filed: March 13, 1989.
TEANN J. SCOGGINS, APPELLANT,
JIMMY D. SCOGGINS, APPELLEE
Appeal from the Order entered December 30, 1987 in the Court of Common Pleas of York County, Civil Division, No. 87 SU 0093-02D.
Timothy E. Kane, York, for appellant.
Jeffrey D. Lobach, York, for appellee.
Beck, Kelly and Hester, JJ.
[ 382 Pa. Super. Page 510]
In this opinion, we are called upon to determine whether an assertion of "marital domicile" by itself alleges sufficient minimum contacts, pursuant to the Pennsylvania Long-Arm Statute, to withstand a preliminary objection asserting the absence of in personam jurisdiction over a nonresident, nondomiciliary defendant in an action brought by a resident spouse concerning economic claims arising out of the marital relationship.
We find that although "marital domicile" may provide sufficient minimum contacts with Pennsylvania to permit exercise of in personam jurisdiction, the bare assertion of the legal conclusion that marital domicile existed in Pennsylvania without pleading further facts is not a sufficient factual predicate for the disposition of preliminary objections alleging the absence of personal jurisdiction over a nonresident, nondomiciliary defendant. The assertion of marital domicile is a conclusion of law which must be supported by specific facts. Moreover, while the fact of
[ 382 Pa. Super. Page 511]
former marital domicile within a forum is a highly relevant factor in determining whether long-arm jurisdiction is appropriate, it is not necessarily dispositive. For reasons which follow, we remand for further proceedings in the trial court upon the question of whether in personam jurisdiction could properly be exercised in this case.
FACTS AND PROCEDURAL HISTORY
Teann J. Scoggins ("appellant") and Jimmy D. Scoggins ("appellee") were married in York, Pennsylvania, on February 12, 1983. The parties separated, and appellee moved to Florida, where he has since established his domicile. Appellant continues to reside in York, Pennsylvania. The scant record before us does not reveal when the parties separated or whether they ever lived together outside of Pennsylvania. We take judicial notice of the fact that Florida requires a six month residency period before a petition in divorce may be filed.*fn1 Therefore, we note that appellee must have resided in Florida by at least June 18, 1986, as he filed a petition for divorce in Florida on November 18, 1986. Appellant was served with a copy of that action on December 1, 1986.
On January 9, 1987, appellant instituted her own divorce action against appellee in Pennsylvania. In her complaint for divorce, appellant asserted claims for equitable distribution, alimony, alimony pendente lite, counsel fees, expenses, and costs. Appellee was served with notice of appellant's complaint.
Appellee obtained an ex parte divorce decree in Florida on January 14, 1987.*fn2 On February 4, 1987, appellee
[ 382 Pa. Super. Page 512]
filed preliminary objections to appellant's divorce action alleging lack of subject matter jurisdiction, failure to state a cause of action upon which relief can be granted and lack of personal jurisdiction. The trial court refused to grant appellee's first two preliminary objections, based on its conclusion that appellant's complaint stated a cause of action for economic relief which could be resolved by a court in Pennsylvania. However, the trial court found that it could not exercise personal jurisdiction over appellee, a nonresident. The trial court explained that "the facts [of this case] may oblige the use of Pennsylvania law by a Court in deciding this case, but they are not sufficiently clear to allow this Court to fairly exercise personal due process jurisdiction over the . . . [appellee]." (Trial Ct. Op. at 8). (Emphasis added). This timely appeal follows.*fn3
Appellant raised the following issues for our consideration:
Whether the lower court erred in dismissing the action for lack of personal jurisdiction:
A. Does the situs of the marital domicile alone assure sufficient minimum contacts to satisfy the due process tests; and,
B. Did the lower court fail to follow established procedures by deciding the case on controverted facts alone and without taking additional evidence?
(Appellant's Brief at 3). Upon review of the parties' briefs, the record, the applicable statutory and constitutional authority and the relevant case law, we vacate the trial court's order and remand with instructions.
[ 382 Pa. Super. Page 513]
We shall address appellant's issues in the following manner. First, we shall consider the standard of review, as well as the general rules, which are applicable to cases that have been dismissed on preliminary objections due to lack of personal jurisdiction. Secondly, we shall examine the Pennsylvania Long-Arm Statute to determine which provision applies to cases such as the one sub judice. Thirdly, we shall consider what must be pled to meet, at least preliminarily, the minimum requirements of the applicable provision of the Pennsylvania Long-Arm Statute. Finally, we shall apply the above considerations to the facts of the instant case and dispose of the issues raised on appeal.
