IN THE COURT OF COMMON PLEAS OF LEHIGH COIJNTY, PENNSYLVANIA
CIVIL DIVISION – LAW
YALE F. EDEIKEN,
Plaintiff,
v.
SCOTT BRADBURY, a/k/a “DOC TAVISH” a/k/a “doc [email protected]” a/k/a
“[email protected]”.
Defendant.
NO. 1999-C-2786
Assigned Judge: Reibman, J.
ORDER
AND NOW, this 12th day of June, 2001, upon consideration of Defendant’s
Petition for Relief from Judgment, filed on September 22, 2000, Plaintiff s
response thereto, and argument thereon on February 7, 2001.
IT IS ORDERED said petition is GRANTED, and the case is DISMISSED. 1/
1/ Yale F. Edeiken (“Plaintiff’) lives in Pennsylvania and Scott Bradbury
(“Defendant”) lives in Texas. Through each man”s varied exploration of
Internet sites, they began to exchange views electronically. Over time,
these communications allegedly escalated to insults and threats, which
Plaintiff contends are defamatory, constitute harassment, and invade his
privacy.
On November 3, 1999, Plaintiff commenced this action by filing of a Writ of
Summons. Over the next six months, Plaintiff attempted pre-complaint
discovery by filing motions to compel, for sanctions and protective orders,
and on July 20, 2000, filed his complaint. Defendant allegedly refused to
communicate with Plaintiff and returned mail unopened to sender. After the
Complaint was returned, Plaintiff forwarded to Defendant a notice of
intention to enter a default judgment. As Defendant did not respond by
filing a responsive pleading within the ten-day period required by Pa.
R.C.P. 237. 1, a default judgment was filed against him on August, 25. 2000.
On September 22, 2000, Defendant entered an appearance in the case when his
counsel filed a Petition for Relief from Judgment. Defendant alleges because
this Court does not have personal jurisdiction over him, the matter should
be stricken and dismissed.
When a defendant raises the issue of a court’s lack of in personam
jurisdiction, the plaintiff bears the burden of proving there is statutory
and constitutional support for the trial court’s exercise of jurisdiction.
Fidelity Leasing, Inc. v. Limestone County B. of Educ., 758 A. 2d 1207,
1210 (Pa. Super. 2000);. McCall v. Formu-3 Intern, Inc., 650 A.2d 903, 904
(Pa. Super. 1994), alloc. denied, 541 Pa. 640, 663 A.2d 692 (1995); Zippo
Mfg. Co. v. Zippo Dot Com, Inc. 952 F. Supp. 1119, 1122 (W.D. Pa. 1997).
The Judiciary Act, 42 Pa. C.S.A. A7 5301 et seq. allows Pennsylvania courts
to exercise one of two types of personal jurisdiction over out-of-state
defendants:
(1) specific jurisdiction (under 42 Pa. C.S.A. A7 5322), based upon the
specific acts of the defendant which gave rise to the cause of action, and
(2) general personal jurisdiction (under 42 Pa. C.S.A. A7 5301), based upon a
defendant’s general activity within the state.
McCall, 650 A.2d at 904. Regardless of which type of personal Jurisdiction
is asserted, the propriety of such an exercise must be tested against both
the Pennsylvania long arm statute, 42 Pa. C.S.A. A7 5322, and the due process
clause of the fourteenth amendment to the U.S. Constitution- Fidelity
Leasing, Inc.758 A.1d at 1211, citing, Hall-Woolford Tank Co., Inc. v. R.F.
Kilns Inc., 698 A.2d 80, 82-83 (Pa. Super. 1997). The issue of in personam
jurisdiction in both state and federal courts is decided under the same
constitutional due process standards. See, e.g., Filipovich v. J.T. Imports,
Inc., 637 A.2d 314 (Pa. Super. 1994).
The long arm statute permits Pennsylvania courts to “exercise jurisdiction
over nonresident defendants ‘to the fullest extent allowed under the
Constitution of the United States’ and jurisdiction may be based ‘on the
most minimum contact with this Commonwealth allowed under the Constitution
of the United States.”‘ General Motors Acceptance Corp. v. Keller, 737 A.2d
279, 281 (Pa. Super. 1999). In this case, Defendant’s publication of the
alleged defamatory material through Internet e-mail, allowing access and
publication within the State of Pennsylvania and among Pennsylvania
residents, is sufficient to establish a prima facie case of personal
jurisdiction under the “tort” prong of Pennsylvania’s long arm statute. See,
Lofton v. Turbine Design, Inc. 100 F.Supp.2d 404,409 (N.D. Miss. 2000).
Furthermore, Defendant concedes his actions fall under section 5322 (a)(4)
of the long arm statute, Defendant” s Memorandum of Law, p. 4, which
provides:
(a) General rule.-A tribunal of this Commonwealth may exercise personal
jurisdiction over a person … who acts directly or by an agent, as to a
cause of action or other matter arising from such person:
* * *
(4) Causing harm or tortious injury in this Commonwealth by an act or
omission outside this Commonwealth.
* * *
42 Pa. C.S.A. 5322(a)(4). Accordingly, jurisdiction in this case is
authorized by statute, and the sole issue becomes whether due process
requirements, pursuant to the fourteenth amendment are satisfied.
