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July 21, 1997


Appeal from the ORDER December 2, 1996, in the Court of Common Pleas of PHILADELPHIA County, CIVIL, No. 128 SEPTEMBER TERM 1996. Before DIBONA, J.

Before: McEWEN, P.j.; Popovich and Olszewski, JJ. Opinion BY Olszewski, J.

The opinion of the court was delivered by: Olszewski


Filed July 21, 1997

In November of 1995, Jack Hillman, general manager of Hall-Woolford Tank Co., Inc., of Philadelphia, Pennsylvania, contacted Theodore Hartman, the president of R.F. Kilns, Inc., of Salamanca, New York, to inquire about the feasibility and cost of certain lumber-drying services. More particularly, Hillman told Hartman that he was contemplating buying a quantity of red cypress wood from Florida for use in Hall-Woolford's construction of wooden tanks and fermenters. Because the red cypress had a high moisture content, however, it needed to be professionally dryed prior to use. Hartman indicated that Kilns's high-speed microwave dryer could sufficiently dry the red cypress, and the two agreed upon a price for the service. The lumber was then shipped from Florida to New York, where it was treated at Kilns's facility.

After the drying process was completed and the cypress was shipped to Philadelphia, however, Hall-Woolford contacted Kilns to report that the lumber was damaged during the drying process and was unsuitable for use. Kilns maintained that it dryed the lumber in an acceptable, workmanlike, fashion and requested payment. Hall-Woolford, in turn, instituted the instant action in the Court of Common Pleas of Philadelphia County alleging that, by its negligent workmanship, Kilns breached its contract and rendered the lumber unsuitable for any commercial purpose.

In response to the complaint, Kilns filed preliminary objections wherein it claimed that its connections with Pennsylvania did not evidence the necessary minimum contacts to support the exercise of either specific or general personal jurisdiction and that it was, therefore, not subject to suit in this forum. Affixed to Kilns's preliminary objections was an affidavit signed by Theodore F. Hartman, president to R.F. Kilns, Inc. Therein, Hartman swore, inter alia, that Kilns was a New York corporation with its sole place of business in Salamanca, New York, and that Kilns did not advertise or otherwise solicit or transact business out of the state. With respect to the particulars of the disputed contract, Hartman averred that the execution of the parties' contract occurred in New York and that Hall-Woolford, rather than Kilns, arranged for transport of the lumber both to and from New York.

In response, Hall-Woolford filed an answer in which it asserted that Kilns's forum-related activities were sufficient to support the exercise of specific in personam jurisdiction. As to the particulars of the parties' shipment arrangements, Hall-Woolford admitted that it arranged for the lumber to be transported from Florida to Kilns's New York facility. There-after, Hall-Woolford stated that "after the lumber arrived in Philadelphia," it was inspected and Judged unsuitable. The answer did not, however, identify whether Hall-Woolford or Kilns shipped the cypress to Philadelphia. In addition to the answer, Hall-Woolford submitted the counter-affidavit of Jack Hillman, the general manager of Hall-Woolford, Co., Inc., as well as the bill of lading for the lumber's New York-to-Philadelphia shipment. In the affidavit, Hillman asserted that, after the lumber was treated in New York, Kilns loaded the lumber onto a truck which traveled from New York to Philadelphia. As with the appended brief, the affidavit failed to specify which party arranged for the New York-to-Philadelphia shipment. The bill of lading identified a third party, Krome, Inc., as the carrier.

Following further briefing, the Honorable Alfred J. DiBona, Jr. granted Kilns's preliminary objections and dismissed Hall-Woolford's complaint. This timely appeal follows.

At the outset, we note that "when preliminary objections, if sustained, would result in the dismissal of an action, such objections should be sustained only in the clearest of cases." King v. Detroit Coal Co., 452 Pa. Super. 334, , 682 A.2d 313, 314 (1996)(citation omitted). Moreover, because the burden rests upon the party challenging the court's exercise of jurisdiction, the court must consider the evidence in the light most favorable to the non-moving party. Id. See also Filipovich v. J.T. Imports, Inc., 431 Pa. Super. 552, , 637 A.2d 314, 316 (1994). Once the movant has supported its jurisdictional objection, however, the burden shifts to the party asserting jurisdiction to prove that there is statutory and constitutional support for the court's exercise of in personam jurisdiction. See, e.g., McCall v. Formu-3 International, Inc., 437 Pa. Super. 575, 650 A.2d 903, 904 (1994); Derman v. Wilair Services, Inc., 404 Pa. Super. 136, , 590 A.2d 317, 319 (1991).

Pursuant to the Judiciary Act, 42 Pa.C.S.A. § 5301 et seq., our courts may exercise two types of in personam jurisdiction over a non-resident defendant. General jurisdiction is founded upon a defendant's general activities within the forum which evidence continuous and systematic contacts with the state. See Derman, 404 Pa. Super. at , 590 A.2d at 319-20. Specific jurisdiction has a more narrow scope and is focused upon the particular acts of the defendant which gave rise to the underlying cause of action. Id.

Regardless of whether general or specific personal juris -- diction is asserted, the propriety of such an exercise must be tested against both the Pennsylvania longarm statute, 42 Pa.C.S.A. § 5322, and the due process clause of the fourteenth amendment. In order to meet constitutional muster, a defendant's contacts with the forum state must be such that the defendant could reasonably anticipate being called to defend itself in the forum. See, e.g., Kubik v. Letteri, 532 Pa. 10, , 614 A.2d 1110, 1115 (1992) (expressly adopting the minimum contacts test advocated by the United States Supreme Court in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)). Random, fortuitous and attenuated contacts cannot reasonably notify a party that it may be called to defend itself in a foreign forum and, thus, cannot support the exercise of personal jurisdiction. Id. That is, the defendant must have purposefully directed its activities to the forum and conducted itself in a manner indicating that it has availed itself of the forum's privileges and benefits such that it should also be subject to the forum state's Instantly, Hall-Woolford contends that the trial court erred in concluding that Kilns's conduct surrounding the formation and execution of the parties' contract did not support the exercise of specific personal jurisdiction. In support of this assertion, Hall-Woolford identifies the following forum-related conduct: (1) the parties' contract contemplated the performance of a unique service; (2) Kilns's payment invoice indicated that the lumber was shipped from New York to Pennsylvania; (3) based upon a credit report prepared by a Pennsylvania bank, Kilns agreed to perform the drying procedure prior to payment; (4) Kilns was not to receive payment until the lumber was delivered to Hall-Woolford in Pennsylvania; and (5) there were a number of inter-state mail and telephone communications between the parties.

Section 5322 of our Judiciary Act, 42 Pa.C.S.A. § 5301 et seq., codifies the bases for the exercise of specific personal jurisdiction. Although the Act provides ten definitive bases to support specific jurisdiction over the person, Hall-Woolford's argument is limited to the following four subsections of the § 5322 Bases of personal jurisdiction over persons outside this Commonwealth

(a) General Rule. -- A tribunal of this Common -- wealth may exercise personal jurisdiction over a person (or the personal representative of a de -- ceased individual who would be subject to juris -- acts directly or by an agent, as to ...

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