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2020 PA Super 149
KENNETH MURRAY, ROBERT : IN THE SUPERIOR COURT OF
SCHNALL, MICHAEL SCOTT, JOHN : PENNSYLVANIA
SENESE, JOHN SHURINA, JOHN :
SIGNORILE, KEVIN SOKOL, :
ANTHONY TRICARICO, FRANK :
VENTRELLA, JOSPH VITALE, PATRICK :
VOGT, HENRY WHITE, WILLIAM :
WHITE, THOMAS WOSKA AND :
WILLIAM YOUNGSON, : No. 2105 EDA 2016
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Appellants :
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v. :
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AMERICAN LAFRANCE, LLC AND :
FEDERAL SIGNAL CORPORATION :
Appeal from the Order May 25, 2016
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): November Term, 2015 No. 02536
ANDREW BURNS, DOUGLAS : IN THE SUPERIOR COURT OF
KALBACHER, MICHAEL KOZAK, : PENNSYLVANIA
KEVIN KUBLER, JAMES LEMONDA, :
JOSEPH LOCHER, PATRICK LYONS, :
JOHN P. MALLEY, JOE MASTERSON, :
BRIAN MCDADE, KEVIN MCENERY, :
WILLIAM MONTEVERDE, VINCENT :
MOSCA, GERARD MURTHA, KEITH :
PALUMBO, JOEL PATTI, RICHARD : No. 2106 EDA 2016
PEITLER, DONALD REILLY, MARIO :
ROSATO, ROBERT RYAN AND :
FRANCIS TRAPANI :
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Appellants :
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v. :
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AMERICAN LAFRANCE, LLC AND :
FEDERAL SIGNAL CORPORATION
Appeal from the Order May 25, 2016
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): November Term, 2015 No. 02494
MIGUEL MORENO, NEIL MULLINS, : IN THE SUPERIOR COURT OF
JOHN NEVOLA, ROBERT O'FLAHERTY, : PENNSYLVANIA
JAMES O'ROURKE, MICHAEL :
PAGLIUCA, SAMUEL PANASCI, :
RONALD PATTILIO, JOEL PERECA, :
DANIEL PERITORE, VINCENT PINTO, :
CHRISTOPHER RAMOS, ROBERT :
REICH, ROCCO RINALDI, JAMES :
RUSSO, GREGORY SALONE, JAMES : No. 2107 EDA 2016
SAVARESE, WILLIAM SCHEU, :
KENNETH SMITH, JOHN SULLIVAN :
AND WARREN TERRY :
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Appellants :
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v. :
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AMERICAN LAFRANCE, LLC AND :
FEDERAL SIGNAL CORPORATION :
Appeal from the Order May 25, 2016
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): November Term, 2015 No. 02522
MICHAEL FELDMAN, RONALD : IN THE SUPERIOR COURT OF
FERRANTE, CHARLES FEYH, DONALD : PENNSYLVANIA
FLORE, JOHN FORTUNATO, FRANK :
GACCIONE, ROBERT GLEISSNER, :
JAMES HELFRICH, FRANK INGOGLIA, :
ROBERT LABATTO, JOHN LILLIS, :
THOMAS LYONS, EUGENE :
MAHLSTED, JAMES MASONE, :
EDWARD MAURO, SEAN MCCOYD, : No. 2108 EDA 2016
JOHN MCGONIGLE, EUGENE :
MCGOWAN, JR., JOHN MCLAUGHLIN, :
ERIC MICHELSEN AND PAUL MILLER :
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Appellants :
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v. :
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AMERICAN LAFRANCE, LLC AND :
FEDERAL SIGNAL CORP. :
Appeal from the Order May 25, 2016
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): November Term, 2015 No. 02514
RICHARD BARBARISE, JAMES : IN THE SUPERIOR COURT OF
BERGHORN, STEVEN BERNIUS, : PENNSYLVANIA
VASILIOS CHRISTODOULOU, :
GAETANO DIMAURO, JOHN FLYNN, :
WILLIAM GRAHAM, PETER :
GUNTHER, THOMAS LORELLO, JAMES :
MANGRACINA, NORMAN MARSTON, :
JOSEPH MAURER, ROBER MCGUIRE, :
ROBERT MOCCIA, JOHN MORABITO : No. 2109 EDA 2016
WILLIAM MUNDY, STANLEY :
PEACOCK, SALVATORE ROSINA, :
DONALD RUDDEN, THOMAS SCALLY, :
ROBERT SCHULTZ, PATRICK :
SCHWEIGER, RICHARD SCOTT, :
FRANK SFORZA, PATRICK SHANNON, :
EDMUND SULLIVAN, FREDERICK :
SUTTON, FRANCIS ULMER, RICHARD :
WALIGOVSKA, PAUL WEIS, JUSTIN :
WERNER AND RUDY WICKLEIN :
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Appellants :
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v. :
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AMERICAN LAFRANCE, LLC AND :