Pennsylvania courts have expressly adopted the due process standard
advocated by the U.S. Supreme Court in Burger King Corporation v. Rudzewicz,
471 U.S. 462,105 S.Ct. 2174, 85 L. Ed.2d 528 (1985). Kubik v. Letteri, 532
Pa. 10, 17, 614 A.2d 1110, 1114 (1992). In order for the state to assert
specific personal jurisdiction over a nonresident defendant, the following
three conditions must be met:
(1) the defendant must have sufficient “minimum contacts”‘ with the forum
state;
(2) the claim asserted against the defendant must arise out of those
contacts; and,
(3) the exercise of jurisdiction must be reasonable.
Oasis Corp. v. Judd, 2001 WL 173734, *6 (S.D. Ohio 2001), citing, Reynolds
v. International Amateur Athletic Fed 23 F.3d 1110, 1116 (6th Cir. 1994),
cert, denied. 513 U.S. 962, 115 S. Ct. 423, 130 L.Ed.2d 338 (1994); Zippo
Mfg. Co., 952 F.Supp. at 1122-23.
The determination of whether sufficient contacts exist for the assertion of
in personam jurisdiction is based on a finding that the “defendant’s conduct
and [his] connection with the forum state are such that lie should
reasonably anticipate being haled into court there.” McCall., 650 A.2d at
905, citing Kubik, 532 Pa. at 17, 614 A.2d at 1114.
Critical to the analysis of whether a defendant should reasonably anticipate
being haled into court in the forum state is the determination that the
defendant purposefully directed his activities at residents of the forum and
purposefully availed himself of the privilege of conducting activities
within the forum state, thus invoking the benefits and protection of its
laws.
Id., citing, Kubik, 532 Pa. at 18, 614 A.2d at 1114.
Whether or not a party’s communications over the Internet can be a basis for
personal jurisdiction comprises a new but “burgeoning” area of the law.
Lofton, 100 F.Supp. at 410. However, the vast majority of such “Internet
jurisdiction” cases address the jurisdictional question in the context of
commercial web sites. Oasis Corp., 2001 WL 173734 at *12, n.9 (emphasis in
original). See g1so, Zippo Mfg. Co., supra. (the likelihood that personal
jurisdiction can be constitutionally exercised is directly proportionate to
the nature and quality of commercial activity that an entity conducts over
the Internet). Where, however the question is non-commercial in nature, such
guidelines provide little to supplement the traditional framework for
considering questions of personal jurisdiction.. Id. See Mink v. AAAA Dev.
LLC, 190 F.3d 333 (5th Cir. 1999). Accordingly, the issues in the instant
tort case will be considered in light of the traditional framework as set
forth in Burger King, supra, and its progeny.
Here, Defendant’s affidavit that states he has never been to Pennsylvania;
he has not and does not currently own any personal property, real estate,
vehicles or other property in the state; he bas never done business, bought,
sold, advertised or traded anything in the state; and he has never sued
anyone or availed himself of the Pennsylvania court system, has not been
challenged. In fact. Defendant’s only contact with the Commonwealth of
Pennsylvania appears to be his Internet “relationship” with Plaintiff solely
through email communications. See Lofton-supra.
Mere presence on the World Wide Web does not establish minimum contacts
necessary to subject a non-resident defendant to personal jurisdiction. S.
Morantz, Inc. v. Hang & Shine Ultrasonics, Inc., 79 F.Supp.2d 537, 539 (E.D.
Pa. 1999). Further, the content of Defendant’s allegedly defamatory and
harassing e-mail communications was directed to Plaintiff himself, not to
Plaintiff s location. In fact, Plaintiff indicates Defendant was unaware of
Plaintiffs location for some time (Complaint, para. 67) (“Defendant
published a statement that he found the Plaintiff”). Such eventual contact
with Pennsylvania was “fortuitous” or “coincidental” within the meaning of
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62
L.Ed.2d 490 (1980). Zippo Mfg. Co., 952 F.Supp., at 1126. In addition, the
fact that Defendant could possibly foresee that his e-mails could be viewed
and have an effect in Pennsylvania is not, in and of itself, enough to
create personal jurisdiction. Reynolds, 23 F.3d at 1119 (use of telephone
and mail is a “secondary or ancillary” factor and “cannot alone provide the
minimum contacts required by due process”). Plaintiff has not provided
evidence that Defendant’s e-mail messages were accessed by any other
Pennsylvania residents, see Lofton, supra, or that Plaintiff suffered harm
in Pennsylvania as a result of such e-mails. See Bochan v. La Fontaine, 68
F.Supp.2d 692, 702 (E.D. Va. 1999); D’Errico v. DeFazio, 763 A.2d 424, 432
(Pa. Super. 2000) (providing elements for tort of defamation). Finally, even
Plaintiff’s allegation that Defendant forged and forwarded false and
defamatory material to a business in Pennsylvania for the purpose of
interfering with Plaintiffs business relationship is insufficient to
establish the minimum. contacts required. See Hall-Woolford Tank Co., 698
A.2d at 84.
BY THE COURT:
(signature)
EDWARD D. REIBMAN, J..
Having found insuffificient minimum contacts, Plaintiff’s Complaint against
Defendant is dismissed.
