Court Denies Defendant's Motion to Dismiss Based on Forum Non Conveniens Doctrine in a Case Involving a Plaintiff from a Foreign Country

In the case of Charles v. QVC, Inc., No. 24-6703 (E.D. Pa. June 10, 2025 Savage, J.), the court denied a Motion to Dismiss based on the doctrine of forum non conveniens in a case involving a jurisdictional and/or venue issues in a case involving a Plaintiff who was a resident of a foreign country and who was injured in her home country of Trinidad.

This matter arose out of an incident during which a pressure cooker that the Plaintiff had purchased exploded while the Plaintiff was using it.    

The foreign Plaintiff brought suit in the Eastern District of Pennsylvania on a products liability claim relative to a product made in America. Even though the product was not manufactured in Pennsylvania, the Pennsylvania based employee made media representations about the product by marketing it from its Pennsylvania studios. The court additionally noted that one of the Defendants had a principal place of business in Pennsylvania.

The court noted that, although the Plaintiff’s foreign country was an adequate forum for the litigation of his personal injury matter, a foreign Plaintiff can support her choice of forum by making a strong showing of convenience.

The court in this matter noted that the connection of this matter to Pennsylvania established the convenience element in this matter.

More specifically, the court noted that none of the evidence located in the Plaintiff’s home country was critical for the litigation of the claim.

The court additionally noted that, as for the witnesses based in the United States within the Defendants’ control, it would be significantly more convenient for those witnesses to travel to a trial in the United States rather than going abroad to a foreign country.

Notably, the court also emphasized, on the issue of convenience, that the depositions of any relevant witnesses could be conducted remotely.

The court also found that the completion of a trial in the United States would be more convenient to all of the parties interested.

Lastly, the court emphasized that Pennsylvania has an interest in the safety of products introduced into the stream of commerce from Pennsylvania.

The court in this matter ruled, after careful consideration of the private and public interest factors, that litigating this case in the Eastern District of Pennsylvania would not result in oppression and vexation to the defendants out of all proportion to the Plaintiff's convenience. As such, the court denied the Defendant's motion to dismiss this action on forum non conveniens grounds.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Eastern District Court Transfers Tioga County MVA Case to Middle District Court Under Doctrine of Forum Non Conveniens

In the case of Woodward v. General Motors, LLC, No. 2:25-CV-00605-JDW (E.D. Pa. June 6, 2025 Wolson, J.), the Eastern Federal District Court in Philadelphia granted a Motion to Transfer the case to the Middle District Court under the doctrine of forum non conveniens.

In this case, the Plaintiff's decedent's fatal motor vehicle accident involved occurred in rural Tioga County, which is located in the Middle District Court's jurisdiction.  In part the Plaintiff's estate stated a crashworthiness products liability claim.

The court noted that, while the Plaintiff would prefer to litigate the case in the Eastern District, all other relevant factors favored the transfer of the case to the district where the accident happened.

The court additionally noted that any claims sounding in product liability are deemed to arise where the product was utilized and where the injury occurred.

In this matter, the court noted that the site of the accident, the relevant evidence, and the important witnesses were all located outside of the Eastern District.

As such, the Court granted General Motors' motion to transfer the case.  

Anyone wishing to review a copy of this decision may click this LINK. The Court's companion Order can be viewed HERE.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of image:  Photo from Pennsylvanians for Modern Courts website.

Federal Court Finds No Jurisdiction Over Insurance Company Existed Under Claims Asserted

In the case of Abira Medical Laboratories, LLC v. Freedom Life Insurance Co., No. 2:24-CV-02110-JHS (E.D. Pa. Jan. 10, 2025 Slomsky, J.), the Eastern District Federal Court of Pennsylvania, addressing a question of first impression, held that a Defendant foreign insurance company did not consent to general personal jurisdiction in Pennsylvania to be sued by a private party on its own behalf for any cause of action simply based on the fact that the carrier obtained a Certificate of Authority issued pursuant to 40 Pa. C.S.A. § 46 in order to conduct business in Pennsylvania.

According to the Opinion, the Plaintiff was a medical testing laboratory that provided testing services to the Defendant insurance company’s insured members as an out-of-network provider.

When the Plaintiff had a billing dispute with the insurance company regarding services performed, the Plaintiff sued the Defendant in a Pennsylvania Court of Common Pleas.

The Defendant carrier removed the action to federal court on the basis of diversity and then filed this Motion to Dismiss. The Defendant carrier asserted, in part, that the court lacked personal jurisdiction over the insurance company.

The Plaintiff argued that the Defendant carrier had consented to general personal jurisdiction on any claim because the Defendant had applied for and received a Certificate of Authority to do insurance business in Pennsylvania pursuant to 40 Pa. C.S.A. § 46.

The court noted that the referenced statute did not provide for general jurisdiction over foreign insurance companies conducting business in Pennsylvania.

Rather, the court noted that, under the plain language of § 46 foreign insurance companies wishing to conduct business in Pennsylvania must obtain a Certificate of Authority from Pennsylvania’s Department of Insurance. The statute further provides that, upon obtaining a Certificate of Authority, § 46 allows for any action arising out of a violation of § 46 that is instituted by or on behalf of the insurance commissioner to be brought against the foreign insurance company in Pennsylvania.

Here, given that the current action was not commenced by the insurance commissioner arising out of a violation of § 46, but rather was an action brought by a private party, the grant of jurisdiction provided under § 46 over a foreign insurance company was not found not to be implicated.

The court also held that the Defendant insurance company had no otherwise consented to personal jurisdiction in Pennsylvania.

