record as a professional boxer, any upcoming fights, photographs and
information on what it takes to become a successful boxer. Through this
site, Manfredy offers photographs and other memorabilia, fan club
memberships, and various types of merchandise such as "El Diablo"
t-shirts and baseball caps for sale. According to John Manfredy, who is
Angel Manfredy's manager and the creator of the web page, while order
forms for merchandise may be downloaded from the web site, merchandise
orders are only taken through the mail and there have been no sales of
merchandise or fan club memberships to anyone in Pennsylvania to date.
D'Ancona & Pflaum's web page, in turn, is similar in that it offers
information concerning the firm's attorneys, practice areas and
specialties, and the firm's speaker's bureau. While it may offer slightly
more information, the information and data offered over this web site
essentially, mirrors that which is provided in the Martindale-Hubbel
In comparing the web sites at issue in this case with the three types
of sites which were reviewed in Walker, Weber and Zippo, all supra, we
find that the Defendants' web sites are "passive" in nature in that there
is no evidence that they are interactive or offer anything other than
general information and advertising. Advertising on the Internet has been
held to fall under the same rubric as advertising in a national magazine
and it is well settled law in this Circuit that advertising in a national
publication does not constitute the `continuous and substantial contacts
with the forum state' required to give rise to a finding of general
jurisdiction. See: Weber 977 F. Supp. at 333, citing Gehling v. St.
George's School of Medicine, 773 F.2d 539, 542 (3rd Cir. 1985) and Hearst
Corp. v. Goldberger, supra, 1997 WL 97097 at *l0. Accordingly, we reject
the plaintiffs claim that this Court has general personal jurisdiction
with respect to Angel Manfredy, John Manfredy, or Jeffrey Brown.
We likewise reject the plaintiffs contention that specific personal
jurisdiction over the defendants may be found here by virtue of the fee
agreement which his colleague Remick had with Angel Manfredy. In this
regard, the plaintiff claims that since Manfredy asked that he and Remick
represent him, Manfredy targeted Pennsylvania and it was therefore
foreseeable that any "effects" of Manfredy's breach of the fee agreement
would be felt in Pennsylvania. We disagree.
In the absence of any contacts with Pennsylvania, the fact that harm is
felt in Pennsylvania from conduct occurring outside the state is not
sufficient to satisfy due process unless the defendant targets
Pennsylvania through the tortious conduct. Santana Products, supra, at
715, citing inter alia, Surgical Laser Techs. v. CR. Bard, Inc.,
921 F. Supp. 281, 285 (E.D.Pa. 1996), Supra Medical Corp. v. MeGonigle,
955 F. Supp. 374, 382 (E.D.Pa. 1997). Here, accepting as true Plaintiff's
contention that it was Manfredy who contacted he and Remick, the fee
agreement nevertheless called for Remick and Resnick to provide services
to Manfredy, who resides in Indiana. By his own pleading, Plaintiff avers
that he is "a well-known and reputed attorney engaged in the practice of
sports and entertainment law" and is and was "engaged in an ongoing
business relationship with prominent Philadelphia sports and
entertainment lawyer Lloyd Remick." (Complaint, ¶ s 10-12). Remick's
complaint, in turn avers that he has a "national practice specializing in
sports and entertainment law," through which he presumably targets and
conducts business on behalf of out-of-state residents and on the soil of
states other than Pennsylvania. (Remick Complaint, ¶ 13).
What's more, there is no evidence that any of the fights which Remick
and Resnick purportedly secured for Manfredy were to take place in
Pennsylvania, or that Manfredy executed the fee agreement or any
endorsement, promotional or fight agreements in Pennsylvania. Mr.
affidavit reflects that the only time he has been in Pennsylvania was to
deplane at the Philadelphia airport en route to Atlantic City, NJ. In
short, there is no evidence to suggest that Angel Manfredy in any way
directed his activities toward the Commonwealth of Pennsylvania, other
than retaining an attorney with a national practice whose office, along
with that of his colleague, is located in Philadelphia and who are
members of the Pennsylvania Bar. We do not find this sole contact between
Mr. Manfredy and Messrs. Remick and Resnick to be sufficient to confer
specific jurisdiction on this Court. See: Vetrotex Certainteed Corp. v.
Consolidated Fiber Glass, 75 F.3d 147, 151, 152 (3rd Cir. 1996) (single
agreement, standing alone, is an insufficient ground upon which to
exercise specific personal jurisdiction, nor do informational
communications in furtherance of a contract between a resident and a non
resident establish the purposeful activity necessary for a valid
assertion of personal jurisdiction over non-resident defendant).
Accordingly, the Defendants' motion to dismiss for lack of in personam
jurisdiction is granted with respect to Angel Manfredy, John Manfredy,
and Jeffrey Brown.
As regards the law firm defendant, given its admission that it has
records of having serviced 54 clients in Pennsylvania, some of which are
present clients, we conclude that sufficient evidence exists that it has
purposefully availed itself of the privilege of conducting activities
within this state to justify the exercise of general personal
jurisdiction over it. However, portions of Plaintiffs complaint shall he
dismissed as against this defendant as well pursuant to Fed.R.Civ.P.
