Murray, K. v. American LaFrance,LLC ( 2018 )

J-A22039-17
2018 Pa. Super. 267
KENNETH MURRAY, ROBERT SCHNALL, IN THE SUPERIOR COURT
MICHAEL SCOTT, JOHN SENESE, JOHN OF
SHURINA, JOHN SIGNORILE, KEVIN PENNSYLVANIA
SOKOL, ANTHONY TRICARICO, FRANK
VENTRELLA, JOSEPH VITALE, PATRICK
VOGT, HENRY WHITE, WILLIAM WHITE,
THOMAS WOSKA AND WILLIAM
YOUNGSON,
Appellants
v.
AMERICAN LAFRANCE, LLC AND
FEDERAL SIGNAL CORPORATION,
Appellees No. 2105 EDA 2016
Appeal from the Order May 25, 2016
in the Court of Common Pleas of Philadelphia County
Civil Division at No.: November Term, 2015 No. 02536
ANDREW BURNS, DOUGLAS IN THE SUPERIOR COURT
KALBACHER, MICHAEL KOZAK, KEVIN OF
KUBLER, JAMES LEMONDA, JOSEPH PENNSYLVANIA
LOCHER, PATRICK LYONS, JOHN P.
MALLEY, JOE MASTERSON, BRIAN
MCDADE, KEVIN MCENERY, WILLIAM
MONTEVERDE, VINCENT MOSCA,
GERARD MURTHA, KEITH PALUMBO,
JOEL PATTI, RICHARD PEITLER, DONALD
REILLY, MARIO ROSATO, ROBERT RYAN
AND FRANCIS TRAPANI,
Appellants
v.
AMERICAN LAFRANCE, LLC AND
FEDERAL SIGNAL CORPORATION
J-A22039-17
Appellee No. 2106 EDA 2016
Appeal from the Order May 25, 2016
in the Court of Common Pleas of Philadelphia County
Civil Division at No.: November Term, 2015 No. 02494
MIGUEL MORENO, NEIL MULLINS, JOHN IN THE SUPERIOR COURT
NEVOLA, ROBERT O’FLAHERTY, JAMES OF
O’ROURKE, MICHAEL PAGLIUCA, PENNSYLVANIA
SAMUEL PANASCI, RONALD PATTILIO,
JOEL PERECA, DANIEL PERITORE,
VINCENT PINTO, CHRISTOPHER RAMOS,
ROBERT REICH, ROCCO RINALDI, JAMES
RUSSO, GREGORY SALONE, JAMES
SAVARESE, WILLIAM SCHEU, KENNETH
SMITH, JOHN SULLIVAN AND WARREN
TERRY,
Appellants
v.
AMERICAN LAFRANCE, LLC AND
FEDERAL SIGNAL CORPORATION,
Appellees No. 2107 EDA 2016
Appeal from the Order May 25, 2016
in the Court of Common Pleas of Philadelphia County
Civil Division at No.: November Term, 2015 No. 02522
MICHAEL FELDMAN, RONALD FERRANTE, IN THE SUPERIOR COURT
CHARLES FEYH, DONALD FLORE, JOHN OF
FORTUNATO, FRANK GACCIONE, PENNSYLVANIA
ROBERT GLEISSNER, JAMES HELFRICH,
FRANK INGOGLIA, ROBERT LABATTO,
JOHN LILLIS, THOMAS LYONS, EUGENE
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MAHLSTED, JAMES MASONE, EDWARD
MAURO, SEAN MCCOYD, JOHN
MCGONIGLE, EUGENE MCGOWAN, JR.,
JOHN MCLAUGHLIN, ERIC MICHELSEN
AND PAUL MILLER,
Appellants
v.
