plaintiff's invitation, in fulfillment of terms in the original contract of sale between plaintiff and defendant's predecessor, or were for the purpose of enhancing sales of its equipment here. Likewise, plaintiff's presentation of one letter from the defendant to a Pennsylvania business is not sufficient to support the broad assertion that defendant "continues to market the original pneumatic Roncaglia flour milling plants in the Commonwealth of Pennsylvania". (Snavely Affidavit, Doc. #8, para. 7). From the single letter produced it is impossible to determine whether the information was solicited from the defendant or whether the defendant took the initiative in soliciting business in Pennsylvania.
In order to make a reasoned determination of whether personal jurisdiction may be asserted, the Court must be able to conclude that defendant's contacts with the forum are not random, fortuitous or the result of plaintiff's or another party's unilateral activity directed toward the defendant. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985).
On the record presently before the Court with respect to the jurisdictional facts, it is impossible to engage in the careful analysis of the quality of defendant's contacts necessary to determine whether requiring it to defend plaintiff's action here comports with due process. Ordinarily, were this the only issue, we would request further development of the jurisdictional facts and/or additional briefs before rendering a decision. Here, however, there are two additional grounds for dismissal which may obviate the need for a decision on the jurisdictional issue. Accordingly, we will consider the forum selection clause as a basis for dismissal of the action and, if need be, the forum non conveniens issue.
Both parties to the litigation agree that the original contact for the sale of the flour milling equipment between plaintiff and Officine Roncaglia as it existed in 1974,
contains a forum selection clause. Plaintiff also concedes that, "It is true that parties to a contract may stipulate in advance to submit their disputes to a given court in a specific jurisdiction. The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 [32 L. Ed. 2d 513, 92 S. Ct. 1907] (1972)." (Memorandum of Law in Opposition to Defendants' Motion to Dismiss, Doc. #7, at 8).
Relying upon the standards for enforceability of a forum selection clause enunciated in The Bremen, plaintiff contends, however, that the forum selection clause should not be enforced in this instance as unreasonable and cites three bases for that contention: (1) that litigation in Italy would seriously impair its ability to pursue the action; (2) that the forum selection clause is ambiguous; (3) that there is no evidence suggesting that the parties to the contract bargained for the inclusion of the forum selection clause in the contract.
We conclude that, no matter what law may apply to the enforceability of the forum selection clause, the latter two arguments against enforcing it here are completely lacking in merit. The contract, according to the unchallenged assertion of the defendant, was submitted to plaintiff in the form of an offer. There is nothing in the record here to support a conclusion that no negotiation was possible - that the plaintiff was forced to accept the offer exactly as presented by the seller in order to purchase the equipment at all or that the bargaining power between the parties was otherwise unequal. Once plaintiff did accept the contract as proposed, however, it began to govern the relationship between the parties. Plaintiff has proffered no reason for the contention that only the clause it now dislikes should not be enforced for lack of bargaining. That clause is printed in the same size type as the rest of the contract and is as prominent as any other provision of the contract. In short, there is absolutely no support for plaintiff's conclusory statement that the forum selection clause is "merely a boiler plate provision in a form contract". (Doc. #7 at 11).
Likewise, we can find no support for plaintiff's contention that the forum selection clause is ambiguous. The clause reads as follows:
For any controversy that might arise between the parties concerning the interpretation and execution of the contract, only the Italian Authority shall be competent and specifically the law-court of Modena.
(Exh. A to Exh. B to Doc. #4 at 12).
Plaintiff characterizes the language of the clause as "awkward and strained" (Doc. #7 at 12), and argues that the intention to be sued exclusively in an Italian forum, "should have been reflected in clear, precise language". (Id. at 13). It is difficult to imagine a clearer expression of intent to litigate exclusively in Italy than the words found in the contract. Under the clause, "only the Italian Authority . . . specifically the law-court of Modena", is competent to consider "any controversy" between the parties. Not surprisingly, plaintiff does not specify in what way it finds the language of the clause ambiguous. While there may be a question as to whether there is a clear choice of law provision in that clause, an issue that we do not need to decide, we see nothing ambiguous as to the choice of the forum in which any litigation concerning the contract is to take place.
