J-S13009-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    SHANGHAI CHESTNUT OAK IMPORT &                  IN THE SUPERIOR COURT
    EXPORT CO., LTD.                                   OF PENNSYLVANIA

                             Appellant

                        v.

    CATSKILL TIMBER INDUSTRIES, INC.

                             Appellee                  No. 1315 MDA 2019


                   Appeal from the Order Entered July 3, 2019
               In the Court of Common Pleas of Lycoming County
                    Civil Division at No: CV-2018-0001859-CV


BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI,* J.

MEMORANDUM BY STABILE, J.:                           FILED AUGUST 10, 2020

        Appellant, Shanghai Chestnut Oak Import & Export Co., Ltd., appeals

from the July 3, 2019 order sustaining the preliminary objections of Appellee,

Catskill Timber Industries, Inc., and dismissing Appellant’s complaint with

prejudice. We reverse and remand.

        Appellant is a Chinese business located in Shanghai, China. Appellee is

a Delaware Corporation with its principal place of business in New Jersey. The

parties entered a contract whereby Appellee was to ship to Appellant ten

containers of ash logs at a price of $96,187.50. Appellant claims the logs

were supposed to come from northern Pennsylvania trees. Appellee denies

this, noting that the contract does not specify the place of origin of the lumber.

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*   Retired Senior Judge assigned to the Superior Court.
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Appellant filed this action in the Lycoming County Court of Common Pleas on

December 13, 2018, alleging causes of action in breach of contract and unjust

enrichment. On February 8, 2019, Appellee filed a preliminary objection under

Pa.R.C.P. No. 1028(a)(1),1 alleging that the court lacked personal jurisdiction.

The trial court heard argument on March 19, 2019, and subsequently

permitted each party to submit a brief and affidavit. After consideration of

the parties’ briefs and affidavits, the trial court sustained Appellee’s

preliminary objection. It also denied Appellant’s request for limited discovery

on the jurisdictional issue. This timely appeal followed.

       Appellant raises a single issue: “Did the trial court err when it refused

to allow the Appellant to conduct limited discovery into the jurisdictional issues

raised by Appellee in its preliminary objection?” Appellant’s Brief at 8.

       We review an order granting preliminary objections as follows:

            In reviewing an order sustaining preliminary objections, our
       standard of review is de novo and our scope of review is plenary.
       We must determine whether the trial court committed an error of
       law. When a defendant challenges the court’s assertion of
       personal jurisdiction, that defendant bears the burden of
       supporting such objections to jurisdiction by presenting evidence.
       The burden of proof only shifts to the plaintiff after the defendant
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1   Rule 1028(a)(1) provides, in relevant part:

             (a) Preliminary objections may be filed by any party to any
       pleading and are limited to the following grounds:

             (1) lack of jurisdiction over the subject matter of the action
       or the person of the defendant, improper venue or improper form
       or service of a writ of summons or a complaint;

Pa.R.C.P. No. 1028(a)(1).

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     has presented affidavits or other evidence in support of its
     preliminary objections challenging jurisdiction.

Trexler v. McDonald's Corp., 118 A.3d 408, 412 (Pa. Super. 2015) (internal

citations and quotation marks omitted).    “This Court will reverse the trial

court’s decision regarding preliminary objections only where there has been

an error of law or abuse of discretion.” Excavation Techs., Inc. v. Columbia

Gas Co. of Pennsylvania, 936 A.2d 111, 113 (Pa. Super. 2007), aff’d, 985

A.2d 840 (Pa. 2009). “When sustaining the trial court’s ruling will result in

the denial of claim or a dismissal of suit, preliminary objections will be

sustained only where the case if free and clear of doubt.” Id.

     Rule 1028(c)(2) provides that when “an issue of fact is raised, the court

shall consider evidence by depositions or otherwise.”            Pa.R.C.P. No.

1028(c)(2)(emphasis added). Objections to in personam jurisdiction under

Rule 1028(a)(1) are among the preliminary objections that cannot ordinarily

be determined from the facts of record.     Pa.R.C.P. No. 1028(c)(2), note.

Indeed, where preliminary objections based on personal jurisdiction are at

issue, “[t]he court may not reach a determination based upon its view of the

controverted facts, but must resolve the dispute by receiving evidence thereon

through interrogatories, depositions, or an evidentiary hearing.” Schmitt v.