AMERICAN LAFRANCE, LLC AND
FEDERAL SIGNAL CORPORATION
Appellee No. 2108 EDA 2016
Appeal from the Order May 25, 2016
in the Court of Common Pleas of Philadelphia County
Civil Division at No.: November Term, 2015 No. 02514
RICHARD BARBARISE, JAMES IN THE SUPERIOR COURT
BERGHORN, STEVEN BERNIUS, OF
VASILIOS CHRISTODOULOU, GAETANO PENNSYLVANIA
DIMAURO, JOHN FLYNN, WILLIAM
GRAHAM, PETER GUNTHER, THOMAS
LORELLO, JAMES MANGRACINA,
NORMAN MARSTON, JOSEPH MAURER,
ROBERT MCGUIRE, ROBERT MOCCIA,
JOHN MORABITO, WILLIAM MUNDY,
STANLEY PEACOCK, SALVATORE
ROSINA, DONALD RUDDEN, THOMAS
SCALLY, ROBERT SCHULTZ, PATRICK
SCHWEIGER, RICHARD SCOTT, FRANK
SFORZA, PATRICK SHANNON, EDMUND
SULLLIVAN, FREDERICK SUTTON,
FRANCIS ULMER, RICHARD
WALIGOVSKA, PAUL WEIS, JUSTIN
WERNER AND RUDY WICKLEIN,
Appellants
v.
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J-A22039-17
AMERICAN LAFRANCE, LLC AND
FEDERAL SIGNAL CORPORATION
Appellee No. 2109 EDA 2016
Appeal from the Order May 25, 2016
in the Court of Common Pleas of Philadelphia County
Civil Division at No.: December Term, 2015 No. 000187
ROOSEVELT ADAMS, ANTHONY ASARO, IN THE SUPERIOR COURT
EUGENE BIANCONE, SALVATORE OF
BONGIOVANNI, STEPHEN BROWN, PENNSYLVANIA
MICHAEL CAIN, ROBERT CANZONERI,
MICHAEL CARLIN, RAYMOND CLANCY,
CASEY COLWELL, ROBERT CONDON,
CHRISTIAN CORBIN, THOMAS
COURTENAY, DANIEL COYLE, RAYMOND
CREEDE, AUSTIN CSORNY, FRANK
DEANGELO, PATRICK DIMICHELE, JOHN
DRISCOLL AND KENNETH ERB,
Appellants
v.
AMERICAN LAFRANCE, LLC AND
FEDERAL SIGNAL CORPORATION
Appellee No. 2110 EDA 2016
Appeal from the Order May 25, 2016
in the Court of Common Pleas of Philadelphia County
Civil Division at No.: November Term, 2015 No. 002490
RICHARD ABBOTT, VINCENT ANZELONE, IN THE SUPERIOR COURT
RICHARD BURBAN, DANIEL BUTLER, OF
EDWARD CACHIA, VICTOR CARLUCCI, PENNSYLVANIA
JOSEPH CLERICI, DERMOTT CLOWE,
FRED CORTESE, ANTHONY CUMMO,
STEVEN FERRARO, ROCCO FERTOLI,
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DAVID FISCHBEIN, CHARLES FORTIN,
STEVEN GRECO, GARY HOEHING,
WILLIAM HOPKINS, GREGORY HORAN,
SCOTT HUMMEL, JOSEPH INGRISANI
AND RONALD PATTILIO,
Appellants
v.
AMERICAN LAFRANCE, LLC AND
FEDERAL SIGNAL CORPORATION
Appellee No. 2111 EDA 2016
Appeal from the Order May 25, 2016
in the Court of Common Pleas of Philadelphia County
Civil Division at No.: November Term, 2015 No. 002492
BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*
OPINION BY PLATT, J.: FILED SEPTEMBER 25, 2018
Appellants, Kenneth Murray, et al., Andrew Burns, et al., Miguel Moreno,
et al., Michael Feldman, et al., Richard Barbarise, et al., Roosevelt Adams, et
al., and Richard Abbott, et al.,1 appeal from the trial court’s May 25, 2016
orders sustaining the preliminary objections of Appellee, Federal Signal
Corporation, and dismissing Appellants’ complaints2 for lack of personal
jurisdiction. Specifically, Appellants claim that Appellee consented to
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* Retired Senior Judge assigned to the Superior Court.
1 We have listed the names of all plaintiffs in the caption for each of these
consolidated cases. We only list the name of the lead plaintiff here for brevity.
2 Appellants’ seven cases were consolidated by this Court on March 13, 2017.
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jurisdiction in Pennsylvania when it registered as a foreign corporation. We
are constrained to agree, thus we vacate the May 25, 2016 orders and remand
these cases to the trial court.
We take the relevant factual and procedural history of these cases from
our review of the certified records. Appellants filed complaints alleging that
they suffered hearing loss as a result of excessive sound exposure from fire
engine sirens while working for the New York Fire Department. Specifically,
they asserted claims of strict liability and negligence against Appellee, a
manufacturer of sirens for use in fire apparatus.