FEDERAL SIGNAL CORPORATION :
Appeal from the Order May 25, 2016
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In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): December Term, 2015 No. 000187
ROOSEVELT ADAMS, ANTHONY : IN THE SUPERIOR COURT OF
ASARO, EUGENE BIANCONE, : PENNSYLVANIA
SALVATORE BONGIOVANNI, :
STEPHEN BROWN, MICHAEL CAIN, :
ROBERT CANZONERI, MICHAEL :
CARLIN, RAYMOND CLANCY, CASEY :
COLWELL, ROBERT CONDON, :
CHRISTIAN CORBIN, THOMAS :
COURTENAY, DANIEL COYLE, : No. 2110 EDA 2016
RAYMOND CREEDE, AUSTIN :
CSORNY, FRANK DEANGELO, :
PATRICK DIMICHELE, JOHN :
DRISCOLL AND KENNETH ERB :
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Appellants :
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v. :
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AMERICAN LAFRANCE, LLC AND :
FEDERAL SIGNAL CORPORATION :
Appeal from the Order May 25, 2016
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): November Term, 2015 No. 002490
RICHARD ABBOTT, VINCENT : IN THE SUPERIOR COURT OF
ANZELONE, RICHARD BURBAN, : PENNSYLVANIA
DANIEL BUTLER, EDWARD CACHIA, :
VICTOR CARLUCCI, JOSEPH CLERICI, :
DERMOTT CLOWE, FRED CORTESE, :
ANTHONY CUMMO, STEVEN :
FERRARO, ROCCO FERTOLI, DAVID :
FISCHBEIN, CHARLES FORTIN, :
STEVEN GRECO, GARY HOEHING, : No. 2111 EDA 2016
WILLIAM HOPKINS, GREGORY :
HORAN, SCOTT HUMMEL, JOSEPH :
INGRISANI AND RONALD PATTILIO :
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Appellants :
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v. :
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AMERICAN LAFRANCE, LLC AND :
FEDERAL SIGNAL CORPORATION :
Appeal from the Order May 25, 2016
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): November Term, 2015 No. 002492
BEFORE: BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J.,
DUBOW, J., KUNSELMAN, J., NICHOLS, J., and MURRAY, J.
OPINION BY BOWES, J.: Filed: June 25, 2020
Appellants,1 who comprise several plaintiffs from Massachusetts, New
York, and Florida (hereafter “Plaintiffs”), appeal the May 25, 2016 orders
sustaining the preliminary objections of Federal Signal Corporation (“Federal
Signal”), a Delaware company with its principal place of business in Illinois,
and dismissing Plaintiffs’ claims for lack of personal jurisdiction.2 We granted
en banc review to address whether Pennsylvania has general personal
jurisdiction over Federal Signal due exclusively to its 1969 registration with
the Pennsylvania Department of State as a foreign corporation pursuant to
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1 On March 13, 2017, we granted Plaintiffs’ unopposed applications to
consolidate the seven appeals for disposition.
2Plaintiffs initially sued six companies; however, the claims against all of the
defendants except Federal Signal were either dismissed with prejudice or
withdrawn.
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15 Pa.C.S. § 411(a).3 Based upon Plaintiffs’ failure to preserve the issue for
our review, we affirm.
Plaintiffs sued Federal Signal in Pennsylvania under theories of
negligence and strict liability for injuries alleged to have occurred in New York
as a result of excessive sound exposure from fire engine sirens that Federal
Signal designed and manufactured in Illinois. Federal Signal filed preliminary
objections to the complaints for lack of personal jurisdiction. It supported the
preliminary objection with the affidavit of Ian Hudson, its Vice President and
Corporate Controller, who attested to the company’s inconsequential dealings
in Pennsylvania, i.e., four of 633 employees reside in the Commonwealth and
3.5% of its total sales in 2015 were to Pennsylvania buyers. See Brief in
Support of Preliminary Objections to Complaint, 3/4/16, Exhibit A at ¶¶ 8, 9.
