J-S72013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

OLSON PARKER,                                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

JOHN H. MCCLELLAND, D/B/A BUD’S
AUTO SALES,

                            Appellee                   No. 388 WDA 2014


                Appeal from the Order Entered January 30, 2014
                In the Court of Common Pleas of Cambria County
                        Civil Division at No(s): 2013-2993


BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED DECEMBER 2, 2014

        Appellant, Olson Parker, appeals from the order granting Appellee John

H. McClelland’s petition to vacate foreign judgment.1      After careful review,

we vacate that order and remand for a new hearing consistent with this

memorandum.

        The trial court summarized the applicable facts as follows:

        [Appellant] is a resident of Florida.     [Appellee] owns and
        operates a car[]dealership in Pennsylvania. In November of
        2011, [Appellant] [performed] an internet search for a vehicle on
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*
    Retired Senior Judge assigned to the Superior Court.
1
  For the sake of clarity, we note that the issue in the instant case is whether
the order in question from a Florida court may be enforced in Pennsylvania,
and not whether a Pennsylvania court possesses jurisdiction to vacate the
judgment of a foreign court.
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     the website Auto Trader. N.T. (Jan. 28, 2014), p. 34. Auto
     Trader directed [Appellant] to [Appellee’s] website, which listed
     a 2008 GMC Yukon for sale. Id. [Appellant] indicated his
     interest in the vehicle by completing a form on Auto Trader. Id.
     at p. 35. On November 17, 2011, [Appellant] received a call
     from [Appellee’s] employee, Tom Krcha [“Employee”]. Id. at p.
     35. During negotiations, Employee told [Appellant] that the
     vehicle had no visible damage. Id. at p. 44. Employee also
     provided [Appellant] with a Carfax report, which did not indicate
     any accidents or repairs. Id. at pp. 45-46. [Appellant] and
     Employee agreed on a price, and Employee faxed a retail order
     form to [Appellant]. Id. at p. 23. On November 18, 2011,
     [Appellant] put $500 down on the vehicle. Id. at p. 27. On or
     about November 26, 2011, [Appellant] flew to Pennsylvania to
     retrieve the vehicle. Id. at p. 39. Thereafter, [Appellant]
     discovered that the vehicle had multiple replacement parts,
     signifying that the vehicle had been involved in an accident. Id.
     at p. 40.

            Ultimately, [Appellant] filed suit against [Appellee] in
     Broward County, Florida. Id. at p. 42. On March 4, [2013], a
     default judgment was entered in Broward County against
     [Appellee] in the amount of $14,123.13. PRAECIPE TO FILE AND
     INDEX FOREIGN JUDGMENT.                On September 6, 2013,
     [Appellant] filed with this Trial Court a Praecipe to File and Index
     Foreign Judgment. On September 12, 2013, [Appellee] filed a
     Petition to Vacate Foreign Judgment wherein it was asserted that
     Florida did not have proper jurisdiction over [Appellee].
     PETITION TO VACATE FOREIGN JUDGMENT, ¶ 3. This Court held
     a hearing on January 28, 2014[,] to determine whether Florida
     had specific personal jurisdiction over [Appellee] with respect to
     the aforementioned transaction. On January 30, 2014, the Court
     entered an Order granting [Appellee’s] Petition to Vacate Foreign
     Judgment.

Trial Court Opinion (TCO), 4/25/14, at 1 – 2.

     Appellant filed a timely notice of appeal, and a timely concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

He now presents the following questions for our review:

           I.    Whether the [trial] [c]ourt committed an error of law
                 when it placed the burden of proof on [Appellant]?

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            II.    Whether the [trial] [c]ourt committed an error of law
                   when it permitted [Appellee] to collaterally attack
                   whether or not a [tortious] act was committed?

            III.   Whether the [trial] [c]ourt committed an error of law
                   and/or abused its discretion in granting [Appellee’s]
                   [p]etition to [v]acate [f]oreign [j]udgment by finding
                   that Florida lacked jurisdiction pursuant to Florida’s
                   long arm statute?

Appellant’s brief at 2.

      This Court has stated that, “The full faith and credit clause of the

United States Constitution requires state courts to recognize and enforce the

judgments of sister states.” Southern Medical Supply Co. v. Myers, 804

A.2d 1252, 1256 (Pa. Super. 2002). Thus, our standard of review regarding

petitions to strike foreign judgments “is limited to whether the trial court

manifestly abused its discretion or committed an error of law.” Id.

      We note that in its opinion, the trial court concedes that it committed

an error of law in the instant case:

      [Appellant] argues the [t]rial [c]ourt erred in placing the burden
      of proof on [him]. CONCISE STATEMENT, ¶ 1. In the instant
      matter, the burden of proof, by a preponderance of the
      evidence, is on the litigant "who would escape the operation of a
      judgment decreed in another state," i.e., [Appellee].
      Commonwealth. v. Petrosky, 77 A.2d 647, 651 (Pa. Super.
      1951). This Trial Court found that [Appellant] failed to prove
      that [Appellee] committed a tortious act within Florida. ORDER
      DATED JANUARY 30, 2014. Upon further consideration, the Trial
      Court agrees that the burden was improperly placed on
      [Appellant], and the Court requests this matter be remanded
      back to its jurisdiction so that the proper burden of proof may be
      applied.

