HomeMy WebLinkAbout09-2014IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
GIRARD E. RICKARDS,
Plaintiff
V.
AMERICAN UNIVERSITY,
Defendant
NO.: OQ- c2014 CtVi (er-n,
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set
forth in the following pages, you must take action within twenty (20) days after this Complaint
and Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set forth against you. You are
warned that if you fail to do so the case may proceed without you and a judgment may be entered
against you by the Court without further notice for any money claimed in the Complaint or for
any other claim or relief requested by the Plaintiff. You may lose money or property or other
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
NOTICIA
Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas
expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la
demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por
abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en
contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso o notificacion y
por cualquier quja o puede perder dinero o sus propiedades o otros derechos importantes para
usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE
ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
CUMBERLAND COUNTY BAR ASSOCIATION
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
GIRARD E. RICKARDS,
Plaintiff
V.
AMERICAN UNIVERSITY,
Defendant
NO.. d9- q?
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PLAINTIFF'S COMPLAINT
1. Plaintiff is an adult individual residing at 8 Durham Drive, Dillsburg, Pennsylvania.
2. Defendant is an unincorporated association with its principal place of business at 4400
Massachusetts Avenue Northwest, Washington, D.C.
3. At all times relevant hereto, the defendant offers an internship program, known as the
"Washington Semester Program" which it advertises though its "Member Schools",
including Shippensburg University in Shippensburg, Cumberland County, Pennsylvania.
4. At all times relevant hereto, the defendant regularly advertises its university and programs
in Cumberland County Pennsylvania via direct mail and the internet.
5. At all times relevant hereto the defendant maintains an interactive web site, accessible in
Cumberland County, Pennsylvania, through which interested persons may apply for
admission to the University and its programs.
6. Plaintiff is the natural father of David E. Rickards, who, at all times relevant hereto,
resided in Shippensburg and Carlisle, Cumberland County, Pennsylvania.
7. The defendant solicited the plaintiff's son to enrol in the Washington Semester Program
through the mail to David's then home address in Carlisle, Pennsylvania.
8. Plaintiff's son applied for the fall semester of 2007, Washington Semester Program via
the defendant's interactive web site, from a computer in Shippensburg, Pennsylvania.
9. The defendant communicated its acceptance of plaintiff's son to the program via mail to
Carlisle, Pennsylvania.
10. Plaintiff s son attended the program and satisfactorily completed the defendant's
academic requirements for the fall semester of 2007.
COUNT I - FRAUD
11. Paragraphs 1 through 10 above are incorporated herein by reference as if set forth at
length.
12. In the Spring of 2008 plaintiff learned that the defendant refused to forward his son's
transcript to Shippensburg University where plaintiff's son had otherwise completed the
requirements for receipt of a bachelor's degree.
13. On April 24, 2008, plaintiff discussed his son's situation with Michael Harris, an
employee of the defendant via telephone (hereinafter referred to as "the Conversation").
14. During the conversation, Mr. Harris advised the plaintiff that the reason that the transcript
was not forwarded to Shippensburg University was that David Rickards' tuition for the
fall semester of 2007 was not paid
15. During the conversation, plaintiff advised Mr. Harris that his son had applied for a
student loan to pay that tuition, that for some reason, the loan was not processed and that
his son was applying for another student loan to pay the tuition owed to the defendant.
16. During the discussion, plaintiff requested that Mr. Harris release the transcript to
Shippensburg University upon satisfactory proof of the completion of the student loan
application.
17. During the conversation, Mr. Harris informed the plaintiff that the defendant would not
release the transcript until payment for the tuition was actually received by the defendant.
18. During the conversation, plaintiff next proposed that plaintiff would advance the tuition
funds to the defendant pending the defendant's receipt of the student loan proceeds, upon
which time the defendant would reimburse the plaintiff.
19. During the conversation, Mr. Harris informed the plaintiff that in order for that to happen,
the defendant would require receipt of certified funds for the tuition bill and the plaintiff's
son (the student) would have to request in writing for the refund to be paid to the plaintiff.
20. Mr. Harris never informed the plaintiff that the defendant would not process or certify any
student loan for the plaintiff's son once his bill was paid and he was no longer an enrolled
student at the defendant's University.
21. Based on the conversation, plaintiff paid the defendant the sum of twenty-one thousand
one hundred fifty-seven dollars and fifty-five cents ($21,157.55) in certified funds on
May 5, 2008.
22. During the conversation, Mr. Harris made the affirmative misrepresentation that a refund
would be issued to the plaintiff after the student loan proceeds were paid to the defendant
so long as the plaintiff's son requested that in writing.
23. During the conversation, Mr. Harris made the misrepresentation, by inference and
omission that the university would certify and process a student loan for the plaintiffs
son tuition bill after the bill was paid by the plaintiff and issue a refund of the amount
paid by the plaintiff..
24. At the time of the conversation, Mr. Harris had actual knowledge that the plaintiff s son
was no longer enrolled at American University and that he was scheduled to graduate
from Shippensburg University in the Spring of 2008.
25. Mr. Harris had actual knowledge that the defendant would not certify or process student
loans for persons who were not enrolled in the defendant's university and had no
outstanding balance.
26. In the alternative, Mr. Harris made the misrepresentations with reckless disregard for the
truth.
27. Plaintiff reasonably relied upon the above misrepresentations to his detriment.
28. At all times relevant hereto, Michael Harris was an agent, workman, servant or employee
of the defendant and acting within the scope and course of said agency or employment.
29. On at least two occasions in May and July of 2008, the defendant refused to certify
student loans on behalf of plaintiff's son, thereby preventing the loans to be processed
and paid.
WHEREFORE, Plaintiff, Girard E. Rickards respectfully requests Your Honorable Court
to enter judgement in his favor in the amount of twenty-one thousand one hundred fifty-seven
dollars and fifty-five cents ($21,157.55) plus interest, costs and punitive damages.
COUNT II - NEGLIGENT MISREPRESENTATION
30. Paragraphs 1 through 29 above are incorporated herein by reference as if set forth at
length.
31. In the alternative, the misrepresentations made my Michael Harris, as more specifically
set forth in paragraphs 22 and 23 above, were negligently made.
WHEREFORE, Plaintiff, Girard E. Rickards respectfully requests Your Honorable Court
to enter judgement in his favor in the amount of twenty-one thousand one hundred fifty-seven
dollars and fifty-five cents ($21,157.55) plus interest and costs.
COUNT III - UNFAIR TRADE PRACTICES
32. Paragraphs 1 through 31 above are incorporated herein by reference as if set forth at
length.
33. The defendant's fraudulent conduct, as more specifically set forth in Count I above,
constitutes an unfair trade practice, as that term is defined in 73 P. S. section 201-
2(4)(xxi), entitling the plaintiff to treble damages and counsel fees and a claim is made
therefor.
WHEREFORE, Plaintiff, Girard E. Rickards respectfully requests Your Honorable Court
to enter judgement in his favor in the amount of twenty-one thousand one hundred fifty-seven
dollars and fifty-five cents ($21,157.55) plus interest, costs, counsel fees and treble damages.
COUNT IV - UNJUST ENRICHMENT
34. Paragraphs 1 through 33 above are incorporated herein by reference as if set forth at
length.
35. The defendant's misrepresentations, as more specifically set forth above, resulted in an
unjust enrichment to the defendant.
36. The plaintiff is entitled to restitution and a claim is made therefor.
WHEREFORE, Plaintiff, Girard E. Rickards respectfully requests Your Honorable Court
to enter judgement in his favor in the amount of twenty-one thousand one hundred fifty-seven
dollars and fifty-five cents ($21,157.55) plus interest and costs.
