Judges Opinions, — September 28, 2022 10:51 — 0 Comments

Digna Fuentes Merino, v. Repak B.V. and Robert Reiser & Co., Inc.

JUDGE’S OPINION

 

Digna Fuentes Merino, v. Repak B.V. and Robert Reiser & Co., Inc.

 

Civil Action-Constitutional Law-Negligence-Products Liability-Preliminary Objections-Personal Jurisdiction-Foreign Corporation-Long Arm Statute-Due Process-General Jurisdiction-Specific Jurisdiction

 

Digna Fuentes Merino (“Plaintiff”) filed a Complaint in Negligence, Strict Liability and Breach of Warranty against Defendants, alleging that she injured her finger while working using a meat packaging machine manufactured by the Netherlands based corporation Repak B.V. (“Repak”) and sold and distributed by Robert Reiser & Co., Inc. (“Reiser”), a Massachusetts based corporation.  Repak filed Preliminary Objections to the Complaint on the basis that the Court lacks personal jurisdiction to hail it into the Commonwealth of Pennsylvania for legal action.

 

  1. When deciding a motion to dismiss for lack of personal jurisdiction, the court must consider the evidence in the light most favorable to the nonmoving party.

 

  1. In order for Pennsylvania to exercise personal jurisdiction over a party, jurisdiction must be authorized by its long arm statute and the exercise of jurisdiction must comport with constitutional principles of due process.

 

  1. General jurisdiction requires that a foreign corporation’s contacts with the state be so continuous and systematic that it renders the corporation essentially at home in the forum state.

 

  1. Since Repak has no offices or employees within the Commonwealth of Pennsylvania and acts instead through Reiser which also does not have a principal place of business in the Commonwealth of Pennsylvania, general jurisdiction does not exist with regard to Repak.

 

  1. Specific jurisdiction requires that the case must arise out of or relate to the defendant’s contact within the forum state.

 

  1. Where Repak and Reiser are so closely tethered in their business dealings such that Reiser is Repak’s sole American agent through a distribution agreement, Repak lists Reiser as a co-insured party on all product liability insurance maintained by Repak and Repak provides sales training and incentives to Reiser’s employees, the record establishes that Repak has such minimal contacts within the Commonwealth of Pennsylvania through advertising, soliciting and selling its product through Reiser that it does not violate the notions of fair play and substantial justice so as to allow Pennsylvania to exercise specific jurisdiction over Repak.

 

L.C.C.C.P. No. 2020-00368, Opinion by Samuel A. Kline, Judge, November 9, 2021.

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

DIGNA FUENTES MERINO              :

Plaintiff                          :

:

  1.    :        No: 2020-00368

:

REPAK B.V.                                         :

and                                 :

ROBERT REISER &CO., INC.            :

Defendant                      :        1925(a) Statement

 

ORDER

And now this 9th day of November, 2021, after reviewing both Plaintiff and Defendant’s preliminary objections and conducting oral argument, the Court hereby DENIES Defendant’s Preliminary Objection.

            Defendant Repak is ordered to file an answer within 60 days.

 

BY THE COURT

 

_________________, J.

SAMUEL A. KLINE

 

 

 

 

 

rmr

cc:       Richard M. Jurewicz, Esq. (1835 Market St. Ste. 2710 Philadelphia, PA 19103)

            Ann DelCollo, Esq. (873 E. Baltimore Pike, PMB 963 Kennett Square, PA 19348)

            Edward J. McGinn Jr. Esq. (620 Freedom Business Center Ste. 300 King of Prussia, PA 19406)

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

DIGNA FUENTES MERINO              :

Plaintiff                          :

:

  1.    :        No: 2020-00368

:

REPAK B.V.                                         :

and                                 :

ROBERT REISER &CO., INC.            :

Defendant                      :

 

APPEARANCES:

BROOKE J. ELMI, ESQ.                                                    –           for the Plaintiff

ANN DELCOLLO, ESQ.                                                     –           for Defendant Repak