On March 4, 2016, Appellee filed preliminary objections to Appellants’
complaints, arguing that the court lacked personal jurisdiction over it because:
its principal place of business is in Illinois; it does not have corporate offices
in Pennsylvania; it is not a Pennsylvania domestic company; it does not own
or lease real property in Pennsylvania; it does not have bank accounts in
Pennsylvania; it does not design or manufacture any products in
Pennsylvania; and its contacts with Pennsylvania are minimal. (See Brief in
Support of Preliminary Objections, 3/04/16, at 2). On May 25, 2016, the trial
court, concluding that Appellee was not “at home” in Pennsylvania, sustained
its preliminary objections and dismissed all claims against it. (See Orders,
5/25/16; Trial Court Opinion, 10/25/16, at 4). This timely appeal followed.3
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3The trial court did not order Appellants to file a concise statement of errors
complained of on appeal. It entered its opinion on October 25, 2016. See
Pa.R.A.P. 1925.
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Appellants raise one issue on appeal: “Whether the [t]rial [c]ourt made
an error of law in sustaining []Appellee’s [p]reliminary [o]bjections and
dismissing the action based on lack of personal jurisdiction[?]” (Appellants’
Brief, at 4).
Preliminarily, we must address Appellee’s assertion that Appellants
waived this issue by failing to argue before the trial court, in response to
preliminary objections, that personal jurisdiction is proper based on a statute
or consent. (See Appellee’s Brief, at 5-10).4 Specifically, Appellee maintains
that Appellants argued only that jurisdiction was proper because of continuous
and systematic contacts, see 42 Pa.C.S.A. § 5301(a)(2)(iii), before the trial
court; thus, they waived any claim of jurisdiction based on either registration
as a foreign corporation, see id. at § 5301(a)(2)(i), or consent, see id. at §
5301(a)(2)(ii). We disagree.
Although under Pennsylvania Rule of Appellate Procedure 302(a)
issues not raised below are waived, our Supreme Court has held
that “[t]here is no requirement in the Rules of Civil Procedure that
the non-moving party respond to a preliminary objection, nor
must that party defend claims asserted in the complaint. Failure
to respond does not sustain the moving party’s objections by
default, nor does it waive or abandon the claim.” Uniontown
Newspapers, Inc. v. Roberts, 576 Pa. 231, 839 A.2d 185, 190
(2003). . . .
Dixon v. Nw. Mut., 146 A.3d 780, 783–84 (Pa. Super. 2016). Here, Appellee
filed the preliminary objections, thus Appellants were the non-moving party.
Accordingly, they did not waive their personal jurisdiction claim by failing to
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4 Appellants did not address Appellee’s waiver argument in their reply brief.
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argue before the trial court that jurisdiction was proper under sections
5301(a)(2)(i) or (ii). See id. Therefore, we turn to the merits of Appellants’
claim that the trial court erred when it sustained the preliminary objections.
Our standard of review of a trial court’s order sustaining preliminary
objections is well-settled.
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 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.
Haas v. Four Seasons Campground, Inc., 952 A.2d 688, 691
(Pa. Super. 2008) (citations omitted). 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.
Schiavone v. Aveta, 41 A.3d 861, 865 (Pa. Super. 2012)[,
affirmed, 91 A.3d 1235 (Pa. 2014)] (citation omitted).
Sulkava v. Glaston Finland Oy, 54 A.3d 884, 889 (Pa. Super. 2012), appeal
denied, 75 A.3d 1282 (Pa. 2013).
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In their issue, Appellants claim that the trial court erred when it
sustained Appellee’s preliminary objections for lack of personal jurisdiction.
(See Appellants’ Brief, at 11-15). Specifically, they argue that Appellee’s
registration as a foreign corporation in Pennsylvania under 42 Pa.C.S.A. §
5301(a)(2) constitutes consent to general personal jurisdiction in
Pennsylvania. (See id.). We agree.
