Holden v. Holden

CAVANAUGH, Judge:

The issue in this case is whether a court in Pennsylvania may exercise in personam jurisdiction over the appellant, Diane Holden, in a civil action where all of the conduct by the appellant took place in Texas. If such jurisdiction does not exist, the court below erred in refusing to open a *186default judgment entered against the appellant and the complaint against her must be dismissed.

The appellee, Frances G. Holden, and Dr. Stanley Holden, who is not a party to this litigation, were divorced in Luzerne County, Pennsylvania, following extended and complex proceedings. A property settlement agreement was entered into between the parties to the divorce action which provided inter alia for alimony for Frances G. Holden during her lifetime. Subsequently, Dr. Holden married Diane Holden, the appellant herein, who has been a resident of the State of Texas at all times relevant to this action.

The appellee commenced the present action in Luzerne County. The complaint was served on Diane Holden at her residence in Humble, Texas on November 6, 1985. She did not file a responsive pleading and on December 18, 1985 a notice of intention to take default judgment was sent to her. On January 13, 1986 default judgment as to liability was entered against the appellant who filed a petition to open the default judgment on May 7, 1986. The petition to open alleged lack of personal jurisdiction over the appellant. The court below denied the petition and this appeal followed.1

The basis for jurisdiction over Diane Holden, if it exists, would be found in the Pennsylvania Long Arm Statute which provides in part at 42 Pa.C.S. § 5322(a)(4):

(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 person:
*187(4) Causing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth.

The appellant has had no contact with Pennsylvania at all. The settlement agreement was reached in Pennsylvania between the appellee and Stanley Holden, but Diane Holden was not a party to the divorce proceedings or the settlement agreement. The complaint alleges factually that “Defendant [Diane Holden] has induced Stanley J. Holden to breach said contract by threatening to dissolve her marriage to Stanley J. Holden if he complied with said contract.” The other allegations are that the appellant “induced” Stanley Holden to breach his contract and prevented him from complying with the terms of the settlement agreement, and has “interfered with the contractual relationship” between Stanley Holden and Frances Holden. The complaint also alleges that appellant has negligently inflicted emotional distress upon the appellee. None of the allegations set forth any activities by the appellant in Pennsylvania.

The Pennsylvania Long Arm Statute does not permit our courts to extend their jurisdiction to persons beyond the boundaries of this Commonwealth except in limited circumstances. Beginning with International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), innumerable cases have stated that in order for a state to fulfill the requirement of due process, it may exercise personal jurisdiction over a non-resident defendant only if there are “minimum contacts” between the defendant and the forum state so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. The defendant’s conduct must be such that it is reasonable and fair to require him to defend his actions in a foreign state. Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). The Supreme Court of the United States has noted that there are “territorial limitations on the power of the respective states.” Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283, 1296 (1958).

*188In the case before us, the appellant performed no acts in Pennsylvania, but it is alleged that she interfered in Texas with performance of a contract made in Pennsylvania. The complaint seeks to embroil the appellant in the long continued and bitter dispute between appellee and her former husband, Dr. Stanley Holden. The predecessor to the current Long Arm Statute was found at 42 Pa.C.S. § 8305, (Purdon Supp.1974-75), which was repealed in 1976. Chief Justice Nix discussed conduct by a defendant occurring outside of the state which has a harmful effect upon one within Pennsylvania in the context of 42 Pa.C.S. § 8305 in Kenny v. Alexson Equipment Company, 495 Pa. 107, 116-117, 432 A.2d 974, 979 (1981) stating:

Section 8305 "... requires that (1) the non-resident [shall] have acted outside of Pennsylvania, (2) his action [shall] have caused ‘any harm’ within Pennsylvania, and (3) the cause of action [shall] have arisen out of the conduct causing the harm” B.J. McAdams, Inc. v. Boggs, 426 F.Supp. 1091, 1098 (E.D.Pa.1977). This section is a formulation of what has been termed the “effects test” of extra-territorial jurisdiction. Under the “effects test,” derived from the American Law Institute’s Restatement (Second) of Conflict of Laws § 37 (1971):
A state has power to exercise judicial jurisdiction over an individual who causes effects in the state by an act done elsewhere with respect to any cause of action arising from these effects unless the nature of the effects and of the individual’s relationship to the state make the exercise of such jurisdiction unreasonable.