COUNT V - BREACH OF CONTRACT
37. Paragraphs 1 through 36 above are incorporated herein by reference as if set forth at
length.
38. The conversation resulted in a binding contract between the parties wherein the plaintiff
agreed to pay the sum of twenty-one thousand one hundred fifty-seven dollars and fifty-
five cents ($21,157.55) in certified funds in exchange for the defendant forwarding the
transcript of grades, certifying the student loan and refunding the overpayment to the
plaintiff.
39. The defendant breached the contract by refusing to certify the student loans and refunding
the plaintiff's payment.
40. As a direct and proximate result of the defendant's breach of contract, the plaintiff was, is
and continues to be deprived of the sum of twenty-one thousand one hundred fifty-seven
dollars and fifty-five cents ($21,157.55) and a demand is made therefor.
WHEREFORE, Plaintiff, Girard E. Rickards respectfully requests Your Honorable Court
to enter judgement in his favor in the amount of twenty-one thousand one hundred fifty-seven
dollars and fifty-five cents ($21,157.55) plus interest and costs.
Date: S1 //d j
Gir Rickards, Esquire
135 South Duke Street
York, PA 17401
(717) 845-4038
Supreme Court Id.: 58867
VERIFICATION
I verify that the statements made in this Plaintiff's Complaint are true and correct to the
best of my knowledge, information and belief. I understand that false statements are made
subject to penalties of 18 Pa.C.S.A. section 4904, relating to unworn falsification to authorities.
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Date: March 27, 2009
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
GIRARD E. RICKARDS,
Plaintiff,
V.
AMERICAN UNIVERSITY,
Defendant.
TO: Girard E. Rickards, Plaintiff
Case No.: 09-2014 Civil Term
CIVIL ACTION -- LAW
NOTICE TO PLEAD
You are hereby notified to file a written response to the enclosed "Defendant's Preliminary
Objections for Lack of Personal Jurisdiction And Improper Venue" within twenty (20) days from
service hereof or a judgment may be entered against you.
A02
Elizabeth L. Phelps
Counsel for American University
Pa. I.D. # 201436
Holland & Knight, LLP
2099 Pennsylvania Ave., N.W., Suite 100
Washington, DC 20009
Telephone: (202) 955-3000
l .
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
GIRARD E. RICKARDS, )
Plaintiff, )
V. )
AMERICAN UNIVERSITY, )
Defendant. )
Case No.: 09-2014 Civil Term
CIVIL ACTION -- LAW
DEFENDANT'S PRELIMINARY OBJECTIONS FOR LACK OF PERSONAL
JURISDICTION AND IMPROPER VENUE
Defendant American University ("AU"), by and through its counsel, hereby files these
Preliminary Objections pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(1), for the
purpose of objecting to personal jurisdiction and venue, and in support thereof avers as follows:
Background
1. This is a five-count lawsuit filed by Plaintiff Girard E. Rickards against Defendant
AU, an educational institution located in Washington, D.C.. Mr. Rickards alleges counts of fraud,
negligent misrepresentation, unfair trade practices, unjust enrichment, and breach of contract.
2. The entire lawsuit arises out of an alleged April 24, 2008, telephone conversation
between Plaintiff and an employee of AU, Michael Harris, while Mr. Harris was working at
American University in Washington, D.C..
3. AU is a not-for-profit corporation organized and existing pursuant to the laws of the
District of Columbia with it principal place of business located at 4400 Massachusetts Avenue
Northwest, Washington, D.C.. AU is not registered to do business in Pennsylvania.
4. Plaintiff has not averred his residence or location at the time of the alleged telephone
conversation. Plaintiff has not averred where he claims to have suffered harm by AU's alleged
unlawful conduct. Plaintiff only avers that he is an adult individual currently residing at 8 Durham
Drive, Dillsburg, Pennsylvania. (Compl. ¶ 1.) Dillsburg is located in York County, Pennsylvania.
5. According to the Complaint, the alleged telephone conversation related to the fact
that AU was unable to forward Plaintiffs son's transcript from the AU Fall 2007 semester (when
Plaintiff s son attended AU as a visiting student) to Shippensburg University because the tuition of
Plaintiffs son for that semester had not been paid. (Compl. ¶¶ 12, 13, 14.)
6. Plaintiff seeks compensatory damages in the amount of $21,157.55, plus interest,
costs, punitive damages, and treble damages.
Lack of Personal Jurisdiction and Venue
7. Paragraphs 1 through 6 are incorporated herein by reference.
8. Plaintiff has failed to demonstrate that this Court may exercise personal jurisdiction
over AU.
9. Plaintiffs allegation that AU offers an internship program, known as the
"Washington Semester Program," which it advertises through its "Member Schools" including
Shippensburg University (Compl. 13) is insufficient to confer personal jurisdiction of this Court
over AU. Furthermore, Shippensburg University is not, in fact, a "Member School" of the
Washington Semester Program, as alleged by Plaintiff. See id..)
10. Plaintiffs allegation that AU regularly advertises its university and programs in
Cumberland County, Pennsylvania, via direct mail and the internet (Compl. ¶ 4), is insufficient to
confer personal jurisdiction of the Court over AU.
2
11. Plaintiffs allegation that AU maintains an interactive web site, accessible in
Cumberland County, Pennsylvania, through which interested persons may apply for admission to
the University and its programs (Compl. ¶ 5), is insufficient to confer personal jurisdiction of the
Court over AU.
12. AU does not have sufficient minimum contacts with Pennsylvania to confer personal
jurisdiction of this Court over AU. Exercising personal jurisdiction over AU would violate due
process.
13. Authority to exercise general personal jurisdiction over non-resident defendants is
conferred upon Pennsylvania courts by 42 Pa. C.S.A. § 5301, which provides in relevant part:
(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 ... and to enable such tribunals to render personal
orders against such person ...
(2) Corporations
(iii)The carrying on of a continuous or systematic part of its
general business within this Commonwealth.
42 Pa. C.S.A. § 5301.
14. AU does not carry on a continuous or systematic part of its general business within
the Commonwealth of Pennsylvania within the meaning of 42 Pa. C.S.A. § 5301.
15. Authority to exercise specific personal jurisdiction over non-resident defendants is
conferred upon Pennsylvania courts by 42-Pa. C.S.A. § 5322, Pennsylvania's long-arm statute,
which provides in relevant part:
(a) General rule.--A tribunal of this Commonwealth may exercise
personal jurisdiction over a person ... 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.
(2) Contracting to supply services or things in this
Commonwealth.
(4) Causing harm or tortious injury in this Commonwealth by an
act or omission outside this Commonwealth.
(b) Exercise of full constitutional power over nonresidents.--In
addition to the provisions of subsection (a) the jurisdiction of the
tribunals of this Commonwealth shall extend to all persons who
are not within the scope of section 5301 (relating to persons) to
the fullest extent allowed under the Constitution of the United
States and may be based on the most minimum contact with this
Commonwealth allowed under the Constitution of the United
States.
42 Pa. C.S.A. § 5322.
16. Plaintiffs causes of action do not arise from AU allegedly "transacting any business"
in Pennsylvania within the meaning of 42 Pa. C.S.A. § 5322(a)(1), and this section of the long-arm
statute therefore does not confer specific personal jurisdiction upon this Court over AU.
17. Plaintiffs allegation that AU breached an oral contract is not sufficient for this Court
to exercise specific personal jurisdiction over AU pursuant to 42 Pa. C.S.A. § 5322(a)(2)
("contracting to supply services or things in this Commonwealth"), nor does this allegation
demonstrate that AU had sufficient minimum contacts with Pennsylvania such that this Court may
exercise specific personal jurisdiction over AU.