Given that the court found that it lacked general personal jurisdiction, as well as specific personal jurisdiction over the Defendant insurance company, the court granted the carrier’s Motion to Dismiss.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


Source: The Legal Intelligencer Federal Case Alert, www.Law.com (Jan. 30, 2025).

 

No Jurisdiction Where Foreign Corporation Had No Direct Contacts With Pennsylvania

In the case of Montgomery v. Bobst Mex SA, No. 24-367 (E.D. Pa. Dec. 13, 2024 Arteaga, Mag. J.), the court granted a Motion to Dismiss based upon jurisdictional issues. More specifically, the court found that the Defendant, which was a Swiss corporation, was not subject to personal jurisdiction in Pennsylvania.

According to the Opinion, the Defendant sold all of its products, including the one that allegedly injured the Plaintiff, to a New York sole distributor. There was no evidence that the Defendant directed any of its activities at or in Pennsylvania.

The court noted that the record otherwise confirmed that there was no direct contacts by the Defendant in Pennsylvania.

Moreover, the court noted that any subsequent sales in the United States was at the discretion of the sole distributor in New York, with no direction being provided to that distributor by the Swiss corporation Defendant.

Although the Swiss Defendant allegedly had knowledge of Pennsylvania end-users of the product, the court found that evidence in this regard, without more, was insufficient to establish specific jurisdiction.

In the end, the federal court found that, without evidence of a strong relationship between the Defendant, the forum, and the litigation, the court could not exercise specific jurisdiction over that Swiss corporation as a Defendant. Accordingly, the Defendant’s Motion to Dismiss was granted.

Anyone wishing to review a copy of this decision may click this LINK. The court's companion Order can be viewed HERE.


I send thanks to Attorney James M. Beck of the Philadelphia office of Reed Smith law firm for bringing this case to my attention.

Source of image:  Photo by Pavel Danilyuk on www.pexels.com.

Slip and Fall Case at Waterpark Allowed to Slide Past a Motion to Dismiss

In the case of Ahmed v. Kalahari Resorts & Conventions-Poconos, No. 3:24-CV-00851-JKM (M.D. Pa. Nov. 7, 2024 Munley, J.), the court denied a Defendant’s Motion to Dismiss, or in the alternative, Motion for a More Definite Statement, in a slip and fall case involving an indoor water park.

According to the Opinion, the Plaintiff alleged that he slipped and fell in the waterpark area allegedly due to the fact that the steps were not properly treated and were covered with mold or algae.

In reviewing the Plaintiff’s Rule 12(b)(6) Motion to Dismiss, the court found that the Plaintiff had pled sufficient facts regarding his status as a business invitee and the alleged breach of a duty of reasonable care on the part of the Defendant. The court found that, if the Plaintiff’s alleged facts were accepted as true, as they must be at this stage of the proceedings, the Plaintiff had sufficiently provided a short and plain statement of the claims presented demonstrating that he is entitled to relief in accordance with F.R.C.P. 8.

Accordingly, the court denied the Defendant’s Motion to Dismiss.

Relative to the Defendant’s Motion for a More Definite Statement of the Plaintiff’s claim pursuant to F.R.C.P. 12(e), the court agreed with the defense argument that the Plaintiff’s Complaint was too vague or ambiguous in that it did not state with specificity the location of the stairs upon which the Plaintiff allegedly fell.

In response to this motion, the Plaintiff indicated that he would provide photographs of the exact location of his fall during the course of discovery.

Judge Munley ruled that, given that the Plaintiff had admitted that he evidently knew which steps he fell upon, and given that the location of the steps at issue could affect how the different Defendants named in this lawsuit might respond to the Complaint, the court granted the Motion for More Definite Statement and directed the Plaintiff to file an Amended Complaint to more specifically assert where the Plaintiff allegedly fell on the premises.

Judge Munley otherwise raised an issue of jurisdiction sua sponte. The court noted that it could not determine from the Complaint whether the court had jurisdiction.

In this matter, the Plaintiff had alleged that jurisdiction was based on the diversity jurisdiction statute. However, the Complaint did not list the citizenship of the parties, but only the residency of the parties.

The court noted that residency and citizenship do not have the same meaning for purposes of the diversity statute. As such, the Plaintiff was directed to pile a more specific Complaint in order to properly allege the citizenship of all of the parties named in the Complaint so that the court could assure itself that jurisdiction was proper.

Anyone wishing to review a copy of this decision may click this LINK.

Source: Article – “Slip-And-Fall Suit Cleared to Proceed Against Kalahari Indoor Waterpark.” By Riley Brennan Pennsylvania Law Weekly (Nov. 8, 2024).

Federal District Court Addresses Jurisdictional Issues and also References Fair Share Act

In the case of Tanibajeva v. Skytop Lodge Corp., No. 3:23-CV-01846 (M.D. Pa. Sept. 3, 2024 Mehalchick, J.), the court granted in part and denied in part a Motion to Dismiss on jurisdictional issues in a case involving a zipline accident at a resort in the Poconos.

The court noted that the Plaintiff would be allowed to complete discovery in order to determine proper jurisdiction. 

Judge Mehalchick noted that, while a single shipment of a product in Pennsylvania is ordinarily not enough to confer specific personal jurisdiction, discovery in this case might reveal more significant contacts.

The court also noted that stream of commerce is not a valid jurisdictional theory. 

The court otherwise found that the Defendant in this case did not have regular and systemic Pennsylvania business.

However, the court found that the Plaintiff’s position on the jurisdiction issue was not frivolous. Accordingly, as noted, the court allowed for jurisdictional discovery to be completed.

In this Opinion, Judge Mehalchick also addressed the applicability of the Fair Share Act. 

