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PETRUZZI'S IGA SUPERMARKETS, INC. v. DARLING-DELAW

September 24, 1987

Petruzzi's IGA Supermarkets, Inc., Plaintiff
v.
Darling-Delaware Co., Inc., The Standard Tallow Corp., Moyer Packing Company and Herman Isacs, Inc., Defendants



The opinion of the court was delivered by: NEALON

 Presently before the court is a motion by defendant Herman Isacs, Inc. (Isacs) to dismiss the complaint against it in the above-captioned action due to, inter alia, lack of personal jurisdiction. For the reasons set forth below, Isacs' motion will be granted, and this defendant will be dismissed from the lawsuit.

 FACTS

 Plaintiff Petruzzi's IGA Supermarkets, Inc. (Petruzzi's), a Pennsylvania corporation, commenced this action pursuant to the Sherman and Clayton Antitrust Acts, 15 U.S.C. §§ 1, 15 and 26 on March 14, 1986. Named as defendants were Isacs and three other corporations. All defendants were at relevant times in the business of purchasing certain waste products (i.e., inedible fats) as raw materials for "rendering" or conversion into marketable finished products such as tallow. Isacs is a Connecticut corporation which ceased its rendering operations in August 1985.

 By Order dated May 16, 1986, the court stayed all proceedings in this case pending the outcome of a grand jury investigation conducted by the Antitrust Division of the United States Department of Justice in the Eastern District of Pennsylvania. On the same date, the parties stipulated that upon expiration of the stay, this lawsuit would proceed as a class action, and class status was certified by the court. The grand jury investigation terminated without the return of an indictment, and the stay expired shortly thereafter at the end of 1986.

 Isacs moved for dismissal on February 23, 1987 on the grounds that the court lacks personal jurisdiction over it, that service of process was insufficient and that venue in the Middle District of Pennsylvania is improper. *fn1" The parties submitted numerous briefs addressing the relevant issues, and oral argument was presented to the court on July 9, 1987. Affidavits from John L. Isacs, President of Isacs, were also filed by the moving defendant; no affidavits were submitted by Petruzzi's. Isacs' motion to dismiss is now ripe for disposition.

 The factual background specifically pertaining to the issue of personal jurisdiction over Isacs evolved as follows. Attached to the motion to dismiss was an affidavit from John L. Isacs indicating that: Isacs never solicited, purchased or collected fat waste products from any account in Pennsylvania; all of Isacs' raw materials, which were obtained outside of Pennsylvania, were processed into tallow and other finished products at its one rendering plant located in Bridgeport, Connecticut; the purchasers of Isacs' finished products included one Pennsylvania corporation, defendant Moyer Packing Company (Moyer); all sales to Moyer were F.O.B. Bridgeport, Connecticut and were received by Moyer's agents at Isacs' rendering plant in Bridgeport; Isacs never had an office, telephone number or agent in Pennsylvania and was never licensed to do business in this state; Isacs never sent any of its officers or agents to Pennsylvania to meet with officers or agents of the other defendants; and Isacs never transacted any business with Petruzzi's. On the basis of the above information, Isacs argues that it has insufficient contacts with Pennsylvania for this court to exercise jurisdiction over it.

 Along with its brief in opposition to the motion to dismiss, Petruzzi's submitted corporate records from Isacs which indicate that: between 1980 and 1984, Isacs sold $ 670,501 worth of its finished products to Moyer; between 1980 and 1984, Isacs sold $ 3,289,401 worth of its finished products to another Pennsylvania corporation, the Corenco Corporation (Corenco); and that representatives of Isacs made twenty-eight (28) telephone calls to rendering plants in Pennsylvania between 1981 and 1984. On the basis of this information, Petruzzi's maintains that this court has personal jurisdiction over Isacs because of Isacs' business transactions in Pennsylvania and because this defendant caused harm or tortious injury in the Commonwealth. Petruzzi's also asserts that by entering a general appearance, filing an unopposed motion for extension of time to respond to the complaint, stipulating to class status and producing corporate records, Isacs waived its right to object to personal jurisdiction.

 DISCUSSION

 I.

 When a defendant raises a jurisdictional defense, the plaintiff bears the burden of demonstrating sufficient contacts with the forum state to give the court in personam jurisdiction. Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984); Pharmaceutical Group Services, Inc. v. National Pharmacies, Inc., 592 F. Supp. 1247, 1248 (E.D. Pa. 1984). At the stage of the proceedings where the factual record consists of only pleadings and affidavits, the plaintiff's burden is satisfied by establishing a prima facie case of jurisdiction. Pharmaceutical Group Services, Inc., supra, at 1248 & n.1; Kyle v. Continental Capital Corp., 575 F. Supp. 616, 618-20 (E.D. Pa. 1983). In reviewing a jurisdictional dispute, the pleadings and affidavits are to be considered in the light most favorable to the plaintiff, with any discrepancies in the versions of events resolved in the plaintiff's favor. Pharmaceutical Group Services, Inc., supra, at 1248; Cottrell v. Zisa, 535 F. Supp. 59, 60 n.* (E.D. Pa. 1982).

 Rule 4(e) of the Federal Rules of Civil Procedure permits a district court to assert personal jurisdiction over a nonresident to the extent allowed under the law of the state where the district court sits. The Pennsylvania Long ...


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