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ATLANTIC FIN. FED. v. BRUNO

August 31, 1988

ATLANTIC FINANCIAL FEDERAL
v.
DAVID D. BRUNO and JOELLA M. BRUNO



The opinion of the court was delivered by: GAWTHROP

 ROBERT S. GAWTHROP, III, UNITED STATES DISTRICT JUDGE

 Before the court in this breach of contract case is defendants' Motion to Dismiss pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. *fn1" Plaintiff, Atlantic Financial Federal ("Atlantic"), filed this action seeking recovery of amounts allegedly due it pursuant to a promissory note and other loan documents with David and Joella Bruno (the "Brunos"). Defendants assert that the action should be dismissed because this court lacks personal jurisdiction over them in that they are citizens and residents of the State of Alaska and have never transacted any business within the Commonwealth of Pennsylvania. Upon consideration of the briefs and affidavits submitted in this matter, I shall grant defendants' motion, for the reasons set forth below.

 I. BACKGROUND

 David and Joella Bruno are citizens and residents of Alaska. Atlantic Financial Federal is a Pennsylvania bank. Basically, the Brunos obtained a loan from Atlantic to invest in an energy project, Triad American Energy ("Triad"), in California. The Brunos first learned of the Triad project through their attorney, Lance Wells. After attending a meeting and presentation staged by a Triad salesperson in Lance Wells' office in Anchorage, Alaska, and reviewing various documents describing Triad, David Bruno decided to purchase two (2) units in Triad. The paperwork for the purchase and the check for the downpayment were executed in Alaska, in the Brunos' attorney's office. At that time, the Triad salesperson told David Bruno that Triad would arrange a loan to finance the remainder of the purchase price. Although the Brunos never solicited a loan with Atlantic, made application for a loan from Atlantic, nor communicated whatsoever with Atlantic (Bruno Supplemental Affidavit, p. 3), on December 30, 1985, a set of loan documents from Atlantic was forwarded to the Brunos in Glennallen, Alaska by air courier. Upon receipt of the loan documents David Bruno telephoned his attorney to inquire about Atlantic and learned that Atlantic was the financing agent arranged by Triad. Thereafter, without negotiation, the Brunos executed the loan documents, including a note for $ 205,000 (the "Note"), and delivered them to the air courier pilot who returned them to the Brunos' attorney in Anchorage. Bruno Supplemental Affidavit, p. 3.

 Approximately a year after the Triad Project was initiated the project went belly-up and Triad filed for bankruptcy. Thereafter the Brunos discontinued their payments on the Note to Atlantic and Atlantic filed this action.

 II. DISCUSSION

 In considering a motion to dismiss, the court ordinarily takes as true the allegations in the complaint. However, this general rule does not apply where the movant is challenging in personam jurisdiction. When the defendant mounts such a challenge, the plaintiff bears the burden of proving that the defendant's contacts with the forum are sufficient. Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984). The plaintiff must come forward with sufficient jurisdictional facts by affidavit, deposition or other competent evidence to establish the court's jurisdiction over the defendant. Time Share, 735 F.2d at 66-67, Allen Organ Co. v. Kawai Musical Instruments Manufacturing Co., Ltd., 593 F. Supp. 107 (E.D. Pa. 1984).

 Fed.R.Civ.P. Rule 4(e) permits this court to exercise personal jurisdiction over non-resident defendants to the extent permitted by the laws of Pennsylvania. Under Pennsylvania's long-arm statute, 42 Pa. Cons. Stat. § 5301, et seq., there are two bases by which a non-resident defendant may become subject to the jurisdiction of this court. The first, general jurisdiction, exists when a non-resident defendant is carrying on a "continuous and systematic part of its general business within [the] Commonwealth." 42 Pa.Cons. Stat. § 5301. A defendant found to maintain such a presence is subject to the court's jurisdiction even if the cause of action does not arise out of or is unrelated to the defendants' forum related actions. 42 Pa.Cons. Stat. § 5301(b). Dollar Savings Bank v. First Security Bank of Utah, 746 F.2d 208, 211 (3d Cir. 1984).

 If, on the other hand, the defendant is not usually found within the state, but the cause of action arises from defendant's forum-related activities, personal jurisdiction over that defendant is specific. Section 5322 of the long arm statute authorizes the exercise of "specific jurisdiction" over out-of-state defendants in suits arising out of the defendants' forum related activities.

 In addition, 42 Pa. Cons. Stat. § 5322(b) expressly provides that jurisdiction is authorized "to the fullest extent allowed under the Constitution of the United States." Because Pennsylvania's long arm statute expressly incorporates the federal due process standard, it is only necessary to inquire whether the exercise of jurisdiction over the Brunos offends due process. Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 490 (3d Cir. 1985).

 Due process requires that individuals have "fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign," Burger King Corp. v. Rudzewicz, 471 U.S. 462, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985). In other words, defendants must have such minimum contacts with Pennsylvania sufficient enough to make it reasonably foreseeable that they might be called upon to defend an action here. Where a forum seeks to assert specific jurisdiction over a non-consenting out-of-state defendant, the fair warning requirement is satisfied if the defendant has "purposely 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, 471 U.S. at 472 (citations omitted).

 The Brunos argue that personal jurisdiction does not exist over them because they do not have sufficient contacts with Pennsylvania. In support of their argument, the Brunos have attached several affidavits recounting their alleged lack of contacts with this forum.

 Atlantic argues that the Brunos should be subject to jurisdiction in this action because they consented to jurisdiction through the Confession of Judgment clause contained in the Note. Atlantic further argues that the Brunos have sufficient contacts that bring them within the reach of Pennsylvania's long-arm statute ...


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