I. STANDARD OF REVIEW
Our standard of review of an appeal from an order granting a preliminary objection which challenged the exercise of in personam jurisdiction has been summarized as follows:
[W]hen preliminary objections, if sustained, would result in the dismissal of an action, such objections should be sustained only in cases which are clear and free from doubt. (citation omitted). Moreover, when deciding a motion to dismiss for lack of personal jurisdiction the court must consider the evidence in the light most favorable to the non-moving party.
Delaware Valley Underwriting v. Williams & Sapp, 359 Pa. Super. 368, 373, 518 A.2d 1280, 1282 (1986) (citations omitted). See also Gordon v. Pennsylvania Blue Shield, 378 Pa. Super. 256, 548 A.2d 600, 601 (1988).
When a defendant wishes to challenge the court's exercise of in personam jurisdiction, he may do so by filing preliminary objections. Lox, Stock & Bagels, Inc. v. Kotten Machine Co. of California, Inc., 261 Pa. Super. 84, 87, 395 A.2d 954, 955 (1978). As the moving party, the defendant, has the burden of supporting its objections to the court's jurisdiction. Schmitt v. Seaspray-Sharkline, Inc., 366 Pa. Super. 528, 531, 531 A.2d 801, 803 (1987) (emphasis
[ 382 Pa. Super. Page 514]
in original); Delaware Valley Underwriting v. Williams & Sapp, supra, 518 A.2d at 1283 (emphasis added).
Once the plaintiff has produced some evidence to support jurisdiction, the defendant must come forward with some evidence of his own to dispel or rebut the plaintiff's evidence. Schmitt v. Seaspray-Sharkline, Inc., supra, 531 A.2d at 803; Alumbaugh v. Wallace Business Forms, 226 Pa. Super. 511, 516, 313 A.2d 281, 283 (1973). The moving party may not sit back and, by the bare allegations as set forth in the preliminary objections, place the burden upon the plaintiff to negate those allegations. Schmitt v. Seaspray-Sharkline, Inc., supra; Alumbaugh v. Wallace Business Forms, supra. Only when the moving party has properly raised the jurisdictional issue does the burden of proving jurisdiction fall upon the party asserting it. Biel v. Herman Lowenstein, Inc., 411 Pa. 559, 563, 192 A.2d 391, 393 (1963); Schmitt v. Seaspray-Sharkline, Inc., supra, 531 A.2d at 803.
Where an essential factual issue arises from the pleadings as to the scope of a defendant's activities within the Commonwealth, the plaintiff has the right to depose defendant as to his activities within the Commonwealth, and the court must permit the taking of the deposition before ruling on the preliminary objections. Schmitt v. Seaspray-Sharkline, Inc., supra; Manchel v. Weil, 272 Pa. Super. 591, 595, 416 A.2d 1054, 1056 (1979). Where neither party presents evidence by which the court can properly resolve the issue, it is appropriate to remand with directions that an order be entered allowing the parties a reasonable period of time in which to present evidence by deposition, interrogatories or otherwise. Schmitt v. Seaspray-Sharkline, Inc., supra; Lox, Stock & Bagels, Inc. v. Kotten Machine Co. of California, Inc., supra, 395 A.2d at 956.
II. THE PENNSYLVANIA LONG-ARM STATUTE
The Pennsylvania Long-Arm Statute, 42 Pa.C.S.A.
[ 382 Pa. Super. Page 515]
§ 5322,*fn4 is basically divided into two sections. Section (a) contains ten subsections, which specify particular types of contact with Pennsylvania which will be deemed sufficient to warrant the exercise of long-arm personal jurisdiction. Section (b) is a catchall provision which authorizes the exercise of personal jurisdiction over persons who do not come within one of the express provisions of the ten subsections of section (a) so long as the minimum requisites of federal constitutional law are met. In the instant case, appellant contends that § 5322(a)(4) or, alternatively, § 5322(b) provides the basis for the exercise of personal jurisdiction over appellee. Appellant contends that appellee's non-payment of alimony and/or other forms of economic relief provided in the Divorce Code*fn5 would fall under 42 Pa.C.S.A. § 5322(a)(4) and therefore permit the courts of this Commonwealth to exercise in personam jurisdiction over appellee. Alternatively, appellant contends that the site of the marital domicile alone is sufficient to satisfy the minimum contacts of 42 Pa.C.S.A. § 5322(b).