Although Federal Signal neglected to affix a notice to plead to the
preliminary objections, Plaintiffs filed a response and a memorandum of law
asserting personal jurisdiction based upon Federal Signal’s alleged continuous
and systematic contacts with Pennsylvania. Plaintiffs supported their
response by attaching, inter alia, 1) a “Confidential Information Sheet” that
outlined Federal Signal’s sales and employees in Pennsylvania between 2012
and 2015; and 2) the June 2010 deposition testimony of Philadelphia Fire
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3On September 25, 2018, a divided panel of this Court concluded that Federal
Signal consented to personal jurisdiction by registering as a foreign
corporation. That decision was withdrawn on December 7, 2018, after we
granted Federal Signal’s petition for en banc reargument.
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Department Battalion Chief Henry Leary, from an unrelated case, regarding
his department’s use of Federal Signal’s sirens. See Answer in Opposition of
Preliminary Objections, 5/6/16, Exhibits 1 and 2.
On May 25, 2016, the trial court sustained the preliminary objections,
concluding that Federal Signal’s alleged contacts with Pennsylvania failed to
satisfy the due process standard that the U.S. Supreme Court reiterated in
Daimler AG v. Bauman, 134 S.Ct. 746, 761 (2015) (stating the inquiry “is
whether th[e] corporation’s affiliations with the State are so continuous and
systematic as to render it essentially at home in the forum State.”).
Accordingly, it dismissed all of Plaintiffs’ claims. These timely appeals
followed.
As the trial court did not order Plaintiffs to file a concise statement of
errors complained of on appeal, its Pa.R.A.P. 1925(a) opinion addressed the
issue of jurisdiction in the context of Plaintiffs’ original assertion that Federal
Signal maintained continuous and systematic contacts with Pennsylvania.
However, on appeal, Plaintiffs for the first time argue that personal jurisdiction
is proper in light of 42 Pa.C.S. § 5301(a)(2)(i), because Federal Signal
registered as a foreign corporation pursuant to 15 Pa.C.S. § 411(a).4
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4 Section 5301(a)(2)(i) extends the Commonwealth’s general personal
jurisdiction over, inter alia, entities that “[qualify] as a foreign corporation
under the laws of this Commonwealth.” 42 Pa.C.S. § 5301(a)(2)(i).
Specifically, that statute provides:
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Plaintiffs’ brief at 14-16. Acknowledging that the current argument was never
presented to the trial court for consideration, Plaintiffs cast the issue in the
negative. Plaintiffs assert,
It was an error for the [t]rial [c]ourt to focus solely on the
continuous and substantial contacts of Federal Signal when
determining whether general jurisdiction is properly established
without considering that Federal Signal previously consented to
the jurisdiction of the courts of the Commonwealth by the
affirmative act of registering as a foreign corporation with the
Corporations Bureau.
Id. at 11. Plaintiffs’ phrasing suggests that the obligation to demonstrate the
basis for personal jurisdiction rested with the trial court. As we explain, infra,
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(a) General rule.--The existence of any of the following
relationships between a person and this Commonwealth shall
constitute a sufficient basis of jurisdiction to enable the tribunals
of this Commonwealth to exercise general personal jurisdiction
over such person, or his personal representative in the case of an
individual, and to enable such tribunals to render personal orders
against such person or representative:
....
(2) Corporations.—
(i) Incorporation under or qualification as a foreign
corporation under the laws of this Commonwealth.
(ii) Consent, to the extent authorized by the consent.
(iii) The carrying on of a continuous and systematic part of
its general business within this Commonwealth.
42 Pa.C.S. § 5301(a) (emphasis added). Although this section did not exist
when Federal Signal registered as a foreign corporation, Federal Signal
concedes that it renewed its registration subsequent to the June 1978
enactment of 42 Pa.C.S. § 5301(a)(2)(i).
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it does not. Once Federal Signal supported its jurisdictional challenge to
personal jurisdiction with evidence, the burden of proving personal jurisdiction
shifted to Plaintiffs. See Sulkava v. Glaston Finland Oy, 54 A.3d 884, 889
(Pa.Super. 2012).
Prior to addressing the merits of Plaintiffs’ current argument, we must
examine whether it is waived pursuant to Pa.R.A.P. 302(a), since it was not
raised before the trial court. See Rule 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”). The
purpose of Rule 302(a) is “to provide th[e] [trial] court with the opportunity
to consider the issue, rule upon it correctly, and obviate the need for appeal.”
Gustine Uniontown Assocs., Ltd. v. Anthony Crane Rental, Inc., 892
A.2d 830, 835 (Pa.Super. 2006). As our High Court explained, “where the
parties fail to preserve an issue for appeal, the Superior Court may not address
the issue, even if the disposition of the trial court was fundamentally wrong.”