EDWARD J. MCGINN, ESQ.                                             –           for Defendant Reiser

 

OPINION, KLINE, J., NOVEMBER 9, 2021

FACTS

            On September 18, 2018, Digna Fuentes Merino (“Plaintiff”) was employed at Godshall’s Quality Meats, a Lebanon based business focused on producing, packaging, and selling meat products. On this day Plaintiff was using a meat packaging machine that Plaintiff alleges was manufactured by Repak B.V. (“Repak”) and sold and distributed within the Commonwealth by their distributor Robert Reiser & Co., Inc. (“Reiser). While using the meat packaging machine Plaintiff suffered a substantial injury to her left index finger.

            Plaintiff filed a Complaint again Repak and Reiser in this Court on February 14, 2020, alleging negligence, strict liability, and breach of warranty. Proper service was effected on Reiser on March 2, 2020, and upon Repak on June 23, 2020. Reiser filed an Answer on August 12, 2020. On March 24, 2021 Repak filed preliminary objections. On April 13, 2021, Plaintiff filed responsive Preliminary Objections and a Brief in opposition to Repak’s Preliminary Objections. Oral Argument was heard on July 2, 2021, in regards to the Preliminary Objections and supplemental briefs were subsequently filed. This brings us to today.

STANDARD OF REVIEW

            “When preliminary objections, if sustained, would result in the dismissal of an action, such objections should be sustained only in cases which are clear and free from doubt…. Moreover, when deciding a motion to dismiss for lack of personal jurisdiction the court must consider the evidence in the light most favorable to the non-moving party.” Ambrose v. Cross Creek Condominiums, 602 A.2d 864, 869 (Pa. Super 1992). As Defendant is the moving party, we will look at evidence presented in the light most favorable to the Plaintiff.

DISCUSSION

            Defendant Repak raises a preliminary objection stating that this Court does not have personal jurisdiction over them and Plaintiff’s case against them should be dismissed. In opposition Plaintiff raises two primary defenses, first that Repak’s preliminary objections were untimely, and second that the Court does have proper personal jurisdiction over Repak because Repak through its distributor Reiser has put itself into the stream of commerce and engaged systematically with the Commonwealth to the point that they should be aware they could be pulled into Court here.

  1. Repak’s Preliminary Objections were untimely, however Plaintiff did not provide proper support to uphold this objection.

 

It is well-established policy in Pennsylvania that the timeliness of pleadings is not a hard and fast rule, but up to the interpretation of the Court in which the pleadings are being filed. Id. at 868. In challenging a late pleading it is up to the challenging party to show that they are prejudiced and that justice requires the pleadings be struck. Id. In the present case, besides stating that Repak was seven months late in filing their preliminary objections, the Plaintiff makes no showing of how Repak’s failure to enter a timely pleading has negatively affected them. For this reason the Court is denying Plaintiff’s Preliminary Objection that Repak’s Preliminary Objections were untimely.

  1. The Court’s exercise of specific jurisdiction in regards to Defendant Repak, is authorized by the Pennsylvania Long-Arm Statute and validly comports with constitutional principles of due process.

 

To exercise personal jurisdiction over a party, a Pennsylvania court is required to show two things. “First, jurisdiction must be authorized by the Pennsylvania Long-Arm Statute; and second, the exercise of jurisdiction must comport with constitutional principles of due process.” Schiavone v. Aveta, 41 A.3d 861, 866 (Pa. Super. 2012). In the present case, the Court believes that the Pennsylvania Long-Arm Statute grants us jurisdiction over Repak because Repak has either itself or through the actions of Reiser as its agent performed many of the actions which authorize the use of the state Long-Arm Statute. Additionally, Repak reached out beyond its home in the Netherlands and purposefully availed itself of conducting activities within the Commonwealth that fulfill the principles of Due Process.