The separate provisions of 42 Pa.C.S.A. § 5322(a)(1-10) set forth various circumstances which the legislature presumed to meet the minimum requisites of due process. Section 5322(b) authorizes long-arm jurisdiction in any other
[ 382 Pa. Super. Page 516]
situations where the minimum requisites of due process are met. As a practical matter, each of the ten subsections of § 5322(a) are wholly subsumed within the catchall provision of § 5322(b). Consequently, we find that it is unnecessary and perhaps unwise to enter into a subtle and potentially confusing analysis of the precise scope of any of the subsections of § 5322(a). Rather, the only appropriate focus in cases such as the one sub judice is whether the minimum requisites of due process have been met. If they have not been met, the various subsections of § 5322(a) cannot statutorily authorize an unconstitutional exercise of in personam jurisdiction. If they have been met, then § 5322(b) authorizes the exercise of in personam jurisdiction, and any analysis of the potential applicability of the subsections of § 5322(a) would be superfluous.
Thus, we decline to consider whether § 5322(a)(4) applies to the instant case. "Because our long-arm statute permits the courts of this Commonwealth to exercise personal jurisdiction over nonresident defendants 'to the fullest extent allowed under the Constitution of the United States,' . . ., we need only decide whether holding . . . [the nonresident defendant] subject to a suit in Pennsylvania would be a violation of due process." Temtex Products, Inc. v. Kramer, supra, 479 A.2d at 505, 506.
III. REQUISITES OF 42 Pa.C.S.A. § 5322(b)
In order to determine whether marital domicile provides the minimum contact necessary to satisfy the due process requirement of 42 Pa.C.S.A. § 5322(b), we shall first examine the constitutional principle of due process as set forth by the United States Supreme Court. Next, we shall turn for guidance to our sister states to see how they have decided the narrow issue presented in the instant case. And finally, we shall examine case law from this Commonwealth which has defined "domicile" to determine what facts must be pled to support the legal conclusion of marital domicile.
[ 382 Pa. Super. Page 517]
The Due Process Clause of the Fourteenth Amendment operates as a limitation on the jurisdiction of state courts to enter judgments affecting the rights or interests of nonresident defendants. See Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). A valid judgment imposing a personal obligation or duty in favor of the plaintiff may be entered only by a court having jurisdiction over the person of the defendant. See Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878). The United States Supreme Court in International Shoe Co. v. Washington, stated:
[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'
326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945). This test of "minimum contacts" announced in International Shoe Co. v. Washington, supra, is not susceptible of mechanical application; rather the facts of each case must be weighed to determine whether the requisite affiliating circumstances are present. Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). The Court recognized in Kulko v. Superior Court of California, supra, that "this determination is one in which few answers will be written 'in black and white. The greys are dominant and even among them the shades are innumerable.'" Kulko v. Superior Court of California, supra, 436 U.S. at 92, 98 S.Ct. at 1697, 56 L.Ed.2d at 141 quoting Estin v. Estin, 334 U.S. 541, 545, 68 S.Ct. 1213, 1216, 92 L.Ed. 1561, 1566 (1948).
The nature of the required "minimum contacts" has generally been given broad interpretation and emphasis has been placed upon the aspect of fair play and substantial justice. However, the United States Supreme Court, in Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d
[ 382 Pa. Super. Page 518]
(1958), warned that "it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts." 357 U.S. at 251, 78 S.Ct. at 1238, 2 L.Ed.2d at 1296.
While the interest of the forum state and of the plaintiff in proceeding with the cause in the plaintiff's forum of choice are to be considered,*fn6 "an essential criterion in all cases is whether the 'quality and nature' of the defendant's activity is such that it is 'reasonable' and 'fair' to require him to conduct his defense in . . . [the forum] state." Kulko v. Superior Court of California, supra, 436 U.S. at 92, 98 S.Ct. at 1697, 56 L.Ed.2d at 141 quoting International Shoe Co. v. Washington, supra, 326 U.S. at 316-317, 66 S.Ct. at 159, 90 L.Ed. at 103. Thus, the existence of personal jurisdiction generally depends upon the presence of reasonable notice to the defendant that an action has been brought,*fn7 and a sufficient connection between the defendant and the forum state to make it fair to require defense of the action in the forum state.
