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WRIGHT v. SHERWIN-WILLIAMS CO.

March 20, 1989

ADRENA WRIGHT, ALENA WRIGHT, and ALVINA WRIGHT, minors by their parent and natural guardian, ALETHEA WRIGHT, and ALETHEA WRIGHT, in her own right, Plaintiffs
v.
SHERWIN-WILLIAMS COMPANY, NL INDUSTRIES, INC., EAGLE-PICHER INDUSTRIES, INC., ATLANTIC RICHFIELD COMPANY, successor to INTERNATIONAL SMELTING AND REFINING COMPANY, SCM CORPORATION, successor to GLIDDEN COMPANY, and LEAD INDUSTRIES ASSOCIATION, Defendants; CURTIS L. THOMAS and JEWEL THOMAS, minors, by their parent and natural guardian, JOYCE L. THOMAS, and JOYCE L. THOMAS, in her own right, Plaintiffs v. SHERWIN-WILLIAMS COMPANY, NL INDUSTRIES, INC., EAGLE-PICHER INDUSTRIES, INC., ATLANTIC RICHFIELD COMPANY successor to INTERNATIONAL SMELTING AND REFINING COMPANY SCM CORPORATION, successor to GLIDDEN COMPANY, and LEAD INDUSTRIES ASSOCIATION, Defendants



The opinion of the court was delivered by: WEBER

 Defendant Lead Industries Association filed a motion to dismiss asserting lack of in personam jurisdiction. Plaintiffs responded with a brief and supporting evidentiary material. Because we conclude that the proof submitted by plaintiffs satisfies both the Pa. Long Arm Statute, 42 Pa.C.S.A. § 5322 and due process considerations, defendant's motion will be denied.

 Plaintiffs filed suit alleging that the minor children suffered injury as a result of exposure to lead products produced and sold by the various defendants, except Lead Industries Association. Lead Industries is a trade association with a membership comprised of various manufacturers and purveyors of lead products. The Association does not produce or sell any product. It is included in Count IV of the Complaints on the allegation that it and the other defendants purposely concealed the dangers of lead exposure, misled the public and failed to provide adequate warnings.

 The Association filed a Motion to Dismiss with brief, contending that exercise of personal jurisdiction over it in this forum was improper under both the Pa. Long Arm Statute and constitutional due process considerations. The burden of establishing a basis for the exercise of personal jurisdiction is on the plaintiffs and mere allegations are insufficient. Evidentiary support is required. Plaintiffs have responded to defendant's motion with a brief and evidentiary materials.

 The facts fairly adduced from the evidentiary material submitted can be summarized as follows. The Association began in 1928 as an unincorporated trade association and was incorporated in 1958 in New York. It has always had its headquarters in New York, N.Y. Between 5 to 10% of its membership is drawn from Pennsylvania, and in earlier years this percentage was higher. The Association's operating funds are drawn almost entirely from member's dues, and so a similar percentage of annual dues is drawn from Pennsylvania. Pennsylvania residents employed by Pennsylvania members have served on Association committees and other posts. Until recently the Association produced a trade magazine titled "Lead" which was distributed to members. The Association has also published pamphlets, monographs and test reports on issues concerning lead. These publications are available to members and to the general public upon request. The Association has also participated in several seminars and hearings held in Pennsylvania concerning the environmental impact of lead and in 1936 it became a member of a Pittsburgh based organization concerned with air quality. For several years the Association sponsored an educational program at Penn State University. On at least two occasions the Association took an active role either for or against items of legislation in Pennsylvania concerning lead exposure.

 The Pa. Long Arm Statute, 42 Pa.C.S.A. § 5322(a)(1) permits the exercise of personal jurisdiction over a defendant when the claim arises from that defendant's transaction of business in Pennsylvania. Transacting business is further defined in pertinent part as:

 
(i) The doing by any person in this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object.
 
(ii) The doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object with the intention of initiating a series of such acts.

 The Pa. Long Arm Statute also permits the assertion of personal jurisdiction when a defendant:

 
(3) Caus[es] harm or tortious injury by an act or omission in this Commonwealth.
 
(3) Caus[es] harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth.

 Plaintiffs have alleged in their Complaints that the Association and its members concealed and misrepresented the facts concerning the dangers of lead exposure. The Association's actions included those Pennsylvania contacts described above as well as numerous activities outside Pennsylvania including sponsoring studies and publishing reports. There is ample evidence of such events to support personal jurisdiction on these grounds.

 Even if the Long Arm Statute is satisfied, any assertion of personal jurisdiction must also satisfy constitutional due process guarantees. Critical to this analysis is whether the defendant "purposefully availed" itself of conducting business in Pennsylvania. This test is intended to protect a non-resident defendant from jurisdiction based solely on random, fortuitous or attenuated contacts, or the unilateral activity of another party or ...


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