See also Quill Corp. v. North Dakota, 119 L. Ed. 2d 91, 112 S. Ct. 1904 (1992).
This case is distinguishable from Calder because in this case defendant Costa simply notarized papers for the Fullers. He was not the author of the papers; he simply attested that the Fullers had come before him and sworn to the contents of the affidavits. He did not file or arrange for anything to be filed in court in Pennsylvania at Civil Action No. 91-344, although he did provide the Fullers with some basic procedural information so that they could represent themselves.
Further, defendant Costa did not avail himself of the privilege of conducting business within Pennsylvania, thus invoking the benefits and protection of Pennsylvania laws. Mellon Bank (East) PSFS, Nat'l Assoc. v. Farino, 960 F.2d 1217 (3d Cir. 1992).
In summary, defendant Costa's contacts with Pennsylvania do not suffice for this court to exercise general or specific personal jurisdiction over him. Defendant Costa's motion to dismiss for lack of personal jurisdiction will be granted.
II. Motion to Dismiss for Failure to State a Fraud Claim
In addition to the lack of personal jurisdiction, the court has serious doubts about whether plaintiff has stated a claim upon which relief can be granted for fraud. In particular, plaintiff has failed as a matter of law to allege that defendant Costa made a misrepresentation so as to make out a fraud claim.
The parties agree that in order to state a fraud claim under Pennsylvania law, plaintiff must allege, inter alia, a false representation of existing fact. Complaint of Bankers Trust Co., 752 F.2d 874, 882-83 n.10 (3d Cir. 1984) (reciting all elements of such a claim). As noted above, plaintiff seeks to hold defendant Costa liable for allegedly providing legal advice to the Fullers with regard to Civil Action No. 91-344. Specifically, in his fraud claim, he alleges that defendant Costa "practiced deceit and deception, when he notarized two affidavits, . . . thereby attesting to the sworn statement that affiants were 'Appearing Pro Se,' when in fact [he] knew that he was the attorney of said affiants and that [he] had in fact prepared said affidavits." Complaint, P 26.
It is apparent, therefore, that plaintiff is relying upon defendant Costa's notarizing the two affidavits as constituting a misrepresentation that the affiants were appearing pro se in that other lawsuit. As a result of this alleged misrepresentation, plaintiff claims that his "rights were violated" and that the other lawsuit became "more complicated," causing him additional expenses and "emotional pain and suffering." Complaint, P 27.
By so arguing, plaintiff misperceives the role of a notary public. Essentially, plaintiff is claiming that, by affixing their seal and signature to affidavits, notary publics represent that the facts contained within those affidavits are true. That is not the case. Rather, by notarizing an affidavit, a notary public is simply representing that the affiant appeared before him or her and swore that the facts contained therein were true. In re Bokey's Estate, 412 Pa. 244, 194 A.2d 194, 198 (1963).
Plaintiff contends that defendant Costa generally "made a misrepresentation to the court and the plaintiff when he prepared the pleadings [in the other lawsuit] and caused them to be filed under the guise of the pro se defendants." Plaintiffs brief at 3. In this regard, it seems as if plaintiffs fraud claim is directed at the wrong party, at best. Plaintiff has pointed to nothing aside from defendant Costa's signature and seal on the affidavits which could constitute either a misrepresentation or an act of concealment on defendant Costa's part. See Allstate Insurance Co. v. A.M. Pugh Associates, Inc., 604 F. Supp. 85, 97 (M.D. Pa. 1984). He has failed to state a claim of fraud.
An appropriate order will follow.
Date: July 17, 1992
Timothy K. Lewis
United States District Judge
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 794 F. Supp. 165.
AND NOW, this 17th day of July, 1992, upon consideration of the motion to dismiss plaintiff's complaint or, in the alternative, for summary judgment, filed by the defendants at Document Number 12, and upon further consideration of the briefs in support thereof and in response thereto,
IT IS HEREBY ORDERED that defendants' motion is GRANTED.
Timothy K. Lewis
United States District Judge
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