Lawrence, H. v. Robland International

J-A17038-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HENRY LAWRENCE AND LINDA IN THE SUPERIOR COURT OF
LAWRENCE, H/W PENNSYLVANIA

Appellants

v.

ROBLAND INTERNATIONAL B.V.,
ROBLAND BVBA, ROBLAND, ROBLAND
MACHINES, ROBLAND MACHINERY, NV
WERKHUIZEN LANDUYT, WERKHUIZEN
LANDUYT, BLAUWE TOREN, OLIVER
MACHINERY COMPANY, KP WALSH
ASSOCIATES INC., JOHN M. SENSENIG,
D/B/A CONESTOGA WOOD MACHINERY,
ALTA ENTERPRISES INC., R.T. MACHINE
COMPANY, R.T. MACHINES, INC., AND
RT MACHINE SERVICE, INC.,

Appellees No. 2171 EDA 2016

Appeal from the Order June 8, 2016
in the Court of Common Pleas of Philadelphia County
Civil Division at No.: April Term, 2015 No. 003736

BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED OCTOBER 10, 2017

Appellants, Henry and Linda Lawrence, appeal from the trial court’s

order sustaining the preliminary objections filed by Appellees, Robland

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* Retired Senior Judge assigned to the Superior Court.
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International B.V., et al., and dismissing their action with prejudice as to

those defendants for lack of personal jurisdiction.1 We affirm.

We take the following relevant facts and procedural history from the

trial court’s August 12, 2016 opinion and our independent review of the

certified record. Appellants commenced this action, which arises from a May

3, 2013, work-related injury sustained by Mr. Lawrence, by filing a writ of

summons on April 30, 2015. Appellants filed a complaint on October 28,

2015, alleging that Mr. Lawrence sustained personal injuries when his right

hand came into contact with the rotating blade of a Robland table saw during

the course and scope of his employment with Ace Designs, Inc., a

woodcutting and carpentry company located in Bristol, Pennsylvania. The

complaint named fifteen defendants and advanced several claims, including

strict liability, negligence, and breach of warranty. This appeal involves

those defendants that are located and have their principal place of business

in either Belgium or the Netherlands.

On November 16, 2015, Appellees filed preliminary objections, arguing

that the action against them should be dismissed for lack of personal

jurisdiction. On June 8, 2016, the court entered its order sustaining the

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1 We have amended the caption to reflect the date the order was entered on
the docket.

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preliminary objections, following jurisdictional discovery and a hearing.2

This timely appeal followed.3

Appellants raise the following issues for our review:

1. Do the Pennsylvania courts have personal jurisdiction over a
Belgian power saw manufacturer that shipped products directly
to a Pennsylvania machine company and that listed that
company on its website as its “dealer”?

2. Would this Court’s exercise of personal jurisdiction comport
with fair play and substantial justice?

(Appellants’ Brief, at 4).

Both of Appellants’ issues on appeal challenge the trial court’s

determination that it lacked personal jurisdiction over Appellees. (See Trial

Court Opinion, 8/12/16, at 3). We begin by noting the relevant scope and

standard of review.

The scope of review in determining whether a trial court
erred in sustaining preliminary objections and dismissing a
complaint is plenary.

In determining whether the trial court properly
sustained preliminary objections, the appellate court
must examine the averments in the complaint,
together with the documents and exhibits attached
thereto, in order to evaluate the sufficiency of the
facts averred. When sustaining the trial court’s
ruling will result in the denial of claim or a dismissal
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2 Appellants discontinued the action as to the remaining defendants on July
1, 2016, without prejudice.

3 Appellants filed a timely court-ordered concise statement of errors
complained of on appeal on July 29, 2016. The trial court entered an
opinion on August 12, 2016. See Pa.R.A.P. 1925.

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of suit, preliminary objections will be sustained only
where the case is free and clear of doubt, and this
Court will reverse the trial court’s decision regarding
preliminary objections only where there has been an
error of law or an abuse of discretion.