  1. Pennsylvania’s Long-Arm Statute authorizes jurisdiction over Defendant Repak.

 

            Pennsylvania’s Long-Arm Statute provides at least four actions that this Court feels based on the evidence provided would authorize its jurisdiction over Repak. 42 Pa.C.S.A. § 5322 states in part:

(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:

(1) Transacting any business in this Commonwealth. Without excluding other acts which may constitute transacting business in this Commonwealth, any of the following shall constitute transacting business for the purpose of this paragraph:

(i) The doing by any person in this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object.

(ii) The doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object with the intention of initiating a series of such acts.

(iii) The shipping of merchandise directly or indirectly into or through this Commonwealth.

(iv) The engaging in any business or profession within this Commonwealth, whether or not such business requires license or approval by any government unit of this Commonwealth.

(2) Contracting to supply services or things in this Commonwealth.

(3) Causing harm or tortious injury by an act or omission in this Commonwealth.

(4) Causing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth.

 

            Repak insists that it, at no time, acted in the Commonwealth, conducted business in the Commonwealth, employed workers in the Commonwealth, had any place of business in the Commonwealth, or marketed its products within the Commonwealth. The Court agrees with Repak that they do not directly do these things, however, based on evidence provided in Plaintiff’s response to Repak’s Preliminary Objection, the Court does feel that Reiser acts as an agent for Repak in their dealings with businesses in the Commonwealth. Through its partnership with Reiser, Repak sells, distributes, and advertises its products to meat packing companies throughout the Commonwealth.

            Regardless, the Pennsylvania Long-Arm Statute contains a catchall provision which provides jurisdiction over any party that meets the most minimum contact allowed under the Constitution of the United States. 42 Pa.C.S.A. § 5322(b). As explained below the Court believes that Repak’s actions within the Commonwealth more than meet these minimum standards.

  1. Repak’s purposeful availment of conducting activities within the Commonwealth brings it under the specific jurisdiction of this Court.

 

Personal Jurisdiction as defined under modern case law and by the Due Process clause of the United States Constitution falls under two categories, general and specific. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). General jurisdiction, also called all-purpose jurisdiction, requires that the foreign corporation’s contacts with the state be so “’continuous and systematic’ as to render them essentially at home in the forum State.” Id. Further for the purpose of general jurisdiction, the Supreme Court has defined a corporation as being at home in a forum state when it is either incorporated within the state or has its principle place of business there. Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). Repak is a Netherlands based corporation, and as previously stated has no offices or employees within the state, acting instead through Reiser. Reiser is a Massachusetts based corporation and nothing submitted by any of the parties indicates that it has what would be defined as its principle place of business within the Commonwealth. Therefore, the Court does not have general jurisdiction over Repak.

Specific jurisdiction, or case linked jurisdiction, requires that the case “must arise out of or relate to the defendant’s contact within the forum.” Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S.Ct. 1773, 1780 (2017).  “[T]here must be, ‘an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.’” Id. citing Goodyear, 564 U.S. at 919. In the current case we have a negligence claim arising from the use of a machine designed and manufactured by Repak. Repak manufacturing the machine responsible for Plaintiff’s injury is their only contact with the state and is a thin thread, which is why the Court also looks to the actions of Reiser which we believe can be attributed to Repak as well.

This Court has reviewed the many seminal cases by the Supreme Court defining personal jurisdiction. A case in line with the facts presented here eludes the Court forcing us to do a thorough analysis based off the case law available. In the present case, the Court seeks to assert specific jurisdiction over a corporation based solely on actions attributed to it by its codefendant and agent. In Daimler, the Court was presented with a case in which California courts sought to apply general jurisdiction to a foreign corporation based on its agent’s actions. Daimler, 571 U.S. at 133. The Court in Daimler found that imparting MBUSA’s contacts with California to Daimler to effect general jurisdiction would not work and denied the lower courts argument granting personal jurisdiction over Daimler. Id. at 139. However, the Court insinuates several times that if the plaintiff had argued for specific jurisdiction rather than general jurisdiction the outcome may be different. Id. at 132-134.