The final argument raised by the plaintiff in an effort to avoid the application of the forum selection clause is the difficulty of litigating the case in Italy. This contention as a reason for not enforcing the forum selection clause is based upon the assumption that the rules enunciated in The Bremen apply here.
As noted, however, (See, n. 3, supra.), the enforceability of the forum selection clause is governed by the law which controls the construction of the contract.
Plaintiff, proponent of the position that the clause should not be enforced, argues strenuously that the law of Pennsylvania applies to the entire action. Defendant contends that the forum selection clause is also meant to be a choice of law provision and that under the clause, Italian law applies.
Since it is clear that either Pennsylvania or Italian law must apply to the contract, a prudent approach to the issue would be to determine whether there is a difference in the law of the two jurisdictions relating to the enforceability of the forum selection clause. To that end, we ordered defendant to produce evidence of how Italian law regards such a clause. (Order of October 26, 1987, Doc. #9). We concluded, however, that the response was insufficient to allow the Court to determine the disposition of the issue under Italian law.
Thus, the Court was left with little choice but to consider the enforceability of the forum selection clause under Pennsylvania law alone. Since plaintiff has consistently argued that the law of Pennsylvania should apply to the entire controversy, it can hardly object to this procedure. As for defendant, since the result is favorable to its position, it is unlikely to object to this procedure either. We wish to emphasize, however, that the pragmatic approach which we have chosen does not represent this Court's conclusion that the law of Pennsylvania does or should apply to the controversy.
In Central Contracting Co. v. Youngdahl, 418 Pa. 122, 133, 209 A.2d 810 (1965), the Pennsylvania Supreme Court determined that a forum selection clause should be enforced, "When the parties have freely agreed that litigation shall be conducted in another forum and where such agreement is not unreasonable at the time of litigation". The court went on to explain that:
Such an agreement is unreasonable only where its enforcement would, under all the circumstances existing at the time of litigation, seriously impair plaintiff's ability to pursue his cause of action. Mere inconvenience or additional expense is not the test of unreasonableness since it may be assumed that the plaintiff received under the contract consideration for these things. If the agreed upon forum is available to plaintiff and said forum can do substantial justice to the cause of action then plaintiff should be bound by his agreement. Moreover, the party seeking to obviate the agreement has the burden of proving its unreasonableness.
Id. at 133, 134.
We conclude that under Pennsylvania law, plaintiff has failed to demonstrate that its cause of action would be seriously impaired by having to litigate in Italy. Plaintiff places great emphasis on the fact that the mill was installed in a Pennsylvania plant where the alleged accident occurred, that records concerning the operation of the plant are located in Pennsylvania and that litigation in Italy would require translations. It is obvious that this litigation, involving an American and an Italian party, cannot be conducted anywhere without translations. Moreover, the complaint states causes of action in strict liability and negligence. We fail to understand the overwhelming importance of records concerning the operation of the mill when plaintiff's claim is based upon the manufacture of the mill. Documents relating to the design and fabrication of the mill, as well as to operating instructions and warnings, if any, are more likely to be found in Italy. Finally, although the mill was installed in Pennsylvania, it was manufactured in Italy and installed by Italian employees of the seller, more likely to be found in Italy than in Pennsylvania, who may be called upon to testify as to any instructions or warnings given to the plaintiff about the operation of the mill. On the record before the Court, we see no basis in Pennsylvania law for not enforcing the forum selection clause of the contract.
Having now concluded that the clause is enforceable under Pennsylvania law, there is no need to consider the forum non conveniens issue. We will dismiss the action in order to allow plaintiff to pursue its remedies in Italy, as it contracted to do when the milling equipment was purchased.
AND NOW, this 17th day of December, 1987, upon consideration of defendant's motion to dismiss the complaint and plaintiff's response thereto, IT IS ORDERED that the motion is GRANTED and the complaint is DISMISSED without prejudice to plaintiff's ability to commence a similar action in the law court of Modena, Italy.