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HomeMy WebLinkAbout2017-09680 GUISSEPPI FORGIONNE,: IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : : v. : CIVIL ACTION : : JOHN GURDAK, : Defendant : NO. 2017-09680 CIVIL TERM OPINION AND ORDER OF COURT IN RE: PRELIMINARY OBJECTIONS TO PLAINTIFF’S AMENDED COMPLAINT Hyams, J., July 13, 2026 Before the Court are Preliminary Objections filed by Defendant John A. Gurdak who does business, for the purposes of this litigation, as Uncle Dave’s Brass Trains. Mr. Gurdak is a resident of Blairstown, New Jersey. According to the Complaint filed by the Plaintiff, Guisseppi Forgionne, a resident of Mechanicsburg, Pennsylvania, Mr. Gurdak accepts consignments of brass model trains according to terms listed in a website which also markets the business and displays items available for sale. On July 21, 2016, the Plaintiff contacted the Defendant by email providing a list of brass model trains for possible consignment. The Defendant responded by email on the same day agreeing to accept the consignment. The terms of the consignment having been set by email between the parties, the Plaintiff subsequently sent the consigned trains to the Defendant. From the receipt of the trains on August 1, 2016, until the time of the filing of the complaint in October of 2017, the Plaintiff has received no reports from the Defendant on the status of his consignment, nor has he received any payment of any kind. The Preliminary Objectionsseek dismissal (or, where appropriate as an alternative, amendment) of the complaint on several grounds. Initially, Defendant asserts that the Plaintiff failed to comply with the requirements of paragraphs (h) and (i) of Pa.R.C.P. 1019 governing proper pleading with respect to the existence of a contract and that the Complaint fails otherwise to comply with Pa. R. C. P. 2019 because of a lack of specificity. We believe this case turns, however, on the remaining and far more important issues raised by the Defendant. First, there is a contention that the pendency of a prior action prevents further litigation in the captioned matter. Second, the Defendant contends that the Complaint should be dismissed for lack of personal jurisdiction. Logic dictates that the first question to be addressed is whether the court has jurisdiction to hear the matter. In Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945), a case familiar to every law student, the Supreme Court made clear that in order for a state to exercise personal jurisdiction over an out-of-state defendant, due process requires that the defendant have “certain minimum contacts with the State such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.” Id. at 316. Pennsylvania’s long arm jurisdiction statute is codified at 42 Pa. C. S. A. §5322(a). Although the statute is broad,the exercise of jurisdiction must still be constitutionally permitted. Constitutional limitations on the exercise of personal jurisdiction differ, of course, dependingon whether the Court is seeking to exercise general or specific jurisdiction. General Jurisdiction allowsa Court to exercise personal jurisdiction over a foreign resident when the Defendant has engaged in “systematic and continuous” activities in the forum state. See Skinner v. Flymo, 505 A. 2d. 616, (Pa. Super. 1986). There is no evidence in this case that the Defendant has engaged in systematic or continuous activities in Pennsylvania.Nonetheless, it remains appropriate to examine the broader questions having to do with fair play and due process particularly in light of Pennsylvania’s evolving jurisprudence having to do with the internet. The framework for analyzing personal jurisdiction based on internet activity in Pennsylvania is the sliding scale test articulated in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 52 F. Supp. 1119 (1997), a federal district court decision from the Western District of Pennsylvania that Pennsylvania courts have adopted as persuasive authority. See Efford v. Jockey Club, 796 A. 2d. 370 (Pa. Super., 2002). The sliding scale operates along a spectrum. At one end are defendants who clearly do business over the internet by entering into contracts with residents of foreign jurisdictions that involve the repeated transmission of computer files over the Internet. In such cases, personal jurisdiction is proper. Id. For websites that are interactive but fall short of enabling complete commercial transactions, Pennsylvania courts analyze whether the website is targeted specifically to Pennsylvanians and whether the website is central to the defendant’s business in Pennsylvania. Haas v. Four Seasons Campground, Inc., 952 A. 2d 688 (Pa. Super. 