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September 21, 1998


The opinion of the court was delivered by: KELLY



 SEPTEMBER 21, 1998

 Defendant, New England Central Railroad, Inc. ("NECR"), filed the present Motion to Dismiss or in the Alternative to Transfer. NECR argues that this action should be dismissed because NECR is not subject to personal jurisdiction in the Eastern District of Pennsylvania. In the alternative, NECR argues that venue is improper in the Eastern District of Pennsylvania, therefore this matter should be dismissed or transferred to the Western District of Massachusetts.


 Consolidated Rail Corporation ("Conrail"), the Plaintiff in this action, entered into an agreement with NECR's predecessor, Central Vermont Railway, Inc. ("CVR") on September 1, 1983. The agreement was reached to resolve a dispute over the maintenance of an interlocking signal system at an intersection of Conrail and CVR tracks in Palmer, Massachusetts, known as the Diamond Crossing. The agreement also resolved a dispute concerning the derailment of a Conrail train in New London, Connecticut. The agreement provided that CVR would be responsible for 100% of the cost of track maintenance at Diamond Crossing, as well as 40% of labor costs for maintenance of communications and signals. While either party can initiate capital improvements at Diamond Crossing, the other party must pre-approve such improvements to be held accountable for a portion of the expenditure. CVR also agreed to release Conrail from any claims related to a previous derailment in New London, Connecticut. This dispute arises out of repairs made by Conrail at Diamond Crossing. NECR contends that the repairs are capital improvements that were not pre-approved.


 In its motion to dismiss, NECR asserts that it does not have sufficient minimum contacts with Pennsylvania in order to reasonably expect that it will be haled into court there. A district court asserts personal jurisdiction over a nonresident defendant to the extent allowed by state law in the forum state. Fed. R. Civ. P. 4(e). Pennsylvania's long arm statute allows jurisdiction "to the fullest extent allowed under the Constitution of the United States." Pa. Con. Stat. Ann. § 5322(b). Thus, "the constitutional touchstone remains whether the defendant established 'minimum contacts' in the forum state." Burger King v. Rudzewicz, 471 U.S. 462, 474, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945)). NECR takes great effort to assert that it has no place of business in Pennsylvania, owns no track in Pennsylvania and is not registered to do business in Pennsylvania. While any one of these contacts, if present, would conclusively establish jurisdiction over NECR in Pennsylvania, the Court's inquiry, as asserted by NECR, does not end with these contacts.

 Conrail has not delineated whether it argues that personal jurisdiction over NECR is appropriate based upon specific or general jurisdiction. "Specific jurisdiction is invoked when the cause of action arises from the defendant's forum related activities." North Penn Gas v. Corning Natural Gas, 897 F.2d 687, 690 (3d Cir. 1990). General jurisdiction is appropriate where a defendant maintains continuous and substantial contacts with a forum, whether or not those contacts are related to the cause of action. Reliance Steel Prod. Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 588 (3d Cir. 1982). Since Conrail asserts NECR contacts that would support both specific and general jurisdiction, as well as contacts that would only support general jurisdiction, the Court shall start its analysis with specific jurisdiction.

 A. Specific Jurisdiction

 Even to establish specific jurisdiction, minimum contacts analysis does not require a physical presence in the forum. North Penn Gas, 897 F.2d at 691. Rather, the analysis is driven by whether the defendant's activities amount to a purposeful availment of the "privilege of conducting activities within the forum state." Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958). If the defendant has minimum contacts with the forum state, the court must then determine whether jurisdiction over the defendant "accords with the notions of 'fair play and substantial justice.'" Mesalic v. Fiberfloat Corp.,897 F.2d 696, 701 (3rd Cir. 1990) (quoting International Shoe, 326 U.S. at 316.)

 Sufficient minimum contacts with Pennsylvania were established, despite no physical presence in Pennsylvania, when a defendant New York natural gas corporation signed a storage agreement with a Pennsylvania gas company that contemplated a thirty year relationship; the Pennsylvania gas company reserved storage space for defendant; and defendant intervened in the Pennsylvania gas company's tariff proceedings and defendant forwarded payments to Pennsylvania. North Penn Gas, 897 F.2d at 691. Similarly, a defendant Florida boat manufacturer had sufficient contacts to be sued in New Jersey where the boat manufacturer delivered a boat to the plaintiff in New Jersey, a mechanic was sent to New Jersey to repair the boat and significant mail and telephone contacts were directed by the defendant to New Jersey. Mesalic, 897 F.2d at 701.

 1. NECR'S Contract-related Pennsylvania Contacts

 On a motion to dismiss for lack of personal jurisdiction, a plaintiff must come forward with affidavits or other competent evidence to establish the defendant's contacts with the forum state. Patterson by Patterson v. FBI, 893 F.2d 595, 603-604 (3d Cir. 1990). Based upon the evidence presented, the Court finds that NECR assumed a CVR contract with Conrail, a Pennsylvania corporation. For fifteen years, NECR, and previously CVR, received the benefit of the contract; the plan specified how signal and track maintenance costs would be allocated. This contract was valuable enough to CVR that it not only agreed to be responsible for 40% of communications and signals labor costs and 100% of track costs at Diamond Crossing, CVR also agreed to absolve Conrail from any liability for the New London derailment. Conrail's responsibilities under the ...

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