performed acts by which they could reasonably expect to be haled into court in Pennsylvania. Because plaintiff's conduct was in pursuance of its agreement with defendants does not, for jurisdictional purposes, impute that conduct to defendants. See Pennsylvania Manufacturers' Association Insurance Company v. Township of Gloucester, 493 F. Supp. 1047 (E.D. Pa. 1980). In essence, the only activities on the part of the Brunos that constitute contacts with Pennsylvania are the execution of loan documents (in the State of Alaska) with a Pennsylvania bank, and the making of payments on the Note.
The mere entering into a contract by a party in Alaska with a bank in Pennsylvania does not constitute sufficient contacts to establish personal jurisdiction. See Burger King, supra, 471 U.S. at 478. It is the circumstances surrounding the contract, the prior negotiations, contemplated future consequences, and the parties' actual course of conduct, which are important and must be evaluated along with the terms of the contract to determine whether the defendant purposefully established minimum contacts with the forum. Id. at 479. In this case, by contrast to the defendant in Burger King,2 the Brunos did not solicit, nor negotiate any of the terms of the contract directly with Atlantic. Conversely, it appears from the Brunos' affidavits that Atlantic or its agent, a Triad salesperson, solicited the Brunos' loan.
By comparison, in Burger King, the defendant deliberately sought to enter into a franchise agreement with Burger King and conducted extensive negotiation, both before and after entering into the franchise agreement, communicating directly with the Burger King headquarters in the forum state. 471 U.S. at 467 n. 7.
Similarly, Atlantic has not established that the Brunos contemplated any significant future consequences from their execution of the loan documents in Alaska. The only future consequence the Brunos and Atlantic contemplated was that the Brunos would make payments on the Note for a period of four (4) years. Although the Note required that these payments were to be made in Pennsylvania and the Brunos tendered several payments to Atlantic in Pennsylvania, this is not enough to confer a finding of personal jurisdiction. See Dollar Savings Bank v. First Security Bank of Utah, 746 F.2d 208 (3d Cir. 1984). In Dollar Savings Bank, the Third Circuit considered a fact situation very similar to that at bar and held that minimum contacts were not established when a nonresident defendant did no more than borrow from and repay a loan to a Pennsylvania bank. In reaching its decision, the court emphasized that the nonresident defendant had not travelled to Pennsylvania in connection with the transaction and that the defendant executed the promissory notes and security agreements while outside Pennsylvania. The same situation obtains at bar.
Plaintiff attempts to distinguish Dollar Savings Bank by pointing out that there, negotiations for the loan occurred in New York, the loan documents were submitted for approval to plaintiff's trustee in New York, and the note contained no clause providing for the application of Pennsylvania law. Plaintiff's brief, p. 8. These distinctions are inapposite because here there were no negotiations whatsoever, either in Alaska or Pennsylvania; nor is, as discussed above, the approval of loan documents, wherever it takes place, a contact on the part of the defendants supportive of jurisdiction.
Nor does a Pennsylvania choice of law provision, standing alone, confer jurisdiction on this court. Burger King Corp. v. Rudzewicz, supra; Time Share Vacation Club v. Atlantic Resorts, Ltd., supra. A choice of law provision is only a factor to show whether defendants could reasonably foresee that their acts would have effect in Pennsylvania; it does not itself vest jurisdiction. In Burger King, such a provision was relevant to, but not determinative of, jurisdiction. It was only the provision coupled with a "20-year interdependent relationship" between the defendant and the plaintiff's corporate headquarters in the forum state, that ultimately conferred jurisdiction. 471 U.S. at 482. Here, there is no interdependent relationship.
Unlike in Burger King, future business collaborations were not contemplated by either of the parties to this action. The contract there was a franchise agreement that had a term of twenty (20) years. By its very nature, a franchise agreement is different from a loan agreement or a promissory note. A franchise agreement ensures a substantial and continuing relationship between the parties in order to promote their common business interest. The defendant in Burger King needed to maintain contacts with the plaintiff in the future to get the benefits of plaintiff's expertise in training,
market research and advertising. Here, there was no such need.
Thus, Atlantic's affidavit has failed to prove that the Brunos have significant contacts with the forum state to warrant the exercise of in personam jurisdiction over them. Since Atlantic has not demonstrated any other affiliations between the Brunos and Pennsylvania, I conclude that jurisdiction is lacking.
Moreover, assuming arguendo that Atlantic could have established that the Brunos had significant contacts with Pennsylvania, fundamental fairness militates strongly against the assertion of jurisdiction over these defendants on the claims alleged in this action. "Jurisdiction may not be grounded on a contract whose terms have been obtained through . . . 'overweening bargaining power' and whose application would render litigation 'so gravely difficult and inconvenient that [a party] will for all practical purposes be deprived of his day in court.'" Burger King, supra 471 U.S. at 486 quoting The Bremen v. Zapata Off-Shore Co., supra. The evidence shows that the loan documents were not negotiated at arms length, but rather, there was disparity of bargaining power between the Brunos and Atlantic. Nothing suggests that the Brunos had any latitude to negotiate reduced amounts of interest or a reduced loan origination fee in exchange for the added risk of suit in Pennsylvania. They signed a standard form contract with non-negotiable terms.
Thus, plaintiff's claims must be dismissed for lack of personal jurisdiction over the defendants. An order follows.
AND NOW, this 31st day of August, 1988, upon consideration of defendants' Motion to Dismiss and plaintiff's response thereto, it is hereby ORDERED and DECREED that defendants' Motion is GRANTED.