The opinion of the court was delivered by: Katz, Senior District Judge.
Before the court is a motion to dismiss for lack of personal
jurisdiction submitted by defendants Hillsboro Insurance
Management, Inc., Hillsboro Excess & Surplus Lines, Inc., and C.
Edward Hardy. Because the plaintiff has demonstrated sufficient
contacts with the forum to exercise jurisdiction over these
parties, the motion will be denied.*fn1
Plaintiff Huth was seriously injured when a vehicle lift in a
service station suddenly failed, dropping a motor vehicle onto
him. Huth subsequently brought a civil action against E. Forrest
& Sons, Inc., alleging improper service of the lift prior to the
accident and was awarded $775,000. That award is still unpaid,
allegedly because Forrest's insurer, Alpine Assurance, Ltd., was
unable to pay the benefits owed because of its own financial
problems. Forrest assigned its claims against the insurer to
Huth, and he brought the present action in the Chester County
Court of Common Pleas, whereupon it was removed to this court.
The present defendants are named because of their relationship
to Alpine Assurance, Ltd. Hillsboro Insurance Management
(Hillsboro) was authorized by Alpine Assurance to act as its
managing agent for the issuance, policy maintenance, and
administration of certificates of insurance issued under master
policies of insurance. That is, Hillsboro marketed Alpine
policies, collected premiums, and paid claims in return for a
commission. See Resp. to Mot. to Dismiss at 4. Hillsboro is a
corporation organized and doing business under
the laws of Wisconsin, with its principal place of business in
Wisconsin. Hillsboro Excess & Surplus Lines, Inc., (Hillsboro
Excess), is named as the alleged successor to Hillsboro.
Hillsboro Excess is also organized under the laws of Wisconsin
and has its principal place of business in Wisconsin. Hardy was
an insurance agent with Hillsboro and Hillsboro Excess, and he is
a citizen of Wisconsin. Hillsboro and Hardy are named in a strict
statutory liability count under Pennsylvania insurance law, as
well as breach of contract, negligence, and fraud counts.
Hillsboro Excess is named in one count alleging successor
liability. These defendants now argue that the court has no
personal jurisdiction over them.
When a court sitting in diversity is faced with a challenge to
personal jurisdiction by an out-of-state defendant, it "must
apply the relevant state long-arm statute to see if it permits
the exercise of personal jurisdiction; then, the court must apply
the precepts of the Due Process Clause of the Constitution." IMO
Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998).
The Pennsylvania long-arm statute permits jurisdiction to be
exercised "to the fullest extent allowed under the Constitution
of the United States and may be based on the most minimum contact
with the Commonwealth allowed under the Constitution of the
United States." 42 Pa.C.S.A. § 5322(b); see also Grand
Entertainment Group v. Star Media Sales, 988 F.2d 476, 481 (3d
Cir. 1993) (describing Pennsylvania long-arm statute).
As the defendant has raised jurisdictional defenses, the
plaintiff "bears the burden of establishing either that the cause
of action arose from the defendant's forum-related activities
(specific jurisdiction) or that the defendant has `continuous and
systematic' contacts with the forum state (general
jurisdiction)." Mellon Bank (East) v. DiVeronica Bros.,
983 F.2d 551, 554 (3d Cir. 1993) (citations omitted); see also
Carteret Savings Bank v. Shushan, 954 F.2d 141, 146 (3d Cir.
1992) ("[O]nce the defendant raises the question of personal
jurisdiction, the plaintiff bears the burden to prove, by a
preponderance of the evidence, facts sufficient to establish
personal jurisdiction."). The plaintiff may meet this burden and
present a prima facie case for exercising personal jurisdiction
by "establishing with reasonable particularity sufficient
contacts between the defendant and the forum state." Mellon Bank
(East) PSFS v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992)
(citations omitted). If a plaintiff has presented a prima facie
case for jurisdiction, remaining factual doubts should be
resolved in plaintiff's favor. See DiMark Mkt., Inc. v.
Louisiana Health Serv. & Indem. Co., 913 F. Supp. 402, 405
(E.D.Pa. 1996).
