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Home My WebLink About2005-1451 Civil DAVID J. CORDIER d/b/a CORDIER ANTIQUES AND FINE ART, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KEVIN MARTIN d/b/a PIECE OF THE PAST, INC., DEFENDANT 05-1451 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY. J. AND GUIDO. J. OPINION AND ORDER OF COURT Bayley, J., April 21, 2006:-- On March 17, 2005, plaintiff, David J. Cordier d/b/a Cordier Antiques and Fine Art, filed a complaint against defendant, Kevin Martin d/b/a Piece of the Past, Inc. Plaintiff avers that defendant's business is located at 9030 West Sahara Avenue, Las Vegas, Nevada. Plaintiff further avers that it is in the business of selling items "via eBay online auctions." Defendant "placed bids totaling $4,270.63 on ten lots of items placed on auction by plaintiff." Defendant subsequently refused to pay plaintiff for the items, so plaintiff did not ship them to defendant. Plaintiff instead resold the items for $3,137.71 less than plaintiff bid, which amount plaintiff seeks to recover on a count of breach of contract. Plaintiff seeks additional damages on an allegation that defendant committed trade libel by posting various allegations about him on the Internet. 05-1451 CIVIL TERM Defendant filed several preliminary objections to the complaint, one of which, pursuant to Pa. Rule of Civil Procedure 1 028(a)(1), is lack of personal jurisdiction. The preliminary objections were briefed and argued on March 29, 2006. Plaintiff maintains that the single eBay transaction alleged in the complaint is sufficient to exercise personal jurisdiction over defendant in Pennsylvania because defendant purposefully directed his activities in Pennsylvania by making a purchase from plaintiff in Pennsylvania via eBay. In Kubik v. Letteri, 614 A.2d 1110 (Pa. 1992), the Supreme Court of Pennsylvania, citing Burger King Corporation v. Rudzewicz, 471 U.S. 462 (1985), stated: When a state exercises personal jurisdiction over a non-resident defendant in a suit arising out of or related to the defendant's contacts with the forum, the state is exercising specific jurisdiction. Helicopteros Naciona/es de Colombia v. Hall, 466 U.S. 408, 414 n. 8,104 S.Ct. 1868, 1872 n. 8, 80 L.Ed.2d 404,411 n. 8 (1984). In Pennsylvania, specific jurisdiction may be asserted over non- resident defendants "to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contacts with this Commonwealth allowed under the Constitution of the United States." 42 Pa.C.S. S 5322(b) (emphasis added). Specific jurisdiction is at issue in the present matter. Thus, the question becomes what minimum contacts suffice to satisfy the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The standard which must be met by a state in asserting specific personal jurisdiction over a non-resident defendant as articulated in Burger King is clear: (1) the non-resident defendant must have sufficient minimum contacts with the forum state and (2) the assertion of in personam jurisdiction must comport with fair play -2- 05-1451 CIVIL TERM and substantial justice. Id. The determination of whether this standard has been met is not susceptible of any talismanic jurisdictional formula: the facts of each case must always be weighed in determining whether jurisdiction is proper. 471 U.S. at 485-86,105 S.Ct. at 2189,85 L.Ed.2d at 549. The determination of whether sufficient minimum contacts exist is "based on a finding that the 'defendant's conduct and his connection with the forum State are such that he should reasonably anticipate being haled into court there.'" Id. Whether a defendant should reasonably anticipate being haled into court in the forum state is based on defendant purposefully directing his activities at residents of the forum and purposefully availing himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protection of its laws. See Id. Furthermore, "contacts with the forum that are 'random,' 'fortuitous' or 'attenuated are not sufficient for the assertion of personal jurisdiction. . . .'" In Scordato v. Dyess, 73 D. & CAth 360 (Centre 2005), the Court of Common Pleas of Centre County held that the defendant, a Nevada resident, who sold an alleged defective car to the plaintiff, a Pennsylvania resident, on eBay, did not subject himself to personal jurisdiction in Pennsylvania. In Machulsky v. Hall, 210 F.Supp.2d 531 (D. N.J. 2002), the plaintiff, a New Jersey resident, operated a coin business via