The court noted its assessment that, under recent Pennsylvania case law, the Fair Share Act does not apply unless the Plaintiff’s potential comparative negligence is at issue. Accordingly, the court found that the allegations of joint and several liability by the Plaintiff were proper in this case. Judge Mehalchick also stated that, based upon her review of the Complaint, there did not appear to be a basis for an argument of comparative negligence.

The court also ruled that Pennsylvania law does not recognize a separate cause of action for willful and wanton misconduct or reckless indifference.

Judge Mehalchick also found the Plaintiff’s express warranty claims failed to plead that the Plaintiff purchased any product from the Defendants.  As such, that claim was dismissed.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Jurisdiction Found to Exist in Pennsylvania Due to Multiple Contacts With Pennsylvania

In the case of Duvall v. Ryder Truck Rental, Inc., No. 24-1920 (E.D. Pa. Aug. 9, 2024 McHugh, J.), the court denied a Defendant’s Motion to Dismiss on jurisdictional issues.  

The case involved alleged injuries sustained by the Plaintiff when a lift gate on a Ryder truck collapsed.

The Defendant's moved to dismissed the case principally on the grounds that the accident happened in Maryland.

The court noted that, even though the accident in question happened in another state, specific personal jurisdiction existed.   In this regard, the court noted that the Plaintiff’s employer had leased the truck at issue from the Defendant in Pennsylvania. 

It was also noted that the record revealed that the alleged negligent maintenance of the truck, which was allegedly a cause of the accident, occurred in Pennsylvania.   

The court additionally noted that the Plaintiff was a Pennsylvania resident and received worker’s compensation benefits from a Pennsylvania employer.

Based on these reasons, the Court denied the motion to dismiss.

Anyone wishing to review this decision may click this LINK.

Preliminary Objections Regarding Venue and Doctrine of Forum Non Conveniens Addressed by Superior Court

In the case of Kennedy v. Crothall Healthcare, Inc., No. 383 EDA 2023 (Pa. Super. Aug. 9, 2024 Collins, J., Stabile, J., and McLaughlin, J.) (Op. by Collins, J.) (McLaughlin, J. dissenting), the Superior Court affirmed a trial court's granting of a defendant's Preliminary Objections based upon a lack of jurisdiction and also affirmed the dismissal of remaining claims under the doctrine forum non conveniens.

Relative to the issue of jurisdiction, the court found that the Plaintiff asserted no valid basis for jurisdiction over a manufacturer for injuries sustained in a surgery that was completed in a state other than Pennsylvania. 

The court also emphasized that the Defendant was not located in Pennsylvania and the product at issue was never manufactured in the state of Pennsylvania.

The court additionally noted that the Plaintiff did not assert general jurisdiction and, as such, any arguments based upon the Pennsylvania registration of the corporation to do business were considered to be waived.  The Plaintiff attempted to request a retroactive application of a recent U.S. Supreme Court decision in the case of Mallory v. Norfolk Southern Railway Co. regarding jurisdiction over corporations that register to do business in Pennsylvania.  However, the Court found that the Plaintiff had waived this issue of general jurisdiction.

In terms of the Plaintiff's efforts to establish specific jurisdiction over the defendant, the court additionally noted that the fact that the payment for the product at issue was sent to a Pennsylvania lock box was insufficient to support a claim of specific personal jurisdiction against the Defendant. The court emphasized that the lock box had nothing to do with the product liability issue.

The court agreed that the Defendants did not otherwise purposefully direct their activities towards Pennsylvania. Also, the Plaintiff’s claims did not, in any meaningful way, arise out of the use of the lock box. Moreover, the court noted that the lock box belonged to the manufacturer’s bank and not toe the Defendant manufacturer. The court reasoned that if the presence of an independent product distributor is insufficient to support jurisdiction, then the presence of an independent lock box also cannot be sufficient.

Relative to the issues raised under the doctrine of forum non conveniens, the court found it was also proper for the trial court to have dismissed the case on these grounds as well. In this matter, it was established that every witness was located out of state as were all of the Defendant’s alleged activities related to the lawsuit. The Superior Court agreed that the Defendant had demonstrated the hardship that justified disturbing the Plaintiff’s choice of forum.

The court in Kennedy additionally ruled that the fact that a corporate Defendant had headquarters in Pennsylvania, in and of itself, was not enough to defeat a motion filed under the doctrine of forum non conveniens seeking a transfer of venue.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney James M. Beck of the Reed Smith law firm in Philadelphia for bringing this case to my attention.

Jurisdiction and Venue Issues Addressed in Insurance Coverage Action

In the case of Franko v. USAA, No. 2023-CV-1996 (C.P. Lacka. Co. May 31, 2024 Nealon, J.), the court addressed a coverage action relative to the theft of an allegedly covered vehicle. After the carrier denied coverage, the insured filed a lawsuit for breach of contract and bad faith liability.

The carrier filed Preliminary Objections asserting a lack of subject matter jurisdiction due to the policy’s form selection clause that limited legal actions to a court and county and state where the covered person resided at the time of the of the accident. The carrier also filed a Preliminary Objection asserting lack of personal jurisdiction based upon the allegations of the Complaint. Also asserted were improper venue objections along with a legal insufficiency of the bad faith claim.

Judge Nealon ruled that the policy’s form selection clause was inapplicable under the language of the policy given that the Plaintiff’s “comprehensive loss” claim arose from the deliberate “theft” of his vehicle, rather than an unintentional “accident.”

The court additionally ruled that, by obtaining a certificate of authority to conduct insurance business in Pennsylvania, the carrier had voluntarily consented to general personal jurisdiction in Pennsylvania.