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. This Court will reverse the trial
court’s decision regarding preliminary objections only
where there has been an error of law or an abuse of
discretion. Once the moving party supports its
objections to personal jurisdiction, the burden
of proving personal jurisdiction is upon the
party asserting it.

Sulkava v. Glaston Finland Oy, 54 A.3d 884, 889 (Pa. Super. 2012),

appeal denied, 75 A.3d 1282 (Pa. 2013) (citations omitted; emphasis

added).

With respect to the appropriate exercise of personal jurisdiction in

Pennsylvania, this Court has explained:

The Due Process Clause of the Fourteenth Amendment to
the United States Constitution limits the authority of a state to
exercise in personam jurisdiction over non-resident defendants.
The extent to which jurisdiction is proscribed by the Due Process
Clause is dependent upon the nature and quality of the
defendant’s contacts with the forum state. Where a defendant
has established no meaningful contacts, ties or relations with the
forum, the Due Process Clause prohibits the exercise of personal
jurisdiction. However, where a defendant has purposefully
directed his activities at the residents of the forum, he is
presumed to have fair warning that he may be called to suit
there.

A defendant’s activities in the forum State may give rise to
either specific jurisdiction or general jurisdiction. Specific

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jurisdiction . . . depends on an affiliatio[n] between the forum
and the underlying controversy, principally, activity or an
occurrence that takes place in the forum State and is therefore
subject to the State’s regulation. Because due process may
permit specific jurisdiction based solely on single or
occasional acts purposefully directed at the forum, it is
narrow in scope, limiting a cause of action to the extent
that it arises out of or relates to the very activity that
establishes jurisdiction.

Alternatively, general jurisdiction involves circumstances,
or a course of conduct, from which it is proper to infer an
intention to benefit from[,] and thus an intention to submit to[,]
the laws of the forum State[.] For an individual, the paradigm
forum for the exercise of general jurisdiction is the individual’s
domicile; for a corporation, it is an equivalent place, one in
which the corporation is fairly regarded as at home. Thus,
general jurisdiction may be exercised against foreign
corporations when their affiliations with the [forum] State are so
continuous and systematic as to render them essentially at home
[there]. In contrast to specific jurisdiction, a state that has
general jurisdiction may adjudicate both matters that originate
within the State and those based on activities and events
elsewhere.

Mendel v. Williams, 53 A.3d 810, 817 (Pa. Super. 2012) (citations and

quotation marks omitted; emphasis added).

Preliminarily, we express our agreement with Appellees in noting that

Appellants appeared to conflate general and specific jurisdiction at the

hearing on the preliminary objections in the trial court, and in their principal

appellate brief, and that any claim of general jurisdiction is waived for failure

to raise it properly in the trial court. See Pa.R.A.P. 302(a); (see also

Appellees’ Brief, at 9, 13-14; Appellants’ Brief, at 15; Plaintiffs’

Memorandum of Law in Opposition to Preliminary Objections of Robland

Defendants, 12/07/15, at 9) (waiving assertion of general jurisdiction by

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averring that Appellants “do not argue that [Appellees] have ‘constant and

pervasive’ contacts with Pennsylvania to support general jurisdiction.”)

(emphasis in original); N.T. Hearing, 5/23/16, at 4, 18-20 (arguing that

court has general jurisdiction, despite earlier assertion to the contrary)).

Appellants clarify in their reply brief that, on appeal, they assert only that

Pennsylvania courts have specific jurisdiction over Appellees, not general.4

(See Appellants’ Reply Brief, at 2). However, their claim of specific personal

jurisdiction is waived as well.5

A foreign defendant who does not have sufficient contacts
with Pennsylvania to establish general jurisdiction may
nevertheless be subject to specific jurisdiction in Pennsylvania
pursuant to the Pennsylvania Long–Arm Statute, 42 Pa.C.S.A. §
5322 (Bases of personal jurisdiction over persons outside this
Commonwealth).[6] Section 5322(a) contains ten paragraphs
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4 We note that Appellants do not use the term specific jurisdiction in the
argument section of their principal brief. (See Appellants’ Brief, at 15-47).

