Murray v. Am. Lafrance, LLC

234 A.3d 782

Kenneth MURRAY, Robert Schnall, Michael Scott, John Senese, John Shurina, John Signorile, Kevin Sokol, Anthony Tricarico, Frank Ventrella, Josph Vitale, Patrick Vogt, Henry White, William White, Thomas Woska and William Youngson, Appellants

v.AMERICAN LAFRANCE, LLC and Federal Signal Corporation

Andrew Burns, Douglas Kalbacher, Michael Kozak, Kevin Kubler, James Lemonda, Joseph Locher, Patrick Lyons, John P. Malley, Joe Masterson, Brian McDade, Kevin McEnery, William Monteverde, Vincent Mosca, Gerard Murtha, Keith Palumbo, Joel Patti, Richard Peitler, Donald Reilly, Mario Rosato, Robert Ryan and Francis Trapani, Appellants

v.American Lafrance, LLC and Federal Signal Corporation

Miguel Moreno, Neil Mullins, John Nevola, Robert O'Flaherty, James O'Rourke, Michael Pagliuca, Samuel Panasci, Ronald Pattilio, Joel Pereca, Daniel Peritore, Vincent Pinto, Christopher Ramos, Robert Reich, Rocco Rinaldi, James Russo, Gregory Salone, James Savarese, William Scheu, Kenneth Smith, John Sullivan and Warren Terry, Appellants

v.American Lafrance, LLC and Federal Signal Corporation

Michael Feldman, Ronald Ferrante, Charles Feyh, Donald Flore, John Fortunato, Frank Gaccione, Robert Gleissner, James Helfrich, Frank Ingoglia, Robert Labatto, John Lillis, Thomas Lyons, Eugene Mahlsted, James Masone, Edward Mauro, Sean McCoyd, John McGonigle, Eugene McGowan, Jr., John McLaughlin, Eric Michelsen and Paul Miller, Appellants

v.American Lafrance, LLC and Federal Signal Corp.

Richard Barbarise, James Berghorn, Steven Bernius, Vasilios Christodoulou, Gaetano Dimauro, John Flynn, William Graham, Peter Gunther, Thomas Lorello, James Mangracina, Norman Marston, Joseph Maurer, Rober McGuire, Robert Moccia, John Morabito William Mundy, Stanley Peacock, Salvatore Rosina, Donald Rudden, Thomas Scally, Robert Schultz, Patrick Schweiger, Richard Scott, Frank Sforza, Patrick Shannon, Edmund Sullivan, Frederick Sutton, Francis Ulmer, Richard Waligovska, Paul Weis, Justin Werner and Rudy Wicklein, Appellants

v.American Lafrance, LLC and Federal Signal Corporation

Roosevelt Adams, Anthony Asaro, Eugene Biancone, Salvatore Bongiovanni, Stephen Brown, Michael Cain, Robert Canzoneri, Michael Carlin, Raymond Clancy, Casey Colwell, Robert Condon, Christian Corbin, Thomas Courtenay, Daniel Coyle, Raymond Creede, Austin Csorny, Frank Deangelo, Patrick Dimichele, John Driscoll and Kenneth Erb, Appellants

v.American Lafrance, LLC and Federal Signal Corporation

Richard Abbott, Vincent Anzelone, Richard Burban, Daniel Butler, Edward Cachia, Victor Carlucci, Joseph Clerici, Dermott Clowe, Fred Cortese, Anthony Cummo, Steven Ferraro, Rocco Fertoli, David Fischbein, Charles Fortin, Steven Greco, Gary Hoehing, William Hopkins, Gregory Horan, Scott Hummel, Joseph Ingrisani and Ronald Pattilio, Appellants

v.American Lafrance, LLC and Federal Signal Corporation

No. 2105 EDA 2016

No. 2106 EDA 2016

No. 2107 EDA 2016

No. 2108 EDA 2016

No. 2109 EDA 2016

No. 2110 EDA 2016

No. 2111 EDA 2016

Superior Court of Pennsylvania.

Argued October 31, 2019

Filed: June 25, 2020

Thomas J. Joyce III, Conshohocken, for Murray, appellant.

James David Duffy, Chicago, for Federal Signal, appellee.

Michael F. McKeon, Philadelphia, for Federal Signal, appellee.

American LaFrance, LLC, appellee, pro se.

Charles Lyman Becker, Philadelphia, for Pennsylvania Defense Institute, Amicus Curiae.

BEFORE: BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., DUBOW, J., KUNSELMAN, J., NICHOLS, J., and MURRAY, J.

OPINION BY BOWES, J.:

Appellants,¹ who comprise several plaintiffs from Massachusetts, New York, and Florida (hereafter "Plaintiffs"), appeal the May 25, 2016 orders sustaining the preliminary objections of Federal Signal Corporation ("Federal Signal"), a Delaware company with its principal place of business in Illinois, and dismissing Plaintiffs’ claims for lack of personal jurisdiction.² We granted en banc review to address whether Pennsylvania has general personal jurisdiction over Federal Signal due exclusively to its 1969 registration with the Pennsylvania Department of State as a foreign corporation pursuant to 15 Pa.C.S. § 411(a).³ Based upon Plaintiffs’ failure to preserve the issue for our review, we affirm.