We also go back to the Supreme Courts analysis in International Shoe, from which all other personal jurisdiction matters stem. The most often cited line asks the Court “if he be not present within the territory of the forum, [does] he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice [?]’” International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement, 326 U.S. 310, 316 (1945). International Shoe went further stating that “the casual presence of the corporate agent or even his conduct of single or isolated items of activities in a state in the corporations behalf are not enough to subject it to suit on causes of action unconnected with the activities there.” Id. at 317. The Court does make special mention of corporations participating within the state to the point that they themselves can avail themselves of the “benefits and protections of the laws of that state.” Id. at 319. It is from this statement that the term purposeful availment stems.

In the current case, Defendant has supplied an affidavit from Hans Fehrmann a managing director for Repak. In Mr. Fehrmann’s affidavit he states that Repak is incorporated and located in the Netherlands, and “is a separate corporate entity from its distributor defendant, Robert Reiser & Co. Inc.” (Defendant’s Preliminary Objections, Exhibit “B”, Paragraph 4.) Mr. Fehrmann further states that Repak has no physical presence within the United States, has no employees with the country, and maintains no accounts, licenses, or registrations with the United States. Id. Plaintiff and this Court does dispute this. However, as previously stated this Court believes that Repak and Reiser are so closely tethered together in their business dealings that Reiser is Repak’s American agent, if not subsidiary.

Plaintiff included a distribution agreement between Repak and Reiser in her Brief. (Plaintiff’s Brief in Opposition to Repak’s Preliminary Objections, Exhibit E.) In the agreement Reiser is appointed Repak’s sole distributor within the United States. Any of Repak’s products that enter the United States are ordered by Reiser before being sold to businesses across the country including multiple businesses in the Commonwealth. Id. In the agreement Repak actually contracts away its ability to sell any products directly within the United States. Id. Additionally, Repak agrees to list Reiser as a co-insured party on all product liability insurance maintained by Repak. Id. Within the agreement Repak provides Reiser with the ability to have a representative appointed to Repak’s Board of Directors. Id. Repak also agrees to provide training in sales and services, promotional material including brochures, literature, and CDs, and authorizes Reiser to use Repak’s trademarks. Id. Finally, Repak rewards Reiser’s salespeople, including Reiser’s Commonwealth representative who won the “Repak-Reiser Salesman of the Year 2019” and was awarded with a trip to the Netherlands. (Plaintiff’s Brief in Opposition to Repak’s Preliminary Objections, Exhibit F.)

We look to see if Repak has such minimum contacts within the Commonwealth that bringing Repak before our Court does not violate the “notions of fair play and substantial justice.” International Shoe, 326 U.S. at 310. In the present case Repak’s machine was advertised, solicited, and sold within the Commonwealth by Reiser. Repak uses its contract with Reiser to try and remove itself entirely from the personal jurisdiction of the United States, despite having it products distributed and used in the United States. The Court feels that this attempt to shield themselves from suit within the United States flies in the face of any notions of fair play, and supports the Court’s use of personal jurisdiction over Repak.

The Court also looks at what would happen if we did side with Repak. If the Court found it did not have personal jurisdiction over Repak, then what would be Plaintiff’s course of action? Repak would claim that the only Courts with personal jurisdiction over them are those Courts in the Netherlands. They would require that a Pennsylvania citizen with no contact with the Netherlands be required to spend large sums of money on travel to the Netherlands, hiring a lawyer in the Netherlands, and bringing a case against Repak in the Netherlands. These are unconscionable costs for an individual citizen to undertake simply to seek justice for an injury they suffered at their own workplace. While Repak has dealings with the United States and already sends representatives to and from this country for training and meetings with Reiser, the Court feels that Repak would suffer only minimal inconvenience in being called before this Court and one which it could reasonably bear or at least should have expected to bear.

It is for these reasons that this Court exercises specific personal jurisdiction over Defendant Repak and requires them to appear before this court and file an Answer to Plaintiff’s Complaint within sixty (60) days.

 

 

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