Archive/File: people/b/bradbury.scott/Edeiken-v-Bradbury-A1.02 Last-Modified: 2001/02/07 Melvin v. Melvin, 398 Pa.Super. 1, 580 A.2d 811 (1990) Rule 237.3 which the Defendant invokes in his Petition, requires that this be embodied in a proposed Answer to be filed if the requested relief is granted. While the Defendant pays lip service to this critical requirement by claiming that Preliminary Objections asserting lack of jurisdiction would be presented. This is a contention that this Court cannot accept. Neither Preliminary Objections or a determination of jurisdiction can be litigated in a vacuum. Any such defense must be based on the facts set forth in the Complaint. Defendant Bradbury failed to even attempt to present this Court with some reason to find that a meritorious defense exists. Indeed, the contrary is the case. In his Petition Defendant Bradbury states that no Complaint exists on the record. Implicit in this is the admission that he is unaware of the specific allegations which Plaintiff relies upon in bringing this case in this jurisdiction. Any claim that the Complaint fails to assert jurisdiction, the basic proposition of any set of Preliminary Objections, is, therefore, pure speculation. This Court should not deal in speculation. Moreover, as will be shown in a later section of this Memorandum, it cannot be asserted that jurisdiction does not exist as a matter of law. The Defendant has had ample opportunity to revise his Petition in conformity with the record and present this Court with some justification for his claim. As with the requirement that he present some reasonable explanation for his failure to act, he chose to do nothing. He chose instead to refuse to participate in any discovery refusing to answer interrogatories, refused to produce documents relevant to the claims in his Petition, and refused to appear for a deposition. The law is clear that this Court cannot, as Defendant requests, opening the default judgment taken against him so that he may file Preliminary Objections, unless he demonstrates that there was a reasonable explanation for his failure to act and that his proposed defense has legal merit. These are mandatory requirements that cannot be waived or excused. The Defendant has failed to meet either requirement and, therefore, his Petition must be denied. B. THE COURTS OF PENNSYLVANIA HAVE JURISDICTION OVER THE DEFENDANT IN THE INSTANT MATTER Implied in the Petition filed by the Defendant is the assertion that jurisdiction cannot be asserted without some physical presence in the Commonwealth. It is impossible to determine what facts or law form the basis for this assertion as it is not specifically set forth in the Petition and the Plaintiff has never received a Memorandum of Law that would explain the reasoning upon which Defendant relies. It is the position of the Plaintiff that the facts set forth in the Complaint and in other portions of the record clearly demonstrate that jurisdiction exists in this case. The Defendant and his accomplices conceived and executed a plan to harass and defame the Plaintiff and took specific actions inside the Commonwealth to put that plan into effect. Since the injuries for which compensation is sought occurred within Pennsylvania the question of whether his presence was physical or electronic is irrelevant. The standard for evaluating Preliminary Objections claiming that the court does not have jurisdiction is well established. Such objections should be sustained only in cases which are clear and free from doubt. Barber v. Pittsburgh Corning Corp., 317 Pa.Super. 285, 302-03, 464 A.2d 323, 332 (1983), cert. denied 467 U.S. 1205, 104 S.Ct. 2387, 81 L.Ed.2d 346 (1984), citing Botwinick v. Credit Exchange, Inc., 419 Pa. 65, 213 A.2d 349 (1965). "Moreover, when deciding a motion to dismiss for lack of personal jurisdiction the court must consider the evidence in the light most favorable to the non-moving party." Barber v. Pittsburgh Corning Corp., supra. See also Kenneth H. Oaks, Ltd. v. Josephson, 390 Pa.Super. 103, 568 A.2d 215, (1989) There is an important distinction that understood at the beginning of any analysis of this issue. Jurisdiction over a nonresident defendant may be based either upon the specific acts of the defendant which gave rise to the cause of action - known as specific jurisdiction --, or upon the defendant's general activity within the forum state - known as general jurisdiction. There is no claim of general jurisdiction in the Complaint filed in this matter. The Plaintiff claims, rather, that the acts of the Defendant inside Pennsylvania are such that specific jurisdiction exists. In order for a Pennsylvania court to exercise specific jurisdiction, the cause of action must arise out of the defendant's activities and their effect within the Commonwealth. Skinner v. Flymo, Inc. 351 Pa.Super. 234, 505 A.2d 616 (1986) General jurisdiction, on the other hand, exists regardless of whether the cause of action is related to the defendant's activities in Pennsylvania, as long as the defendant's activities in this Commonwealth are "continuous and substantial." Bork v. Mills 458 Pa. 228, 329 A.2d 247 (1974); Slota v. Morrings 343 Pa.Super. 96, 494 A.2d 1 (1985); Whalen v. Walt Disney World Co. 274 Pa.Super. 