Danville Area Sch. Dist. v. Danville Area Educ. Ass'n, PSEA/NEA, 754
A.2d 1255, 1259 (Pa. 2000) (citation omitted); see also Kimmel v.
Somerset County Comm'rs, 333 A.2d 777, 779 (Pa. 1975) (“It is a
fundamental principle of appellate review that [appellate courts] will not
reverse a judgment or decree on a theory that was not presented to the trial
court.”).
Instantly, Plaintiffs asserted in the trial court that Pennsylvania had
personal jurisdiction over Federal Signal through the company’s continuous
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and systematic contacts with the Commonwealth. The trial court rejected that
contention after reviewing Plaintiffs’ response to the preliminary objections
and the evidence presented by both sides. Having failed to establish personal
jurisdiction based upon allegations of continuous and systematic contacts,
Rule 302(a) prohibits Plaintiffs from invoking an alternative basis for personal
jurisdiction for the first time in this appeal. See Gustine Uniontown
Associates, supra at 835–36 (finding the plaintiff-appellant waived two
arguments that were not included in response to defendant’s preliminary
objections and “the trial court failed to indicate any awareness of these two
positions”).
Plaintiffs attempt to circumvent waiver by contending that their failure
to assert an alternative basis for personal jurisdiction at any point before the
trial court dismissed their complaint is excused because they were not
required to proffer any response to Federal Signal’s preliminary objections.
See Plaintiffs’ supplemental brief at 1-2 (“Failure to respond [to preliminary
objections] does not sustain the moving party’s objections by default, nor does
it waive or abandon the claim.”) (quoting Uniontown Newspapers, Inc. v.
Roberts, 839 A.2d 185, 190 (Pa. 2003)). We disagree.
Plaintiffs’ reliance upon the High Court’s discussion in Uniontown
Newspapers, Inc., is misplaced because that case did not address Rule
302(a) waiver in relation to personal jurisdiction. Instead, our High Court held
that the non-moving party on a preliminary objection in the nature of a
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demurrer is not required to defend the legal sufficiency of the claims actually
raised in the complaint for declaratory judgment. Id. at 190 (“Since [the
plaintiffs] were not the moving party, their failure to respond to preliminary
objections does not waive the issue.”). Contrary to Plaintiffs’ protestations,
however, the principle that a non-moving party has no obligation to respond
to preliminary objections is inapplicable where, as here, the issues relate to a
trial court’s fundamental authority to enter judgment against a defendant as
opposed to a demurrer or the legal sufficiency of a pleading that is at least
facially compliant.
As we stated in Sulkava, supra, when addressing a challenge to
personal jurisdiction, the trial court considers the evidence in the light most
favorable to the non-moving party. However, “[o]nce the moving party
supports its objections to personal jurisdiction, the burden of proving personal
jurisdiction is upon the party asserting it.” Id. at 889; see also Webb-
Benjamin, LLC v. International Rug Group, 192 A.3d 1133, (Pa.Super.
2018) (same). Thus, the non-waiver principle discussed in Uniontown
Newspaper, Inc., is inapposite. Instead, once Federal Signal presented
evidence to support its preliminary objection to the Pennsylvania court’s
exercise of personal jurisdiction, Plaintiffs were required to establish personal
jurisdiction. Their attempt to demonstrate jurisdiction through Federal
Signal’s alleged continuous and systematic contacts failed and, since Plaintiffs
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neglected to assert an alternative basis of jurisdiction, the consequence of
that failure was the dismissal of their claims.
The High Court’s discussion in Uniontown Newspaper, Inc., and our
description of the shifting burden of proof in Sulkava, highlight the divergence
between preliminary objections that can be determined by facts of record and
those that cannot. Pursuant to Pa.R.C.P. 1028(a), two distinct classifications
of preliminary objections exist: objections that directly challenge the adequacy
of the pleading, i.e., subparagraphs (a)(2), (3), and (4); and objections that
raise challenges that transcend the four corners of the pleading. While the
former may be determined by the factual averments of record, like the
demurrer filed by the appellee in Uniontown Newspaper Inc., the latter,
such as Federal Signal’s jurisdictional assertion, requires discovery and
evidentiary support. See Rule 1028(c)(2) Note (“Preliminary objections
raising an issue under subdivision (a)(1), (5), (6), (7) or (8) cannot be
determined from facts of record.”).
