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WEINTRAUB v. WALT DISNEY WORLD CO.

June 28, 1993

FLORENCE WEINTRAUB and ALBERT WEINTRAUB
v.
WALT DISNEY WORLD COMPANY



The opinion of the court was delivered by: BY THE COURT; HARVEY BARTLE, III

 Bartle, J.

 June 28, 1993

 Plaintiffs, Florence and Albert Weintraub (the "Weintraubs"), have brought this action based on diversity of citizenship against defendant, Walt Disney World Company ("Disney") doing business as Disneyland Park. *fn1" Plaintiff, Florence Weintraub, allegedly sustained injuries on the "Typhoon Lagoon" ride at Disney World in Florida. Defendant has moved to dismiss plaintiffs' complaint, pursuant to Rule 12(b)(2) and 12(b)(3) of the Federal Rules of Civil Procedure, because of a lack of personal jurisdiction and improper venue. *fn2" Disney also seeks dismissal under Rule 12(b)(4) for insufficiency of process and Rule 12(b)(5) for insufficiency of service process based on a lack of jurisdiction.

 Once a defense challenging personal jurisdiction has been raised, the plaintiffs bear the burden of proving by a preponderance of the evidence, by way of affidavits or otherwise, that the defendant did have sufficient forum contacts for the court to exercise personal jurisdiction. Mellon Bank (East) PSFS, National Association v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992); Carteret Savings Bank v. Shushan, 954 F.2d 141, 146 (3d Cir.), cert. denied, 121 L. Ed. 2d 29, 61 U.S.L.W. 3256, 113 S. Ct. 61 (U.S., Oct. 5, 1992).

 Rule 4(e) of the Federal Rules of Civil Procedure authorizes a federal district court to exercise personal jurisdiction over non-resident defendants like Disney to the "extent permissible under the law of the state where the district court sits." Mellon Bank, 960 F.2d at 1221. Accord North Penn Gas v. Corning Natural Gas, 897 F.2d 687, 689 (3d Cir.) (per curiam), cert. denied, 498 U.S. 847, 111 S. Ct. 133, 112 L. Ed. 2d 101 (1990). The reach of state law, of course, must not extend beyond what Due Process allows. Van Buskirk v. Carey Canadian Mines Ltd., 760 F.2d 481, 489-490 (3d Cir. 1985); Wims v. Beach Terrace Motor Inn, Inc., 759 F. Supp. 264, 265 (E.D. Pa. 1991). Under the Due Process Clause of the Constitution, a state may exercise personal jurisdiction over a non-resident defendant if its minimum contacts with a forum are "such that the maintenance of [a] suit [there] does not offend traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945) (quotation omitted).

 Under Pennsylvania's long-arm statutes there are two potential bases for the exercise of personal jurisdiction over a non-resident corporate defendant. First, a court may exercise personal jurisdiction over a corporation to the extent that the cause of action arises out of the corporation's transaction of business within Pennsylvania. 42 Pa. Cons. Stat. Ann. § 5322 (Supp. 1992). *fn3" See also Mellon Bank, 960 F.2d at 1221; North Penn Gas, 897 F.2d at 690. In this case it is acknowledged that, because plaintiffs' accident did not arise from any contact of defendant with the forum, the Court cannot exercise specific jurisdiction over defendant. See Bork v. Mills, 458 Pa. 228, 329 A.2d 247 (1974). Accordingly, jurisdiction exists only if defendant Disney has had sufficient contacts with the Commonwealth so that the Court has general jurisdiction over defendant.

 General jurisdiction under 42 Pa. Cons. Stat. Ann. § 5301 is grounded on the defendant's general activity within Pennsylvania. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.9, 104 S. Ct. 1868, 1872, 80 L. Ed. 2d 404 n.9 (1984); Gehling v. St. George's School of Medicine, 773 F.2d 539, 541 (3d Cir. 1985). Personal jurisdiction may exist over a non-resident corporate defendant if that corporation carries on a "continuous or systematic part of its general business within this Commonwealth." 42 Pa. Cons. Stat. Ann. § 5301(a)(2)(iii). While only one forum related contact may be sufficient to exercise specific personal jurisdiction under § 5322, substantially more contacts with the forum are required before a court properly may exercise general personal jurisdiction. See also Reliance Steel Products Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 589 (3d Cir. 1982). If general personal jurisdiction exists as a result of the defendant's activities in a forum, there is jurisdiction over that defendant regardless of whether the claim for relief has any relation to the forum. Mellon Bank, 960 F.2d at 1221.