The court additionally found that the allegations of the Complaint, and the exhibits attached thereto, stated a cognizable bad faith claim against the carrier.

With regards to the venue issue, the court directed the parties to conduct venue discovery and to resubmit the challenge to the court for a decision thereafter.

Anyone wishing to review a copy of this decision may click this LINK.

Once Appeal is Filed Trial Court Loses Jurisdiction Over the Case

In its non-precedential decision in the case of Grady v. Nelson, No. 2115 EDA 2021 (Pa. Super. Nov. 20, 2023 Stabile, J., Dubow, J., Pellegrini, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court reaffirmed the rule of appellate procedure that, once a case goes up on appeal, the trial court loses jurisdiction to take further action until the case is remanded.

The Superior Court more specifically noted that the effort by the defense counsel to place a case on a trial list before the pleadings were even closed and any opportunity was allowed to conduct pre-trial proceedings as allowed under the Rules of Civil Procedure was improper. The court noted that it was improper for counsel for seek a trial listing while the appeal was pending given that the lower court did not have any jurisdiction to proceed further in the matter, subject to certain exceptions which were not applicable in this case.

Anyone wishing to review a copy of this decision may click this LINK.


Source: Article – “Court Scolds Counsel for Pursuing Case in Both Common Pleas, Appellate Systems” By Riley Brennan of the Pennsylvania Law Weekly (Nov. 28, 2023).

Pennsylvania's Consent to Jurisdiction By Registering To Do Business In Pennsylvania Valid, But Subject To Continuing Attacks

Tort Talkers may recall the case of Mallory v. Norfolk Southern Railway in which the United States Supreme Court addressed the validity of Pennsylvania's consent by registration statute.  Under that statute, corporations and companies that register to do business in Pennsylvania thereby consent to subject themselves to jurisdiction in Pennsylvania state courts for lawsuits, even if the underlying accident occurred elsewhere.

A majority of U.S. justices upheld the validity of the statute, determining that it does not violate due process violations, and remanded the case back to Pennsylvania.  Yet, commentators note that the language of a Concurring Opinion by Justice Alito may spur Defendants to continue to attack the statute.

Under a recent Order, the Pennsylvania Supreme Court punted and remanded the issue all the way back down to the trial court for consideration, thereby rejecting the Defendants' attempt at a fast-tracked review by the Commonwealth's highest Court on continuing challenges to the question of whether or not Pennsylvania's consent by registration statute violates the U.S. Constitution.

Anyone wishing to review the Pennsylvania Supreme Court's Order in this regard may click this LINK.

Presently, the statute providing that a corporation's registration to do business in Pennsylvania thereby subjects that corporation to Pennsylvania state court jurisdiction over personal injury lawsuits remains valid but subject to continuing attacks.

Source of image:  Photo by Jackie Hope on www.unsplash.com.

U.S. Supreme Court Reverses Pennsylvania Supreme Court and Upholds Pennsylvania Law Conferring Jurisdiction on Corporations Who Register To Do Business in PA

In the case of Mallory v. Norfolk Southern Railway Co, ___ U.S.___ (June 27, 2023) in a 4-1-4 plurality decision, the United States Supreme Court upheld the Pennsylvania law allowing state courts to hear lawsuits against out-of-state companies who had registered to conduct business in Pennsylvania, even when the alleged injury occurred outside of the Pennsylvania.  

Anyone wishing to review a copy of this decision may click this LINK.

Eastern District Court Dismisses German Office of Porsche From Products Liability Claim Due to Lack of Jurisdiction

In the case of Riad v. Porsche Cars N. Am., Inc., No. 18-5175 (E.D. Pa. Feb. 24, 2023 Pratter, J.), the court granted a Defendant’s F.R.C.P. 12(b)(2) Motion to Dismiss based upon lack of jurisdiction.

In this matter, the Plaintiff had purchased a used Porsche from a non-Porsche-brand dealer. Years later, after noting problems with the vehicle’s engine and, the Plaintiff was instructed by Porsche to bring it to the nearest dealership for inspection and repair.

On the way to the dealership, smoke allegedly began coming through the AC vents into the passenger area allegedly causing the Plaintiff to suffer permanent lung damage and asthma.

The Plaintiff filed a products liability claim against or Porsche Cars North America, Inc. and Porsche AG.

Both Defendants moved to dismiss the case for lack of personal jurisdiction.

The court had previously ruled that it could exercise general personal jurisdiction over Porsche Cars North America.

The court granted Porsche AG’s Motion to Dismiss for lack of personal jurisdiction.

The court first ruled that it did not have general personal jurisdiction over Porsche AG as that entity was not “at home” in Pennsylvania.  Rather, that company was incorporated in, and had its headquarters in, Germany.

The court denied to find that Porsche North America was a mere alter ego of Porsche, AG, which would have permitted the court to impute general personal jurisdiction.

Rather, the court found that there was sufficient evidence that the two entities were separate legal entities that interacted with each other pursuant to arm’s length agreement and that neither party exercised dominion or control over the other. 

The court additionally stated that there was an agreement between the parties that expressly disclaimed any authority for Porsche North America to act as an agent or legal representative of Porsche AG.

The court also found that it lacked specific jurisdiction over Porsche AG in that there was no evidence that that entity had purposefully directed its business activities in Pennsylvania.

Anyone wishing to review a copy of this decision may click this LINK.  The court's companion Order can be viewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 16, 2023).

Source of image:  Photo by Clement Roy on www.unsplash.com.   

