Calabro, M. v. Socolofsky, J. ( 2019 )


Menu:
  • J-A25034-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    MATHEW CALABRO,                          :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellant             :
    :
    :
    v.                          :
    :
    :
    JON SOCOLOFSKY                           :   No. 945 EDA 2018
    Appeal from the Order Entered, March 5, 2018,
    in the Court of Common Pleas of Philadelphia County,
    Civil Division at No(s): 171000244.
    BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.
    MEMORANDUM BY KUNSELMAN, J.:                      FILED JANUARY 22, 2019
    Mathew Calabro appeals from the trial court’s order sustaining Jon
    Socolofsky’s preliminary objection and dismissing Calabro’s complaint for lack
    of personal jurisdiction.   Upon review, we affirm.
    The relevant facts as summarized by the trial court are set forth below.
    [Calabro] and [Socolofsky] were both involved with the asset
    management firm Delaware Investments. [Calabro] was Chief
    Compliance Officer of Delaware Investments’ Optimum Fund Trust
    (“Optimum”). Optimum is organized as a Delaware trust with
    offices in Philadelphia. [Calabro] resided in Pennsylvania during
    his time at Delaware Investments.
    [Socolofsky] served as an independent Trustee of Optimum.
    [Socolofsky] resides in Wisconsin and has allegedly attended at
    least fifty quarterly meetings in Philadelphia since 2003. When in
    Philadephia [Socolofsky] allegedly conducts his trustee business
    at Optimum’s Philadelphia offices. [Socolofsky] allegedly earned
    $100,000 in fiscal year 2017 for his services to Optimum.
    [Calabro] and [Socolofsky] had a poor relationship at Optimum.
    According to the Complaint, [Socolofsky] held a personal animus
    J-A25034-18
    against [Calabro] and complained to [Calabro’s] supervisor about
    [Calabro’s] work performance. To eliminate the aggravation
    arising from [Socolofsky’s] behavior, in March, 2015, Delaware
    reassigned [Calabro] to a different fund known as the Macquarie
    Collective Funds. Around May, 2015, [Calabro] received an
    unscheduled raise and an increase in his annual performance
    bonus.
    Around that time, [Calabro] was recruited by another investment
    company, Northern Trust Investments (“Northern Trust”), a
    Delaware corporation doing business in Chicago, Illinois. In
    August, 2015, [Calabro] resigned his position at Macquarie
    Collective Funds and agreed to join Northern Trust as a
    compliance Manager. [Calabro] relocated from Pennsylvania to
    Illinois and commenced employment at Northern Trust on
    September 30, 2015. [Calabro’s] supervisor at Northern Trust
    allegedly said he was a great hire.
    However, in October, 2015, [Calabro] met with a member of
    Northern Trust’s legal team who told [Calabro] that someone
    affiliated with Optimum had informed Northern Trust that
    [Calabro] had been removed from Optimum because of poor work
    performance. On October 26, 2015, Northern Trust terminated
    Calabro because he had failed to disclose his role with Optimum
    on his resume or at any time during the interview process.
    [Calabro] now alleges, and [Socolofsky] admits, that [Socolofsky]
    placed the call that led to [Calabro’s] termination from Northern
    Trust.
    Trial Court Opinion, 6/13/18 at 1-3. (footnotes omitted).
    Calabro filed a lawsuit against Socolofsky in Philadelphia County,
    Pennsylvania, claiming that Socolofsky intentionally interfered with his
    employment relationship with Northern Trust, and seeking damages from him.
    Socolofsky filed preliminary objections to the complaint, contending, in
    relevant part, that the trial court lacked personal jurisdiction over him because
    he was domiciled in Wisconsin, and none of the relevant acts occurred in
    -2-
    J-A25034-18
    Pennsylvania.1 The trial court concluded that it had neither general personal
    jurisdiction nor specific personal jurisdiction over Socolofsky. Consequently,
    by order dated March 5, 2018, the trial court sustained Socolofsky’s
    preliminary objection and dismissed Calabro’s complaint.
    Calabro timely filed his notice of appeal on March 23, 2018.         Both
    Calabro and the trial court complied with Pa.R.A.P. 1925. Calabro raises two
    issues on appeal:
    1. Did the trial court err in concluding that it lacked specific
    personal jurisdiction over Socolofsky notwithstanding the fact
    that Calabro’s claims arise out of Socolofsky’s substantial
    business contacts with the Comonwealth of Pennsylvania?
    2. Did the trial court err in concluding that Calabro was not a
    Pennsylvania resident and citizen of the Commonwealth of
    Pennsylvania at the time that Socolofsky interfered with
    Calabro’s employment, thereby erroneously concluding that
    Socolofsky’s intentional conduct was not directed at a resident
    of the Commonwealth of Pennsylvania?
    See Calabro’s Brief at 3-4.