Plaintiff appears to rely solely on specific jurisdiction.*fn2
The Third Circuit has explained that a two-part test should be
applied to allegations of specific jurisdiction. First, the
plaintiff must show that the defendant had constitutionally
sufficient minimum contacts with the forum. See IMO Indus., 155
F.3d at 259. These contacts must be such that the defendant
should "reasonably anticipate being haled into court there."
DiVeronica Bros., 983 F.2d at 554 (internal punctuation
omitted), quoting World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); see also
Farino, 960 F.2d at 1221 (stressing need to inquire into the
relationship among the forum, the defendant, and the litigation).
Moreover, the court should examine whether the defendant
"purposefully established those minimum contacts. . . . A court
must find that there was some act by which the defendant
`purposefully avail[ed] itself of the privilege of conducting
activities within
the forum." Id. (citations omitted). Second, the court must
determine, in its discretion, that exercising jurisdiction would
"comport with `traditional notions of fair play and substantial
justice.'" IMO Indus., 155 F.3d at 259, citing International
Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95
(1945) (other citations omitted). The court will consider each of
the defendants in turn.
Hillsboro argues that there is no personal jurisdiction over it
because plaintiff has not included specific allegations of
contacts with this forum. The complaint, however, states that
Hillsboro solicited, recommended, and negotiated a policy in
Pennsylvania, see Compl. ¶ 18, and in response to the motion to
dismiss, plaintiff clarifies these points. Plaintiff has supplied
a variety of letters and faxes from representatives of Hillsboro
to Forrest from 1992 until 1996 negotiating coverage, explaining
coverage, and addressing premium payment. These letters are all
addressed to Forrest's Pennsylvania address. See generally Plf.
Ex. C; see also 42 Pa. C.S. § 4322(a)(6) (stating that
jurisdiction exists over parties who contract to provide
insurance in Pennsylvania). These contacts are sufficient to
exercise personal jurisdiction over the defendant, and the court
sees no unfairness or injustice in haling Hillsboro into court.
By purporting to provide insurance coverage to a Pennsylvania
resident, Hillsboro purposefully availed itself of business
opportunities in this state and cannot now claim that it could
not anticipate being sued in a Pennsylvania court if it failed to
provide coverage. "[T]he Due Process Clause may not be readily
wielded as a territorial shield to avoid interstate obligations
that have been voluntarily assumed." Burger King, 471 U.S. at
474, 105 S.Ct. 2174.*fn3
Plaintiff alleges that Hillsboro Excess is liable on a theory
of successor liability. Hillsboro Excess acknowledges that, under
Pennsylvania law, the acts of a predecessor corporation may be
attributed to its successor for purposes of determining whether
jurisdiction over the successor is proper. See Simmers v.
American Cyanamid Corp., 394 Pa. Super. 464, 576 A.2d 376, 381
(1990) ("We . . . hold that the predecessor's activities may be
attributed to the successor or jurisdictional purposes."); see
also id. at 384-90 (explaining rationale); Bowers v. NETI
Technologies, Inc., 690 F. Supp. 349, 359-61 (E.D.Pa. 1988)
(applying successor liability to question of personal
jurisdiction). To apply this principle, the Pennsylvania Superior
Court looked to the law of successor liability and stated, as
Hillsboro Excess notes, that when a company sells or transfers
all of its assets to a successor, "the successor does not
acquire the liabilities of the transferor merely because of its
succession to the transferor's assets." Id. at 386. However,
the court continued to explain that this general rule does not
apply in a variety of circumstances, including the following: the
purchaser impliedly or expressly assumed such obligations; the
transaction was a consolidation or a merger; the purchasing
corporation is merely a continuation of the selling corporation;
the transaction was fraudulent; the transfer was not made for
adequate consideration; or the successor undertakes to conduct
the same manufacturing operation of the transferor's product
lines in an essentially unchanged manner. See id., quoting
Dawejko v. Jorgensen Steel Co., 290 Pa. Super. 15, 434 A.2d 106,
107, 110 (1981).