246, 251, 418 A.2d 389, 391 (1980). Pennsylvania has long evidenced an interest in extending in personal jurisdiction over foreign defendants acting or doing business within its boundaries for acts occurring outside the state. This interest must be balanced against a foreign defendant's constitutional right due to process. However, as noted in the landmark case of International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945): "Due process requires only that in order to subject a defendant to a judgement in person and, if he be not present with in the territory of the forum, he have certain minimum contacts with it such that maintenance of the suit does not offend 'traditional notions of fair play and substantial justice." Pennsylvania's Long Arm Statutes go back to the Act of June 13, 1896 P.L. 586 but successive restrictive judicial constructions of the long-arm statute by Pennsylvania courts led to legislative amendments which produced the current act which, effectively, broadened the scope of that jurisdiction. Garfield v. Homowack Lodge, Inc., 249 Pa.Super 392, 396, 378 A.2d 351, 354 (1977). Today under the Pennsylvania Long Arm Statute in personal jurisdiction over a foreign individual or corporation is co-extensive with the permissible limits of jurisdiction under the due process clause of the federal constitution. Crompton v. Park Ward Motors, Inc., 299 Pa.Super. 40, 445 A.2d 137 (1982). The current long arm statute can be found at 42 Pa.C.S.A. Sec. 5322 which states: (a) General rule.-A tribunal of this Commonwealth may exercise personal jurisdiction over a person (or the personal representative of a deceased individual who would be subject to jurisdiction under this subsection if not deceased) who acts directly or by an agent, as to a cause of action or other matter arising from such a person: (1) Transacting any business in this Commonwealth. Without excluding other acts which may constitute transacting business in this Commonwealth, any of the following shall constitute transacting business for the purpose of this paragraph: (i) The doing by any person in this Commonwealth of the series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object. (ii) The doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object with the intention of initiating a series of such acts. (iii) The shipping of merchandise directly or indirectly into or through this Commonwealth (iv) The engaging in any business or profession within this Commonwealth, whether or not such business requires license or approval by any government unit of this Commonwealth. (v) The ownership, use or possession of any real property situate within this Commonwealth. (1) Contracting to supply services or things in this Commonwealth. (2) Causing harm or tortuous injury by an act or omission in this Commonwealth (3) Causing harm or tortuous injury in this Commonwealth by an act or omission outside this Commonwealth. (4) Having an interest in, using, or possessing real property in this Commonwealth. It should be clear that this Statute does not require physical presence in the Commonwealth. The statute specifies that acts performed outside the Commonwealth may be the basis for jurisdiction as long as they are directed at the Commonwealth and cause injuries within the borders of Pennsylvania. Further the statute specifically provides that Pennsylvania courts may exercise specific jurisdiction over nonresident defendants "to the fullest extent allowed under the Constitution of the United States and [it] may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States." 42 Pa.C.S. Sec. 5322(b) The leading case of Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 323 A.2d 11 (1974) dealt with the 1972 amendment to the Long Arm Statute and provided that in order for the minimum contacts to be present; (1) the defendant must have purposely availed itself of the privilege of acting within the forum state thus invoking the benefits and protection of its laws, (2) the cause of action must arise from defendant's activities within the forum state and (3) the acts of the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable. See also Gallants v. Fosdick 320 Pa.super. 38, 466 A.2d 1049 (1983) Purdon's Penn. Other cases specify that when forum state seeks to assert specific jurisdiction over and out-of-state defendant, who has not consented to be sued there, the Due Process Clause of the Fourteenth Amendment to the United States Constitution is satisfied if the defendant has purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that 'arise out of or relate to those activities. The critical question in determining whether the defendant has purposefully directed his activities at residents of the forum is not whether it was foreseeable that defendant's activities would have an injurious effect in the forum state, but whether that defendant's conduct and his connection with the forum state were such that he could reasonably anticipate being "haled" into court there. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294, 100 S.Ct. 559, 565-566, 62 L.Ed.2d 490, 501 (1980); Skinner v. Flymo, Inc. 505 A.2d 616, 351 Pa.Super 234 (1986). The application of these decisions in the present case is obvious. The Defendant and his accomplices is obvious and fatal to any claim that jurisdiction does not exist in this case. The acts of the Defendant both in sending obscene and harassing communications to a resident of Pennsylvania and in sending defamatory communications directly to a Pennsylvania business in order to induce it to break off a business relationship conducted within Pennsylvania with a Pennsylvania citizen is exactly the type of activities that for which the Pennsylvania courts should be able to redress. A clear example of how this has been applied by Pennsylvania courts can be found in case of Fulper v. Ravanno, et al. Court of Common Pleas of Northampton County 1994-C-5204 (attached hereto and made part hereof as Exhibit "A"). In that case an action in wrongful death and survival was filed against a New Jersey hospital and several physicians practicing in New Jersey sounding in medical malpractice. The underlying incident was an operation performed at the New Jersey facilities on a citizen and resident of New Jersey. When the operation went awry a call was placed to a Pennsylvania hospital who arranged for a Pennsylvania ambulance company to pick up the patient. Judge Hogan found that since the patient died in Pennsylvania (the defining injury in an action for wrongful death) specific jurisdiction was proper in Pennsylvania even though the only contact with the Commonwealth was a telephone call to a Pennsylvania hospital. In fact, Judge Hogan found that this doctrine even applied to a physician who was not involved in the telephone call and did not know about it until after it happened. This is an even more expansive view of jurisdiction than would be required to find that this Court has specific jurisdiction over this Defendant. The crucial factor in making a determination of jurisdiction is, as always, the facts of the case. In making this determination, the courts have found that the minimum contacts analysis required is not susceptible of any talismanic jurisdictional formula; the facts of each case must be weighed in determining whether jurisdiction is proper. Nevertheless, the Supreme Court has provided some broad guidelines which may be applied on a case by case basis to determine the sufficiency of a defendant's contacts with the forum state. Skinner v. Flymo, Inc. 505 A.2d 616, 351 Pa.Super 234 (1986) As long as those standards are met jurisdiction is proper even if the contact consists of a single telephone call made from outside the state. Action Industries, Inc. v. Wiedman 236 Pa.Super 447, 346 A.2d 798 (1975) The instant matter is an action commenced because of the Defendant's campaign of harassment and defamation designed to intimidate the Plaintiff from presenting the historic reality of the Holocaust and exposing the fraudulent and anti-Semitic rationale of the crackpots who. As part of that campaign the Defendant, as set forth in the Complaint, continually bombarded the Plaintiff with obscene communications, many threatening violence. Ironically Pennsylvania's criminal law (18 Pa.C.S.A. Sec. 5504, Harassment by communication or address) explicitly provides that: "Any offense committed under paragraph (a)(1) of this section may be deemed to have been committed at either the place at which the telephone call or calls were made or at the place where the telephone call or calls were received." If this Court were to accept the position of the Defendant in his Petition (and no Memorandum of Law has been received by the Plaintiff that would explain it further) this Court would be in the position of declaring that there would be valid jurisdiction to hold the Defendant criminally liable but that there would not be sufficient contact with this Commonwealth to establish jurisdiction in a civil court. Further, as part of Defendant's campaign, he forged communications and sent those forgeries and other defamatory material to a business in Pennsylvania for the stated purpose of interfering with the business relationship between the Plaintiff and the recipient. It is simply ludicrous to assert that there are no contacts with a forum state with such repeated behavior. Ultimately the Complaint sets forth facts which clearly establish that the Defendant entered Pennsylvania by means of electronic communication with the stated purpose of harassing and defaming the Plaintiff. He cannot now complain that he is being forced to account for his behavior in the place where that behavior occurred and where he inflicted an injury. To allow him to do so would be a denial of the basic rights of the Plaintiff to seek redress in the courts. C. THIS COURT SHOULD IMPOSE SANCTIONS UPON DEFENDANT AS THIS PETITION IS FRIVOLOUS AND DISHONEST BROUGHT ONLY FOR THE PURPOSE OF DELAY. In his reply to the Petition, the Plaintiff asks that sanctions be imposed on the Defendant for his conduct in filing this Petition. In deciding this issue this Court should look to what was done, how it was done, and what the effect filing it has been. The Defendant in this matter was served with a Writ of Summons at the end of December,1999. Rather than retaining counsel and fighting this in a civilized manner, the Defendant returned all process and intensified his campaign of harassment extending it to direct and violent harassment of Plaintiff's parents, siblings and spouse. No counsel entered an appearance for Defendant until after the dire reality that a judgment had been taken against him was pressed home by the scheduling of a hearing for the assessment of damages in this case. At that time Defendant filed his first and only pleading in this case: this Petition. While there were several acceptable modes whereby challenging this judgment, Defendant chose the sole mode that would allow for a stay of proceedings. Pursuant to that end, he filed a Petition claiming relief pursuant to Rule 