18. Plaintiffs allegations of tortious conduct by AU are not sufficient for this Court to
exercise specific personal jurisdiction over AU pursuant to 42 Pa. C.S.A. § 5322(a)(4) ("causing
harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth"),
4
.
nor do these allegations demonstrate that AU had sufficient minimum contacts with Pennsylvania
such that this Court may exercise specific personal jurisdiction over AU.
19. AU has no other contacts with Pennsylvania that gave rise to the causes of action
alleged by Plaintiff in his Complaint. Thus, there are no other grounds upon which this Court may
find specific personal jurisdiction under 42 Pa. C.S.A. § 5322(b).
20. Plaintiff has failed to demonstrate that Cumberland County, Pennsylvania, is the
proper venue for any one of Plaintiffs causes of action.
21. Pennsylvania Rule of Civil Procedure 2179 provides, in relevant part, that a personal
action against a corporation may be brought "in and only in ... (2) a county where it regularly
conducts business; (3) the county where the cause of action arose; (4) a county where a transaction
or occurrence took place out of which the cause of action arose ...."
22. AU does not regularly conduct business in Cumberland County or any other county
in Pennsylvania.
23. None of the causes of action alleged by Plaintiff arose in Cumberland County or any
other county in Pennsylvania.
24. No transaction or occurrence from which any of Plaintiffs causes of action arose
took place in Cumberland County or any other county in Pennsylvania.
WHEREFORE, American University respectfully requests that this Court dismiss all counts
in Plaintiffs complaint with prejudice.
5
April 24, 2009
Respectfully submitted,
Elizabeth L. Phelps
Counsel for American University
Pa. I.D. # 201436
Holland & Knight, LLP
2099 Pennsylvania Ave., N.W., Suite 100
Washington, DC 20009
Telephone: (202) 955-3000
Of Counsel:
Charles D. Tobin
Holland & Knight, LLP
2099 Pennsylvania Ave., N.W., Suite 100
Washington, DC 20009
Telephone: (202) 955-3000
6
VERIFICATION
I, Elizabeth L. Phelps, hereby verify that I am Attorney of Record for the Defendant,
American University, that I am authorized to provide this verification on its behalf, and that the
facts set forth in the Defendant's Preliminary Objections for Lack of Personal Jurisdiction And
Improper Venue are true and correct to the best of my knowledge, information, and belief. I
understand that false statements are made subject to the penalties of 18 Pa. C.S.A., Section 4904,
relating to unsworn falsification to authorities.
Eliz eth L. Phelps
Counsel for American University
Date: April 24, 2009
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 20 day of April, 2009, a true and correct copy
of Defendant's Preliminary Objections for Lack of Personal Jurisdiction and Improper Venue,
Notice to Plead, and Proposed Order were served upon the following counsel by first-class mail:
Girard E. Rickards, Esquire
135 South Duke Street
York, PA 17401
Eliza
th L. Phelps
Counsel for American University
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
GIRARD E. RICKARDS,
Plaintiff
NO.: 09-2014 Civil Term
V.
AMERICAN UNIVERSITY,
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PLAINTIFF'S PRELIMINARY OBJECTIONS IN THE NATURE OF A MOTION TO
STRIKE TO DEFENDANT'S PRELIMINARY OBJECTIONS
FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE
1. This action was commenced by Complaint on March 31, 2009 and served by certified
mail.
2. On or about April 25, 2009 the defendant filed Preliminary Objections objecting to
personal jurisdiction and venue; the Preliminary Objections contain averments of fact.
3. The Defendant's Preliminary Objections contained a verification, signed by Elizabeth L,
Phelps, Counsel for American University.
4. Pa. R. C. P. 1024 requires that every pleading containing an averment of fact not
appearing of record shall contain a verification made by a party to the litigation.
5. The Defendant's Preliminary Objections fail to comply with court rules in that the
verification is signed by counsel and not a party to the litigation.
WHEREFORE, Plaintiff, Girard E. Rickards respectfully requests Your Honorable Court
to strike the Defendant's Preliminary Objections.
Date: ISO
Girar . Rickards, Esquire
135 South Duke Street
York, PA 17401
(717) 845-4038
Supreme Court Id.: 58867
Va
CERTIFICATE OF SERVICE
I, Girard E. Rickards, attorney for the plaintiff do hereby certify that on this day I have
served the defendant with a true and correct copy of the foregoing Plaintiff's Preliminary
Objections to Defendant's Preliminary Objections, via first class mail, postage prepaid as
follows:
Elizabeth L. Phelps, Esquire
Holland & Knight, LLP
2099 Pennsylvania Avenue, N.W., Suite 100
Washington, DC 20006-6801
Date: May 5, 2009 _
Girard t. Rickards
, . 1.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
GIRARD E. RICKARDS,
Plaintiff
: NO.: 09-2014 Civil Term
V.
AMERICAN UNIVERSITY,
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
ORDER
AND NOW, this day of , 2009, upon consideration of the
Plaintiff's Preliminary Objections to the Defendant's Preliminary Objections, said Objections are
SUSTAINED. The Defendant's Preliminary Objections for Lack of Personal Jurisdiction and
Improper Venue are STRICKEN. The defendant shall fiel an Answer to the Complaint within
twenty (20) days of this order.
J.
Aw
FILED-OFFICE
OF THE PRO NOTARY
2009 MAY -6 PM 1: 22
PENN5 - ,"-N A,
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
GIRARD E. RICKARDS,
Plaintiff,
V.
AMERICAN UNIVERSITY,
Defendant.
Case No.: 09-2014 Civil Term
CIVIL ACTION -- LAW
DEFENDANT'S AMENDED PRELIMINARY OBJECTIONS FOR LACK OF PERSONAL
JURISDICTION AND IMPROPER VENUE
Defendant American University ("AU"), by and through its counsel, hereby files its
Amended Preliminary Objections pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(1) and
1028(c)(1), for the purpose of objecting to personal jurisdiction and venue, and in support thereof
avers as follows:
Background
This is a five-count lawsuit filed by Plaintiff Girard E. Rickards against Defendant
AU, an educational institution located in Washington, D.C.. Mr. Rickards alleges counts of fraud,
negligent misrepresentation, unfair trade practices, unjust enrichment, and breach of contract.
2. The entire lawsuit arises out of an alleged April 24, 2008, telephone conversation
between Plaintiff and an employee of AU, Michael Harris, while Mr. Harris was working at
American University in Washington, D.C..
3. AU is a not-for-profit corporation organized and existing pursuant to the laws of the
District of Columbia with it principal place of business located at 4400 Massachusetts Avenue
Northwest, Washington, D.C.. AU is not registered to do business in Pennsylvania.
4. Plaintiff has not averred his residence or location at the time of the alleged telephone
conversation. Plaintiff has not averred where he claims to have suffered harm by AU's alleged
unlawful conduct. Plaintiff only avers that he is an adult individual currently residing at 8 Durham
Drive, Dillsburg, Pennsylvania. (Compl. 11.) Dillsburg is located in York County, Pennsylvania.
5. According to the Complaint, the alleged telephone conversation related to the fact
that AU was unable to forward Plaintiffs son's transcript from the AU Fall 2007 semester (when
Plaintiffs son attended AU as a visiting student) to Shippensburg University because the tuition of
Plaintiff s son for that semester had not been paid. (Compl. ¶¶ 12, 13, 14.)
6. Plaintiff seeks compensatory damages in the amount of $21,157.55, plus interest,
costs, punitive damages, and treble damages.
