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KENNETH H. OAKS v. PAUL JOSEPHSON (12/28/89)

filed: December 28, 1989.

KENNETH H. OAKS, LTD., T/A OAKS PRINTING CO., APPELLANT,
v.
PAUL JOSEPHSON, INDIVIDUALLY AND D/B/A THE JOSEPHSON COMPANY AND THE JOSEPHSON CO., INC.



Appeal from the Order Entered Docketed March 21, 1989 in the Court of Common Pleas of Northampton County, Civil Division, No. 1988-C-7650.

COUNSEL

Frank A. Baker, III, Bethlehem, for appellant.

Daniel M. Replogle, III, Camden, N.J., for appellee.

Tamilia, Kelly and Cercone, JJ. Kelly, J., files a concurring statement.

Author: Cercone

[ 390 Pa. Super. Page 104]

This is an appeal from a final*fn1 order of the Court of Common Pleas of Northampton County, sustaining appellee's (defendant's) preliminary objections as to jurisdiction and dismissing appellant's (plaintiff's) complaint. We reverse.

In October, 1988, appellant Kenneth H. Oaks, Ltd. (Oaks) filed a civil action complaint in the lower court alleging breach of a contractual agreement and negligence on the part of appellee The Josephson Company and Paul Josephson individually. Oaks is a Pennsylvania corporation engaged in the business of commercial printing and related services with offices in Northampton County, Pennsylvania. Paul Josephson is a resident of New Jersey and The Josephson Company is a New Jersey corporation with offices in that state. The Josephson Company (Josephson) is an advertising agency which provides services related to marketing communications.

In January, 1988, the parties entered into a contract whereby Oaks was to perform the printing of a sixty-eight page catalog for one of Josephson's clients. Oaks alleged costs of $29,585.00 for these services. In February, 1988,

[ 390 Pa. Super. Page 105]

    the parties contracted for Oaks to render various other printing services to Josephson, including the preparation of 30,000 postcard inserts, for which Oaks' cost was $2,056.00. During the course of the work, appellant prepared proofs, which were reviewed at appellant's offices in Pennsylvania by Josephson's art director. The art director approved the proofs with corrections, and authorized Oaks to print the materials. After delivery of the work to Josephson's client, it was discovered that some of the copy was missing. Appellant notified Josephson of the cost of correcting the errors, made the necessary corrections and billed Josephson for the cost of corrections. Josephson refused payment of this latter amount and appellant commenced the instant action in the lower court. Appellee's petition to strike the complaint for lack of personal jurisdiction was sustained by the lower court, and this timely appeal followed.

"[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." Barber v. Pittsburgh Corning Corp., 317 Pa. Super. 285, 302-03, 464 A.2d 323, 332 (1983), cert. denied 467 U.S. 1205, 104 S.Ct. 2387, 81 L.Ed.2d 346 (1984), citing Botwinick v. Credit Exchange, Inc., 419 Pa. 65, 213 A.2d 349 (1965). "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." Barber v. Pittsburgh Corning Corp., supra. Reviewing the evidence in the instant case in such a light, we find that it does not support the lower court's order granting appellee's preliminary objections.

A court may exercise in personam jurisdiction over a nonresident if (1) jurisdiction is conferred by the state long-arm statute and (2) the exercise of jurisdiction under the statute meets constitutional standards of due process. Eastern Continuous Forms v. Island Business Forms, 355 Pa. Super. 352, 513 A.2d 466 (1986). Under Pennsylvania's long-arm statute, the ...


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