236.3, Pennsylvania Rules of Civil Procedure. There were two stark realities about that Petition. First it did not even minimally meet the mandatory standards for such relief and, second,, it was dishonest. It claimed, inter alia, that no Complaint had been filed in this matter even though a Complaint is clearly shown on the docket. By this shabby ruse Defendant sought to evade the requirements of the Rule establishing the relief he sought. Although four months have passed since that initial Petition was filed Defendant has failed to amend that dishonest pleading or notify this Court or his opposing counsel of a change in the allegations that he is making. By this course of action Defendant and his counsel have failed to correct a material misrepresentation which has a substantial impact on the manner in which this issue must be briefed and argued. Moreover Defendant has, during the pendency of this Petition, failed to complete the discovery required to establish a record in this case. Defendant has refused to answer interrogatories. Defendant has failed to provide documents relating to his claim even after promising to do so. Defendant and his counsel have refuse to appear and be deposed on the factual issues relevant their Petition. Defendant has even refused to enter into stipulations regarding the uncontested facts. Finally this Court must consider the fact that there are already sanctions outstanding against the Defendant. There has been an open defiance of Orders entered by this Court. Defendant has made no attempt whatsoever to comply with the sanctions or curb his contempt. The only use Defendant has made of the period of grace provided by the misleading Petition he filed with this Court. Defendant Bradbury had, during this period, intensified and enlarged his campaign of criminal harassment. It now includes violent threats against Plaintiff's parents and family and a deliberate effort to destroy a business operated by Plaintiff's wife by sending his usual lies and smears to her superiors. Moreover, Defendant has extended his campaign in a manner which substantially threatens to integrity of these judicial proceedings. One of the prime targets of his inchoate rage has been Sara Salzman. After witnessing and being a victim of his treats of violence and witnessed criminal harassment of others, Ms. Salzman agreed to testify in this matter. As a result, Defendant Bradbury and his accomplices have attempted to intimidate her as means of dissuading her from testifying. Not only has she been a target of defamatory publications and outrageous invasions of her privacy but Ms. Salzman, her children and her father have been threatened with physical violence. As a final outrage against human decency and as a conclusive demonstration of the contempt in which Defendant Bradbury holds our laws and our society, he and his accomplices have false reports of child abuse to child protective agencies in the city where Ms. Salzman lives. They even boast openly of having done so and encourage others to do the same. (An Affidavit from Ms. Salzman setting forth the attempts to intimidate this witness and the reaction of her attorney to this criminal campaign are attached hereto and made part hereof as Exhibit "B"). The Court should be aware that the Defendant herein is a mentally unbalanced sociopath. He takes any course that even hints at approbation as encouragement to accelerate and intensify the hate crimes that he commits without a single qualm. It is the position of the Plaintiff that given his behavior during this action and before this Court that severe sanctions should be imposed. V. CONCLUSIONS This Honorable Court has before it a Petition to Open a Default Judgment pursuant to Rule 237.3, Pennsylvania Rules of Civil Procedure. Such Petitions are equitable in nature and fall within the discretion of the Court. Before such discretion is exercised, however, it is mandatory that the petitioner plead and prove that there is a reasonable explanation for the failure to respond promptly to the Complaint and that a meritorious defense exists. Both of these prerequisites require the pleading and proof of facts. In this case the Petitioner has fulfilled neither of these mandatory requirements. On these grounds alone the Petition should be denied. In addition to failing to meet the mandatory requirements for the relief he seeks Petitioner ask this Court to adopt a theory of law contrary to the accepted case law, statutes, and practice accepted as law in this Commonwealth. It is an approach that would reverse the clearly stated policy of the law and, in this case, lead to the absurd result of declaring that the courts of the Commonwealth do not have the jurisdiction to redress a valid cause of action for injuries inflicted and sustained within the Commonwealth. It should be summarily rejected. Finally this Court should recognize that this was a dilatory and frivolous Petition the only effect of which was to give the Defendant additional time to attempt to criminally harass the Plaintiff into dropping this valid action and attempt to compromise the integrity of the legal process by criminally intimidating prospective witnesses. For the reasons stated above this Court should reject the Petition now before it with prejudice, reschedule the assessment of damages hearing at the earliest time possible, and impose appropriate sanctions upon the Defendant.
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