Lack of Personal Jurisdiction and Venue
7. Paragraphs 1 through 6 are incorporated herein by reference.
8. Plaintiff has failed to demonstrate that this Court may exercise personal jurisdiction
over AU.
9. Plaintiffs allegation that AU offers an internship program, known as the
"Washington Semester Program," which it advertises through its "Member Schools" including
Shippensburg University (Compl. ¶ 3) is insufficient to confer personal jurisdiction of this Court
over AU. Furthermore, Shippensburg University is not, in fact, a "Member School" of the
Washington Semester Program, as alleged by Plaintiff. See id..)
2
10. Plaintiffs allegation that AU regularly advertises its university and programs in
Cumberland County, Pennsylvania, via direct mail and the internet (Compl. ¶ 4), is insufficient to
confer personal jurisdiction of the Court over AU.
11. Plaintiffs allegation that AU maintains an interactive web site, accessible in
Cumberland County, Pennsylvania, through which interested persons may apply for admission to
the University and its programs (Compl. ¶ 5), is insufficient to confer personal jurisdiction of the
Court over AU.
12. AU does not have sufficient minimum contacts with Pennsylvania to confer personal
jurisdiction of this Court over AU. Exercising personal jurisdiction over AU would violate due
process.
13. Authority to exercise general personal jurisdiction over non-resident defendants is
conferred upon Pennsylvania courts by 42 Pa. C.S.A. § 5301, which provides in relevant part:
(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 ... and to enable such tribunals to render personal
orders against such person ...
(2) Corporations
(iii)The carrying on of a continuous or systematic part of its
general business within this Commonwealth.
42 Pa. C.S.A. § 5301.
14. AU does not carry on a continuous or systematic part of its general business within
the Commonwealth of Pennsylvania within the meaning of 42 Pa. C.S.A. § 5301.
3
15. Authority to exercise specific personal jurisdiction over non-resident defendants is
conferred upon Pennsylvania courts by 42-Pa. C.S.A. § 5322, Pennsylvania's long-arm statute,
which provides in relevant part:
(a) General rule.--A tribunal of this Commonwealth may exercise
personal jurisdiction over a person ... 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.
(2) Contracting to supply services or things in this
Commonwealth.
(4) Causing harm or tortious injury in this Commonwealth by an
act or omission outside this Commonwealth.
(b) Exercise of full constitutional power over nonresidents.--In
addition to the provisions of subsection (a) the jurisdiction of the
tribunals of this Commonwealth shall extend to all persons who
are not within the scope of section 5301 (relating to persons) to
the fullest extent allowed under the Constitution of the United
States and may be based on the most minimum contact with this
Commonwealth allowed under the Constitution of the United
States.
42 Pa. C.S.A. § 5322.
16. Plaintiff s causes of action do not arise from AU allegedly "transacting any business"
in Pennsylvania within the meaning of 42 Pa. C.S.A. § 5322(a)(1), and this section of the long-arm
statute therefore does not confer specific personal jurisdiction upon this Court over AU.
17. Plaintiffs allegation that AU breached an oral contract is not sufficient for this Court
to exercise specific personal jurisdiction over AU pursuant to 42 Pa. C.S.A. § 5322(a)(2)
("contracting to supply services or things in this Commonwealth"), nor does this allegation
demonstrate that AU had sufficient minimum contacts with Pennsylvania such that this Court may
exercise specific personal jurisdiction over AU.
4
18. Plaintiffs allegations of tortious conduct by AU are not sufficient for this Court to
exercise specific personal jurisdiction over AU pursuant to 42 Pa. C.S.A. § 5322(a)(4) ("causing
harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth"),
nor do these allegations demonstrate that AU had sufficient minimum contacts with Pennsylvania
such that this Court may exercise specific personal jurisdiction over AU.
19. AU has no other contacts with Pennsylvania that gave rise to the causes of action
alleged by Plaintiff in his Complaint. Thus, there are no other grounds upon which this Court may
find specific personal jurisdiction under 42 Pa. C.S.A. § 5322(b).
20. Plaintiff has failed to demonstrate that Cumberland County, Pennsylvania, is the
proper venue for any one of Plaintiffs causes of action.
21. Pennsylvania Rule of Civil Procedure 2179 provides, in relevant part, that a personal
action against a corporation may be brought "in and only in ... (2) a county where it regularly
conducts business; (3) the county where the cause of action arose; (4) a county where a transaction
or occurrence took place out of which the cause of action arose ...."
22. AU does not regularly conduct business in Cumberland County or any other county
in Pennsylvania.
23. None of the causes of action alleged by Plaintiff arose in Cumberland County or any
other county in Pennsylvania.
24. No transaction or occurrence from which any of Plaintiffs causes of action arose
took place in Cumberland County or any other county in Pennsylvania.
WHEREFORE, American University respectfully requests that this Court dismiss all counts
in Plaintiffs complaint with prejudice.
5
May 8, 2009
Respectfully submitted,
Elizabeth L. Phelps
Counsel for American University
Pa. I.D. # 201436
Holland & Knight, LLP
2099 Pennsylvania Ave., N.W., Suite 100
Washington, DC 20009
Telephone: (202) 955-3000
Of Counsel:
Charles D. Tobin
Holland & Knight, LLP
2099 Pennsylvania Ave., N.W., Suite 100
Washington, DC 20009
Telephone: (202) 955-3000
6
VERIFICATION
I, Hisham Khalid, hereby verify that I am the Associate General Counsel for Defendant
American University, that I am authorized to provide this verification on its behalf, and that the
facts set forth in Defendant's Amended Preliminary Objections for Lack of Personal Jurisdiction
And Improper Venue are true and correct to the best of my knowledge, information, and belief. I
understand that false statements are made subject to the penalties of 18 Pa. C.S.A., Section 4904,
relating to unworn falsification to authorities.
Date: May 8, 2009
Hisham
Associate General Counsel, American University
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
GIRARD E. RICKARDS,
Plaintiff,
V.
AMERICAN UNIVERSITY,
Defendant.
TO: Girard E. Rickards, Plaintiff
Case No.: 09-2014 Civil Term
CIVIL ACTION - LAW
NOTICE TO PLEAD
You are hereby notified to file a written response to the enclosed "Defendant's Amended
Preliminary Objections for Lack of Personal Jurisdiction And Improper Venue" within twenty (20)
days from service hereof or a judgment may be entered against you.
Elizabeth L. Phelps
Counsel for American University
Pa. I.D. # 201436
Holland & Knight, LLP
2099 Pennsylvania Ave., N.W., Suite 100
Washington, DC 20009
Telephone: (202) 955-3000
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
GIRARD E. RICKARDS,
Plaintiff,
V.
AMERICAN UNIVERSITY,
Defendant.
Case No.: 09-2014 Civil Term
CIVIL ACTION -- LAW
ORDER
UPON CONSIDERATION OF Defendant American University's Amended Preliminary
Objections, and any opposition thereto, it is this day of , 2009, hereby
ORDERED that Defendant's Amended Preliminary Objections are hereby GRANTED; and
ORDERED that Plaintiff s Complaint as to American University is DISMISSED WITH
PREJUDICE.
Judge
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 8th day of May, 2009, a true and correct copy
of Defendant's Amended Preliminary Objections for Lack of Personal Jurisdiction and Improper
Venue, Notice to Plead, and Proposed Order were served upon the following counsel via Federal
Express:
Girard E. Rickards, Esquire
135 South Duke Street
York, PA 17401
Eliz eth L. Phelps
Counsel for American University
OF TK-
2009 MAY 1 1 Vi c k
t ? . , ,,
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
GIRARD E. RICKARDS,
Plaintiff
NO.: 09-2014 Civil Term
V.