Further, while the Note to Rule 1028(c)(2) indicates that “the
preliminary objections must be endorsed with a notice to plead or no response
will be required under Rule 1029(d),” Federal Signal’s failure to affix a notice
to plead to its preliminary objection in this case does not excuse Plaintiffs’
failure to raise the present argument in the trial court. First and foremost,
Plaintiffs filed a response despite the lack of the required notice to plead and
asserted jurisdiction solely based upon alleged continuous and systematic
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contacts. Second, as we explain infra, even if we ignored that Plaintiffs
actually filed a response, Federal Signal’s misstep would not permit us to
disregard Rule 302(a) in order to address the merits of Plaintiffs’ novel
argument invoking § 5302(a)(2)(iii).
Read in pari materia, Pa.R.C.P. 1017(a)(4) and Pa.R.C.P. 1026(a)
provide that preliminary objections are designated as pleadings in civil actions,
and because of that designation, responses are not required unless the
preliminary objection is endorsed with a notice to plead.5 Thus, where a party
fails to affix a notice to plead to the pleading, the respondent is relieved of the
obligation to file a responsive pleading and the factual averments of the
preceding pleading are deemed denied. See Pa.R.C.P. 1029(d) (“Averments
in a pleading to which no responsive pleading is required shall be deemed to
be denied.”); Lewandowski v. Crawford, 222 A.2d 601, 601 (Pa.Super.
1966) (en banc) (holding failure to endorse pleading with proper notice
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5 See Pa.R.C.P. 1017(a)(4). “[A] preliminary objection and a response
thereto” are among the class of filings designated as pleadings in civil actions.
As it relates the required notice to plead:
Except as provided by Rule 1042.4 [(regarding a professional
liability claim)] or by subdivision (b) of this rule [(concerning
service outside of the United States)], every pleading subsequent
to the complaint shall be filed within twenty days after service of
the preceding pleading, but no pleading need be filed unless
the preceding pleading contains a notice to defend or is
endorsed with a notice to plead.
Pa.R.C.P. 1026(a) (emphasis added).
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relieves respondent of obligation to file responsive pleading and precludes
entry of default judgment). Thus, ignoring the fact of Plaintiffs’ response to
the preliminary objections, the appropriate cure for the lack of a notice to
plead was for the trial court to treat Federal Signal’s factual averments in the
pleading as having been denied by Plaintiffs. Significantly, however, the
deemed denial of factual averments would not have undermined the evidence
that Federal Signal presented in support of its preliminary objection, nor would
it have sustained Plaintiffs’ burden of establishing personal jurisdiction. Stated
another way, the fact that a response was not required pursuant to Rule
1029(d) neither nullified the response that Plaintiffs actually filed nor relieved
Plaintiffs’ burden of demonstrating personal jurisdiction at the risk of having
the complaints dismissed.
For the foregoing reasons, we do not address the merits of Plaintiffs’
fresh claim that Pennsylvania has personal jurisdiction over Federal Signal due
to its 1969 registration with the Pennsylvania Department of State as a foreign
corporation pursuant to 15 Pa.C.S. § 411(a).6 As Plaintiffs’ only argument is
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6 We do not take this decision lightly. The argument that Plaintiffs assert on
appeal implicates an issue that has generated abundant scholarly
commentary. Further, Pennsylvania’s unique jurisdictional framework sets it
apart from other jurisdictions that have confronted the related issue regarding
whether corporate registration is tantamount to implied consent. Indeed,
recent district court decisions have taken divergent views of this issue in
relation to Pennsylvania’s jurisdictional statute. Compare In re Asbestos
Products Liability Litigation (No. VI), 384 F.Supp.3d 532, 540-41 (E.D.
Pa. 2019) (“mandatory statutory regime purporting to confer consent to
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waived, we affirm the trial court orders sustaining Federal Signal’s preliminary
objections and dismissing Plaintiffs’ claims for lack of personal jurisdiction.
Orders affirmed.
Judges Shogan, Lazarus, Olson, Stabile, Dubow, Kunselman, and
Murray join this opinion.
Judge Nichols notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/20
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general jurisdiction in exchange for the ability to legally do business in a state
is contrary to the rule in Daimler and, therefore, can no longer stand.”), with
Kraus v. Alcatel-Lucent, 2020 WL 951082, at *1 (E.D. Pa. Feb. 27, 2020)
(“Pennsylvania’s consent-by-registration statute is constitutional.”). Although
the parties and amici curiae all presented compelling arguments about this
issue in their briefs to this Court, regrettably we simply cannot address those
competing perspectives without the benefit of the trial court’s vetting of the
issue in the first instance. See Danville Area Sch. Dist. v. Danville Area
Educ. Ass'n, PSEA/NEA, 754 A.2d 1255, 1259 (Pa.2000) (“[W]here the
parties fail to preserve an issue for appeal, the Superior Court may not address
the issue.”).
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