Pennsylvania Superior Court Finds That NJ Transit Not Entitled To Sovereign Immunity Relative To Bus Accident in Pennsylvania

In the case of Galette v. N.J. Transit, No. 2210 EDA 2021 (Pa. Super. March 21, 2023 Bowes, J., Lazarus, J., and Olson, J.) (Op. by Bowes, J.), the court addressed whether the New Jersey Transit Corporation was entitled to sovereign immunity from a personal injury motor vehicle accident lawsuit arising out of an accident that occurred in Philadelphia.

The trial court had denied the Motion to Dismiss filed by N.J. Transit based upon an argument that that Defendant was an arm of the State of New Jersey and was protected by the state afforded governmental and sovereign immunities such that the Plaintiff’s Complaint was barred and should be dismissed.

On appeal, the Pennsylvania Superior Court affirmed the trial court's denial of the motion to dismiss.

N.J. Transit had asserted that the case against it should have been dismissed for lack of jurisdiction where N.J. Transit, as a foreign state entity, did not provide consent to be sued in another state and where that Defendant had rightfully asserted its state sovereign immunity protections under the United States Constitution.

After reviewing the history of the legal doctrine of sovereign immunity, which dates back to English common law, and after examining the relevant case law, including United States Supreme Court precedent, the Pennsylvania Superior Court rejected N.J. Transit’s arguments that it should be dismissed from the case.

The Superior Court noted that the issue of sovereign immunity often rises in the context of interstate lawsuits. The court noted that, under the law, it was not automatically incumbent upon one State to recognize the sovereign immunity of another State.

The court also noted that, although the State of New Jersey was not directly named as a Defendant in this suit, well-settled law holds that sovereign immunity does also extend to entities which are agents or instrumentalities of a state such that a lawsuit brought against the entity would, for all practical purposes, be considered to be a suit against the state itself.

As such, the court addressed the issue of whether N.J. Transit was an instrumentality of the State of New Jersey as it alleged.

The Superior Court noted that N.J. Transit relied upon a previous decision out of the Third Circuit Court of Appeals which had previously held that N.J. Transit does indeed qualify as an instrumentality of the State of New Jersey for purposes of sovereign immunity.

However, the Superior Court noted that the holdings of the Third Circuit are not binding upon the Pennsylvania Superior Court.

Turning to Pennsylvania’s own 6-part test on whether sovereign immunity should be applied, the court in this Galette case ultimately found that that test was not dispositive on the question.

As such, the court noted that it was required to address whether allowing N.J. Transit to be sued would thwart the two principal purposes of the Eleventh Amendment, that is, the protection of New Jersey’s dignity as a sovereign State and the protection of New Jersey’s Treasury against involuntary depletion of funds by virtue of lawsuits brought by private persons.

In coming to its ruling, the Pennsylvania Superior Court analogized cases that are brought against SEPTA, or the Southeastern Pennsylvania Transit Authority, in Pennsylvania. 

The court noted that, in such lawsuits, those suits proceed against SEPTA alone, as a wholly independent entity and without the involvement of the Commonwealth of Pennsylvania. As such, the Commonwealth cannot be subject to any Order of Court as a result of such a personal injury suit. Therefore, no right or interests of the Commonwealth would be affected by the outcome of any lawsuit against SEPTA in Pennsylvania courts. Consequently, personal injury lawsuits against SEPTA do not pose any danger that the Commonwealth itself would be involuntarily subject to and controlled by the mandates of the courts, without its consent, at the instance of private parties.

Based upon this analysis, the court in this Galette case found that the particulars of N.J. Transit’s status with respect to the State of New Jersey was similar. N.J. Transit was noted to be a distinct legal entity that is empowered to sue and to be sued in a capacity that is independent from the State of New Jersey.

The court found that there was no risk to the sovereign dignity of the State of New Jersey in permitting a suit against N.J. Transit to proceed. The court also noted that any potential judgment against N.J. Transit would not have any discernible impact on the New Jersey Treasury.

Based upon this analysis, the court found that the Plaintiff’s personal injury lawsuit posed no threat either to the sovereign dignity or the State Treasury of New Jersey. As such, the court concluded that N.J. Transit was not an arm of the State of New Jersey in this context. 

Consequently, the court ruled that N.J. Transit was not entitled to protections of sovereign immunity which it had asserted. Accordingly, the trial court’s denial of N.J. Transit’s Motion to Dismiss was affirmed by the Pennsylvania Superior Court in this Galette case.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Pennsylvania Civil Law Case Alerts,” Fastcase.com as provided by Pennsylvania Bar Association.

Court Grants Preliminary Objections Regarding Jurisdiction Over Foreign Corporation

In the case of Terry v. Aesculap Implant Sys., No. 2018-C-1938 (C.P. Leh. Co. Aug. 8, 2022 Caffrey, J.), the court granted a foreign Defendant’s Motion to Dismiss based upon lack of personal jurisdiction on the basis that the court lacked both general and specific jurisdiction over the Defendant.

This matter arose out of claims by a number of Plaintiffs alleging that a knee implant device had been negligently designed and manufactured by a German company.  According to the Opinion, the knee surgeries at issue actually took place in the State of Texas.

As to general jurisdiction, the court found that the jurisdiction requirements were not met under 42 Pa. C.S.A. §5301(a)(1).  Under that statute, a court in Pennsylvania may exercise general jurisdiction over an individual non-resident Defendant when that Defendant is either present in Pennsylvania when process is served or domicile in Pennsylvania at the time when process is served, or where that Defendant consents to the jurisdiction of the court. Neither of these scenarios were implicated under the facts of this case.

With regards to the issue of specific jurisdiction, the court found that the Defendant lacked sufficient minimum contacts within the State of Pennsylvania.