TCO at 3.



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      We conclude the record supports the trial court’s concession that it

misapplied the burden of proof.    See Order of 1/30/14 at 1 (“Specifically,

the Court finds that [Appellant] failed to adequately prove that [Appellee]

committed a [tortious] act within the State of Florida, and therefore, the

subject judgment was entered by the [c]ourt in Broward County, Florida,

without proper jurisdiction over [Appellee]”).   Moreover, as the judgment

was entered against Appellee, he escaped the operation of that judgment

when it was vacated.     When a party attacks a foreign judgment on the

grounds that the issuing court lacked jurisdiction, the burden of proving that

the court lacked jurisdiction lies with the attacking party.    Petrosky, 77

A.2d at 651. Consequently, we conclude that the trial court committed an

error of law, and we are required to vacate the trial court’s order and

remand for a new hearing.

      Appellant also raises two additional claims in the instant appeal. First,

Appellant argues that the trial court improperly considered the underlying

merits of the case; namely, whether a tortious act occurred in Florida. In

addition, Appellant argues that the trial court erred in determining Florida

lacked jurisdiction pursuant to Florida’s long arm statue, Fla. Stat. Ann. §

48.193.

      In its opinion, the trial court stated that it did not consider the

underlying merits of the substantive issues in question, and that it found

Florida’s long arm statute did not grant Florida jurisdiction. Given that the




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J-S72013-14



trial court misapplied the burden of proof in making its determination, we

recognize that the analysis of these issues in the trial court’s opinion is dicta.

       In the trial court, Appellant claimed Florida properly possessed specific

jurisdiction over the matter in question, as Appellee committed a tortious act

in Florida, thus granting Florida jurisdiction pursuant to its long arm statue. 2

We would note that “a judgment obtained in a sister state is presumptively

valid, and may not be retried in Pennsylvania Courts except for the limited

purpose of determining jurisdiction and whether a defendant’s basic due

process rights were protected.”            Nobel Well Service, Inc., v. Penn

Energy, 502 A.2d 200, 205 – 206 (Pa. Super. 1985).              Therefore, upon

remand, the trial court’s inquiry will be limited to determining whether

Florida properly possessed jurisdiction over this matter, as only the original

court, i.e., the Florida court, may open the judgment on the merits.3 See

Greate Bay Hotel v. Saltzman, 609 A.2d 817 (Pa. Super. 1992).
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2
  Appellant did not argue that Appellee possessed sufficient minimum
contacts to establish general jurisdiction in Florida over Appellee. See
International Shoe Co. v. State of Wash., Office of Unemployment
Compensation and Placement, 326 U.S. 310 (1945).
3
  While the Florida litigation resulted in a default judgment for Appellant,
there is nothing in the record to suggest that Appellee’s failure to appear
was the result of a violation of his due process rights. However, Appellee’s
failure to appear did not waive his right to challenge Florida’s jurisdiction
over him, as under Florida law, “[a] judgment that is entered against a
defendant over whom the court lacks personal jurisdiction is a void
judgment” and “a void judgment may be collaterally attacked at any time.”
Wiggins v. Tigrent, Inc., 147 So.3d 76, 81 (Fl. Dist. Ct. App. 2014)
(internal citations omitted).



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J-S72013-14



       Moreover, under Florida law, the initial inquiry in determining the

propriety of long arm jurisdiction is whether the plaintiff has pled sufficient

jurisdictional    facts   to   subject     the   defendant   to   that   jurisdiction.

Washington Capital Corp. v. Milandco, Ltd., Inc., 695 So.2d 838, 839

(Fl. Dist. Ct. App. 1997) (citing Venetian Salami Co. v. Parthenais, 554

So.2d 499, 502 (Fla.1989)). Consequently, we would caution the trial court

that, upon remand, the threshold question shall be what jurisdictional facts

were actually pled in the Florida court, without additional fact-finding.4

       Order vacated. Case remanded for a new hearing consistent with this

memorandum. Jurisdiction relinquished.




____________________________________________


4
   The second inquiry to determine whether Florida properly possessed
jurisdiction will be whether Appellee maintained “certain minimum contacts
with the forum state such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice.” Wendt v. Horowitz,
822 So.2d 1252, 1257 (Fla. 2002) (internal citations omitted).               The
commission of a tortious act in Florida is sufficient to establish such contacts.
Id. at 1258. Moreover, physical presence is not required to establish
jurisdiction, as making “telephonic, electronic or written communications into
Florida from outside of the State can constitute committing a tortious act.”
Id. Again, we would note that only the Florida court possesses jurisdiction
to consider the underlying merits of the issues in question. The trial court’s
review on remand will be limited solely to whether the Florida court
possessed jurisdiction.



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J-S72013-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2014




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