In light of these general constitutional principles, we must consider whether the prior establishment of a marital domicile in the forum state, by itself, is a sufficient contact to permit the forum state to exercise in personam jurisdiction over a nonresident, nondomiciliary defendant with respect to claims arising from the marital relationship. Essentially, we must consider whether the nonresident, nondomiciliary defendant's activity in the forum state, i.e. the prior establishment of a marital domicile, is such that it would be reasonable and fair to require him or her to conduct a defense in the forum state. Because the appellate
[ 382 Pa. Super. Page 519]
courts in this Commonwealth have not previously addressed this narrow issue, we turn to our sister states for guidance.
Some of our sister states have enacted specific provisions in their long-arm statutes which provide that personal jurisdiction over the nonresident defendant may be exercised for actions seeking alimony, support or property settlement when the forum state was the site of the marital domicile of the parties and the plaintiff continues to be domiciled in that state.*fn8 A majority of states now provide long-arm jurisdiction for the support, alimony and property divisions incidents of divorce actions when the defendant lived in the state just before the separation and the plaintiff has continued to live there.*fn9
Other states provide for long-arm jurisdiction in such actions under general "any constitutional basis" clauses similar to 42 Pa.C.S.A. § 5322(b).*fn10 The exercise of long-arm jurisdiction has been upheld in states which have "any constitutional basis" provisions when the forum was not the last marital domicile,*fn11 and even when it was never the
[ 382 Pa. Super. Page 520]
marital domicile.*fn12 However, attempts to exercise long-arm jurisdiction over a nonresident defendant who was never domiciled in the forum state regarding claims arising from the marital relationship have generally been denied as unreasonable. See Kulko v. Superior Court of California, supra, (mere fact that plaintiff and children of marriage are domiciled in forum state and parties were married in forum state does not support long-arm jurisdiction over defendant for award of support, alimony or property; defendant was never domiciled in forum state).
The fact of marital domicile within the forum has been considered an important factor to consider in determining whether a forum state may reasonably exercise in personam jurisdiction over a nonresident, nondomiciliary defendant. For example, in Hines v. Clendenning, 465 P.2d 460 (Okla.1970), the Supreme Court of Oklahoma held that in personam jurisdiction could be exercised over the nonresident husband in a divorce action which contained a prayer for the payment of alimony, costs and attorney fees because, inter alia, "the wife was effectively abandoned in Oklahoma and her right, if any, to alimony accrued at least in part in Oklahoma."*fn13 465 P.2d at 463 (emphasis added).
[ 382 Pa. Super. Page 521]
On the other hand, the fact of prior marital domicile in the forum state alone does not necessarily trigger the exercise of long-arm jurisdiction in all cases. In Nickerson v. Nickerson, 25 Ariz.App. 251, 542 P.2d 1131 (1975), the Court of Appeals of Arizona held that where the parties had left Arizona and established a new site of matrimonial domicile in New York, the subsequent return of the plaintiff-wife to Arizona did not provide sufficient connection between Arizona and the absent spouse, defendant-husband, to authorize in personam jurisdiction over him under the Arizona long-arm statute.*fn14 In reaching its decision the Court explained:
[ 382 Pa. Super. Page 522]
We hold that when a person has established a matrimonial domicile in the State of Arizona that person has caused an event to occur in this state which authorized in personam jurisdiction under Rule 4(e)(2), Arizona Rules of Civil Procedure. The establishment of a matrimonial domicile provides such a nexus with the state that traditional notions of fair play and substantial justice will not be offended by the exercise of in personam jurisdiction over an absent spouse in an action Page 522} brought by a resident spouse concerning marital obligations. Denial of such in personam jurisdiction would only encourage migratory divorces by offering a shield to the spouse wishing to avoid financial responsibilities. However, in order to warrant Arizona in personam jurisdiction, Arizona must be the last state of matrimonial domicile.