Seaspray-Sharkline, Inc., 531 A.2d 801, 803 (Pa. Super. 1987).

          Where an essential factual issue arises from the pleadings
     as to the scope of a defendant’s activities within the
     Commonwealth, the plaintiff has the right to depose
     defendant as to his activities within the Commonwealth,
     and the court must permit the taking of the deposition

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      before ruling on the preliminary objections. Where neither
      party presents evidence by which the court can properly resolve
      the issue, it is appropriate to remand with directions that an order
      be entered allowing the parties a reasonable period of time in
      which to present evidence by deposition, interrogatories or
      otherwise.

Id. at 803 (emphasis added).

      The trial court relied in part on Slota v. Moorings, 494 A.2d 1, 3-4 (Pa.

Super. 1985), wherein the plaintiffs sued a company organized under the laws

of the British West Indies for injuries the plaintiffs allegedly sustained at the

defendant’s hotel. The defendant had no place of business in Pennsylvania,

and it filed preliminary objections to jurisdiction. The defendant submitted

affidavits explaining its basis for disputing jurisdiction. The plaintiffs alleged

the contract for lodging was entered into in Pennsylvania and that the

defendant    conducted     business    continuously    and    systematically    in

Pennsylvania.    Slota, 494 A.2d. at 3.     The trial court decided, based on

affidavits from the defendant, that Pennsylvania did not have personal

jurisdiction over it.   This Court observed that “this is not a recommended

procedure,” and that “[i]t would have been preferable to proceed by

depositions or written interrogatories.” Id. Nonetheless, because the plaintiff

countered defendant’s affidavits with a deposition amounting to nothing more

than “rumor, surmise, and conjecture,” we affirmed the order sustaining the

defendant’s preliminary objections.

      In Stern v. Prudential Fin., Inc., 836 A.2d 953 (Pa. Super. 2003), the

defendant filed preliminary objections alleging that the plaintiff’s complaint

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should be dismissed because of an arbitration provision in the parties’

contract. The trial judge, “based solely on affidavits, found that the arbitration

provision was valid and enforceable and not waived by [the defendant].” Id.

at 953-54.    This Court noted that the plaintiff’s affidavit alleged that the

defendant agreed to waive the arbitration provision when plaintiff threatened

to pull his account from defendant.     Id. at 954. The defendant’s affidavit

disputed the fact of waiver. Id. In Stern, unlike Slota, the affidavits did not

present a case of clear, specific, and undisputed facts.       Id. at 955.    We

therefore reversed the order sustaining preliminary objections and remanded

for the development of additional evidence by depositions, interrogatories, or

other discovery. Id.

      Instantly, as in Stern and Slota, the trial court decided the preliminary

objections based on competing affidavits.        Appellant’s affidavit, from its

owner, Thomas Han, reads as follows:

            1.    From my knowledge and familiarity with the timber
      import/export business, Ulrich von Hollen and his company,
      [Appellee], regularly buys and sells ash trees from the
      Commonwealth of Pennsylvania. This is a significant portion of
      his business.

            2.    The contract I entered into with [Appellee] was for the
      purchase and shipment of ash logs from Northern Pennsylvania.
      While this provision was not in the written agreement, this term
      was discussed and agreed with Mr. von Hollen.

           3.     The ash logs delivered late and without proper
      documentation were from southern and western Pennsylvania. I
      know this from Mr. von Hollen’s statements to me.




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            4.     I wanted Norther Pennsylvania ash logs because their
      quality is higher and their value higher.

Thomas Han Affidavit, 4/8/19, at ¶¶ 1-4.

      In his affidavit, Ulrich von Hollen, Appellee’s owner, averred in pertinent

part as follows:

            2.    [Appellee] has its principal place of business located
      at P.O. Box 615, Oldwick, Hunterdon County, New Jersey.

           3.    [Appellee] does not have an office or bank account in
      Pennsylvania.

           4     [Appellee] does not have a telephone number in
      Pennsylvania or otherwise maintain a business presence in
      Pennsylvania.

            5.   [Appellee] is in the business of purchasing logs from
      suppliers and then shipping those logs based upon customer
      demand.

