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BUCKS CTY. PLAYHOUSE v. BRADSHAW

October 28, 1983

BUCKS COUNTY PLAYHOUSE, Ram III, Ralph A. Miller, III, and Raymond Daikeler
v.
Terry BRADSHAW, Gilbert R. Shanley, Jr., Dan Wright, and Ann Wright, Reps. Agency



The opinion of the court was delivered by: KELLY

 KELLY, District Judge.

 This is a diversity action in which plaintiffs seek to recover compensatory and punitive damages for an alleged breach of an oral contract for personal services. Each defendant has moved to dismiss the complaint for lack of personal jurisdiction pursuant to Federal Rules of Civil Procedure 12(b). For the reasons which follow, the complaint will be dismissed against all four defendants.

 The Parties

 The principal plaintiff in this case is Bucks County Playhouse, (the "Playhouse") a partnership doing business in New Hope, Pennsylvania. Plaintiffs Ralph A. Miller, III and Raymond Daikeler are partners in Bucks County Playhouse. RAM III is a Pennsylvania corporation of which Ralph Miller is the principal shareholder.

 Defendants include Terry Bradshaw, a citizen of Louisiana; Gilbert R. Shanley, Jr., a citizen of Louisiana and an accountant, who acts as a business agent of Terry Bradshaw; Ann Wright Representatives, Inc. (the "Agency"), a New York Corporation whose primary function is to secure work for actors; and, Dan Wright, a Vice President and employee of the Agency.

 The Facts

 The plaintiffs in this case allege that in early November of 1982, representatives of the Playhouse telephoned the Agency in New York to discuss the names of major show business personalities who might wish to appear at the Playhouse during the 1983 season. A list of shows and dates were discussed. The Agency suggested that Terry Bradshaw be considered for one of the shows. The Playhouse responded favorably to this proposal due to Bradshaw's fame and high visibility in the Commonwealth as the quarterback for the Pittsburgh Steelers and his "all around status as a Pennsylvania hero." Miller Aff. at 1. After agreement that Bradshaw would fit the lead character of Joe Hardy in the musical production of "Damn Yankees", Florence Rothaker, a representative of the Agency and the initial contact at the Agency, referred Ralph Miller to Dan Wright because he "had the authority to make deals for Bradshaw." Miller Aff. at 2. Dan Wright requested information from Miller via the phone on matters including the size of the theater, its location and the musical character Bradshaw would play.

 Thereupon, negotiations were commenced. Miller's initial offer included the following terms:

 
a) Rehearsal week compensation -- $400.00;
 
b) Performance week compensation -- $1,500.00 plus 15% of the gross over $20,000.00 (net taxes);
 
c) Eight shows per week performance schedule;
 
d) Transportation and a Holiday Inn style room to be supplied.

 Dan Wright called Miller's office later with a counter offer requiring Bradshaw's performance week compensation to be computed on 15% of the total gross. In a subsequent phone call from Dan Wright to Miller, Wright relayed additional terms, i.e., that a script was to be sent immediately and that Miller, as director of "Damn Yankees", would travel to Louisiana to Bradshaw's ranch to rehearse him prior to his arrival at the Playhouse. Miller accepted the additional terms.

 Miller then explained to Dan Wright that the printing deadline for the season's brochure was 5:00 p.m. the following day. Miller requested that biographic material and a suitable picture of Bradshaw be sent the quickest means possible in order to include the material in a 60,000 piece brochure mailing. Dan Wright assured Miller that the material would be forwarded and received prior to the deadline. The next day, the Playhouse received a picture and biography of Terry Bradshaw by Federal Express Mail. Sixty thousand brochures, featuring Bradshaw as the star of the season and the opening performer of the 1983 season, were printed of which 40,000 were mailed to the plaintiffs' clientele.

 On November 17, 1982, Ralph Miller wrote a letter to Dan Wright reciting the terms of the proposed agreement. The letter requested Wright to have Bradshaw, or his agent, execute one copy of the letter and return it to Miller.

 Miller was subsequently advised that Terry Bradshaw had decided not to appear at the Playhouse for personal reasons. As a result, a substitution for Bradshaw had to be obtained, the opening of the theater season was delayed, and plaintiffs were required to print and mail new brochures. The instant action was thereafter commenced.

 Discussion of the Law

 Preliminarily, the Court notes that in disposing of a motion to dismiss for lack of personal jurisdiction the allegations complained of must be taken as true. In Re Arthur Treacher's Franchisee Litigation, 92 F.R.D. 398, 409 (E.D.Pa.1981). Indeed, "the plaintiff is entitled to every favorable inference which can be drawn from the pleadings, affidavits and exhibits." Id. at 410. Nevertheless, the burden of proof remains with the plaintiff, to demonstrate by competent proof, a jurisdictional predicate where an objection is interposed. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S. Ct. 780, 785, 80 L. Ed. 1135 (1936).

 To determine if personal jurisdiction exists, the Court must look to the law of the state in which it sits. Arrowsmith v. United Press International, 320 F.2d 219, 223 (2d Cir.1963); Partin v. Michaels Art Bronze Co., 202 F.2d 541, 542 (3rd Cir.1953). See also Fed.R.Civ.P. 4(d)(7) and 4(e). In Pennsylvania, personal jurisdiction over the defendants must be based upon 42 Pa.C.S.A. § 5301 (general jurisdiction over persons) or 42 Pa.C.S.A. § 5322 (long-arm jurisdiction). The applicability of these statutes to the corporate and individually named defendants will hereafter be considered.

 A. The Corporate Defendant -- Ann Wright Agency, Inc.

 1. General Jurisdiction

 42 Pa.C.S.A. § 5301 provides in pertinent part:

 
(a) General Rule. The existence of any of the following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to ...

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