In Kenny v. Alexson Equipment Company, supra, the Supreme Court dismissed a complaint by a Pennsylvania resident against a non-resident individual, Mr. Piracci, Sr., who never did business nor maintained an office in Pennsylvania. Mr. Piracci sold a hoist in Maryland which was eventually used in Philadelphia, Pennsylvania. Allegedly, the hoist caused injuries because of a defect in it. The court stated at 495 Pa. at 117, 432 A.2d at 980:

*189... the issue of whether Piracci, Sr. can be subjected to the jurisdiction of the courts of this Commonwealth does not end with a finding that his activities allegedly come within the literal language of the Long-Arm Statute.
The analysis of whether a state may exercise jurisdiction over a non-resident individual must be tested against both statutory and constitutional standards. The due process clause of the Fourteenth Amendment imposes a limit on the state’s exercise of jurisdiction over a non-resident defendant. McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).2

As noted above, the due process requirements as set forth in International Shoe Company v. Washington, supra are that there must be minimum contacts with the forum state and this necessitates an examination of the facts in each case. Vacu-Maid, Inc. v. Covington, 530 P.2d 137 (Oklahoma Appellate Division 1974). In the instant case, the acts complained of occurred in Texas and consisted principally of the appellant threatening to leave her husband if he complied with the terms of the agreement between her husband and his former wife. The appellant, at most, only indirectly harmed the appellee. It was the *190appellant’s husband who caused direct harm, if any, to the appellee by not carrying out the terms of the settlement agreement. In any event, the alleged conduct by the appellant set forth in the complaint is too tenuous to invoke the jurisdiction of our courts under the Long-Arm Statute as the appellant had no contact with the Commonwealth of Pennsylvania.3

Our case is analogous to DeFay v. McMeekin, 352 Pa.Super. 409, 508 A.2d 324 (1986) in which the plaintiff brought suit against a New Jersey defendant, alleging negligence in an automobile accident which occurred in New Jersey. The plaintiff suffered pain while recuperating in Pennsylvania. The defendant, though served, did not file a responsive pleading and default judgment was entered against him. A petition to open the judgment was denied and an appeal was taken to this court. We stated at 352 Pa.Super. at 411, 508 A.2d at 325:

Before considering the merit of appellant’s argument in favor of opening the default judgment, we must necessarily address appellant’s contention that the court lacks personal jurisdiction over him because he is a New Jersey resident and the automobile accident occurred in New Jersey.

We further stated at 352 Pa.Super. 413, 508 A.2d 326:

*191[plaintiff’s] suffering of residual harm in [Pennsylvania was] not sufficient to satisfy the constitutional requirement of minimum contacts.

The default judgment in DeFay, supra, was vacated for lack of jurisdiction. In the case before us, the harm alleged is residual and not direct.4 Similarly, in McDaniel v. Joseph, 409 F.Supp. 1003 (W.D.Pa.1976) it was determined that a Pennsylvania court did not have jurisdiction over an Ohio resident who was alleged to have engaged in a meretricious relationship with the plaintiffs husband outside of Pennsylvania. The court concluded that the exercise of jurisdiction over the individual alleged to have been interfering with the spousal relationship would confer jurisdiction beyond constitutional limits as “The record in this case does not establish any contact by the defendant with the Commonwealth of Pennsylvania on which jurisdiction can be based.” 409 F.Supp. at 1004.

The dissenting opinion’s and appellant’s reliance on Rusack v. Harsha, 470 F.Supp. 285 (M.D.Pa.1978) to establish jurisdiction over the appellant, is misplaced. In Rusack, supra, the defendant who resided outside of Pennsylvania, sent defamatory letters to the plaintiff’s employer in Mechanicsburg, Pennsylvania. It was alleged that the publication of the defamatory material caused the plaintiff harm in Pennsylvania. The court held that there was a sufficient minimum contact to allow the exercise of jurisdiction, but stated at footnote 5, page 290: “This is a different situation from that where harm is caused outside the state and residual effects are felt inside the state.” The court further stated at 470 F.Supp. 290-291:

The “minimum contacts” test does not allow for mechanical application. Also, since International Shoe involved the issue of under what circumstances a state eould assert personal jurisdiction over an out-of-state *192corporation and since many of the subsequent cases dealt with a commercial setting, it is somewhat difficult to apply the reasoning of many of the cases considering the “minimum contacts” test to the case currently before the court. Nevertheless, the “minimum contacts” test is the standard to be applied here. See Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978).

It is true today that the vast majority of long-arm statute cases in Pennsylvania deal with commercial transactions or involve a non-resident defendant who transacts business or otherwise acts in Pennsylvania. Hester J. summarized this in Pecot, Inc. v. Sirianni, 295 Pa.Super. 462, 467, 441 A.2d 1324, 1327 (1982):

Long-arm statutes were designed to provide an effective and convenient means of redress for resident plaintiffs who happen to experience the adverse effects of a non-resident defendant’s interstate activities; they were designed to warn non-resident defendants that they could not escape the consequences of litigation in a jurisdiction where they voluntarily chose to act. (Emphasis added.)