2008). In Haas the defendant operated a New Jersey campground and maintained a website with a reservation request form. The court found no general personal jurisdiction where the website made only de minimis references to Pennsylvania and the publications in which advertisements appeared were otherwise national in circulation. The Court noted: In conclusion, we emphasize when a website is found to be neither passive nor engaged in knowing and continual transmission of computer files and occupies the middle ground of the sliding-scale, a court must examine the commercial nature of the website, specifically focusing on the extent of business conducted with Pennsylvania residents via the host website and whether the website comprises a significant portion of revenue by the party objecting to jurisdiction. While this inquiry might yield somewhat incongruous results given the various emphases placed on the commercial nature of the website and the interactiveness, this analysis is necessary to comport with the Due Process Clause of the Fourteenth Amendment. More importantly, if not conducted, courts run the risk of running afoul of our constitutional protections. Id. at 697. In a more recent Pennsylvania Superior Court decision, the court held, in 2025, that a New York attorney did not purposefully avail himself, for jurisdictional purposes, of the privilege of conducting activities in Pennsylvania simply by establishing a website advertising legal services that were accessible by Pennsylvania citizens. The court found that the website was passive in nature and did not meet the due process requirements of minimum contacts for the purpose of personal jurisdiction. Dumond Inc. v. Galgano, 345 rd A. 3 741 (Pa. Super. 2025). In this case, the Defendant advertised his willingness to accept model trains on consignment and set out the consignment terms on a website. There is no evidence that Pennsylvania was targeted in any particular way norany indication as to what portion of the income of the Defendant is attributable to the website. In fact, noneof the other aspects of the transaction between the parties in this case were conducted over the internet. Instead, they were by email or through package delivery. The Plaintiff’s description of the Defendant’s website as “highly interactive” does not make it so. Even giving the Plaintiff the benefit of the doubt by assigning this case to the “middle ground” of internet involvement, we conclude that our exercise of jurisdiction would “run afoul” of constitutional protections. Even assuming that this Court has jurisdiction, we are satisfied that the Complaint in this case should be dismissed by virtue of a prior action brought with respect to the same underlying transaction. While the Defendant initially styles the argument as one of res judicata we are satisfied that the other argument of the Defendant on this issue is more apposite: namely, that continued litigation in this case would contravene Pennsylvania’s rules and procedures having to do with compulsory joinder. Specifically, Plaintiff’s claims are all related to the same transaction and occurrence and, therefore, must have been raised in one pleading or proceeding. The primary source of Pennsylvania's compulsory joinder requirement isPA. R. C. P. 1020, which provides: If a transaction or occurrence gives rise to more than one cause of action heretofore asserted in assumpsit and trespass, against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person. Failure to join a cause of action as required by this subdivision shall be deemed a waiver of that cause of action as against all parties to the action. Pa. R. C. P. 1020 (d), emphasis supplied. The rule imposes two distinct obligations: (1) a plaintiff must affirmatively join all related claims in a single pleading, and (2) the failure to do so results in a permanent waiver of those claims against all parties to the action. The purpose of the rule, as articulated by the Pennsylvania Superior Court in Hineline v. Stroudsburg Elec. Supply Co., Inc., 486 A. 2d 455, (Pa. Super. 1991), is to avoid a multiplicity of suits and to ensure the prompt disposition of all rights and liabilities of the parties in a single proceeding.Id., 456. Under Pa. R. C. P. 1020, a plaintiff may state more than one cause of action in a complaint against the same defendant, with each cause of action and any special damages stated in a separate count.Under Rule 1020(d) this permissive joinderbecomes a mandatory obligation when the claims arise from the same transaction or occurrence. In this case, the Plaintiff concedes that he instituted an action in Magisterial District Court against John Gurdak on April 11, 2017. The complaint arose out of the consignment of brass model trains to the Defendant in July 2016. The Plaintiff now contends that the action before the MDJ differs from the current matter in that the former involved a claim for the net retail price for all sold consigned brass model trains while the latter involves a claim for monies due on any unsold consigned trains which the Defendant had promised 1 to buy.While these may be different aspects of the Plaintiff’s claim, they both clearly arise from the same “transaction or occurrence.” Thus, further litigation in this matter is clearly barred by our rule regarding compulsory joinder. BY THE COURT, ____________________ Carrie E. Hyams, J. 1 GUISSEPPI FORGIONNE, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : : v. : CIVIL ACTION : : JOHN GURDAK, : Defendant : NO. 2017-09680 CIVIL TERM ORDER OF COURT July 13, 2026 AND NOW , following argument thereon, the Defendants’ Preliminary Objections to the Plaintiff’s Amended Complaint are SUSTAINED and the Complaint in this case is DISMISSED. BY THE COURT, _______________________ Carrie E. Hyams, J. Distribution: Guisseppi Forgionne Plaintiff, Pro Se David C. Dagle, Esq. Attorney For Defendant