render corporate officers or directors subject to suit in any state in which their corporation does business and would violate the concept of fundamental fairness which undergirds constitutional due process. 572 F. Supp. at 1253.
Because I find that both the reasoning and the result of PSC and Simpson best comport with the principles of due process as enunciated by the Supreme Court and the Third Circuit in recent personal jurisdiction cases, I embrace their position that a corporate officer or director's actions taken in his corporate capacity are, by themselves, insufficient to bring him personally within the jurisdiction of this court. I conclude that the Techno court relied too heavily on the traditional foreseeability analysis which is now reserved almost exclusively for products liability or so-called "stream of commerce" cases. See, e.g., PSC, supra, 555 F. Supp. at 794; Sunn Classic Pictures, Inc. v. Budco, Inc., 481 F. Supp. 382, 385 (E.D. Pa. 1979). While the Techno court purports to rely on Third Circuit precedent for the proposition that World-Wide Volkswagen does not restrict the scope of section 5322(a)(4), I note that the principle articulated in Schwilm is dictum and need not be followed by this court. Schwilm, supra, 661 F.2d at 15 (citing only products liability cases). See Dollar Savings Bank, supra, 746 F.2d at 212 (concluding that, for purposes of minimum contacts analysis, foreseeability is conduct and connection with the forum such that it is reasonable for the non-resident to expect to be haled into court there). Although this court finds it "clearly foreseeable" that a corporate officer could be held liable for harm resulting from tortious conduct, it is not "reasonable" for that same individual to anticipate that he will be haled into any court in every forum in which the corporation transacts business.
Furthermore, I do not accept the Donner court's conclusion that a court can infer personal jurisdiction from the substantive allegations contained in a complaint. See 480 F. Supp. at 1234. While the rule of joint tortfeasor liability may make it economically advantageous to allow the maintenance of suit against both a corporation and its officers or directors in one court, the policy of judicial economy cannot be addressed in a vacuum. The principles of due process mandate that a court focus on the hardship of forcing a non-resident defendant to litigate in a distant forum. Nor may the court rule on the sufficiency of the cause of action as it would in a motion under Fed. R. Civ. P. 12(b)(6); rather, it must determine whether the plaintiff has established minimum contacts by a preponderance of the evidence under Rule 12(b)(2). See Time Share, supra, 735 F.2d at 66-67 n.9. Therefore, I hold that a plaintiff seeking to establish personal jurisdiction over an individual corporate officer or director on the basis of tortious conduct committed in the exercise of his corporate duties must prove, by a preponderance of the evidence, that the non-resident officer or director independently has sufficient forum-related contacts.
Applying this principle to the facts of this case, I find that Simkins has failed to sustain its burden of proof. Plaintiff has failed to allege that defendants Ewart, Stern and Pechenik committed any tort in their individual capacity. See Complaint at paras. 18-31, 41-49. See also Stop-A-Flat, supra, 507 F. Supp. at 651. He has failed to allege that the individual defendants are the "alter egos" of the corporations which they represent. See, e.g., Great American Enterprises, supra, slip op. at 4. Moreover, plaintiff does not even argue that these defendants performed any activity in the forum or performed any activity directly related to the forum.
On the other hand, Ewart has presented an unrefuted affidavit that he has had no contact with the forum in either his individual or his corporate capacity. Even Paramount, the corporation in which he is a shareholder, has no connection with this forum. See Affidavit of Ewart at paras. 2, 3, 5 & 6. See also Time Share, supra, 735 F.2d at 66 n.9 (indicating that, if insufficient minimum contacts on part of corporation, no jurisdiction over individual sued personally for actions taken as a corporate officer). As to Stern, there is also unrefuted evidence that he has had no contact with the forum in either his individual capacity or his corporate capacity with Gourmet. See Affidavit of Stern at paras. 2, 3, 4, & 5. Simkins has established that Pechenik has had contacts with Pennsylvania in his corporate capacity. See Affidavit of Pechenik at paras. 4, 5; Affidavit of Simkins at para. 2.
However, plaintiff has not demonstrated any contact between the forum and Pechenik while he was acting in his individual capacity. It would be fundamentally unfair to assert personal jurisdiction over him on this basis alone.
While this court retains jurisdiction over Gourmet, I find that none of the movant-defendants could reasonably anticipate being haled into court in Pennsylvania. Accordingly, I find that this court may not constitutionally exercise in personam jurisdiction over Paramount, Greenberg, Ewart, Stern and Pechenik. Therefore, the defendants' motion is granted.
An appropriate order follows.
AND NOW, this 28th day of January, 1985, upon consideration of the motion to dismiss for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2) of defendants Paramount Capital Corp., Greenberg, Irwin and Weisinger, Gordon Ewart, Martin Stern, and Albert Pechenik, and plaintiff's responses thereto, it is hereby ORDERED that defendants' motion is GRANTED.