accordance with the laws of the Commonwealth of Pennsylvania and that the Defendant, by signing the document, agreed to litigate any action or proceeding arising out of the note in any state or federal court located within Philadelphia County and waived any defense of forum non conveniens.
Thereafter, some seven months later on June 19, 1992, Provident Mutual terminated Mr. Bickerstaff's Special Agent's Agreement. On July 8, 1992, it terminated both his company contract and appointment with the State of California. On July 31, 1992, the Plaintiff notified the Defendant that it considered him to be in default and that unless he cured that default within ten days by forwarding a check in the amount of $ 12,000, the entire balance due thereunder would be immediately due and payable and proceedings for repayment would be promptly commenced. This suit was subsequently instituted on December 11, 1992.
By way of the instant motions to dismiss, the Defendant argues (1) that the note's choice of law, forum selection and waiver of forum non conveniens provisions should be disregarded because he did not read or understand them nor was he represented by counsel when he executed the note; and (2) that he does not have the requisite minimum contacts with Pennsylvania to confer either jurisdiction or venue upon this Court.
In deciding a motion to dismiss for lack of personal jurisdiction, the allegations of the complaint are taken as true, however, the burden of proof remains with the plaintiff to demonstrate a jurisdictional predicate by competent proof. Jaffe v. Julien, 754 F. Supp. 49, 51 (E.D. Pa. 1991). Although in the usual case the plaintiff must show that the defendant has sufficient minimum contacts with the forum state such that the assertion of personal jurisdiction over him comports with the notions of fair play and substantial justice, in actions involving forum selection clauses analysis of the contacts with the forum state is inappropriate. Instead, the court must consider the validity and effect of the forum selection clause in order to determine if there has been a consent to in personam jurisdiction. Burger King Corporation v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 2184, 85 L. Ed. 2d 528 (1985); International Shoe Company v. Washington, 326 U.S. 310, 320, 66 S. Ct. 154, 160, 90 L. Ed. 95 (1945); Mellon Bank (East) PSFS National Association v. Farino, 960 F.2d 1217, 1222 (3rd Cir. 1992); Mutual Fire, Marine and Inland Insurance Co. v. Barry, 646 F. Supp. 831, 832-833 (E.D. Pa. 1986).
Furthermore, it has repeatedly been held that forum selection clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable under the circumstances. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S. Ct. 1907, 1913, 32 L. Ed. 2d 513 (1972); Foster v. Chesapeake Insurance Co., Ltd., 933 F.2d 1207, 1218-1219 (3rd Cir. 1991). The interpretation of such clauses, except in certain circumstances, is governed by state law. Mutual Fire, Marine and Inland Insurance Co. v. Barry, supra, at 833, citing General Engineering Corp. v. Martin Marietta Alumina, Inc., 783 F.2d 352, 356-357 (3rd Cir. 1986). Inasmuch as the standard for determining the enforceability of a forum selection clause is the same under Pennsylvania, California and federal law, it is unnecessary to resolve the applicability of federal or state law as to the pertinent choice of laws. Under these commonly held standards, a forum selection clause is unjust and unreasonable when obtained fraudulently or where enforcement would violate a strong public policy of the forum or effectively deprive the other party of his day in court. Cedarbrook Associates v. Equitec Savings Bank, 678 F. Supp. 107, 108 (E.D. Pa. 1987) citing, inter alia, M/S Bremen v. Zapata Off-Shore Co., supra ; Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190, 202 (3rd Cir.), cert. denied, 464 U.S. 938, 104 S. Ct. 349, 78 L. Ed. 2d 315 (1983). Finally, it should be noted that the party opposing the forum selection clause has the heavy burden of proving that the clause should not be enforced and that this burden requires more than a showing of inconvenience or additional expense. Id.
Similarly, the district courts have broad discretion in deciding whether to transfer an action for improper venue or inconvenience but the plaintiff's choice of forum is entitled to great weight and the burden is therefore on the moving party to justify the transfer. Leonardo Da Vinci's Horse, Inc. v. O'Brien, 761 F. Supp. 1222, 1229 (E.D. Pa. 1991); National Mortgage Network, Inc. v. Home Equity Centers, Inc., 683 F. Supp. 116 (E.D. Pa. 1988). Where, however, a forum selection clause exists, its effect on the issue of the appropriateness of venue is essentially identical to its effect on the question of jurisdiction. See Generally : Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273 (9th Cir. 1984); Pennsylvania House, Inc. v. Barrett, 760 F. Supp. 439 (M.D. Pa. 1991); American Trade Partners, L.P. v. A-1 International Importing Enterprises, Ltd., 755 F. Supp. 1292 (E.D. Pa. 1990).
Viewing the case at bar in light of the legal standards just articulated, we cannot find that the Defendant has met his burden of demonstrating that the forum selection and choice of law clauses are unjust, unreasonable and should not be enforced. Specifically, paragraphs 5(f) and 5(g) of the November 11, 1991 promissory note given by Mr. Bickerstaff to Provident read as follows:
(f) This note shall be governed and construed in accordance with and pursuant to the laws of the Commonwealth of Pennsylvania.