5 Unlike subject matter jurisdiction, which cannot be waived and can be
raised at any time, “personal jurisdiction may be waived in the course of
litigation.” Sci. Games Int’l, Inc. v. Com., 66 A.3d 740, 756 n.24 (Pa.
2013) (citing Wagner v. Wagner, 768 A.2d 1112, 1119 (Pa. 2001));
Fletcher-Harlee Corp. v. Szymanski, 936 A.2d 87, 103 (Pa. Super.
2007), appeal denied, 956 A.2d 435 (Pa. 2008), cert. denied, 556 U.S. 1104
(2009); see also Tracy v. Unemployment Comp. Bd. of Review, 23
A.3d 612, 616 n.3 (Pa. Cmwlth. 2011).

6 The Long-Arm Statute provides, in pertinent part:

(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:
(Footnote Continued Next Page)

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(Footnote Continued) _______________________

(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 a 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.

* * *

(b) Exercise of full constitutional power over
nonresidents.—In addition to the provisions of subsection (a)
the jurisdiction of the tribunals of this Commonwealth shall
extend to all persons who are not within the scope of section
5301 (relating to persons) to the fullest extent allowed under the
Constitution of the United States and may be based on the most
minimum contact with this Commonwealth allowed under the
Constitution of the United States.

(Footnote Continued Next Page)

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that specify particular types of contact with Pennsylvania
deemed sufficient to warrant the exercise of specific jurisdiction.
42 Pa.C.S.A. § 5322(a). In addition, section 5322(b) operates
as a “catchall,” providing that jurisdiction may be exercised over
persons who do not fall within the express provisions of section
5322(a) to the fullest extent permitted by the Due Process
Clause of the United States Constitution. 42 Pa.C.S.A. §
5322(b). Regardless, if a defendant’s activities in
Pennsylvania only give rise to jurisdiction under section
5322(a) or (b), the plaintiff’s cause of action is limited to
those activities which formed the basis of jurisdiction.
See 42 Pa.C.S.A. § 5322(c).

Once it is determined that jurisdiction is authorized
by the Long–Arm Statute, the party seeking relief must
demonstrate that the exercise of jurisdiction conforms
with the Due Process Clause. See Schiavone v. Aveta, 41
A.3d 861, 866 (Pa. Super. 2012), aff’d, 91 A.3d 1235 (Pa. 2014)
(two requirements necessary for specific jurisdiction in
Pennsylvania: (1) jurisdiction must be authorized by state
Long–Arm Statute; and (2) jurisdiction must comport with
constitutional principles of due process). Whether specific
jurisdiction is proper under the Due Process Clause requires a
two-part analysis: first, the plaintiff must demonstrate that the
defendant purposefully established minimum contacts with the
forum state; and second, the maintenance of the suit must not
offend “traditional notions of fair play and substantial justice.”
See Schiavone, supra at 869 (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474 (1985).

Mendel, supra at 820–21 (some case citations omitted; citation formatting

provided; emphasis added); see also King v. Detroit Tool Co., 682 A.2d

(Footnote Continued) _______________________

(c) Scope of jurisdiction.—When jurisdiction over a person is
based solely upon this section, only a cause of action or other
matter arising from acts enumerated in subsection (a), or from
acts forming the basis of jurisdiction under subsection (b), may
be asserted against him.

42 Pa.C.S.A. § 5322(a)(1), (b)-(c).

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313, 314 (Pa. Super. 1996) (“The question of whether a state may exercise

specific jurisdiction over a non-resident defendant must be tested against

both the state’s long-arm statute (here 42 Pa.C.S.A. § 5322) and the due

process clause of the fourteenth amendment.”) (citation omitted).

Instantly, in their brief, Appellants do not attempt to establish that the

exercise of specific jurisdiction is proper under any provision of the

Pennsylvania Long-Arm Statute. (See Appellants’ Brief, at 15-47). Instead,

they concentrate their argument on the second requirement necessary for

specific jurisdiction in Pennsylvania, i.e., that jurisdiction comport with

constitutional principles of due process. See Mendel, supra at 821; (see

also Appellants’ Brief, at 15-47) (arguing that Appellees have sufficient

minimum contacts with Pennsylvania to exercise personal jurisdiction in their

first issue, and that exercise of jurisdiction would comport with fair play and

substantial justice in their second issue).