AMERICAN UNIVERSITY,
Defendant
NOTICE TO PLEAD
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
To: Defendant American University, c/o Elizabeth L. Phelps, Esquire
You are hereby notified to plead responsively to the following
New Matter within twenty (20) days of the date of service hereof
or a judgment may be entered against you.
PLAINTIFF'S ANSWER WITH NEW MATTER TO DEFENDANT'S AMENDED
PRELIMINARY OBJECTIONS FOR LACK OF PERSONAL JURISDICTION AND
IMPROPER VENUE
1. The Complaint speaks for itself.
2. Denied a stated. The lawsuit arises from the defendant's solicitation of its Washington
Semester Program to plaintiff's son, which culminated in the telephone conversation.
3. Admitted upon belief.
4. The Complaint speaks for itself.
5. The Complaint speaks for itself.
7. Paragraphs 1 through 6 above are incorporated herein by reference as if set forth at length.
8. The allegations of paragraph 8 are conclusions of law to which no response is required.
To the extent that a response is deemed required, each and very allegation of paragraph 8
is specifically denied and strict proof thereof is demanded.
9. The allegations of paragraph 9 are conclusions of law to which no response is required.
To the extent that a response is deemed required, each and very allegation of paragraph 9
is specifically denied and strict proof thereof is demanded.
10. The allegations of paragraph 10 are conclusions of law to which no response is required.
To the extent that a response is deemed required, each and very allegation of paragraph
10 is specifically denied and strict proof thereof is demanded.
11. The allegations of paragraph 11 are conclusions of law to which no response is required.
To the extent that a response is deemed required, each and very allegation of paragraph
11 is specifically denied and strict proof thereof is demanded.
12. The allegations of paragraph 12 are conclusions of law to which no response is required.
To the extent that a response is deemed required, each and very allegation of paragraph
12 is specifically denied and strict proof thereof is demanded.
13. The statute speaks for itself.
14. The allegations of paragraph 14 are conclusions of law to which no response is required.
To the extent that a response is deemed required, each and very allegation of paragraph
14 is specifically denied and strict proof thereof is demanded. By way of further answer,
plaintiff believes and therefore avers that the defendant continuously and systematically
solicits Pennsylvania residents to attend the University, has seventeen "Member Schools"
in Pennsylvania, who act as the defendant's agents, accepts grants and loans from
Pennsylvania and the federal government for the payment of tuition, room, board books
and merchandise for Pennsylvania students and accepts direct payments from
Pennsylvania students and their families for the same items.
15. The statute speaks for itself.
16. The allegations of paragraph 16 are conclusions of law to which no response is required.
To the extent that a response is deemed required, each and very allegation of paragraph
16 is specifically denied and strict proof thereof is demanded. By way of further answer,
see the allegations of the Complaint.
17. The allegations of paragraph 17 are conclusions of law to which no response is required.
To the extent that a response is deemed required, each and very allegation of paragraph
17 is specifically denied and strict proof thereof is demanded.
18. The allegations of paragraph 18 are conclusions of law to which no response is required.
To the extent that a response is deemed required, each and very allegation of paragraph
18 is specifically denied and strict proof thereof is demanded.
19. The allegations of paragraph 19 are conclusions of law to which no response is required.
To the extent that a response is deemed required, each and very allegation of paragraph
19 is specifically denied and strict proof thereof is demanded.
20. The allegations of paragraph 20 are conclusions of law to which no response is required.
To the extent that a response is deemed required, each and very allegation of paragraph
20 is specifically denied and strict proof thereof is demanded.
21. The Rule speaks for itself.
22. The allegations of paragraph 22 are conclusions of law to which no response is required.
To the extent that a response is deemed required, each and very allegation of paragraph
22 is specifically denied and strict proof thereof is demanded.
23. Denied. To the contrary, see the allegations of the Complaint.
24. Denied. To the contrary, see the allegations of the Complaint. By way of further answer,
the plaintiff was in his office in York, Pennsylvania at the time of the telephone
conversation with Mike Harris.
WHEREFORE, Plaintiff, Girard E. Rickards respectfully requests your Honorable Court
to overrule the Defendant's Amended Preliminary Objections.
NEW MATTER
25. Paragraphs 1 through 24 above and the Plaintiff's Complaint are incorporated herein by
reference as if set forth at length.
26. The defendant continuously and systematically solicits Pennsylvania residents by mail
and through the internet to apply to the University; one of the programs for which it
solicits students is the Washington Semester Program.
27. The defendant has seventeen "Member Schools" for the Washington Semester Program in
Pennsylvania.
28. The "Member Schools" have a designated Washington Semester Program representative
on campus.
29. The "Member Schools" act as the defendant's agents for the purposes of facilitating
prospective students application, admission and financing for the Washington Semester
program.
30. The Defendant's interactive web site allows students and prospective students to apply
for admission to the University on line.
31 The Defendant's interactive web site allows students and prospective students to apply
for financial aid on line.
31. The defendant regularly and systematically obtains payment for Pennsylvania students'
bills from the Pennsylvania Higher Education Assistance Agency (PHEAA).
32. For the four academic years since 2003 - 2004, the defendant received three hundred
seventy-two thousand seven hundred twenty-nine dollars ($372,729.00) in grants through
PHEAA for Pennsylvania students.
33. For the fiscal years 2003 - 2008, the defendant received two million nine hundred fifty-
three thousand one hundred thirty-one dollars ($2,953,131.00) in guaranteed loan
proceeds through PHEAA for Pennsylvania students.
34. The defendant is a member of the Patriot League, a collegiate sports league that includes
Bucknell University, Lafayette University and Lehigh University.
35. The defendant has twenty-three (23) sports programs that participate in the Patriot League
requiring its sporting teams, coaches and students to regularly travel to Pennsylvania to
compete with the other Patriot League Schools.
36. Plaintiff believes and therefore avers that the defendant regularly and systematically
solicits donations from Pennsylvania residents through the mail and via internet.
37. Plaintiff requests discovery to determine whether the defendant has additional contacts
with Pennsylvania so as to subject it to general personal jurisdiction in Pennsylvania.
WHEREFORE, Plaintiff, Girard E. Rickards, respectfully requests Your Honorable Court
to overrule the Defendant's Amended Preliminary Objections, and further to permit discovery on
the issue of the Defendant's contacts with Pennsylvania.
i
irard E. ckards, Esquire
135 South Duke Street
York, PA 17401
(717) 845-4038
Supreme Court Id.: 58867
VERIFICATION
I verify that the statements made in this Plaintiff's Answer with New Matter to the
Defendant's Amended Preliminary Objections to the Complaint are true and correct to the best of
my knowledge, information and belief. I understand that false statements are made subject to
penalties of 18 Pa.C.S.A. section 4904, relating to unsworn falsification to authorities.
Girard .Rickards
Date: May 21, 2009
CERTIFICATE OF SERVICE
I, Girard E. Rickards, attorney for the plaintiff do hereby certify that on this day I have
served the defendant with a true and correct copy of the foregoing Plaintiff s Answer with New
Matter to the Defendant's Amended Preliminary Objections to the Complaint, postage prepaid as
follows:
Elizabeth L. Phelps, Esquire
Holland & Knight, LLP
2099 Pennsylvania Avenue, N.W., Suite 100
Washington, DC 20006-6801
Date: May 21, 2009
Girard . Rickards
O TKI t s,
K?Q9 t;,,
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
GIRARD E. RICKARDS, )
Plaintiff, )
V. )
AMERICAN UNIVERSITY, )
Defendant. )
Case No.: 09-2014 Civil Term
CIVIL ACTION -- LAW
DEFENDANT'S RESPONSE TO PLAINTIFF'S PRELIMINARY OBJECTIONS IN THE
NATURE OF A MOTION TO STRIKE TO DEFENDANT'S PRELIMINARY
OBJECTIONS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE
Defendant American University ("AU"), by and through its counsel, hereby files its
Response to Plaintiff s Preliminary Objections In The Nature Of A Motion To Strike To
Defendant's Preliminary Objections For Lack Of Personal Jurisdiction And Improper Venue,
and in support thereof responds as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. This averment contains a legal conclusion to which no response is required.