eBay. Plaintiff sued three non-resident defendant purchasers who allegedly conspired together to cause her economic injury by ruining her coin business. Plaintiff alleged that defendant Liebrandt, an Oregon resident, did not return purchased coins to plaintiff as agreed upon, and because she refused to refund Liebrandt's payment, Liebrandt -3- 05-1451 CIVIL TERM posted negative comments on eBay's customer feedback page. Defendant Knaack, an Alaska resident, allegedly made four separate purchases and never received them, resulting in the filing of a fraud report on eBay. Defendant Hall, a Georgia resident, posted a negative comment on eBay after plaintiff denied Hall's refund requests. The District Court examined "the level of interactivity and commercial nature of the exchange in order to determine the propriety of exercising personal jurisdiction." It stated that, "when a defendant merely posts information or advertisements on a Web site, however, personal jurisdiction over such defendant is not proper." Other factors to consider were the duration of defendant's relationship with the respective state and the nature and extent of a defendant's commercial and business transactions vis-a-vis the forum state through the Internet. The court stated: . . . decisions in this area of law indicate that commercial activity via the Internet must be substantially more regular and pervasive to constitute "purposeful availment of doing business" within a given state. Compare Desktop Tech., 1999 WL 98572, at *5-*6 (finding in internet advertising case where the defendant's internet presence and e-mail link are its only contacts with Pennsylvania, that there must be "something more" than simply registering someone else's trademark as a domain name and posting a Web site on the Internet to demonstrate that the defendant directed its activity towards the forum state) with Zippo, 952 F. Supp. at 1125- 26 (exercise of personal jurisdiction found proper because defendant contracted online with seven Internet access providers and approximately 3,000 individuals within the forum); CompuServe, Inc., 89 F.3d at 1264 (defendant had "substantial connection" with forum state when he purchased computer network service via an online contract, transmitted software via the Internet to computer server within the forum, and advertised and sold his product via that system). -4- 05-1451 CIVIL TERM -5- 05-1451 CIVIL TERM The court held that there was no personal jurisdiction over defendant Liebrandt because a single purchase did not constitute the requisite purposeful availment. Defendant Knaak's four eBay purchases did not constitute a sufficient level of business activity to subject him to personal jurisdiction. Defendant Hall's single online transaction did not rise to a substantial level such that the court could constitutionally exercise personal jurisdiction over him. Utilizing the analysis of the District Court in Machulsky, we conclude, in the case sub judice, that the nature and quality of the defendant's actions via eBay, as alleged by plaintiff, are insufficient to assert personal jurisdiction over him in Pennsylvania. Accordingly, the following order is entered.1 ORDER OF COURT AND NOW, this day of April, 2006, the preliminary objection of defendant based on lack of personal jurisdiction, IS GRANTED. The complaint of plaintiff against defendant, IS DISMISSED. By the Court, Edgar B. Bayley, J. 1 The resolution makes it unnecessary to address the other issues raised in the preliminary objections of defendant. -6- 05-1451 CIVIL TERM Derek J. Cordiers, Esquire 319 South Front Street Harrisburg, PA 17104-1621 For Plaintiff Thomas J. Webber, Esquire Michael F. Socha, Esquire 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 F or Defendant :sal -7- DAVID J. CORDIER d/b/a CORDIER ANTIQUES AND FINE ART, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KEVIN MARTIN d/b/a PIECE OF THE PAST, INC., DEFENDANT 05-1451 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF'S COMPLAINT ORDER OF COURT AND NOW, this day of April, 2006, the preliminary objection of defendant based on lack of personal jurisdiction, IS GRANTED. The complaint of plaintiff against defendant, IS DISMISSED. By the Court, Edgar B. Bayley, J. Derek J. Cordier, Esquire 319 South Front Street Harrisburg, PA 17104-1621 For Plaintiff Thomas J. Webber, Esquire Michael F. Socha, Esquire 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 F or Defendant :sal