In the end, the court granted the Preliminary Objections and dismissed a Joinder Complaint for lack of personal jurisdiction.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 13, 2022).

Personal Jurisdiction Over Foreign Corporation Found to Exist Based on Actions of the Distributor for the Corporation

In the products liability case of Merino v. Repak, B.V., No. 135 MDA 2022 (Pa. Super. Dec. 6, 2022 Bowes, J., McCaffery, J., and Stevens, P.J.E.) (Op. by McCaffery, J.), a Defendant company operating out of the Netherlands filed an appeal from a trial court Order overruling its Preliminary Objection to personal jurisdiction. The Superior Court affirmed the trial court’s Order.

In so ruling, the Superior Court rejected the Defendant’s arguments that the trial court had erred and abused its discretion when the trial court exercised personal jurisdiction over the foreign company based upon either the Defendant’s independent contacts with the Commonwealth of Pennsylvania or its relationship with a Co-Defendant company.

The Superior Court noted that the trial court properly exercised specific personal jurisdiction over the foreign manufacturer with no minimum contacts of its own within the forum. The court found that, based upon the actions and contacts of the foreign manufacturer’s exclusive distributor, with whom the manufacturer had a close agency relationship, jurisdiction over the foreign manufacturer was warranted.

The Superior Court found that the Co-Defendant distributor had acted as an agent for the foreign manufacturer by selling the manufacturers products to customers in the Commonwealth of Pennsylvania.

Anyone wishing to review a copy of this decision may click this LINK


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 27, 2022).

Source of image:  Photo by Elena Mozhvilo at www.unsplash.com.

Trial Court Opines That Defendant's Appeal From Order Dismissing Defendant's Objections to Jurisdiction Should Be Quashed

In the case Galette v. New Jersey Transit, No. 200800610 (C.P. Phila. Co. May 31, 2022 Crumlish, J.), the trial court filed a Rule 1925 Opinion to the appellate court recommending the dismissal of the Defendant’s appeal from the trial court’s Order dismissing the Defendant’s objections to jurisdiction.

It was the position of the trial court that the Order dismissing the Defendant’s objection to jurisdiction was appealable only under Pa.R.A.P. 311(b) and that the requirements of that Rule had not been met. 

According to the Opinion, this matter arose out of a personal injury action filed by the Plaintiff against the Defendant New Jersey Transit, and another Defendant. According to the lawsuit, the Plaintiff was injured while sitting in a parked vehicle in the City of Philadelphia when that vehicle was allegedly struck by a bus operated by one of NJ Transit’s employees.

The Defendant, NJ Transit, objected to the court’s jurisdiction over it through a Motion to Dismiss. That Motion was denied and NJ Transit filed an appeal, which prompted this Opinion by the court.

The trial court noted that an Order denying a Motion to Dismiss is ordinarily interlocutory and, therefore, not appealable unless expressly made so by statute.

In its Opinion, the court cited to Pa.R.A.P. 311, which lists the interlocutory appeals that may be taken as a right, and Pa.R.A.P. 312, which allows for interlocutory appeals by permission.

Under Pa. R.A.P. 311(b), an appeal is allowed as a right when a trial court’s Order overruled Preliminary Objections to the trial court’s in personam or in rem jurisdiction and either the Plaintiff elected to treat the Order as final or the trial court stated in the Order that a substantial issue of jurisdiction existed.

Given that these requirements were not met, and given that the Defendant, NJ Transit, did not otherwise seek leave of court to file an interlocutory appeal, or request an Order stating that a substantial issue of jurisdiction was presented, the trial court noted that the appeal should be quashed by the Pennsylvania Superior Court.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (June 7, 2022).

Plaintiff Failed To Establish Jurisdiction Over German Division of BMW

In the case of Mahurin v. BMW of North America, LLC, No. 2:20-CV-01351 (W.D. Pa. March 18, 2021 Hardy, J.), the court found that the Plaintiff had failed to establish jurisdiction over the Defendant, BMW, and as such, the Plaintiff’s claims against that Defendant were dismissed in this products liability action. 

According to the Complaint, the Plaintiff was involved in a motor vehicle accident. The Plaintiff alleged that the airbag released sharp metal fragments that penetrated his neck and chest area and caused additional injury. The Plaintiff sued BMW for products liability, negligence, and breach of warranty.

The Plaintiff asserted that BMW, a German company, was the parent company of another BMW entity, a Delaware limited liability company with a principle place of business in New Jersey. That Defendant filed a Motion to Dismiss for lack of personal jurisdiction.

The court granted the Motion after finding that the Plaintiff failed to sustain his burden to establish specific personal jurisdiction. The court generally noted that the Plaintiff failed to show any purposeful availment of the Defendant in terms of activity and Pennsylvania.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 6, 2022).

Source of image:  Photo by Artiom Vallat on www.unsplash.com.

No Jurisdiction Found Over Out-of-State Contractor in Construction Litigation Case

In the case of Bean Sprouts LLC v. Life Cycle Const. Serv., LLC, No. 1467 EDA 2021 (Pa. Super. Feb. 17, 2022 Panella, P.J., Dubow, J., McCaffery, J.) (Op. by Panella, P.J.), the Pennsylvania Superior Court held that the trial court did not err when it found that the Defendant did not have the requisite minimum contacts with Pennsylvania for the trial court to exercise jurisdiction.

According to the Opinion, this case arose out of a construction contract dispute.

The Plaintiff was a construction and excavating company and the Defendant was a contractor engaged in construction projects throughout the country.