Plaintiffs sued Federal Signal in Pennsylvania under theories of negligence and strict liability for injuries alleged to have occurred in New York as a result of excessive sound exposure from fire engine sirens that Federal Signal designed and manufactured in Illinois. Federal Signal filed preliminary objections to the complaints for lack of personal jurisdiction. It supported the preliminary objection with the affidavit of Ian Hudson, its Vice President and Corporate Controller, who attested to the company's inconsequential dealings in Pennsylvania, i.e. , four of 633 employees reside in the Commonwealth and 3.5% of its total sales in 2015 were to Pennsylvania buyers. See Brief in Support of Preliminary Objections to Complaint, 3/4/16, Exhibit A at ¶¶ 8, 9.

Although Federal Signal neglected to affix a notice to plead to the preliminary objections, Plaintiffs filed a response and a memorandum of law asserting personal jurisdiction based upon Federal Signal's alleged continuous and systematic contacts with Pennsylvania. Plaintiffs supported their response by attaching, inter alia , 1) a "Confidential Information Sheet" that outlined Federal Signal's sales and employees in Pennsylvania between 2012 and 2015; and 2) the June 2010 deposition testimony of Philadelphia Fire Department Battalion Chief Henry Leary, from an unrelated case, regarding his department's use of Federal Signal's sirens. See Answer in Opposition of Preliminary Objections, 5/6/16, Exhibits 1 and 2.

On May 25, 2016, the trial court sustained the preliminary objections, concluding that Federal Signal's alleged contacts with Pennsylvania failed to satisfy the due process standard that the U.S. Supreme Court reiterated in Daimler AG v. Bauman , 571 U.S. 117, 134 S.Ct. 746, 761, 187 L.Ed.2d 624 (2015) (stating the inquiry "is whether th[e] corporation's affiliations with the State are so continuous and systematic as to render it essentially at home in the forum State."). Accordingly, it dismissed all of Plaintiffs’ claims. These timely appeals followed.

As the trial court did not order Plaintiffs to file a concise statement of errors complained of on appeal, its Pa.R.A.P. 1925(a) opinion addressed the issue of jurisdiction in the context of Plaintiffs’ original assertion that Federal Signal maintained continuous and systematic contacts with Pennsylvania. However, on appeal, Plaintiffs for the first time argue that personal jurisdiction is proper in light of 42 Pa.C.S. § 5301(a)(2)(i), because Federal Signal registered as a foreign corporation pursuant to 15 Pa.C.S. § 411(a).⁴ Plaintiffs’ brief at 14-16. Acknowledging that the current argument was never presented to the trial court for consideration, Plaintiffs cast the issue in the negative. Plaintiffs assert,

It was an error for the [t]rial [c]ourt to focus solely on the continuous and substantial contacts of Federal Signal when determining whether general jurisdiction is properly established without considering that Federal Signal previously consented to the jurisdiction of the courts of the Commonwealth by the affirmative act of registering as a foreign corporation with the Corporations Bureau.

Id . at 11. Plaintiffs’ phrasing suggests that the obligation to demonstrate the basis for personal jurisdiction rested with the trial court. As we explain, infra , it does not. Once Federal Signal supported its jurisdictional challenge to personal jurisdiction with evidence, the burden of proving personal jurisdiction shifted to Plaintiffs. See Sulkava v. Glaston Finland Oy , 54 A.3d 884, 889 (Pa.Super. 2012).

Prior to addressing the merits of Plaintiffs’ current argument, we must examine whether it is waived pursuant to Pa.R.A.P. 302(a), since it was not raised before the trial court. See Rule 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). The purpose of Rule 302(a) is "to provide th[e] [trial] court with the opportunity to consider the issue, rule upon it correctly, and obviate the need for appeal." Gustine Uniontown Assocs., Ltd. v. Anthony Crane Rental, Inc ., 892 A.2d 830, 835 (Pa.Super. 2006). As our High Court explained, "where the parties fail to preserve an issue for appeal, the Superior Court may not address the issue, even if the disposition of the trial court was fundamentally wrong."

Danville Area Sch. Dist. v. Danville Area Educ. Ass'n, PSEA/NEA , 562 Pa. 238, 754 A.2d 1255, 1259 (2000) (citation omitted); see also Kimmel v. Somerset County Comm'rs , 460 Pa. 381, 333 A.2d 777, 779 (1975) ("It is a fundamental principle of appellate review that [appellate courts] will not reverse a judgment or decree on a theory that was not presented to the trial court.").

Instantly, Plaintiffs asserted in the trial court that Pennsylvania had personal jurisdiction over Federal Signal through the company's continuous and systematic contacts with the Commonwealth. The trial court rejected that contention after reviewing Plaintiffs’ response to the preliminary objections and the evidence presented by both sides. Having failed to establish personal jurisdiction based upon allegations of continuous and systematic contacts, Rule 302(a) prohibits Plaintiffs from invoking an alternative basis for personal jurisdiction for the first time in this appeal. See Gustine Uniontown Associates , supra at 835–36, (finding the plaintiff-appellant waived two arguments that were not included in response to defendant's preliminary objections and "the trial court failed to indicate any awareness of these two positions").

Plaintiffs attempt to circumvent waiver by contending that their failure to assert an alternative basis for personal jurisdiction at any point before the trial court dismissed their complaint is excused because they were not...