The opinion of the court was delivered by: LUONGO
This is an action for breach of contract. Jurisdiction is based on diversity of citizenship, 28 U.S.C. § 1332(a)(1). The action is before me on the defendant's motion to dismiss for lack of personal jurisdiction, Fed.R.Civ.P. 12(b)(2) or in the alternative to transfer to the District of New Jersey pursuant to 28 U.S.C. § 1404(a). For the reasons hereafter stated, I conclude that this court lacks personal jurisdiction over the defendant, and the action should be transferred. United States v. Berkowitz, 328 F.2d 358, 361 (3d Cir.), cert. denied 379 U.S. 821, 85 S. Ct. 42, 13 L. Ed. 2d 32 (1964).
Plaintiff, Baron & Company, Inc. (Baron) is a Pennsylvania corporation which acts as a management consultant specializing in the acquisition, merger and financing of corporations and businesses. In addition, and most relevant to this action, Baron is in the business of acting as a finder of prospective buyers and sellers of businesses. The defendant, The Bank of New Jersey, is the liquidating trustee of the Garden State Racing Association Liquidating Trust (GSRALT), a trust created under New Jersey law. Defendant Garden State Racing Association was a New Jersey corporation whose assets consisted of the Garden State Park Race Track, and the Cherry Hill Lodge and Cherry Hill Inn hotel-restaurant facilities. On April 14, 1977, the Garden State Park Race Track was destroyed by fire. As a result, the directors of the Garden State Racing Association adopted a plan of liquidation, forming GSRALT on April 3, 1978, and named The Bank of New Jersey as the liquidating trustee. The Association was dissolved and its assets were poured into GSRALT, which then assumed all contingent liabilities of the Association. Since the Association was dissolved in April of 1978, I am concerned only with the conduct of the defendant bank as trustee since that time for the jurisdictional issue before me.
As of June 25, 1979, the date of the filing of the complaint, it is uncontested that GSRALT was not engaged in any business which had been previously conducted by the Association. The Cherry Hill Lodge was sold by the Association sometime in 1977. The trustee sold the racetrack property in May of 1978, and The Cherry Hill Inn in November 1978, consequently none of the above mentioned properties were assets of the trust when the complaint was filed. Furthermore, as of the date this suit was initiated, the Association itself had been dissolved for over a year. It is undisputed that GSRALT neither owns nor controls any assets in the Commonwealth of Pennsylvania. Further, plaintiff has brought no facts to my attention that the trustee bank engages in direct business in Pennsylvania. The crux of plaintiff's jurisdictional assertion is that the defendant bank's conduct in relation to the contract which is the basis of the dispute between the parties, was sufficient to vest jurisdiction in this court. Accordingly, it is necessary to set forth the background of the contract and the pertinent facts concerning its performance. The record consists of pleadings, affidavits and depositions.
Sometime in 1976, plaintiff's president, Robert Baron,
learned that the bank was the administrator pendente lite of Eugene V. Mori, the founder and principal stockholder of the Garden State Racing Association. The primary asset of the estate was Mr. Mori's holdings in the Association. While it is not clear who initiated the negotiations, the Association and Mr. Baron began discussions concerning the employment of Baron & Company as a finder of purchasers of some of the Association's assets. On April 27, 1977, Baron & Company and the Association entered into an agreement whereby plaintiff would attempt to secure a willing and able buyer for the Cherry Hill Lodge and Cherry Hill Inn, for which, if successful, it was to receive a finder's fee.
This agreement was executed in New Jersey by the treasurer of the Association, Ms. Janice Vondra. Subsequently, the Cherry Hill Lodge was sold independently of the efforts of plaintiff and is not involved in this dispute. Mr. Baron, however, found a group of buyers for the Cherry Hill Inn who, on November 20, 1978, signed an agreement of sale contingent on whether or not a sale to a group with no relation to Baron could and would be consummated. The sale to the other group was eventually consummated, but plaintiff, claiming that it is nevertheless entitled to its finder's fee, brought this action.
The record reveals that the sole contacts of the defendant Bank within this Commonwealth under this contract consist of telephone calls and correspondence with plaintiff. The contract which was assumed by The Bank as trustee, although containing a Pennsylvania choice of law provision, was executed in New Jersey, and concerned New Jersey property. Plaintiff contends that these contacts are sufficient to vest jurisdiction in this court. In addition, plaintiff contends that its own conduct in attempting to secure a buyer for the properties pursuant to the contract is also sufficient to allow this court to exercise personal jurisdiction over defendant.
Rule 4(e) of the Federal Rules of Civil Procedure permits a district court to assert personal jurisdiction over a nonresident to the extent allowed under the law of the state where the court sits. The Pennsylvania Long-Arm Statute, 42 Pa.Con.Stat.Ann. § 5322 et seq. (Purdon Pamphlet 1980), allows a court to exercise jurisdiction over a person "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." Id. § 5322(b). Thus, the reach of the Pennsylvania statute is coextensive with the due process clause of the United States Constitution. Donner v. Tams-Witmark Music Library, Inc., 480 F. Supp. 1229, 1232 (E.D.Pa.1979). See Bev-Mark, Inc. v. Summerfield G.M.C. Truck Co., Inc., 268 Pa.Super. 74, 407 A.2d 443, 445 (1979) (interpreting the prior Pennsylvania Long-Arm Act).