“For Pennsylvania courts to acquire general personal jurisdiction over
foreign corporations, one of the following must apply: the business must have
been incorporated in Pennsylvania, must consent to the exercise of
jurisdiction, or must carry on a continuous and systematic part of its general
business in the Commonwealth.” Moyer v. Teledyne Cont’l Motors, Inc.,
979 A.2d 336, 349 (Pa. Super. 2009), affirmed, 28 A.3d 867 (Pa. 2011)
(citation and quotation marks omitted). Pennsylvania’s general personal
jurisdiction statute provides:
(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.
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(iii) The carrying on of a continuous and systematic
part of its general business within this
Commonwealth.
* * *
42 Pa.C.S.A. § 5301(a)(2)(i)-(iii).
In Daimler AG v. Bauman, 134 S. Ct. 746 (2014), the Supreme Court
of the United States considered the issue of general personal jurisdiction over
a foreign corporation.5 It held that due process did not permit exercise of
general personal jurisdiction over a corporation in a state where that
corporation was not “at home.” Daimler, supra at 762. Daimler did not
discuss consent to general jurisdiction based on business registration laws.
We observe that whether a foreign corporation consents to general
personal jurisdiction in Pennsylvania by registering to do business in the
Commonwealth is a matter of first impression in this Court. Our review of the
caselaw has revealed that neither this Court nor our Supreme Court has had
the occasion to determine whether, post-Daimler, registering to do business
as a foreign corporation in the Commonwealth constitutes consent for the
purposes of exercising general personal jurisdiction. However, Bors v.
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5 Specifically, it considered whether the Due Process Clause precluded the
court from exercising jurisdiction over Daimler in a complaint wherein
Argentinian residents brought suit against Daimler in California arguing that
the Argentinian Daimler subsidiary was complicit with government atrocities
in Argentina’s Dirty War. See Daimler, supra at 750-51.
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Johnson & Johnson, 208 F. Supp. 3d 648 (E.D. Pa. 2016), provides a
persuasive, well-reasoned analysis and we cite it with approval.6
In Bors, supra, the district court considered whether Bane v. Netlink,
Inc., 925 F.2d 637 (3d Cir. 1991),7 remained good law or whether Daimler
eliminated consent by registration under section 5301 as a basis for
jurisdiction. See Bors, supra at 653-54. The Bors court reasoned that
“Pennsylvania’s statute specifically advises the registrant of the jurisdictional
effect of registering to do business[,]” and concluded that “[c]onsent remains
a valid form of establishing personal jurisdiction under the Pennsylvania
registration statute after Daimler.” Id. at 655; see also Hegna v. Smitty’s
Supply, Inc., 2017 WL 2563231, at *4 (E.D. Pa. filed June 13, 2017)
(“conclud[ing] that, by registering to do business under § 5301, Smitty’s
consented to general personal jurisdiction in Pennsylvania and that its consent
is still valid under Goodyear [Dunlop Tires Operations, S.A. v. Brown,
564 U.S. 915 (2011),] and Daimler.”).
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6 Although this Court is not bound by the decisions of federal courts, we may
look to them for guidance to the degree we find useful. See Krentz v.
Consol. Rail Corp., 910 A.2d 20, 37 (Pa. 2006); Eckman v. Erie Ins. Exch.,
21 A.3d 1203, 1207 (Pa. Super. 2011).
7 In Bane, the Third Circuit Court of Appeals considered whether it had
jurisdiction over a foreign corporation based solely on the fact that it
registered as a foreign corporation and obtained authorization to conduct
business in Pennsylvania. See Bane, supra at 638-39. The court held that
“such registration by a foreign corporation carries with it consent to be sued
in Pennsylvania courts.” Id. at 640.
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In this case, Appellee registered as a foreign corporation to do business
in Pennsylvania. (See Preliminary Objections, Exhibit B, at 1). In doing so,
we hold that it consented to general personal jurisdiction in Pennsylvania. See
Sulkava, supra at 889; Bors, supra at 655; see also Bane, supra at 640.
Therefore, based on the relevant caselaw, and the language of section
5301(a), we conclude that the trial court erred when it dismissed these actions
for lack of personal jurisdiction.8 Accordingly, we vacate the orders sustaining
the preliminary objections, and remand these cases to the trial court.
Orders vacated, cases remanded, jurisdiction relinquished.
Judge Lazarus joins the Opinion.
Judge Bowes files a Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2018
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8 Because we hold that Appellee consented to jurisdiction, we decline to
consider whether general jurisdiction would have existed based on its
continuous and systematic contacts with the Commonwealth.
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