    Our standard of review in an appeal from an order granting preliminary
    objections challenging the exercise of in personam jurisdiction is as follows:
    ____________________________________________
    1  Socolofsky also filed a preliminary objection in the nature of a demurrer
    claiming that Pennsylvania does not recognize a cause of action for intentional
    interference of an at-will employment relationship. However, because the trial
    court determined that it lacked personal jurisdiction, it did not rule on the
    demurrer. Although Socolofsky argued this issue in the event that we
    concluded that the trial court had personal jurisdiction over Socolofsky, it was
    not properly raised as an issue on appeal, and therefore, we do not address
    it.
    -3-
    J-A25034-18
    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 a claim or a dismissal 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). Courts must resolve the
    question of personal jurisdiction based on the circumstances of each particular
    case. Burger King Corp. v. Rudzewicz, 
    471 U.S. 462
     (1985).
    In his first issue on appeal, Calabro challenges the trial court’s
    conclusion that it lacked specific personal jurisdiction over Socolofsky.
    Calabro contends that Socolofsky engaged in three of the activities set forth
    in 42 Pa.C.S.A. section 5322(a), Pennsylvania’s long-arm statute governing
    specific jurisdiction and permitting the trial court to exercise personal
    jurisdiction over Socolofsky:     1) the doing business provision, section
    5322(a)(1); 2) the tort provision, section 5322(a)(4), and 3) the trust
    -4-
    J-A25034-18
    provision, section 5322(a)(7).2 Calabro’s Brief at 19-22. Additionally, Calabro
    claims that his cause of action for tortious interference arose out of
    Socolofsky’s Pennsylvania related activities, as required under 42 Pa.C.S.A.
    ____________________________________________
    2   42 Pa.C.S.A. section 5322 provides in pertinent part:
    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:
    (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.
    ***
    (4) Causing harm or tortious injury in this Commonwealth
    by an act or omission outside this Commonwealth.
    ***
    (7) Accepting election or appointment or exercising powers
    under the authority of this Commonwealth as a:
    ***
    (iii) Trustee or other fiduciary.
    -5-
    J-A25034-18
    section 5322(c), because he was a paid trustee for Delaware Investments with
    offices in Philadelphia and traveled there for quarterly meetings, at one of
    which Calabro was allegedly removed from his position with Optimum.3
    Calabro’s Brief at 19-22.
    The trial court found that Socolofsky did not engage in any of the
    activities as claimed by Calabro to establish personal jurisdiction over
    Socolofsky. Trial Court Opinion, 6/13/18 at 4.     Consequently, the trial court
    concluded that it did not have personal jurisdiction over Socolofsky, sustained
    Socolofsky’s preliminary objection, and dismissed Calabro’s complaint. See
    id. at 8.
    After a thorough review of the record, the briefs of the parties, the
    applicable law, and the opinion of the Honorable Patricia A. McInerney, we
    agree with the trial court that it did not have personal jurisdiction over
    Socolofsky. The trial court opinion comprehensively analyzes the applicability
    of sections 5322(a)(1) and 5322(a)(7) to the particular circumstances of this
    case. Thus, thus we adopt Judge McInerney’s opinion as our own, and further
    ____________________________________________
    3   42 Pa.C.S.A. section 5322(c) provides in pertinent part:
    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) . . . may be asserted against him.
    -6-
    J-A25034-18
    discussion of Calabro’s first issue in relation to these sections of the long-arm
    statute is not necessary.4
    Judge McInerney also considered the applicability of section 5322(a)(4)
    to the particular circumstances of this case. However, because the trial court’s
    determination regarding the applicability of section 5322(a)(4) was based in
    part on Calabro’s second appellate issue regarding his residency, and the trial
    court did not address it separately, we briefly expound upon the trial court’s
    analysis of section 5322(a)(4) in connection with the issue of Calabro’s
    residency.
    In his second issue on appeal, Calabro claims that the trial court erred
    in concluding that he was not a resident of Pennsylvania at the time of
    Socolofsky’s alleged tortious interference, and therefore, Socolofsky caused
    no injury or harm in Pennsylvania to confer jurisdiction under section
    5322(a)(4). Calabro’s Brief at 22-23. According to Calabro, the evidence of
    record regarding his residency was set forth in his supporting affidavit to his
    preliminary objections which showed that he was a Pennsylvania resident at
    all times. Id. at 15. Viewing this in a light most favorable to Calabro as the
    trial court is required to do, the trial court should have found that he was a
    Pennsylvania resident.         Thus, because he was a resident of Pennyslvania,
    Calabro    contends     that    Socolofsky’s     tortious   conduct   was   aimed   at
    ____________________________________________
    4The parties are directed to attach a copy of the trial court’s opinion in the
    event of further proceedings.
    -7-
    J-A25034-18
    Pennsylvania, thereby conferring jurisdiction over Socolofsky in Pennsylvania.
    Id. We disagree.