The Plaintiff filed a breach of contract action in Pennsylvania. The Defendant contractor filed Preliminary Objections asserting that it did not have the requisite minimum contacts with Pennsylvania such that a Pennsylvania court could not exercise personal jurisdiction over the Defendant.

The trial court sustained the Preliminary Objections and the appellate court affirmed.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 8, 2022).

Photo by skitterphoto on www.pexels.com.

ARTICLE: Shutdown Makes for a Quiet year in Civil Litigation

Here is a copy of my December 10, 2020 Year-End review article published in The Pennsylvania Law Weekly on civil litigation developments in Pennsylvania over the past year.  It is republished here with permission.

My Year-End article on developments in Motor Vehicle Accident Law is forthcoming.


Shutdown Makes for a Quiet Year in Civil Litigation

By Daniel E. Cummins | December 10, 2020

  Daniel E. Cummins of Cummins Law.


While 2020 was a year in a pandemic and political upheaval, things were relatively calm in terms of any notable civil litigation decisions. The biggest news of the year was that courts were not conducting trials which gave judges more time to issue notable decisions, some of which are outlined below.
COVID-19 Stops Civil Litigation Trials

In 2020, the rise of COVID-19 pandemic shut down the court system in March. Generally speaking, the courts were almost entirely shut down for two months before gradually opening over the summer with virtual online proceedings. Then by September, the courts began to hold trials again in courtrooms outfitted with plexiglass and jurors spread out between the jury box and the gallery in an effort to maintain social distancing. It remains to be seen how the COVID-19 pandemic will influence jury awards.

Stay of Civil Litigation Matters Pending Result of Criminal Case

In a case of first impression handed down in March in the matter of Keesee v. Dougherty, 230 A.3d 1128 (Pa. Super. March 16, 2020), the Pennsylvania Superior Court confirmed the standards that a trial court judge must consider with respect to a request by a defendant to stay a civil lawsuit while a companion criminal case is pending.

The lawsuit in this matter was brought by a nonunion electrical contractor against an indicted union boss and other defendants.

With its ruling the Pennsylvania Superior Court adopted the six-factor test previously established by the federal courts in the case of In re Adelphia Communications, No. 02-1781, (E.D. Pa. 2003), for determining whether to stay a civil case pending resolution of a related criminal matter.

Going forward, under Keesee, the six factors to be addressed by a trial court in determining whether to stay a civil case pending the resolution of a companion criminal case included the extent to which the issues in the civil and criminal cases overlap, the status of the criminal proceedings and whether any defendants have been indicted, the plaintiff’s interests in an expeditious civil proceeding weighed against the prejudice to the plaintiff caused by the delay, the burden on the defendants, the interests of the court, and the public interests.

What Happens in Pennsylvania, Stays in Pennsylvania

One of the most active areas of Pennsylvania law over the past year was on the issue of personal jurisdiction in Pennsylvania over foreign defendants.

Just recently, the judicially activist Pennsylvania Supreme Court advanced its agenda of helping plaintiff’s causes by expanding the ambit of jurisdiction over foreign defendants and opening the door even wider to hauling more potentially liable parties into Pennsylvania personal injury matters. In the case of Hammons v. Ethicon, 7 EAP 2019 (Pa. Oct. 21, 2020) (Op. by Baer, J.), the Pennsylvania Supreme Court reviewed jurisdictional issues in a pelvic mesh products liability case. In the end, the court affirmed the entry of a judgment in favor of the plaintiffs over foreign defendants who had raised issues of jurisdictional.

The Hammons case presented a law school essay type of jurisdictional challenge in a matter involving a lawsuit filed in Pennsylvania by an Indiana resident who had a surgical procedure performed in Indiana and who alleged injuries from an implanted pelvic mesh that was manufactured by New Jersey corporate defendants.

The Pennsylvania Supreme Court provided a detailed summary of the current status of the law pertaining to personal jurisdiction that was noted to be in a state of flux. The court reviewed several notable U.S. Supreme Court opinions, the most recent of which was in the case of Bristol-Myers Squibb v. Superior Court of California, San Francisco County, 137 S. Ct. 1773 (2107). According to legal commentators, the Bristol-Myers decision by the Supreme Court was deemed to be a defense-friendly decision.

Concisely, after the Bristol-Myers case, the following three elements must be met in order for specific personal jurisdiction to lie over a defendant. First, a defendant must have purposefully conducted activities within the forum state, or must have purposefully directed its conduct towards the forum state. Second, the plaintiff’s claim must have arisen out of or relate to the defendant’s activities in the forum state or directed toward the forum state. Third, a finding of jurisdiction over the defendant must be found by the court to be fair and reasonable.

In Hammons, the Pennsylvania Supreme Court diverged from the law set down by the U.S. Supreme Court in Bristol-Meyers by rejecting the defense’s arguments that, under Bristol-Myers, the jurisdictional analysis should focus on the jurisdiction’s connection to each of the plaintiff’s individual claims. Instead, the 6-1 Majority in Hammons, with Chief Justice Thomas G. Saylor dissenting, ruled that the focus should remain on the defendant’s conduct.

In the end, the court found that the defendant’s suit-related contacts justified jurisdiction in that the particular defendant supervised the design and manufacturing process of its product in Pennsylvania in collaboration with a Pennsylvania company. The court additionally noted that this particular defendant also worked with a Pennsylvania physician in developing and marketing the product. In favoring the plaintiffs’ position, the Pennsylvania Supreme Court rejected a more narrow jurisdiction analysis set down by none other than the U.S. Supreme Court as such a contrary view “could unnecessarily restrict access to justice for plaintiffs.”