Under the due process clause a court may not exercise personal jurisdiction over a non-resident defendant unless there are certain minimum contacts between the defendant and the forum state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 563, 62 L. Ed. 2d 490 (1980). Essentially, before hearing a case a court must ask whether "the quality and nature of the defendant's activity is such that it is reasonable and fair to require (that it) conduct (its) defense in that State." Kulko v. Superior Court of California, 436 U.S. 84, 92, 98 S. Ct. 1690, 1697, 56 L. Ed. 2d 132 quoting International Shoe Co. v. Washington, 326 U.S. 310, 316-17, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1940) (emphasis added). In interpreting this standard the Supreme Court has determined that in order for a non-resident defendant to be subject to the jurisdiction of the court it must have purposefully availed itself of the privilege of acting within the forum state. World-Wide Volkswagen Corp. v. Woodson, supra at 295, 100 S. Ct. at 566, 2 L. Ed. 2d 1283; Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958).
The assertion that the defendant is subject to this court's jurisdiction because the plaintiff conducted meetings, made phone calls and prepared documents in Pennsylvania in attempting to find a buyer for the New Jersey properties is without merit. As the Supreme Court stated in Hanson v. Denckla, supra, "The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. . . . it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws." 357 U.S. at 253, 78 S. Ct. at 1239.
The activity upon which plaintiff relies in this case is clearly unilateral activity. It was plaintiff's officer who made phone calls, conducted meetings, and prepared documents. There is no indication in the record that defendant participated in any way within this Commonwealth in any of the activities related to Baron & Company's attempt to find a buyer. The fact that the plaintiff's conduct was in pursuance of its agreement with defendant does not impute that conduct to the defendant for jurisdictional purposes. See Pennsylvania Manufacturers' Association Insurance Company v. Township of Gloucester, 493 F. Supp. 1047 (E.D.Pa. 1980). The voluntary choice by Baron & Company to conduct its business and perform its contract with defendants in Pennsylvania cannot serve to subject the defendant to the jurisdiction of this court unless the defendant has done something to manifest its affiliation with this forum. Gagner v. Parsons & Whittemore, Inc., 450 F. Supp. 1093, 1096 (E.D.Pa.1978).
If plaintiff's contention rested entirely on its own conduct, clearly there would be no jurisdiction over defendant in this case. Plaintiff asserts further, however, that defendant's conduct in performing the contract, after it was named trustee in April of 1978, was such that it purposefully availed itself of the privilege of doing business in Pennsylvania.
After careful analysis of the facts in support of this contention, I conclude that defendant's conduct is not of sufficient quality to subject defendant to the jurisdiction of this court. See B. J. McAdams, Inc. v. Boggs, 426 F. Supp. 1091, 1101-02 (E.D.Pa.1977). In the first instance, plaintiff's claim that the choice of law provision "manifests Defendant's recognition of significant Pennsylvania contacts ...." (Response to Motion to Dismiss at 7, n. 4) is not at all persuasive. The mere presence of a choice of law provision in a contract is not sufficient to vest jurisdiction in a court. McShan v. Omega Louis Brandt Et Frere, 536 F.2d 516, 518 (2d Cir. 1976); Misco Leasing, Inc. v. Vaughn, 450 F.2d 257, 260 (10th Cir. 1977); Agrashell, Inc. v. Bernard Sirotta Co., 344 F.2d 583, 588 (2d Cir. 1965). Cf. Proctor & Schwartz v. Cleveland Lumber Co., 228 Pa.Super. 12, 323 A.2d 11, 15 (1974) (choice of law provision viewed as a factor). Clearly, as one court aptly stated, "(legal) principles designed for choice of law purposes . . . are not sufficient guides for measuring the power of a state to issue process beyond its borders." Southern Machine Company v. Mohasco Industries, Inc., 401 F.2d 374, 382 (6th Cir. 1968).
In Proctor & Schwartz v. Cleveland Lumber Co., supra, the Pennsylvania Superior Court concluded that the fact that the defendant executed a contract which was to be governed by Pennsylvania law satisfied the purposeful availment test.
The court did not, however, hold that the mere presence of the choice of law clause was sufficient since it actually based its jurisdictional determination on the fact that the transaction in question had a realistic and foreseeable economic impact in the Commonwealth. Id. 323 A.2d at 15. This notion of foreseeability and minimum contacts was discussed by the Supreme Court in World-Wide Volkswagen, supra, wherein the Court stated that the "foreseeability that is critical to due process analysis . . . is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being hauled into court there." 444 U.S. 286, 100 S. Ct. at 567.
I do not believe that the existence of the choice of law provision in the instant case, in light of this contract's significant connections with New Jersey, made it foreseeable that The Bank of New Jersey would be subjected to suit ...