    The trial court found that Socolofsky did not cause harm or injury in
    Pennsylvania under section 5233(a)(4). In part, the trial court based this
    conclusion on the fact that, Calabro relocated to Illinois for his new
    employment at Northern Trust, and then moved back to Pennsylvania after he
    was terminated. See Trial Court Opinion, 6/13/18 at 6-7.         In reaching this
    conclusion, the trial court relied upon an opinion from the Illinois court where
    Calabro sought pre-suit discovery in this matter. The Illinois court relied upon
    Calabro’s averment in his petition for pre-suit discovery and determined that
    Calabro had relocated to Illinois. Socolofsky attached this opinion to his reply
    brief.    Id.   This specifically contradicts the affidavit Calabro submitted in
    response to Socolofsky’s preliminary objections, where Calabro averred that
    he had been a Pennsylvania resident since 2011. He further averred that he
    had not established residence or citizenship in Illinois. At all times, he claimed
    that he and his family continued to maintain their home and residency in
    Pennsylvania.
    Generally, when considering preliminary objections, a trial court is
    required to admit as true all material facts set forth in the pleadings as well
    as all inferences reasonably deducible therefrom. Schemberg v. Smicherko,
    
    85 A.3d 1071
     (Pa. Super. 2014). However, “[w]hen a defendant challenges
    the court's assertion of personal jurisdiction, that defendant bears the burden
    of supporting such objections to jurisdiction by presenting evidence.” De
    -8-
    J-A25034-18
    Lage Landen Servs., Inc. v. Urban P'ship, LLC, 
    903 A.2d 586
    , 590 (2006)
    (emphasis added). Thus, where the issue of personal jurisdiction is raised, it
    is contemplated that affidavits or other evidence will be presented.           
    Id.
    Consequently, it was appropriate for the trial court to consider the Illinois court
    documents as evidence.
    The evidence of record regarding Calabro’s residency conflicts. Although
    the trial court is required, when deciding a motion to dismiss for lack of
    personal jurisdiction, to consider the evidence in the light most favorable to
    the non-moving party, as Calabro argued, “[w]here there is an issue of fact,
    the court may not reach a determination based upon its view of the
    controverted facts, but must resolve the dispute by receiving evidence thereon
    through interrogatories, depositions or an evidentiary hearing.”        Nutrition
    Management Servs. v. Hinchcliff, 
    926 A.2d 531
    , 535 (Pa. Super. 2007);
    see also De Lage Landen Servs., Inc., 
    903 A.2d at 590
    . This was not done.
    However, Calabro’s residency alone is not determinative of personal
    jurisdiction over Socolofsky. “Merely alleging that a non-resident committed
    an act or omission in another jurisdiction that caused harm to a Pennsylvania
    resident is insufficient.” Nutrition Management Servs., 
    926 A.2d at 539
    .
    Thus, even if the trial court had taken evidence as required, and determined
    that Calabro was a Pennsylvania resident as he claims, the conclusion that the
    trial court did not have personal jurisdiction over Socolofsky would remain
    unchanged.
    -9-
    J-A25034-18
    For intentional torts, such as the one alleged here, courts have applied
    the “effects test” established by Calder v. Jones, 
    465 U.S. 83
     (1984), to
    determine whether there is personal jurisdiction. See IMO Indus., Inc. v.
    Keikert AG, 
    155 F.3d 254
     (3d Cir. 1998); Element Fin. Corp. v. ComQi,
    Inc., 
    52 F. Supp. 3d 739
    , 748 (E.D. Pa. 2014).5               The Calder effects test
    requires the plaintiff to show that:
    (1) the defendant committed an intentional tort; (2) the plaintiff
    felt the brunt of the harm in the forum state such that the forum
    can be said to be the focal point of the harm suffered by the
    plaintiff as a result of the tort; and (3) the defendant expressly
    aimed his tortious conduct at the forum state such that the forum
    can be said to be the focal point of the tortious activity.
    IMO Indus., Inc. at 265-266. To satisfy the third prong of this test, a plaintiff
    must show that “the defendant knew that the plaintiff would suffer the brunt
    of the harm caused by the tortious conduct in the forum, and point to specific
    activity indicating that the defendant expressly aimed its tortious conduct at
    the forum.” Id. at 266.
    The trial court applied this test to conclude that it could not exercise
    personal jurisdiction over Socolofsky under section 5322(a)(4) given the
    particular circumstances of this case.             Applying this test, the trial court
    correctly concluded that “Pennsylvania was not the target of the intentionally
    tortious activity, nor was it the focal point of the harm suffered by plaintiff.”
    ____________________________________________
    5 We note “decisions of the federal district courts . . . are not binding on
    Pennsylvania courts. . . .” Kubik v. Route 252, Inc., 
    762 A.2d 1119
    , 1124
    (Pa. Super. 2000) (citation omitted). Nevertheless, these decisions are
    persuasive authority and helpful in our review of the issue presented.
    - 10 -
    J-A25034-18
    Trial Court Opinion, 6/13/18 at 6.      Rather, the activities were directed to
    Illinois: the state where Calabro started his new employment; the state where
    his new employer was located; the state to which Socolofsky made the phone
    call betraying Calabro; and the state where Calabro was terminated.
    Therefore, considering all of the relevant circumstances, we agree with the
    trial court’s analysis of the applicability of section 5322(a)(4) to the particular
    circumstances of this case, and its conclusion that it lacked personal
    jurisdiction over Socolofsky.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 1/22/19
    - 11 -