            6.    [Appellee] purchases the logs directly from its
      suppliers “F.O.B.” or at the port from which the logs will ship
      already loaded in shipping containers.

            7.    [Appellee] has not purchased any logs from a supplier
      located in Pennsylvania for many years.

             8.   The last logs I purchased in Pennsylvania were
      purchased between ten (10) and twelve (12) years ago through a
      different business I then owned.

            9.    All logs [Appellee] presently buys are purchased from
      suppliers located in Ohio, Indiana, Kentucky, West Virginia, the
      New England states, and Ontario, Canada.

           10. None of [Appellee’s] suppliers are located in either
      Pennsylvania or New York at present.

           11. The origin of the logs that my suppliers provide are
      from all over and, while some logs may originate from
      Pennsylvania, as logs are shipped across state lines all the time,
      [Appellee] does not control the origin of the logs its suppliers
      purchase.

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            12. In a given transaction, [Appellee] may purchase logs
      from a supplier located in Indiana with logs that originated in
      Kentucky or Indiana, or [Appellee] may purchase logs from a
      supplier in Ohio with logs that originated in Kentucky, Indiana,
      Pennsylvania or sometimes West Virginia.

            13. The written agreement at issue in [this litigation] was
      entered into between a New Jersey company and a Chinese
      company.

           14. The written agreement does not specify Pennsylvania
      ash and there is no reference to Pennsylvania at all in the written
      agreement.

              15. At no time relevant to the transaction at issue in [this
      litigation] did [Appellee] purchase logs from a supplier in
      Pennsylvania.

           16. [Appellee] does not regularly do business within the
      Commonwealth of Pennsylvania or with business located within
      Pennsylvania.

            17. The logs at issue in [this litigation] were not
      purchased from a supplier located in Pennsylvania and did not
      originate from Pennsylvania.

           18. Any partial webpage screenshot attached to
      [Appellant’s] briefing […] is many years outdated and the
      webpage has not been updated to reflect the current nature of
      [Appellee’s] business.

           19. That being said, even if logs sold originated in
      Pennsylvania, they were not purchased from a supplier located in
      Pennsylvania.

             20. If I were deposed in connection with [this litigation],
      my testimony regarding the nature of [Appellee’s] business and
      its lack of contacts with Pennsylvania would be consistent with my
      statements contained herein.

Ulrich von Hollen Affidavit, undated, at ¶¶ 2-20.

      In summary, Appellant alleged that Appellee regularly buys and sells

logs from Pennsylvania, and that Appellee expressly agreed to provide


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Pennsylvania logs in this case.    Appellant also documented that Appellee’s

website advertises the selling of Pennsylvania lumber. Appellee denies having

any control over the state of origin of the lumber it sells, and denies promising

to provide Pennsylvania lumber.       These affidavits directly contradict one

another, and therefore give rise to a dispute of fact.      Appellee could not

advertise Pennsylvania lumber for sale on its website and promise delivery of

Pennsylvania lumber in this case unless it could direct the activities of

suppliers within this state. Thus, Appellee’s averments—that it has no control

over the source of the lumber—directly contradict Appellant’s in its affidavit.

As explained above, the Pennsylvania Rules of Procedure provide that a trial

court “shall” consider evidence by depositions or otherwise where a

preliminary objection raises an issue of fact.      Pa.R.C.P. No. 1028(c)(2).

Further, this Court in Schmitt held that the plaintiff has the right to depose

the defendant as to its activities in the Commonwealth when the pleadings

raise issues of fact. Schmitt, 531 A.2d at 803. This case, unlike Slota, does

not involve clear, specific, and undisputed facts that are apparent from the

parties’ affidavits. The trial court erred in finding that the affidavits did not

conflict.

      In closing, we note that the trial court did not cite to applicable

precedent when addressing the jurisdictional issues. The Due Process Clause

of the Fourteenth Amendment to the United States Constitution limits a state’s

authority to exercise personal jurisdiction over a non-resident defendant,


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depending on the extent of the defendant’s contacts with the state.

