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AMOS v. PENDRY

December 30, 1992

GWILLYM AMOS, JR., an incompetent, by his duly appointed guardian, GWILLYM AMOS, SR., Plaintiff
v.
ROBERT G. PENDRY; SAMUEL D. MORRISON; and JOHNNY BOYLES TRUCKING, INCORPORATED, Defendants



The opinion of the court was delivered by: WILLIAM J. NEALON

 In this personal injury action, the plaintiff has alleged that the defendants, Robert G. Pendry (Pendry), Samuel D. Morrison (Morrison) and Johnny Boyles Trucking, Inc. (Boyles), caused a motor vehicle accident on September 1, 1991, in which the plaintiff sustained "severe, painful, disabling, disfiguring, and permanent injuries." Defendant Morrison has moved pursuant to Fed. R. Civ. P. 12(b)(2) to dismiss the complaint against him on the basis that this court lacks in personam jurisdiction. The plaintiff has filed his brief in opposition, to which the defendant has replied. The time for further reply has passed and the motion is ripe for disposition. For reasons which follow, the court will grant defendant Morrison's motion to dismiss.

 I.

 On the morning of September 1, 1990, while hauling goods from North Carolina to Bergen, New Jersey, Pendry, a truck driver with Boyles, was required to stop along I-78 after his tractor-trailer had become disabled. After examining the vehicle, Pendry, by radio, summoned Morrison, also a driver with Boyles, who was travelling in the near vicinity, for assistance. Morrison stopped and discussed the condition of Pendry's vehicle after which they proceeded to a truck stop where they assisted a representative of Freightliner in making the repairs. The pair then agreed that Pendry would follow Morrison in delivering the goods to Bergen, New Jersey. Pendry was traveling eastward on Route 22 in Phillipsburg, New Jersey, when the collision occurred.

 The plaintiff claims that Morrison is liable for the plaintiff's injuries because his deposition revealed that he had been racing his vehicle against Pendry's at the time of the accident. When Morrison passed through the intersection of Route 22 and the Phillipsburg Mall, Pendry followed in an apparent attempt to keep up with Morrison. Pendry then attempted to cross the intersection against a red light and collided with the plaintiff's vehicle which was exiting from the Phillipsburg Mall. The impact occurred while the plaintiff was crossing the eastbound lanes of Route 22, with a green traffic light in his favor.

 II.

 In considering a motion to dismiss on the basis of the lack of in personam jurisdiction over the defendant, the plaintiff bears the burden of proving that the defendant has sufficient contacts with the forum state. Time Share Vacation Club v. Atlantic Resorts Ltd., 735 F.2d 61, 63 (3rd Cir. 1984). "The plaintiff must come forward with sufficient jurisdictional facts by affidavit, deposition or other competent evidence to establish the court's jurisdiction over the defendant." Atlantic Financial Federal v. Bruno, 698 F. Supp. 568, 569-570, (E.D.Pa. 1988).

 To determine whether in personam jurisdiction exists over a nonresident such as Morrison, a district court sitting in diversity must first look to the forum state for authorization of jurisdiction through the forum state's long arm statute; and second, if the long arm statute does, in fact, confer jurisdiction, it must comport with the Due Process clause of the Constitution. Provident Nat'l Bank v. California Federal Savings & Loan Assoc., 819 F.2d 434, 436 (3d Cir. 1987) ("A federal district court may assert personal jurisdiction over a nonresident of the state in which the court sits to the extent authorized by the law of that state.")(citing Fed.R.Civ.P. 4(3)).

 In Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481 (3rd Cir. 1985), the Third Circuit Court of Appeals noted that:

 This two-step process has been conflated in many states, Pennsylvania among them, by the adoption of a long-arm statute that authorizes jurisdiction to the fullest extent allowed by the United States Constitution. . . . Because Pennsylvania's statute expressly incorporates the federal due process standard, we need only inquire whether in personam jurisdiction over ACL under the circumstances here satisfies due process requirements.

 Id. at 490 (citations omitted); see also 42 Pa. C.S.A. § 5322(b) (jurisdiction of the Pennsylvania courts may be exercised with respect to all persons, including corporations, "to the fullest extent allowed under the Constitution of the United States"). Due Process requires "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 61 S. Ct. 339 (1940)).

 The Van Buskirk court observed that:

 in International Shoe v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945), the Court set forth a two-track approach to determine the constitutional limits on long-arm jurisdiction. Different jurisdictional tests apply where the cause of action arises from non-resident defendant's specific forum-related acts and where the cause of action arises from non-forum acts, but the defendant has an ongoing connection with the forum. The latter exercise of jurisdiction is termed "general jurisdiction," . . . while the former is characterized as "specific jurisdiction."

 Id. at 490 (citations omitted); Here, the facts clearly demonstrate that the exercise of "specific jurisdiction" is inappropriate. The accident which has resulted in the present suit occurred in Phillipsburg, New Jersey and, thus, it cannot be stated that "the cause of action [arose] from the defendant's specific forum-related acts." Van Buskirk, 760 F.2d at 490. Moreover, Morrison does not own any real property within the Commonwealth, nor has ...


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