The opinion of the court was delivered by: TROUTMAN
Plaintiff Snavely's Mill, Inc., alleges that a defective fan assembly in a milling machine, sold to the plaintiff in 1975 by Officine Roncaglia, exploded, causing a fire which destroyed plaintiff's mill and its contents. Plaintiff brought suit in the Court of Common Pleas of Lancaster County on theories of strict liability in tort and negligence. Defendant removed the action to this Court and now seeks dismissal of the complaint, contending that the Court lacks personal jurisdiction over Officine Roncaglia. Alternatively, defendant argues that the Court should enforce a provision of the contract for the purchase of the milling equipment which designates the Courts of Modena, Italy, as the place to litigate any disputes relating to the equipment. Finally, the defendant argues that even if the Court should determine that there is personal jurisdiction over the defendant and that the forum selection clause of the contract should not be enforced, the action should be dismissed on the grounds of forum non conveniens.
On a motion to dismiss for lack of in personam jurisdiction, the plaintiff has the burden of coming forward with sufficient facts to sustain the Court's jurisdiction. National Expositions, Inc. v. DuBois, 605 F. Supp. 1206, (W.D. Pa. 1985), Provident National Bank v. California Federal Savings and Loan Association, 624 F. Supp. 858 (E. D. Pa. 1985). The plaintiff is required to satisfy the Court that the defendant, here a foreign corporation, had or has a relationship to this jurisdiction such that requiring it to defend an action here satisfies constitutional and statutory requirements.
Since the plaintiff alleges that it suffered injuries to property as a result of an unreasonably dangerous, defective product and/or by reason of defendant's negligent manufacture of the product, it is clear that the requirements of Pennsylvania's long-arm statute, 42 Pa. Con. Stat. Ann. § 5322, have been met. Thus, the Court need only consider whether the constitutional due process requirements have likewise been met. Allen Organ Co. v. Elka S.p.A., 615 F. Supp. 328 (E.D. Pa. 1985). To meet due process requirements, the defendant must have minimum contacts with Pennsylvania, making it reasonably foreseeable that it might be called upon to defend an action here. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980). Foreseeability is not the only criterion, however. In order for the Court's exercise of personal jurisdiction to comport with notions of fair play and substantial justice, the defendant must also have engaged in purposeful conduct directed toward the forum. Id.
Plaintiff attempts to meet its burden of establishing minimum contacts by an affidavit in which the president of the plaintiff corporation states that Snavely, then trading as Willow Bank Roller Mills, accepted a proposal for the equipment in issue from Officine Roncaglia at plaintiff's place of business in Lititz, Pennsylvania; that, thereafter, Officine Roncaglia employees and installed the equipment at the mill in Lititz; that Officine Roncaglia, S.p.A., continues to market its equipment in Pennsylvania. (Affidavit of Gerald L. Snavely, Doc. #8). Defendant maintains that it acquired certain incidents of the entity which sold the equipment to plaintiff, but that it was a different company, Officine Roncaglia di Pietro Roncaglia, still existing, (albeit under a different name), with which the plaintiff dealt in 1974 and 1975. Further, defendant asserts that plaintiff solicited the offer ultimately accepted in Lititz from the predecessor company in Modena; that the present Officine Roncaglia's employees made two visits to Lititz to observe the equipment in operation; that it has made no sales in Pennsylvania. (See, affidavit of Dr. Enrico Frigieri, Exh. B to Motion of Defendant Officine Roncaglia S.p.A., a/k/a Officine Roncaglia Engineering Works, to Dismiss Plaintiff's Complaint, Doc. #4).
From these few facts we conclude that it is impossible to determine whether plaintiff has successfully borne its burden of establishing that the Court has personal jurisdiction over the defendant Officine Roncaglia, S.p.A., arising from the original sale of the equipment.
Plaintiff assumes, in conclusory fashion, without citation or argument, that all it needs to establish is that the present defendant is the successor in interest to the entity from which plaintiff originally purchased the equipment. This assumption is based upon Pennsylvania case law, which holds that a successor corporation is strictly liable for injuries caused by defects in a product manufactured by a predecessor corporation where the successor has acquired the assets and continues to manufacture the product line of the predecessor from which the defective product came. Dawejko v. Jorgensen Steel Co., et al., 290 Pa. Super. 15, 434 A.2d 106 (1981). It does not necessarily follow, however, that the predecessor's contacts with the forum, standing alone, are sufficient to establish this Court's personal jurisdiction over the successor corporation. Nor does it necessarily follow that the predecessor's contacts may be aggregated with those of the successor in order to establish jurisdiction over the successor corporation. Without more facts relating to the evolution of the successor corporation and the circumstances relating to the present defendant's apparent acquisition of the predecessor's flour mill business, the Court is reluctant to assume that personal jurisdiction over the defendant may be maintained. It may, indeed, be true, as plaintiff assumes, that if the Court could have asserted jurisdiction over the predecessor corporation on the basis of the sale of the allegedly defective equipment to the plaintiff, we may now assert jurisdiction over the successor corporation. Unfortunately, we have neither enough facts nor any legal authority to rely upon to reach that conclusion with confidence.
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.
Likewise, we can find no support for plaintiff's contention that the forum selection clause is ambiguous. ...