Hammons v. Ethicon, 190 A.3d 1248, 1261 (Pa. Super. 2018) (citing

Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)), appeal granted,

206 A.3d 495 (Pa. 2019). A state may exercise general jurisdiction over a

corporation, i.e. all-purpose jurisdiction, where the company is incorporated

or has its principal place of business in that state. Id. (citing Daimler AG v.

Bauman, 571 U.S. 117, (2014)).2 The Daimler Court noted that existing

jurisprudence did not “hold that a corporation may be subject to general

jurisdiction only in a place where it is incorporated or has its principal place of

business.”    Daimler, 571 U.S. at 138 (emphasis in original).        Rather, the

places in incorporation and principal place of business are “paradigm all-

purpose forums.” Id. In the case before it, the Daimler Court declined to

look beyond those paradigm forums, deeming an analysis of the company’s

“substantial, continuous, and systematic course of business” within the forum

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2 Section 5301 of the Pennsylvania Judicial Code permits general jurisdiction
over a corporation as follows:

       (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 and systematic part of its
       general business within this Commonwealth.

42 Pa.C.S.A. § 5301(a)(2).


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to be “unacceptably grasping.” Id. The Supreme Court allowed that, in an

“exceptional case,” a corporate defendant’s operations “may be so substantial

and of such a nature as to render the corporation at home” in a state in which

it is not incorporated and does not have its principal place of business. Id. at

139 n.19.

      In our recent decision in Fulano v. Fanjul Corp., ___ A.3d ___, (Pa.

Super. July 10, 2020), this Court considered whether the plaintiff had

established an “exceptional case” for general jurisdiction over a defendant

incorporated and with its principal place of business in Tennessee. Fewer than

20 of the defendant’s 100 distributers were licensed to do business in

Pennsylvania, and less than 3% of its total sales revenue came from products

shipped directly to Pennsylvania.       Its only physical presence in this

Commonwealth was a leased warehouse in Bucks County. This Court declined

to find general jurisdiction over the defendant in these circumstances. We

relied on BNSF Ry. Co. v. Tyrell, 137 S.Ct. 1549 (2017), wherein the United

States Supreme Court declined to find an exceptional case for general

jurisdiction in Montana over a railroad company that had more than 2,000

miles of track and more than 2,000 employees in that state. The BNSF Court

wrote that the inquiry as to general jurisdiction “calls for an appraisal of a

corporation’s activities in their entirety; a corporation that operates in many

places can scarcely be deemed to be at home in all of them.” Id. at 1559.




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       In addition, a state may exercise specific jurisdiction over a corporation

where the action arises from the corporation’s activity within the state’s

borders.3 Hammons, 190 A.3d at 1262 (citing Bristol Myers Squib Co. v.

Superior Court of California, San Francisco County, 137 S.Ct. 1773

(2017)).

       In its brief, Appellant argues for general jurisdiction based on its

allegation that Shanghai conducts a “continuous and systematic part of its

general business within this Commonwealth.” Appellant’s Brief at 12 (quoting

42 Pa.C.S.A. § 5301(a)(2)(iii)). Appellant disavows any argument for specific

jurisdiction in light of the trial court’s refusal to accept parol evidence on

whether the parties agreed to logs sourced from Pennsylvania. Id. Appellant

has not challenged the trial court’s application of the parol evidence rule.

Moreover, Appellant does not argue that Appellee consented to jurisdiction in

Pennsylvania.

       As noted above, Appellee is incorporated in Delaware and has its

principal place of business in New Jersey. Neither party addressed Daimler,

BNSF, or Hammons in its brief. Fulano post-dated the filing of this appeal.

Thus, we have no advocacy on those case and the implications they have for

the general jurisdiction over Appellee under § 5301(a)(2)(iii) on the facts of



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3 Pennsylvania’s Long Arm statute lists the circumstances under which this
Commonwealth will exercise specific jurisdiction over corporations from
outside of the Commonwealth. 42 Pa.C.S.A. § 5322.

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this case.   On remand, Appellant can establish general jurisdiction over

Appellee if and only if the exercise of such jurisdiction meets the constitutional

criteria set forth in the jurisprudence of the United States Supreme Court and

the applicable binding precedent from Pennsylvania courts.

      For the foregoing reasons, we reverse the order sustaining Appellee’s

preliminary objections and remand for further proceedings consistent with this

memorandum.

      Order reversed. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/10/2020




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