At the hearing on the preliminary objections, Appellants referenced

section (a)(1) of the Long-Arm Statute as serving the basis for specific

jurisdiction. (See N.T. Hearing, at 9, 13-14). However, they fail to set forth

a cogent argument demonstrating the section’s applicability, or even to cite

it, in their brief. (See Appellants’ Brief, at 15-47). Appellants’ lack of

specificity and development of this issue is especially problematic in light the

express limitation on the scope of jurisdiction set forth in subsection (c) of

the Long-Arm Statute. (See supra, at 8 n.6); see also Mendel, supra at

817, 820 (discussing narrow scope of specific jurisdiction).

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It is well-settled:

When briefing the various issues that have
been preserved, it is an appellant’s duty to present
arguments that are sufficiently developed for our
review. The brief must support the claims with
pertinent discussion, with references to the record
and with citations to legal authorities. . . .

This Court will not act as counsel and will not
develop arguments on behalf of an appellant.
Moreover, when defects in a brief impede our ability
to conduct meaningful appellate review, we may
dismiss the appeal entirely or find certain issues to
be waived.

. . . The appellate brief is the most vital tool in any effort to
obtain relief on appeal. Any effort and preparation for appeal
are lost if the arguments in the brief are presented improperly,
incompletely, or inaccurately. As this Court has stated:

. . . Appellate mandates are not hyper-technical.
They are designed to foster the uniform
consideration of the substantive issues in all cases.
We must not proceed haphazardly—following
procedure in one case, ignoring it in another—under
the guise of reaching those substantive issues.
While doing so might lead us to resolve the merits in
any one matter, it would be unfair to litigants and
counsel in so many other cases who do follow the
rules. It would also be unfair to those who do not
follow the rules and against whom we enforce those
rules. Moreover, disregarding procedure would
diminish predictability, breed uncertainty and quickly
erode the law and order we seek to protect, placing
in their stead whim and chaos.

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Commonwealth v. Kane, 10 A.3d 327, 331–32 (Pa. Super. 2010), appeal

denied, 29 A.3d 796 (Pa. 2011) (citations omitted)7; see also Pa.R.A.P.

2101; 2119(a)-(b); Fletcher-Harlee Corp., supra at 90, 103 (finding

appellant’s argument that trial court erred in determining that it lacked

personal jurisdiction over a defendant waived based on appellant’s failure to

adequately develop and support claim in appellate brief); Tracy, supra8 at

616 n.3 (finding issue challenging personal jurisdiction waived for failure to

address in brief).

Here, Appellants’ complete failure to discuss relevant law

demonstrating the applicability of the Pennsylvania Long-Arm statute to

Appellees impedes our ability to conduct meaningful appellate review. As

discussed above, the authorization of jurisdiction under the Long–Arm

Statute must be established as a prerequisite to proceeding with the Due

Process analysis. See Mendel, supra at 821. Appellants have not met

their burden of making an adequate showing with respect this requirement.

See Sulkava, supra at 889; see also Kane, supra at 331. Therefore, we

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7 “Since the Rules of Appellate Procedure apply to criminal and civil cases
alike, the principles enunciated in criminal cases construing those rules are
equally applicable in civil cases.” Kanter v. Epstein, 866 A.2d 394, 400 n.
6 (Pa. Super. 2004), appeal denied, 880 A.2d 1239 (Pa. 2005), cert. denied,
546 U.S. 1092 (2006) (citation omitted).
8Commonwealth Court decisions provide persuasive, non-binding authority.
See Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa. Super. 2010),
appeal denied, 12 A.3d 371 (Pa. 2010).

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conclude Appellants have waived their claim pertaining to specific personal

jurisdiction. Accordingly, we affirm the order of the trial court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/2017

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