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TANDY COMPUTER LEASING v. JOHN DEMARCO (10/04/89)

filed: October 4, 1989.

TANDY COMPUTER LEASING, A DIVISION OF TANDY ELECTRONICS, INC., F/K/A A & A FINANCIAL CORPORATION APPELLANT,
v.
JOHN DEMARCO, D/B/A FURGUSON VENDING CO. APPELLEE



Appeal from the Order of September 8, 1988, in the Court of Common Pleas of Fayette County, Civil Division, at No. 892 of 1986, D.S.B.

COUNSEL

Charles O. Zebley, Jr., Uniontown, for appellant.

Jeffrey T. Olup, Charleroi, for appellee.

Rowley, Beck and Montgomery, JJ.

Author: Beck

[ 388 Pa. Super. Page 130]

Appellant, Tandy Computer Leasing ("Tandy") and appellee John DeMarco ("DeMarco") entered into an agreement dated September 15, 1981 for the lease of certain computer equipment and accessories. Tandy maintains a place of business in Texas and the lease by its own terms was deemed made there. The equipment was shipped from Texas to DeMarco, who is a Pennsylvania resident and who conducts no business in Texas. After mailing several payments on the lease to Tandy in Texas, DeMarco returned the equipment to Tandy and failed to make further payments.

Tandy sued DeMarco in Texas for amounts allegedly due under the lease and obtained a default judgment. Tandy then filed the judgment in Fayette County, Pennsylvania, where DeMarco resided, in accordance with the Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S.A. § 4306 (1981), and proceeded to attempt to execute on the judgment.

DeMarco initially filed a petition to open the judgment, but later filed an amended petition to open or strike. The petition to strike was exclusively based on DeMarco's contention that the Texas judgment was void for lack of personal jurisdiction. DeMarco alleged that he is a non-resident of Texas, maintains no regular place of business there, has not designated an agent for receipt of service in Texas, and has committed no act nor consummated any transaction in Texas sufficient to confer personal jurisdiction over him on the courts of Texas. Thus, DeMarco

[ 388 Pa. Super. Page 131]

    sought to have the court of common pleas deny the Texas judgment full faith and credit and strike it in Pennsylvania.

Tandy filed an answer in response to the petition to strike, alleging that the Texas court did have personal jurisdiction over DeMarco on two grounds. First, Tandy pointed to paragraph 18 of the lease, which states:

This lease . . . shall be governed and construed in accordance with Texas law and shall have been deemed to be made in Fort Worth, Texas.

Tandy argued that this constituted a consent to personal jurisdiction in Texas by DeMarco. Tandy further argued that DeMarco had sufficient minimum contacts with the state of Texas to confer personal jurisdiction. These contacts were alleged to be the fact that the lease arose in Texas and provided that Texas law would apply, and that the leased equipment was shipped to DeMarco from Texas.

DeMarco elected to proceed on the petition and answer, without any further development of the factual record. On September 8, 1988, the trial court granted the Petition to Strike, finding that the Texas judgment had been entered without personal jurisdiction. The court found as a matter of law that the choice of governing law provision of the lease did not constitute a consent to jurisdiction and that DeMarco did not have sufficient contact with Texas to give its courts jurisdiction over him. This timely appeal followed.*fn1

Tandy states the issues on appeal as follows:

1. Is a foreign judgment enforceable in Pennsylvania when:

     a. The defendant has consented in advance to the jurisdiction of the foreign court in his contract with the plaintiff; or

     b. The foreign jurisdiction had sufficient minimum contacts with the defendant under that jurisdiction's

[ 388 Pa. Super. Page 132]

    law to permit its exercise of personal jurisdiction over him?

2. When the lower court decides that a foreign judgment is unenforceable because of lack of jurisdiction by considering evidence outside the record, did the lower court err in striking the judgment instead of opening it?

Our review of the trial court's decision to strike is limited to ascertaining whether the trial court manifestly abused its discretion or committed an error of law. Bittenbender v. Southeastern Pennsylvania Transportation Authority, 362 Pa. Super. 243, 523 A.2d 1173, allocatur denied, 517 Pa. 602, 536 A.2d 1327 (1987).

Consideration of the issues posed must begin with a brief reference to the legal context in which they arise. This context is the Pennsylvania Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S.A. § 4306 (1981) (the "Act"). The Act is grounded in the constitutional obligation of each state to give full faith and credit to the judgments of other states. U.S. Const. art. IV, § 1.*fn2 The Act provides a simple procedure for the transfer of money judgments rendered by the courts of other states to Pennsylvania. It permits the filing of such a judgment in the courts of common pleas, and provides:

(b) . . . A judgment so filed shall be a lien as of the date of filing and shall have the same effect and be subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a judgment of any court of common pleas of this Commonwealth and may be enforced or satisfied in like manner.

Id. 4306(b).

The Act also requires that any judgment so filed be accompanied by an affidavit ...


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