5. This averment contains a legal conclusion to which no response is required.
Without admitting or denying the averment made by Plaintiff in this paragraph, AU states that
it has filed the Amended Preliminary Objections for Lack of Personal Jurisdiction and Improper
Venue pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(1) and 1028(c)(1), which
contains a verification by a party to the litigation. Defendant's Amended Preliminary
Objections for Lack of Personal Jurisdiction and Improper Venue moots Plaintiffs Preliminary
Objections In The Nature Of A Motion To Strike To Defendant's Preliminary Objections For Lack
Of Personal Jurisdiction And Improper Venue, as per Pennsylvania Rule of Civil Procedure
1028(c)(1).
May 21, 2009 Respectfully submitted,
&,?e
Elizabeth L. Phelps
Counsel for American University
Pa. I.D. # 201436
Holland & Knight, LLP
2099 Pennsylvania Ave., N.W., Suite 100
Washington, DC 20009
Telephone: (202) 955-3000
Of Counsel:
Charles D. Tobin
Holland & Knight, LLP
2099 Pennsylvania Ave., N.W., Suite 100
Washington, DC 20009
Telephone: (202) 955-3000
C
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 21 st day of May, 2009, a true and correct copy
of Defendant's Response to Plaintiffs Preliminary Objections In The Nature Of A Motion To Strike
To Defendant's Preliminary Objections For Lack Of Personal Jurisdiction And Improper Venue
were served upon the following counsel via First-class mail:
Girard E. Rickards, Esquire
135 South Duke Street
York, PA 17401
I &?57
Eliza L. Phelps
Counsel for American University
# 6325510_vI
2CQ9 tlAY 22 PM " 2?
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL DIVISION
GIRARD E. RICKARDS, )
Plaintiff, )
V. )
AMERICAN UNIVERSITY, )
Defendant. )
Case No.: 09-2014 Civil T
CIVIL ACTION -- LAW
The parties to this action hereby stipulate as follows:
1. The New Matter filed by Plaintiff as part of "Plaintiffs Answer with
to Defendant's Amended Preliminary Objections for Lack of Personal Jurisdiction
Venue" on May 21, 2009, is hereby withdrawn, without prejudice; and
2. The parties agree that the withdrawal of the New Matter does not
waiver on the part of the plaintiff of the issues or facts raised therein.
Respectfully submitted,
Girard E. Rickards, Esq.
Counsel for Plaintiff
Pa. I.D. # 58867
135 South Duke Street
York, PA 17401
Telephone: (717) 845-4038
Elizabeth L. Phelps, Esq.
Counsel for American University
Pa. I.D. # 201436
Holland & Knight, LLP
2099 Pennsylvania Ave., N.W., S
Washington, DC 20009
Telephone: (202) 955-3000
ew Matter
1 Improper
a
?Lfi F
100
# 6372502_vI
OF THE Fr ROMH NOTARY
2009 JUN 10 AM 10* 0 9
1
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
GIRARD E. RICKARDS,
Plaintiff,
v.
AMERICAN UNIVERSITY,
Defendant.
T
SECOND AFFIDA
~. -c
Case No.: 09-2
014 Civil Terre ro
CIVIL ACTION -- LAW ~ 3
cxs ~~.,
OF DAVID C. BROWN
~rTmv~r n77ni 7AdiAT 1 T•
David C. Brown does hereby depose and state as follows:
1. I am above the age of 18, and I make this affidavit based on my personal
knowledge of the facts it contains.
2. I am the Dean of the Washington Semester Program at American University
("AU")
3. I am aware of Plaintiffs Brief in'Opposition to Defendant's Amended Preliminary
Objections ("Brief') filed in this action. I am also aware of the Affidavit of Girard E. Rickards,
as referenced in the Brief, as well as Exhibit A, ,which is attached to the Affidavit.
4. Contrary to Plaintiffs assertions in its Brief, the Washington Semester
representatives are not agents or representatives) of AU. A Member School has a faculty member
of its school serve as a resource to students for ~roviding information about the Washington
Semester Program and for nominating students ~i'om the Member School for consideration by the
~~
Washington Semester Program.
1
5. The Washington Semester representatives are not employees of AU. They are
employees of the respective Member Schools.
6. In fact, Exhibit A to the Affidavit of Girard E. Rickards (copies of pages printed
from the AU Washington Semester Program w~bsite) states, "Students can contact their school's
faculty representative for information and to bed nominated for admission into the program."
(emphasis added).
7. Washington Semester representatives do not "collect tuition for American
University from the member schools," nor do tlhey "forward that payment" to AU, as Mr.
Rickards states in the Brief.
8. As Shippensburg University is nbt and have never been a Member School, there
was no Member Representative at Shippensbur~ with whom Mr. Rickards' son could have
interacted.
FURTHER AFFIANT SAYETH NAUGHT
VERIFICATION
I verify that the statements made in the foregoing Affidavit are true and correct to the best
of my personal knowledge. I understand that $'alse statements are made subject to the penalties
of 18 Pa. C.S.A §4904, relating to unsworn falsification to authorities.
Date: ! !, ~ °~ ~ ~ Ads%~~~c~`~
2
,._ .
GIRARD RICKARDS,
Plaintiff
vs.
AMERICAN UNIVERSITY,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -LAW
N0.09-2014 CIVIL
IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANT
BEFORE HESS, P.J. AND EBERT, J.
ORDER
AND NOW, this ~2 ~` day of July, 2010, the preliminary objections of the Defendant
to this court's exercise of jurisdiction are SUSTAINED.
BY THE COURT,
i ~I1. Hess, P. J.
Girard Rickards, Esquire
Plaintiff
/ Cheryl A. Feeley, Esquire
Delano M. Lantz, Esquire
For the Defendant
:rlm
GIRARD RICKARDS,
Plaintiff
vs.
AMERICAN UNIVERSITY,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -LAW
N0.09-2014 CIVIL
IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANT
BEFORE HESS, P.J. AND EBERT, J.
OPINION AND ORDER
Before the court are the preliminary objections of the Defendant, American University,
asserting a lack of personal jurisdiction and improper venue. The case involves David Rickards,
a student at Shippensburg University, and his attendance at the Washington Semester Program at
American University (hereinafter AU). (Complaint at para. 10) David learned of the program
when AU solicited him by mail to his Carlisle, Pennsylvania address and applied via AU's
website from a computer in Shippensburg, Pennsylvania. (Compl. at para. 7-8) The complaint
alleges that David successfully completed the program, but failed to pay his tuition. (Compl. at
para. 14) As a result, AU refused to forward David's transcript to Shippensburg University,
which would have prevented him from graduating. (Compl. at para. 14)
Plaintiff, Girard Rickards, placed a call to the Student Accounts Office of AU in regards
to his son David's unpaid tuition. (Compl. at para. 13) Plaintiff spoke to Michael Harris, who
was employed by AU as the Manager of Credit and Collections. (Compl. at para. 13) During
this call, Harris informed Plaintiff that AU would be unable to release his son's transcript until
the outstanding tuition was paid. (Compl. at para. 14) According to Plaintiff, he agreed to pay
the balance on the condition that he would be reimbursed once his son took out a student loan.