Split of Authority on Another Jurisdiction Issue

In terms of jurisdictional issues in the federal courts of Pennsylvania, it appears that a split of authority has arisen between the federal district courts of Pennsylvania as to whether or not Pennsylvania’s long arm statute imposing general jurisdiction upon any foreign corporation registering to do business in Pennsylvania is constitutional.

On the one side, we have the case of Kraus v. Alcatel-Lucent, 441 F.Supp.3d 68 (E.D. Pa. Feb. 27, 2020 Savage, J.), in which the court ruled that Pennsylvania’s long-arm statute, which allows for general jurisdiction on any foreign corporation registering to do business in Pennsylvania, is constitutional.

The case of Weigold v. Ford Motor, No. 20-2141 (E.D. Pa. Sept. 9, 2020 Savage, J.) represents another decision in which a court held that a foreign company’s registration to do business in Pennsylvania also represents a valid consent to general personal jurisdiction over that company in lawsuits filed in Pennsylvania.

In contrast, in the case of Reynolds v. Turning Point Holding, No. 2:19-CV-01935-JDW (E.D. Pa. Feb. 26, 2020 Wolson, J.), the court granted a motion to dismiss for lack of personal jurisdiction after finding, in part, that Pennsylvania’s statutory scheme requiring foreign corporations to consent to general personal jurisdiction in Pennsylvania by virtue of registering to do business in Pennsylvania violates the due process clause of the U.S, Constitution.

According to this opinion, the defendant franchiser involved in this matter did not have any significant contacts with Pennsylvania and the store where the plaintiff was alleged injured was a separately maintained corporation. The court in Reynolds specifically ruled that the defendant’s registration as a foreign corporation to do business in Pennsylvania was insufficient to subject it to general personal jurisdiction.

Over the past year, this important issue was also watched the state court arena. The case of Murray v. American LaFrance, 2020 Pa. Super. 149 (Pa. Super. June 25, 2020) (en banc) (Op. by Bowes, J.), was viewed as the case in which would determine the validity of the argument that Pennsylvania’s business registration law was, in and of itself, sufficient to establish jurisdiction over an out-of-state company where that company has registered with the state to do business in Pennsylvania.

However, the en banc panel of the Superior Court ruled that the plaintiff had failed to properly preserve this issue of jurisdiction before the trial court and, as such, the court found that the issue was not preserved. As a result, litigants will have to await another day for this important and unsettled issue to be decided in Pennsylvania.

Products Liability

In 2020, the Pennsylvania Supreme Court was poised to decide whether Amazon.com could be sued in a products liability action in Pennsylvania as a “seller” of a defective product.

The Pennsylvania Supreme Court agreed to accept that issue for review as certified to its attention by the U.S. Court of Appeals for the Third Circuit in the case of Oberdorf v. Amazon.com, No. 41 EM 2020 (Pa. 2020).

In the case of Oberdorf v. Amazon.com, No. 18-1041 (3d Cir. July 3, 2019), the Third Circuit had reversed the lower court and held that Amazon.com may be sued as a “seller” in products liability cases.

The case arose out of an incident during which the plaintiff was injured when a retractable leash she was using while walking her dog allegedly malfunctioned, snapped back, and caused permanent injury to the plaintiff’s eye.

It was more recently reported that this case was settled before the Pennsylvania Supreme Court could issue a decision on the question. As such, practitioners will have to wait for another day to hear from the Pennsylvania Supreme Court on whether Amazon can be sued in products liability claims here in Pennsylvania.

Medical Malpractice

The validity of the doctrine of res ipsa loquitur in medical malpractice matters was reaffirmed in a couple of cases over the past year. In the case Lageman v. Zepp, 237 A.3d 1098 (Pa. Super. 2020), the Pennsylvania Superior Court found that a trial court had erred in failing to charge the jury on the doctrine of res ipsa loquitur. The court found that, with the help of expert opinion, plaintiff had established all three elements of the res ipsa loquitur doctrine in connection with the defendant’s performance of the medical procedure at issue.

The Pennsylvania Superior Court emphasized that, while the doctrine of res ipsa loquitur is usually associated with events that are within the common knowledge of laypersons and not requiring any expert testimony, the application of the doctrine is not foreclosed where the plaintiff also presents a medical expert offering evidence of other specific negligent conduct.

In another res ipsa loquitur case, Snyder v. Scranton Hospital, No. 19-CV-83 (C.P. Lacka. Co. Aug. 28, 2020 Nealon, J.), the court denied the defendants’ motions for partial summary judgment in which it was asserted that the plaintiff should not be permitted to rely upon the doctrine of res ipsa loquitur in support of the claims presented.

According to the opinion, the plaintiff underwent ear surgery but allegedly awoke with a severe left ulnar nerve neuropathy injury as a result of a compression injury allegedly due to the medical providers’ failure to properly position, protect and assess the plaintiff’s left arm while he was unconscious during the surgery.

The plaintiff produced expert opinion evidence that such an injury does not happen during an ear surgery in the absence of negligence on the part of the medical providers. The plaintiff asserted that that expert evidence also served to eliminate other potential causes of the injury. The defense produced its own expert testimony in support of claims that the plaintiff ‘s injury was indeed the result of other unrelated causes.

The court denied the motion given that there was a dispute between the experts as to whether the doctrine of res ipsa loquitur should be applied. In the end, that issue was left for the jury to decide.

Looking Ahead

In the year ahead, the courts will continue to navigate the coronavirus pandemic in terms of holding trials. However, it is expected that the trial courts and the appellate courts will continue to churn out notable decisions on a wide variety of civil litigation issues, including with respect to jurisdiction, proper venue, and in a wide variety of premises liability, products liability and medical malpractice matters.

Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.