The opinion of the court was delivered by: GILES
Relying on various legal theories, including fraud, plaintiffs claim that defendants breached a performing arts contract causing damages in excess of $ 50,000. Almost six years after the alleged breach of agreement, plaintiffs, a Pennsylvania corporation and two individual Pennsylvania residents, initiated this lawsuit against Nina Simone, a popular vocalist, her husband, Andrew Stroud, and her lawyer Maxwell T. Cohen, Esquire. All defendants are alleged to be New York citizens. However, service of process has been made only as to defendant Cohen.
Pursuant to Fed.R.Civ.Pro. 12(b)(1), 12(b)(2) and 12(b)(6), Cohen moves to dismiss the complaint and alternatively for summary judgment, alleging that the court lacks both in personam and subject matter jurisdiction, and that plaintiffs have not stated a claim upon which relief can be granted. Cohen also contends that the complaint should be stricken because it fails to allege fraud with the requisite specificity and, alternatively, that a more specific pleading should be required.
For the reasons that follow, the court holds that there is in personam and subject matter jurisdiction. However, Counts I, III and IV of the complaint shall be dismissed as to Cohen for failure to state a claim upon which relief can be granted. Count II shall not be dismissed because it does state a claim for common law fraud.
Plaintiffs allege that on August 2, 1973, the parties contracted with Cohen for his client, Nina Simone, to appear in concert at the Philadelphia Civic Center on August 16, 1973. Allegedly, to secure Simone's appearance, plaintiffs sent Cohen a money order in the amount of $ 3,797.55 made payable to him for the benefit of Simone. According to plaintiffs, Cohen negotiated all the details of the performance contract, which had several specific terms such as stage layout and sleeping accommodations for Simone, and personally guaranteed Simone's appearance (Culbreth Affidavit). For reasons not revealed in this record, Simone did not appear for the concert.
In addition to the breach of contract claim, plaintiffs assert that Cohen is liable because he defrauded plaintiffs by causing them to send him the money order when he knew at the time of contracting that Simone would not appear. Cohen vigorously denies these allegations. In two affidavits, filed in support of his motion to dismiss, he asserts that he neither had property in Pennsylvania nor contacts or business relations with persons in the Commonwealth. Cohen admits that he was Simone's personal attorney, responsible for the handling of a domestic relations matter and the review of her personal tax returns with an accountant. He also admits that as an attorney he reviewed several of her professional and personal contracts. He denies ever being Simone's manager or booking agent claiming that a Eugene Harvey was her manager and that Simone negotiated her own contracts. He permitted Simone to use his address for receipt of mail because she traveled a great deal. He was authorized to deposit in her account checks received made payable to her order. Cohen claims he wrote to Simone on August 6, 1973, the day before he deposited the money order in question in her account, informing her that he intended to withdraw as her attorney effective the end of August, 1973. Cohen at some point did inform Simone of some calls he had received from a Philadelphia Assistant District Attorney informing him that one of the plaintiffs, Black Expo, Inc., was being investigated for fraud and inquiring as to Simone's relationship with the plaintiffs.
Plaintiffs have not alleged where or how the negotiations took place or how they ascertained that Cohen was the person to whom they spoke, assuming the communication was by telephone.
The court afforded the parties an evidentiary hearing on the jurisdictional issues and also heard arguments on Cohen's motion to dismiss and, alternatively, for summary judgment.
(1) I. In Personam Jurisdiction
(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 the maintenance of the suit does not offend "traditional notions of fair play and substantial justice.'
International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945).
In World-Wide Volkswagen v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980), the United States Supreme Court reaffirmed the minimum contacts standard.
The concept of minimum contacts, in turn, can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burden of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status of coequal sovereigns in a federal system.
444 U.S. at 291-292, 100 S. Ct. at 564.
Before a court can exercise in personam jurisdiction, it must be convinced that "the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." Id. at 297, 100 S. Ct. at 567.
The relevant portion of the Pennsylvania Long Arm Statute, 42 Pa.C.S.A. § 5322(b) (Supp.1980), provides as follows:
(b) Exercise of full constitutional power over nonresidents. 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.
Section 5322(a) of the Long Arm Statute also sets forth particular circumstances which may give rise to in personam jurisdiction.
(a) General rule. A tribunal of this Commonwealth may exercise personal jurisdiction over a person (or the personal representative of a deceased individual who would be subject to jurisdiction under this subsection if not deceased) who acts directly or by an agent, as to a cause of action or other matter arising from such person:
(1) Transacting any business in this Commonwealth. Without excluding other acts which may constitute transacting business in this Commonwealth, any of the following shall constitute transacting business in this Commonwealth, for the purpose of this paragraph:
(ii) The doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object with the intention of initiating a series of such acts ...
(2) Contracting to supply services or things in this Commonwealth.
(3) Causing harm or tortious injury by an act or omission in this Commonwealth.
(4) Causing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth ...
While the Pennsylvania statute enumerates certain circumstances under which the exercise of in personam jurisdiction can be expected, this court must, in the final analysis, decide whether there are minimum contacts which satisfy the constitutional requirement of due process. It is settled that a plaintiff bears the burden of alleging facts sufficient to persuade the court that in personam jurisdiction exists and once jurisdiction is challenged, plaintiff must prove by a preponderance of the evidence facts establishing jurisdiction. As stated in McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S. Ct. 780, 785, 80 L. Ed. 1135 (1936):
(Plaintiff) must carry throughout the litigation the burden of showing that he is properly in court. The authority which the statute vests in the court to enforce the limitations of its jurisdiction precludes the idea that jurisdiction may be maintained by mere averment or that the party asserting jurisdiction may be relieved of his burden by any formal procedure. If his allegations of jurisdictional facts are challenged by his adversary in any appropriate manner, he must support them by competent proof. And where they are not so challenged the court may still insist that the jurisdictional facts be established or the case be dismissed, and for that purpose the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence.
See also, Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980); Kenyatta v. Kelley, 430 F. Supp. 1328, 1330 (E.D.Pa.1977); Hicks v. Kawasaki Heavy Industries, 452 F. Supp. 130, 133 (M.D.Pa.1978).
The law favors resolution of disputes on the merits. Consequently, the court must read the pleadings in the light most favorable to plaintiff. Empire Abrasive Equipment v. H. H. Watson, Inc., 567 F.2d 554, 557 (3d Cir. 1977); VanNaarden v. Grassi, 488 F. Supp. 720, 722 (E.D.Pa.1980); Walsh v. National Seating Co., Inc., 411 F. Supp. 564, 567 (D.Mass.1976).
Plaintiffs allege that Cohen induced them to send a partial deposit for the concert performance, a money order for $ 3,797.55, payable to him for the benefit of Simone when Cohen knew that Simone had no intention of performing in Philadelphia. Further, plaintiffs claim that Cohen negotiated the details of the performance contract as Simone's agent and personally guaranteed that if plaintiffs sent the deposit, Simone would appear at the Civic Center. However, neither plaintiffs' complaint nor the ...