N0.09-2014 CIVIL
(Compl. at para. 18) After Plaintiff paid the outstanding tuition, the university refused to certify
his son's student loans. (Compl. at para. 29) David `s inability to take out a student loan
precluded his father's chances of being reimbursed. (Compl. at para. 25)
American University's contacts with Pennsylvania are as follows: (1) AU has seventeen
member schools in Pennsylvania with which it is affiliated; (Plaintiff's Answer with New Matter
to Defendant's Amended Preliminary Objections for Lack of Personal Jurisdiction and Improper
Venue, para. 27, May 22, 2009, hereinafter "Plaintiff s Answer with New Matter, para. _"); (2)
Pennsylvania member schools have designated Washington Semester representatives on campus;
(Plaintiff s Answer with New Matter, para. 28); (3) a portion of the Pennsylvania students who
attend the Washington Semester Program pay tuition directly to the Washington Semester;
(Plaintiff s Answer with New Matter, para. 29); (4) AU maintains a website that allows
prospective students from any location to apply for admission, make a reservation for a campus
visit or event, check admission application status, check financial aid status, etc.; (Plaintiff s
Answer with New Matter, para. 30-31); (5) AU is a member of the Patriot League, an athletic
conference based in Pennsylvania with three of its eight members located within Pennsylvania,
and participates in athletic events held in the state; (Plaintiff s Answer with New Matter, para.
34); (6) AU solicits prospective students by mail in all fifty states including Pennsylvania using
promo pamphlets, flyers and other literature; (Plaintiff s Answer with New Matter, para. 26); (7)
approximately 875 of AU's students have a Pennsylvania address; (8) some AU students receive
grants from PHEAA (Pennsylvania Higher Education Assistance Agency); (Plaintiff s Answer
with New Matter, para. 32); (9) approximately one and a half percent of AU's donations come
from those with Pennsylvania mailing addresses. (Plaintiff s Answer with new Matter, para. 36).
2
NO.09-2014 CIVIL
In the case at bar, AU does not: (1) File tax returns with Pennsylvania; (2) maintain a
bank account in Pennsylvania; (3) own property or lease office space in Pennsylvania; (4) have
an agent in Pennsylvania for service of process; (5) have a Pennsylvania mailing address or
telephone listing; or (6) regularly purchase products or supplies in Pennsylvania. (Defendant's
Amended Preliminary Objections for lack of Personal Jurisdiction and Improper Venue, para. 19,
May 11, 2009).
When a party challenges the trial court's exercise of jurisdiction, evidence must be
considered in the light most favorable to the non-moving party because the burden rests with the
party challenging jurisdiction. Efford v. Jockey Club, 796 A.2d 372, 373 (Pa.Super. 2002).
However, the burden shifts to the party asserting jurisdiction once the moving party supports its
jurisdictional objection. Id. In order for the non-moving party to satisfy this burden they must
"adduce evidence demonstrating there is a basis for asserting jurisdiction over the moving party."
Haas v. Four Seasons Campground, 952 A.2d 688, 691 (Pa.Super. 2008).
Pennsylvania courts may assert two different types of personal jurisdiction over non-
resident defendants, general jurisdiction and specific jurisdiction. McCall v. Formu-3 Intl, 650
A.2d 903, 904 (Pa.Super. 1994). First, general jurisdiction is based upon the defendant's
activities within the state. Id. In Pennsylvania, the assertion of general jurisdiction over out-of-
state residents is authorized by 42 Pa.C.S. Section 5301, which provides, in pertinent part:
(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 ...and
to enable such tribunals to render personal
orders against such person ....
3
N0.09-2014 CIVIL
(2) Corporations
(i) Incorporation under or qualification as a
foreign corporation under the laws of
this Commonwealth.
(ii) Consent, to the extent authorized by the
consent.
(iii) The carrying on of a continuous or
systematic part of its general business
within this Commonwealth.
42 Pa.C.S. Section 5301. Section 5301(a)(2)(i) is inapplicable because American University is
neither incorporated in Pennsylvania nor do they qualify as a corporation under Pennsylvania
laws. Similarly, Section 5301(a)(2)(ii) does not apply because AU has not consented to this
court's jurisdiction. Thus, to determine whether general personal jurisdiction exists, we must
look to Section 5301(a)(2)(iii), which requires that a corporation carry on a "continuous and
systematic part of its general business" within Pennsylvania.
The United States Supreme Court has described what qualifies as a continuous or
systematic part of a company's business. In Helicopteros Nacionales de Columbis, S.A. v. Hall,
466 U.S. 408, 416 (1984), the Supreme Court held that a foreign defendant's contacts with the
state of Texas were insufficient to amount to "continuous or systematic" activities and refused to
allow the state to exercise personal jurisdiction. In that case, the foreign corporation sent a
company executive to Texas to negotiate for the purchase of helicopter equipment and training
services. Id. at 411. In addition to negotiating the purchase of helicopter equipment and training
services, the foreign corporation accepted checks drawn on a Texas bank and sent employees to
the state for training. Id.
Pennsylvania courts have further defined what is meant by continuous or systematic
contact. In Gehling v. St. George's School of Medicine, Ltd., 773 F.2d 539 (3d Cir. 1985), the
4
NO. 09-2014 CIVIL
court held that it could not exercise personal jurisdiction over a university located in Grenada
because it did not possess the requisite continuous or systematic contact with Pennsylvania. Id. at
543. In that case, the school's contacts with Pennsylvania are as follows: (1) They placed
advertisements in the New York Times and Wall Street Journal; (2) six percent of their students
were from Pennsylvania; (3) the school received several hundred thousand dollars in tuition from
Pennsylvania residents; (4) in 1980, the school undertook a media swing touring nine cities in the
United States, one of which was Philadelphia; and (5) the school engaged in a "feeder" program
with Waynesburg College, which is located in Pennsylvania. Id. at 541-43. The court reasoned
that since educational institutions typically draw their student body from many different
locations, exercising personal jurisdiction "would subject them to suit on non-forum related
claims in every state where a member of the student body resides." Id. at 542.
In Gallant v. Trustees of Columbia Univ., 111 F. Supp. 2d 638 (E.D. Pa. 2000), the court
found that personal jurisdiction could not be exercised in Pennsylvania against Columbia
University, which is located in New York, where it had not purposefully directed its activities to
the forum state. Id. at 641. Columbia University possessed the following contacts with
Pennsylvania: (1) Their student body includes Pennsylvania residents whose tuition generates
income for the school; (2) collection actions were filed by the school in the Commonwealth's
Court of Common Pleas; (3) there is participation by professors and other employees in
conferences and other activities within the state; (4) a bank based in Philadelphia oversees at
least four trust accounts; (5) they participate in athletic events in Pennsylvania which generate
revenue; and (6) there are research contracts for the school to conduct clinical trials with
Pennsylvania-based pharmaceutical companies. Id. at 640-42. The court reasoned that "none of
N0.09-2014 CIVIL
these additional contacts demonstrate that Columbia has purposefully directed its activities to, or
availed itself of, Pennsylvania." Id. at 642. The court further reasoned that these activities are of
the type which "any nationally prominent educational institution would engage." Id.
