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WILLIAM J. SKINNER AND MARY SKINNER v. FLYMO (02/21/86)

filed: February 21, 1986.

WILLIAM J. SKINNER AND MARY SKINNER, HIS WIFE, APPELLANTS,
v.
FLYMO, INC.; DARWIN ECKSTROM AND JONATHAN RANDALL, INDIVIDUALLY AND TRADING AS ECKSTROM-RANDALL COMPANY; OUTDOOR POWER EQUIPMENT INSTITUTE, INC.; UNITED STATES TESTING CO., INC.; AND AMERICAN NATIONAL STANDARDS INSTITUTE, INC., APPELLEES



Appeal from Order of the court of Common Pleas, Civil Division, of Allegheny county, No. GD 84-12804.

COUNSEL

Ellen M. Viakley, Pittsburgh, for appellants.

Mark L. Austrian, Pittsburgh, for appellees.

Wieand, Del Sole and Hester, JJ.

Author: Wieand

[ 351 Pa. Super. Page 238]

William J. Skinner was injured when the blade of a rotary lawn mower came into contact with his foot while he was cutting the lawn at his employer's residence in Warren County. He commenced an action to recover damages against five defendants, one of which was Outdoor Power Equipment Institute, Inc. (OPEI), a nonprofit trade association whose members were manufacturers of outdoor power equipment. OPEI filed preliminary objections raising questions of jurisdiction. The trial court sustained these preliminary objections, holding that OPEI was not subject to the jurisdiction of the Pennsylvania courts. Skinner appealed. We affirm.

OPEI is a Delaware corporation whose only office is located in Washington, D.C. It is not registered to do business in Pennsylvania and does not maintain an office or other place of business in this Commonwealth. OPEI sponsors a certification program pursuant to which its members are entitled to submit samples of their products to an independent laboratory for testing. If a product meets specified safety standards, the manufacturer can purchase from OPEI a label which contains a certification that the product complies with these standards. Flymo, Inc., an Ohio manufacturer of lawn mowers, was a member of the trade association and routinely purchased labels from OPEI for attachment to its lawn mowers. The mowers manufactured by Flymo, Inc. were distributed throughout the United States. One of Flymo's lawn mowers was being used by Skinner at the time he was injured. The mower, bearing an OPEI label, had been sold to Skinner's employer in Pennsylvania by Eckstrom-Randall Company, a distributor of Flymo lawn mowers.

[ 351 Pa. Super. Page 239]

The averments of the complaint were that the lawn mower, even though it complied with the safety standards used in OPEI's certification program, was unreasonably dangerous. The gravamen of the complaint against OPEI was that it had been negligent in failing to establish adequate safety standards for the design and manufacture of rotary lawn mowers. OPEI's preliminary objections, duly endorsed with notice to plead, challenged whether it was subject to in personam jurisdiction in Pennsylvania. In these preliminary objections, OPEI averred, inter alia, that it did not pay taxes in Pennsylvania, had not appointed an agent to accept service in Pennsylvania, was not listed in any telephone directory in Pennsylvania, and had no officers or employees in Pennsylvania. Further, it alleged, it had never conducted educational symposia in Pennsylvania, owned no property in Pennsylvania, had sales in Pennsylvania of less than $650 after January 1, 1982, and had only one Pennsylvania member which, however, was not engaged in the manufacture of walk-behind mowers. Skinner did not file a responsive pleading and, therefore, has admitted the averments of fact contained in OPEI's preliminary objections. 5 Std.Pa.Prac.2d § 25:6. See: Pa.R.C.P. 1026, 1029.

Jurisdiction over a nonresident defendant may be based either upon the specific acts of the defendant which gave rise to the cause of action, or upon the defendant's general activity within the forum state. See: Burger King Corp. v. Rudzewicz, 471 U.S. , n. 15, 105 S.Ct. 2174, 2182 n. 15, 85 L.Ed.2d 528, 541 n. 15 (1985). In order for a Pennsylvania court to assert specific jurisdiction, the cause of action must arise out of the defendant's activities within the Commonwealth. See: 42 Pa.C.S. § 5322. See also: Burger King Corp. v. Rudzewicz, supra at , 105 S.Ct. at 2182, 85 L.Ed.2d at 540-541. General jurisdiction, on the other hand, exists regardless of whether the cause of action is related to the defendant's activities in Pennsylvania, as long as the defendant's activities in this Commonwealth are "continuous and substantial." See: Bork v. Mills, 458 Pa. 228, 231-232,

[ 351 Pa. Super. Page 240329]

A.2d 247, 249 (1974); Slota v. Moorings, Ltd., 343 Pa. Super. 96, 104-07, 494 A.2d 1, 5-6 (1985); Whalen v. Walt Disney World Co., 274 Pa. Super. 246, 251, 418 A.2d 389, 391 (1980). See also: 42 Pa.C.S. § 5301(b). Accord: Burger King Corp. v. Rudzewicz, supra, 471 U.S. at n. 15, 105 S.Ct. at 2182 n. 15, 85 L.Ed.2d at 541 n. 15.

Pennsylvania courts may exercise specific jurisdiction over nonresident defendants "to the fullest extent allowed under the Constitution of the United States and [it] may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States." 42 Pa.C.S. § 5322(b). Where the forum state seeks to assert specific jurisdiction over an out-of-state defendant, who has not consented to be sued there, the Due Process Clause of the Fourteenth Amendment to the United States Constitution "is satisfied if the defendant has 'purposefully directed' his activities at residents of the forum and the litigation results from alleged injuries that 'arise out of or relate to' those activities." Burger King Corp. v. Rudzewicz, supra at , 105 S.Ct. at 2182, 85 L.Ed.2d at 540-541 (citation omitted). See: Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404, 411 (1984). The critical question in determining whether the defendant has purposefully directed his activities at residents of the forum is not whether it was foreseeable that defendant's activities would have an injurious effect in the forum state, but whether the defendant's conduct and his connection with the forum state were such that he could reasonably anticipate being "haled" into court there. Burger King Corp. v. Rudzewicz, supra, 471 U.S. at , 105 S.Ct. at 2183, 85 ...


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