 The Pennsylvania long-arm statute under § 5322 specifically provides for the exercise of personal jurisdiction over a corporate non-resident defendant "to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States." 42 Pa. Cons. Stat. Ann. § 5322(b) (Supp. 1992). The courts have held that the reach of both Pennsylvania long-arm statutes is "co-extensive" with the Due Process Clause of the Fourteenth Amendment. Mellon Bank, 960 F.2d at 1221; North Penn Gas, 897 F.2d at 690, Van Buskirk, 760 F.2d at 490. See also Narco Avionics, Inc. v. Sportsman's Market, Inc., 792 F. Supp. 398, 403 (W.D. Pa. 1992); Wims, 759 F. Supp. at 266.

 In the leading Third Circuit case concerning general jurisdiction, Gehling v. St. George's School of Medicine, Ltd., 773 F.2d 539 (3d Cir. 1985), the Court of Appeals held that general jurisdiction did not exist over the defendant, a Grenada based college, for personal injuries that were sustained in Grenada, because the college's contacts with Pennsylvania were not "substantial and continuous." Id. at 543. The court reached this conclusion in a personal injury action based on events that took place in Grenada even though the defendant college had advertised in non-Pennsylvania newspapers that circulated Pennsylvania, *fn4" obtained 6% of its students from Pennsylvania, participated in a joint program with a Pennsylvania college, and Pennsylvania residents annually paid several hundred thousand dollars worth of tuition to the college. Id. at 542-543.

 Notwithstanding Gehling, plaintiffs rely on two Pennsylvania district court cases to find personal jurisdiction. The first is Gavigan v. Walt Disney World, Inc., 630 F. Supp. 148 (E.D. Pa. 1986), on reconsideration, 646 F. Supp. 786, in which the evidence demonstrated the following jurisdictional contacts on behalf of the defendant in Pennsylvania: (1) engaging in a promotional campaign at the John Wanamaker Department Store in Philadelphia; (2) having an "800" telephone number which interested persons from Pennsylvania could use to make reservations; (3) sending several representatives to Philadelphia to bestow honorary Disney World citizenship on Philadelphia Mayor Wilson Goode; (4) advertising on Pennsylvania television stations and in newspapers; (5) implementing a promotional campaign directed at Philadelphia; and (6) sending Disney's chef to participate in the "Book and Cook Festival" in Philadelphia. 630 F. Supp. at 152.

 In the second decision relied upon, Cresswell v. Walt Disney Productions, 677 F. Supp. 284 (M.D. Pa. 1987), general jurisdiction was found because the defendant: (1) advertised on Pennsylvania television stations and in Pennsylvania newspapers; (2) provided a toll-free telephone number for Pennsylvania residents to call; (3) regularly visited Keystone Junior College to recruit employees; (4) sent representatives to Philadelphia to encourage Pennsylvania citizens to visit Walt Disney World; (5) conveyed honorary Disney World citizenship on the Mayor of Philadelphia; (6) sold Walt Disney Company products and services in Pennsylvania; and (7) broadcast a Walt Disney channel in Pennsylvania. Id. at 285.

 In contrast, the defendant Disney relies on nine decisions, six of which hold that Disney, the very defendant in this case, is not subject to personal jurisdiction in the Commonwealth. *fn5" The strongest of these cases from defendant's point of view are Wincek v. Walt Disney World Company, 1992 U.S. Dist. LEXIS 19067, No. 92-7214, 1992 WL 390868 (N.D. Ill. Dec. 15, 1992); Schulman v. Walt Disney World Company, 1992 U.S. Dist. LEXIS 2267, No. 91-5259, 1992 WL 38390 (E.D. Pa. Feb. 25, 1992) (Waldman, J.); Vacca v. Walt Disney World Company, 1992 U.S. Dist. LEXIS 169, No. 91-4110, 1992 WL 5181 (D. N.J. Jan. 6, 1992); Fields v. Ramada Inn, Inc., 816 F. Supp. 1033 (E.D. Pa. 1993).

 In the Wincek case, the Court found insufficient minimal contacts to assert personal jurisdiction since the defendant: (1) was not listed in any Illinois phone directory; (2) conducted no business in Illinois; (3) had no officers, directors, agents or employees in the state; (4) had no office mailing address, or place of business in Illinois; (5) owned no real property or bank accounts in the state; (6) had neither ...


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