Specifically, plaintiffs claims against D'Ancona & Pflaum are set forth
in Counts II, III, IV and VI of the complaint under the state law
theories of unfair competition/disparagement, tortious interference with
contract/inducement to breach contract and defamation. Since, however, we
could not find any instance in Pennsylvania law where a cause of action
for "Inducement to Breach Contract" was recognized separate and apart
from a claim for tortious interference with existing and prospective
contractual relations and since the claims in Count IV are based upon the
same set of facts as Count III, Count IV is dismissed with prejudice as
against D'Ancona & Pflaum as being duplicative of Count III.
Likewise, as plaintiffs Count II "Unfair Competition —
Disparagement" claim is premised solely upon the allegedly "untrue
comments" made by defendants "to Plaintiffs associates, including but not
limited to boxing promoters and television network executives for the
sole purpose of causing injury to Plaintiffs business reputation and
goodwill," we find that it is
similarly duplicative of plaintiffs Count VI defamation claim.*fn3
Consequently, Count II of the complaint is dismissed with prejudice
against the law firm defendant.
To plead a cause of action for defamation in Pennsylvania, a plaintiff
must plead and prove each of the following elements:
(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its
(5) The understanding by the recipient of it as
intended to be applied to the plaintiff.
(6) Special harm resulting to the plaintiff from its
(7) Abuse of a conditionally privileged occasion.
Furillo v. Dana Corporation Parish Division, 866 F. Supp. 842, 847
(E.D.Pa. 1994), citing 42 Pa.C.S. § 8343, Elia v. Erie Insurance
Exchange, 430 Pa. Super. 384, 634 A.2d 657, 659 (1993). Under
Pennsylvania defamation law, it is within the trial court's province to
make an initial determination whether or not the challenged statements
are capable of having a defamatory meaning. Id.
In Pennsylvania, a defamatory statement is one that "tends to so harm
the reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing with
him." U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia,
898 F.2d 914, 922 (3rd Cir. 1990) quoting Birl v. Philadelphia Electric
Co., 402 Pa. 297, 303, 167 A.2d 472 (1960). In determining whether or not
a particular communication is defamatory, the court must view the
statement in context with an eye toward the effect the article is fairly
calculated to produce and the impression it would naturally engender in
the minds of the average persons among whom it is intended to circulate.
Baker v. Lafayette College, 516 Pa. 291, 296, 532 A.2d 399, 402 (1987);
Corabi v. Curtis Publishing Company, 441 Pa. 432, 447, 273 A.2d 899, 907
(1971). Opinion, without more, does not create a cause of action in
libel; instead, the allegedly libeled party must demonstrate that the
communicated opinion may reasonably be understood to imply the existence
of undisclosed defamatory facts justifying the opinion. Baker, 516 Pa. at
296-297, 532 A.2d at 402.
In this case, Plaintiff is basing his defamation claim against the law
firm defendant on Attorney Brown's purported oral and written statements
to such third persons as Cedric Kushner and Lou DeBella of HBO that
plaintiff was an ineffective negotiator and failed to secure endorsements
for Angel Manfredy and on the March 2, 1998 termination letter from Angel
Manfredy to Lloyd Remick which allegedly gives the false impression that
plaintiff was unsuccessful in obtaining endorsements. Viewing these
alleged statements in the context under which they were allegedly made,
we find that plaintiff has adequately pled a cause of action for
defamation against the law firm based upon the alleged actions of its
employee, Brown. Thus, Count VI of the complaint shall stand against the
law firm defendant only.
We reach a similar conclusion with respect to the plaintiffs Count III
interference with business and contractual relationships.
Pennsylvania has adopted the Restatement (Second) of Torts §
766 (1979) version of tortious interference with contract while recognizing
two distinct branches of the tort: one concerning existing contractual
rights and another regarding prospective contractual relations. Under the
Restatement, "one who intentionally and improperly interferes with the
performance of a contract (except a contract to marry) between another and
a third person by inducing or otherwise causing the third person not to
perform the contract, is subject to liability to the other for the
pecuniary loss resulting to the other from the third person's failure to
perform the contract." U.S. Healthcare v. Blue Cross, 898 F.2d at
924-925; Adler, Barish, Daniels, Levin and Creskoff v. Epstein,
482 Pa. 416, 431, 393 A.2d 1175 (1978), cert. denied, 442 U.S. 907, 99
S.Ct. 2817, 61 L.Ed.2d 272 (1979).
With respect to prospective contractual relations, the following
elements must be demonstrated: (1) a prospective contractual relation;
(2) the purpose or intent to harm the plaintiff by preventing the
relation from occurring; (3) the absence of privilege or justification on
the part of the defendant; and (4) the occasioning of actual damage
resulting from the defendant's conduct. Id.
Here, the plaintiff seeks to hold the law firm vicariously liable for
the alleged actions of its associate attorney, Jeffrey Brown who
purportedly "on his own behalf and on behalf of Defendant D'Ancona &
Pflaum, induced Angel Manfredy to break his professional agreement with
Remick and Resnick, specifically instructing and later drafting the March
2, 1998 letter to Lloyd Z. Remick and thereafter maneuvering himself in
place of Remick and Resnick and then facilitating the installation of
Angel's brother, John Manfredy, as Angel Manfredy's manager." (Pl's
Complaint, ¶ s 45, 50). These allegations are, we find, sufficient
to state a cause of action upon which relief may be granted if proven,
for tortious interference with an existing contractual relation, i.e.,
Resnick's representation of Angel Manfredy. Accordingly, Count III also
survives the defendant's motion to dismiss.