Nevertheless, our courts may not reach out and extend jurisdiction over a defendant who has no contact with Pennsylvania and whose acts at best have a residual effect upon one in Pennsylvania. The concepts of fair play and substantial justice would be subverted if we allowed a Pennsylvania court to exercise jurisdiction over a Texas resident in circumstances such as those before us. The dissenting opinion focuses on the domicile of the plaintiff rather than on the defendant’s non-resident status and lack of meaningful contacts with Pennsylvania. The minimum contact requirement with the forum state also guarantees that individual states do not exceed the limits placed on them by their status as co-equal sovereigns under our federal system. World-Wide Volkswagen v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

*193As noted above, most cases dealing with the Pennsylvania Long Arm Statute are in a commercial context, and contacts or lack thereof, with the forum state, are readily discernible. We are dealing in this case with a complaint that alleges a psychological tort involving a family relationship. A plaintiff may not create a cause of action by alleging tortious interference with a contract arising from a settlement agreement in a divorce case, where the facts establish that the defendant is not subject to the jurisdiction of the court. Untold mischief could be caused by drawing a party into a dispute that is before the courts of this Commonwealth, where that party is outside the Commonwealth and has no contact with Pennsylvania. In this case before us, a prolonged and bitter dispute has ensued between Frances G. Holden and her former husband, Dr. Stanley Holden. We may not extend the jurisdiction of our courts to embroil Diane Holden in this dispute.

Order of the court below is set aside and the judgment is opened.

CIRILLO, President Judge, files concurring opinion joined by ROWLEY, MONTEMURO and JOHNSON, JJ. BROSKY, J. files dissenting opinion.

. In footnote 1, the dissenting opinion posits that we are deciding a question not before this court in ruling on the sufficiency of the complaint. When the appeal is from an order refusing to open judgment, we must rule on the sufficiency of the complaint as to appellant to determine if the court below had jurisdiction over the appellant and if it did not, then the default judgment was a nullity and must be set aside. DeFay v. McMeekin, 352 Pa.Super. 409, 508 A.2d 324 (1986).

. The dissenting opinion interprets Kenny v. Alexson Equipment Company, supra, in a manner to support its theory that the court had jurisdiction over the appellant in our case. The dissent overlooks the basic principle that our courts do not have jurisdiction over persons beyond the boundaries of our Commonwealth, except where it is granted by statute. The dissent would seek to extend rather than restrict jurisdiction. In Kenny, which dealt with a commercial rather than a family matter, the court refused to extend jurisdiction even where the injury occurred in Pennsylvania. As noted in the dissenting opinion in our case, the Supreme Court stated in Kenny at 495 Pa. 126, 432 A.2d 984, that jurisdiction would not be extended over a non-resident seller "in the absence of purposeful participation by the seller in a continuous distributive chain of such product ...” The dissent reasons that the appellant engaged in purposeful activity calculated to cause harm in Pennsylvania. In order to be subject to in personam jurisdiction, one outside the state must have some minimum contact with Pennsylvania. In our case, the appellant’s conduct was directed toward her husband. What he did might impact on his former wife in Pennsylvania, but the harm to plaintiff by appellant would have been indirect at best. Kenny, supra, would appear to be a stronger case for imposing jurisdiction than our own.

. The dissenting opinion relies on Skinner v. Flymo, Inc., 351 Pa.Super. 234, 505 A.2d 616 (1986) to support its proposition that Pennsylvania has a compelling interest in extending jurisdiction over the appellant. In Skinner, supra, the plaintiff was injured in Pennsylvania by a rotary lawn mower which had been certified by the defendant, a non-resident, as meeting certain standards. We held that Pennsylvania courts had no jurisdiction over defendant. We stated at 351 Pa.Super. 240, 505 A.2d 619, 620:

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 the defendant’s conduct and his connection with the forum state were such that he could reasonably anticipate being ",haled” into court there. (Citing cases). This question, in turn, must be resolved by examining the defendant’s contacts with the forum state. (Emphasis added.) Again, we are directed, as we must be, to the contacts, if any, which

defendant had with the forum state.

. The dissenting opinion finds DeFay v. McMeekin, supra, distinguishable from the instant case. Certainly, the facts are different, but DeFay focused on the point that although the plaintiff endured pain and suffering in Pennsylvania, the tort occurred in New Jersey and the effect in Pennsylvania was residual.