542 P.2d at 1133. (Emphasis added).
Finally, in some cases the mere fact of prior residence without establishing domicile may provide minimum contacts sufficient to justify the exercise of long-arm jurisdiction. In Brislawn v. Brislawn, 443 So.2d 32 (Ala.1983), the Supreme Court of Alabama found that the courts of Alabama could exercise in personam jurisdiction over a nonresident defendant-husband who had spent only ten days in Alabama with his wife before they left for a tour of military duty in West Germany. The Supreme Court of Alabama held that in personam jurisdiction could be exercised over the non-resident husband without violating constitutional due process requirements because Alabama was the only place in the United States where the parties had lived together as husband and wife, except for their wedding night in Georgia. The Court concluded that under those facts, Alabama had a more significant connection with the marital relationship of the parties than any other jurisdiction in the United States. The Court distinguished the facts in Brislawn from those in Corcoran v. Corcoran, 353 So.2d 805 (Ala.Civ.App.1978). In Corcoran, supra, the parties were domiciled together as husband and wife in North Carolina, not Alabama, and had not lived in Alabama for over four years before the wife returned to Alabama to file for a divorce. In Corcoran, the Alabama Appeals Court held that the wife's return to Alabama did not permit the courts of Alabama to exercise in personam jurisdiction over the husband. The court found that the husband had not lived in Alabama for over four years, and North Carolina, as the last state of marital domicile, had more significant connections with the marital relationship.
[ 382 Pa. Super. Page 523]
"Marital domicile" has been used by our sister states both as a sufficient basis to permit the exercise of in personam jurisdiction, and as a significant factor to consider in determining whether in personam jurisdiction should be exercised under a long-arm jurisdiction statute. We find these cases to be persuasive as to the type of factors necessary to determine whether long-arm jurisdiction may and ought to be exercised in a particular case.
However, the determination of a person's domicile cannot be made with mechanical ease.*fn15 A declaration of domicile alone is self-serving and insufficient; it must be supported by acts which are in accordance with the declaration. Alburger v. Alburger, 138 Pa. Super. 339, 10 A.2d 888 (1940); McCarthy v. Philadelphia Civil Service Commission, 19 Pa. Commw. 383, 339 A.2d 634 (1975) aff'd 424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976). Domicile, itself, is a conclusion to be drawn from the facts in evidence. Commonwealth v. Petrosky, 168 Pa. Super. 232, 77 A.2d 647 (1951); See also DiMilia v. DiMilia, 204 Pa. Super. 188, 203 A.2d 382 (1964); Commonwealth ex rel. Harmon v. Harmon, 172 Pa. Super. 459, 94 A.2d 181 (1953).
The term "domicile" has been defined in this Commonwealth as:
... the place in which, both in fact and intent, the home of a person is established without any purpose to return to a former
home; the place where he lives, in distinction from that where he transacts his business; the place where he chooses to abide,
in distinction from that in which he may be for a temporary purpose....
[ 382 Pa. Super. Page 524]
Wallace v. Wallace, 371 Pa. 404, 410, 411, 89 A.2d 769, 771 (1952); see also Bell v. Bell, 326 Pa.Super. 237, 248, 473
A.2d 1069, 1075 (1984). Thus, "it seems that a person's domicile is increasingly being determined by close scrutiny of his
subjective intentions or state of mind as to whether or not he considers a particular place to be his home." McKenna v. McKenna,
282 Pa.Super. 45, 50, 422 A.2d 668, 670 (1980); see also Bell v. Bell, supra, 473 A.2d at 1075. Therefore, "[i]ntent, being
purely subjective, must to a large extent be determined by the acts which are manifestations of the intent." Wallace v. Wallace,
supra, 89 A.2d at 771; see also Bell v. Bell, supra, 473 A.2d at 1075. A determination of whether a person is domiciled or had
been domiciled in a particular jurisdiction may not be made, then, on bare assertions in legal pleadings, unsupported by a pleading
of additional facts establishing the basis for the assertion of domicile.
In the instant case, appellant has alleged that Pennsylvania was the site of the marital domicile of the parties. However,
she has not pled the facts upon which this assertion is based. Moreover, the present record fails to disclose whether the parties
ever established marital domicile or marital residence elsewhere in the United States, or whether other factors support or negate a
conclusion that Pennsylvania may reasonably, and therefore constitutionally, exercise personal jurisdiction over appellee in this
matter. Thus, while it appears that in personam jurisdiction may be appropriate in this case under the Pennsylvania Long-Arm
Statute, we nonetheless find that the present record was inadequate to properly resolve the question of whether the exercise of
long-arm jurisdiction is in fact constitutionally permissible in this case. Because neither party presented sufficient evidence
from which the trial court could properly resolve that issue, we remand with directions that an order be entered allowing the
parties a reasonable period of time in which to supplement the record on this issue with depositions,
[ 382 Pa. Super. Page 525]
interrogatories, affidavits and other relevant evidence.*fn16
The order of the trial court sustaining preliminary objections to personal jurisdiction is vacated and the case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.