversity case is whether non-resident defendants, who sold a house in Pennsylvania to plaintiffs and then moved to another state, can be served under the Commonwealth's long-arm statute. The complaint alleges that the sale was induced by fraud and misrepresentation. Presently before the court is defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction. For the reasons that will follow, defendants' motion must be refused.

 The complaint then alleges that in May, 1977, defendants entered into an agreement to sell their home to plaintiffs, Mr. and Mrs. Robert VanNaarden. Settlement was held in July, 1977, and defendants thereafter moved to California. In July, 1979, there were severe rains and in the resulting flooding, plaintiffs lost personal belongings, furniture, and fixtures, and the house suffered structural damage. Plaintiffs now seek damages in excess of $ 50,000 for these losses. They contend that prior to settlement defendants failed to disclose the property's history of flooding. Plaintiffs also allege that, at the time of settlement, they asked defendants if there ever had been flooding problems, to which the defendants answered in the negative. Plaintiffs base their cause of action upon these false and fraudulent representations. *fn1" Service of process was made by registered mail on January 2, 1980, pursuant to Fed.R.Civ.P. 4(b) and the present Pennsylvania long-arm statute, Act of July 9, 1976, P.L. 586, No. 142, § 2 as amended 1978, eff. June 27, 1978; 42 Pa.C.S.A. §§ 5301-29.

 Defendants cite Stepnowski v. Avery, 234 Pa.Super. 492, 340 A.2d 465 (1975), in support of their argument that the complaint should be dismissed for lack of jurisdiction. In Stepnowski, the Pennsylvania Superior Court held that an isolated sale of a personal residence by private individuals, who thereafter became nonresidents, was not sufficient to meet the "doing business" requirement of the long-arm statute then in effect. *fn2" The Superior Court stated that "the Pennsylvania statute did not intend to reach the occasional transaction (a sale of a personal residence) conducted between private parties when such a transaction is not incidental to their business activities." 234 Pa.Super. at 497, 340 A.2d at 468. Stepnowski, however, was decided under a predecessor statute, 42 Pa.C.S.A. §§ 8301-11, which required as a basis of jurisdiction that the nonresident had done business in Pennsylvania. *fn3" The long-arm statute under which the instant case must be decided, however, is much broader in its scope over nonresidents and gives this court jurisdiction in the circumstances of this case.

 Section 5322 of the present law states alternative bases to determine if there is jurisdiction over nonresidents. Subsection (a) lists various acts or activities upon which such a finding may be predicated. Subsection (b) goes beyond the scope of subsection (a) and provides for the exercise of jurisdiction over nonresidents to the fullest extent allowed under the United States Constitution. Therefore, the appropriate analysis is to determine whether the sale of a house by residents who later become nonresidents falls into one of the categories listed in subsection (a); alternatively, whether it amounts to sufficient contacts under subsection (b) to justify the exercise of jurisdiction by a Pennsylvania court.

 Accepting plaintiffs' allegations as true, as I must for the purposes of this motion, personal jurisdiction is provided under section 5322(a)(5): "having an interest in, using, or possessing real property in this Commonwealth." Defendants had used the home as a personal residence from June, 1969, up until the time of settlement with plaintiffs. The alleged misrepresentations were made by defendants prior to and at the time of settlement. Therefore, the cause of action arises from an interest in real property used and possessed by defendants prior to conveyance and at a time when they themselves were Pennsylvania residents. *fn4"

 A second jurisdictional basis is provided by section 5322(b):

(b) Exercise of full constitutional power over non-residents. In addition to the provisions of subsection (a) the jurisdiction of the tribunals of this Commonwealth shall extend to all persons who are not within the scope of section 5301 (relating to persons) to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.

 In International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945); the United States Supreme Court held that "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 maintenance of the suit does not offend "traditional notions of fair play and substantial justice.' " 326 U.S. at 316, 66 S. Ct. at 158. In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980), the Court stated: "As has long been settled, and as we reaffirm today, a state court may exercise personal jurisdiction over a nonresident defendant only so long as there exists "minimum contacts' between the defendant and the forum State." -- - U.S. at -- , 100 S. Ct. at 564. Such an exercise of personal jurisdiction over nonresidents is not without its limits. As was stated in Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958), due process requires a defendant to have "purposefully avail(ed) itself of the privilege of conducting activities within the forum State thus invoking the benefits and protections of its laws." 357 U.S. at 253, 78 S. Ct. at 1240.

 Relying on International Shoe Co. v. Washington and Hanson v. Denckla, the Pennsylvania Superior Court in Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 323 A.2d 11 (1974), set forth guidelines for determining whether minimum contacts were present in a given factual setting:

 228 Pa.Super. at 19, 323 A.2d at 15. These guidelines have been recently reaffirmed in Bev-Mark, Inc. v. Summerfield GMC Truck Co., 268 Pa.Super. 74, 407 A.2d 443 (1979). *fn5"

 In this case, defendants purposefully availed themselves of the privilege of conducting activities within Pennsylvania by entering into an agreement to sell their house to plaintiffs and thus accepted the benefits and protections of Pennsylvania law. The present cause of action arises from this purposeful activity: the false and fraudulent misrepresentations were made prior to and at the time of sale and ...

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