In this case, we are satisfied that we cannot exercise personal jurisdiction over AU because
AU is anon-resident and does not possess the necessary minimum contacts with the
Commonwealth of Pennsylvania. This case is similar to Gehling in that the university's student
body included Pennsylvania residents who paid tuition to the school. Also, the "feeder program"
which St. George's Medical School engaged in with Waynesburg College in Pennsylvania is
similar to AU's placement of representatives at Pennsylvania schools, each serving as a
recruiting tool. St. George's Medical School undertook a media swing in Pennsylvania that was
meant to attract new students. Similarly, AU's designated representatives sought to attract
students into their Washington Semester Program. Despite these contacts with Pennsylvania, the
court, in Gehling, held that it could not exercise personal jurisdiction over St. George's Medical
School. It reasoned that exercising jurisdiction would subject universities to suits on non-forum
related claims in every state where a member of the student body resides and/or had been
recruited.
The case involving Rickards and AU is also similar to Gallant because part of the
university's student body comes from Pennsylvania and the school receives tuition from these
students. The university also participates in revenue-generating athletic events within the
Commonwealth of Pennsylvania. In Gallant, the court held that personal jurisdiction could not
be exercised in Pennsylvania against Columbia University reasoning that its activities are of the
type engaged in by any nationally prominent educational institution. American University's
6
NO.09-2014 CIVIL
contacts are, similarly, limited to the kind that any nationally prominent university would have
with any state from which it derives students.
One could argue that AU possesses the requisite minimum contacts with Pennsylvania
because it operates a website which allows prospective students from any location to perform a
number of functions including: applying for admission, making a reservation for a campus visit
or event, checking admission application status, and checking financial aid status.
In evaluating websites, Pennsylvania courts have applied asliding-scale analysis. The
sliding-scale analysis looks at the "nature and quality of commercial activity" that is performed
over the internet. Haas, 952 A.2d at 694. A website is highly interactive when it allows one to
enter into contracts that involve the "knowing and repeated transmission of computer files over
the internet" with residents of a foreign jurisdiction. Id. Where a website is highly interactive,
the exercise of personal jurisdiction is proper. Id. Conversely, passive websites that do little
more than make information accessible to foreign residents by posting it on the internet are
insufficient to exercise personal jurisdiction. Id. The middle of the spectrum includes
minimally interactive websites that allow users to exchange information with the host computer.
Id. Where a website is minimally interactive, the exercise of personal jurisdiction is decided by
weighing the "level of interactivity and commercial nature" of information that is exchanged on
the website. Id. In these cases, we must ask "(a) Whether the websites are targeted specifically
to Pennsylvanians; and (b) Whether the websites are central to the defendants' business in
Pennsylvania." Id. at 695.
Pennsylvania courts have been selective in exercising personal jurisdiction on the basis of a
minimally interactive website. For example, in Haas the court held that Pennsylvania lacked
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personal jurisdiction over anon-resident defendant who maintained a minimally interactive
website. Id. at 697. The website falls within the middle ground of the spectrum because
customers could not completely rent campsites. Id. at 693. Instead, the website only allows
users to obtain information about campgrounds and enables them to place reservation requests.
Id. In addition to maintaining a website, the campground placed advertisements and sent out
brochures and newsletters to Pennsylvania residents. Id. at 695. Also, the campground
occasionally purchased products from Pennsylvania vendors and between twenty and thirty
percent of their business comes from Pennsylvania residents. Id. at 694. The campground also
published atoll-free number. Id. However, in making its determination the court indicated that
it was the contacts the campground lacked that weighed most heavily. Id. at 696. The court
pointed out that the campground has no assets, no bank accounts or property in Pennsylvania, no
agents or representatives living or working in Pennsylvania, no phone listing in the state, and
does not directly target advertising to Pennsylvania residents. Id.
Only in the limited circumstances where a company maintained a highly interactive
website, have Pennsylvania courts found a website sufficient for establishing personal
jurisdiction. For example, in Mar-Eco, Inc. v. T & R & Sons Towing & Recovery, Inc., 837 A.2d
512 (Pa.Super. 2003), the court held that Pennsylvania possessed personal jurisdiction over a
non-resident defendant who maintained a highly interactive website that enabled users to
perform essential functions. Id. at 517. In this case, the non-resident defendant's website
allowed customers to: 1) Apply for employment; 2) search the new and used vehicles inventory;
3) get price quotes on specific vehicles; 4) apply for financing to purchase a vehicle; 5) Calculate
payment schedules; 6) order parts; and 7) schedule service appointments. Id. at 514. In this
8
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case, the court reasoned that exercising personal jurisdiction was justified because the website
allowed the company to conduct a substantial part of their commercial business over the Internet.
Id. at 518.
In our view, American University's website occupies the middle ground of the sliding scale
and is minimally interactive. Similar to the way the campground's website allowed users to
place reservation requests in Haas, AU's website allowed users to apply for admission into their
university and register for a campus visit. In each case, the Internet was provided as an option
for the user's convenience, but users were able to accomplish the same thing via mail. In Haas,
the campground's website allowed users to obtain information about campsites. Similarly, AU's
website enabled users to obtain information regarding their application and financial aid statuses.
Just as in Haas, the information was provided by AU for the user's convenience and was
available by contacting the school by telephone or mail. Similar to Haas, AU's website was
used as an advertising tool which provided helpful information to users. However, in both cases
the website was neither targeted specifically to Pennsylvanians nor was it central to the
organizations business activities within the commonwealth. We conclude that we do not have
jurisdiction in this case merely because AU's website may be accessed by Pennsylvania students.
As noted previously, Pennsylvania courts may also exercise personal jurisdiction over non-
resident defendants where there is specific jurisdiction. Specific jurisdiction is "based upon the
specific acts of the defendant which gave rise to the cause of action." McCall, 650 A.2d at 904.
In Pennsylvania, the assertion of specific jurisdiction over out-of--state residents is authorized by
42 Pa.C.S. § 5322, which provides in pertinent part:
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NO.09-2014 CIVIL
§ 5322. Bases of personal jurisdiction over persons outside this Commonwealth.
(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:
(4) Causing harm or tortious injury in this
Commonwealth by an act or omission outside
this Commonwealth.
42 Pa.C.S. § 5322(a)(4). However, courts have made clear that activities by non-resident
defendants that allegedly cause harm within Pennsylvania will only support specific jurisdiction
if "accompanied by conduct directed at the forum state in order for the Defendant to reasonably
anticipate being haled into the state's courts." Surgical Laser Techs., Inc. v. C.R. Bard, Inc., 921
F. Supp. 281, 285 (E.D. Pa. 1996). Here, there was no such conduct. The injury allegedly
sustained by Plaintiff stems from a single call placed by the Plaintiff, not the Defendant.
Accordingly, we will sustain the preliminary objections with respect to jurisdiction. This action
makes moot the issue of improper venue.
ORDER
AND NOW, this ~ 2 ~ day of July, 2010, the preliminary objections of the Defendant
to this court's exercise of jurisdiction are SUSTAINED.
BY THE COURT,
Hess, P. J.
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NO. 09-2014 CIVIL
Girard Rickards, Esquire
Plaintiff
Cheryl A. Feeley, Esquire
Delano M. Lantz, Esquire
For the Defendant
:rlm
11
? C 'LJ
David-D. Buell a e p 1 nee 7G Simpson
Prothonotary �� D 1S` Deputy Prothonotary
�irkS.
Sofionage, ESQ _ Irene E. Morrow
Solicitor „50 21d Deputy Prothonotary
Office of the Prothonotary
Cumberland County, Pennsylvania
09 - ,26/2/ CIVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 29TH DAY OF OCTOBER, 2013,AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE-THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH
PA R.C.P.230.2.
BY THE COURT,
DAVID D. BUELL
PROTHONOTARY
One Courthouse Square • Suite 100 • Carlisle, SPA 17013 • (717)240-6195 • Ea,, (717)240-6573