ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before Gibbons and Hunter, Circuit Judges and Gerry, District Judge.*fn*
Rosemarie T. Schwilm, Administratrix of the Estate of Carroll A. Schwilm, appeals from a judgment dismissing her diversity wrongful death and survivorship action on the ground of lack of personal jurisdiction over the nonresident defendant. Thomas J. Holbrook, M.D. She also appeals from the denial of her motion to transfer the action to an appropriate district court in West Virginia, Dr. Holbrook's home state. Because we conclude that West Virginia is the more appropriate forum for this action, we do not decide whether personal jurisdiction could properly have been asserted in Pennsylvania. We hold that the district court abused its discretion in denying plaintiff's transfer motion, and remand for entry of an appropriate order under 28 U.S.C. § 1404(a).
On June 9, 1977, plaintiff's decedent, Carrol A. Schwilm, sustained injuries in a West Virginia diving accident. He was admitted to Cabell Huntington Hospital in West Virginia (Cabell), where Dr. Holbrook treated him. Mr. Schwilm was a Pennsylvania resident; Dr. Holbrook is a West Virginia resident. On the basis of x-rays taken in West Virginia, Dr. Holbrook diagnosed Schwilm's injury as a neck sprain, and treated him accordingly. In fact, Schwilm had suffered a fracture of the odontid process. Plaintiff maintains that the treatment Schwilm received from Dr. Holbrook thus was inappropriate to the injury actually sustained.*fn1
Following almost two weeks of treatment in West Virginia, Dr. Holbrook arranged for Schwilm's transfer to St. Francis Hospital in Pittsburgh, Pa. Dr. Holbrook telephoned a doctor at the Pittsburgh hospital to set up the transfer, Complaint P 9, and subsequently mailed to the Pittsburgh hospital Schwilm's x-rays and other medical records. Complaint P 10. The transfer arrangements and dispatch of medical records are Dr. Holbrook's only direct contacts with Pennsylvania.
On June 22, 1977, Schwilm was admitted to St. Francis Hospital. Subsequent medical tests in Pittsburgh revealed Dr. Holbrook's misdiagnosis. Schwilm's Pennsylvania doctors eventually determined that only orthopedic surgery could correct his injury. During surgery, Schwilm's left vertebral artery was entered, causing blood losses and neurological deficits which resulted in Schwilm's death on October 11, 1977.
On June 25, 1979, Rosemarie T. Schwilm, as administratrix of her husband's estate, filed suit against Dr. Holbrook and against Cabell in the Commonwealth of Pennsylvania Arbitration Panels for Health Care.*fn2 On July 23, 1979, Cabell successfully petitioned for removal to the United States District Court for the Western District of Pennsylvania. On September 8, 1979 Cabell filed an uncontested motion to dismiss for lack of personal jurisdiction which the district court granted.
On October 31, 1980, Dr. Holbrook filed a petition for removal from Allegheny County Common Pleas to the Western District of Pennsylvania. On November 20, 1980, Dr. Holbrook filed in federal court a motion to dismiss for lack of personal jurisdiction. On January 20, 1980, the court granted Holbrook's motion, and denied Ms. Schwilm's motion for transfer of venue pursuant to 28 U.S.C. §§ 1404(a) and 1406(a).*fn3 This appeal followed.
Ms. Schwilm alleges that the Western District of Pennsylvania may assert personal jurisdiction over Dr. Holbrook on the basis of the Pennsylvania long arm statute, 42 Pa.C.S. §§ 5322(a)(4) and 5322(b). Section 5322(a)(4) permits assertion of personal jurisdiction over a nonresident defendant when the claim arises out of a harm or tortious injury occurring in Pennsylvania due to an act or omission occurring outside Pennsylvania. Section 5322(b) authorizes exercise of personal jurisdiction "to the fullest extent allowed under the Constitution of the United States ... based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States."
Ms. Schwilm's complaint states that Dr. Holbrook is a nonresident who has caused harm in Pennsylvania. Complaint P 11; that he engaged in numerous negligent activities, including misdiagnosing Schwilm, affording substandard medical care, failing to prevent future harm resulting from the misdiagnosis, negligently rendering services to Schwilm, and causing Schwilm to undergo surgery in Pennsylvania due to improper care in West Virginia. Complaint PP 12, 13.
When personal jurisdiction over a nonresident defendant is asserted on a basis other than consent, physical presence, or doing business, the claim must arise from a specific forum-related act. Minimum contacts analysis is inappropriate where defendant's forum activities do not give rise to the claim. Instead, when pressing a nonforum-related claim, plaintiff must demonstrate that the defendant maintained "continuous and substantial" forum affiliations. See, International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945); Compagnie des Bauxites de Guinea v. Ins. Co. of North America, 651 F.2d 877 at 889-891, (3d Cir. 1981), (Gibbons, J., dissenting). Dr. Holbrook maintains that the alleged negligence occurred in West Virginia, that plaintiff thus sues on a nonforum-related injury, and that the "continuous and substantial" test must therefore apply. He further observes that under no construction of the facts alleged in the complaint could the court divine his continuous and substantial Pennsylvania presence. Finally, Dr. Holbrook argues, the phone calls and mailing of the medical ...