On Appeal from the United States District Court for the Middle District (Scranton) Pennsylvania (Civil No. 83-1263)
Before ALDISERT, Chief Judge, STAPLETON and MANSMANN, Circuit Judges.
STAPLETON, Circuit Judge.
In this diversity action we are called upon to decide whether St. George's University, School of Medicine, a corporation whose principal place of business is Grenada, West Indies, has sufficient contacts with Pennsylvania to subject it to personal jurisdiction in that state. Appellants brought a wrongful death action, alleging, inter alia, negligence, breach of contract, fraudulent misrepresentation, and intentional infliction of emotional distress, after their son, a student at St. George's, died after running in a school-sponsored road race on Grenada.*fn1 The court below granted appellees' motion to dismiss for lack of jurisdiction. We affirm the district court's order except insofar as it dismissed the claims for fraudulent misrepresentation and intentional infliction of emotional distress.
Earl H. Gehling, a Pennsylvania resident, was accepted by St. George's for admission on December 14, 1978. After participating in a road race on April 18, 1982, he collapsed and subsequently died. Appellants allege that in addition to negligently supervising the race, appellees provided inadequate emergency services. Appellants further allege that appellees performed an unauthorized autopsy on decedent. finally, appellants claim that Dr. Charles Modica, the Chancellor of St. George's, accompanied decedent to his home in Scranton, Pennsylvania, and there misrepresented the cause of death to appellees.
The concept of minimum contacts "protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980). To establish in personam jurisdiction, plaintiffs must show that defendants have such minimum contacts with the forum state so that "...the suit does not offend 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 61 S. Ct. 339 (1940)). In determining whether minimum contacts are present, courts focus on "the relationship among the defendant, the forum, and the litigation." Shaffer v. Heitner, 433 U.S. 186, 204, 53 L. Ed. 2d 683, 97 S. Ct. 2569 (1977).
As explained in Dollar Savings Bank v. First Security Bank of Utah, 746 F.2d 208 (3 Cir. 1984), we follow a two-step process to determine whether personal jurisdiction may be asserted over a non-resident defendant. we first examine whether the cause of action arises from the defendant's forum or non-forum related activities. In the case of defendant's forum related activities, "the defendant's conduct and connection with the forum State ...[must be] such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980). Furthermore, "it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958). And, of course, the defendant's contacts must be sufficient so that subjecting defendant "to jurisdiction in a Pennsylvania forum does not offend International Shoe's traditional notions of fair play and substantial justice." Dollar Savings Bank, 746 F.2d at 213.
If the claim arises from defendant's non-forum related activities, "the plaintiff must demonstrate that in other respects (other than contacts related to the claim itself) the defendant has maintained 'continuous and substantial' forum affiliations." Reliance Steel Products v. Watson, Ess, Marshall & Enggas. 675 F.2d 587, 588 (3d Cir. 1982) (citing International Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945)). Under 42 Pa. C.S.A. § 5301(a)(2)(iii), in order to establish general appellees carry on "a continuous and systematic part of [their] general business within this Commonwealth."
We first determine whether appellants have established personal jurisdiction over appellees with regard to appellees' non-forum related activities. We therefore examine whether the appellees carried on a "continuous and substantial part" of their business in Pennsylvania. If they did, then Pennsylvania has jurisdiction for each of the causes of action alleged by appellants. If not, we must determine whether there is personal jurisdiction for each of the causes of action alleged by appellants. If not, we must determine whether there is personal jurisdiction for the forum related activities. Appellants point to several contacts between St. George's and Pennsylvania that they contend constitute "continuous and substantial" business. for the purposes of this analysis, we assume that the Foreign Medical School Services Corporation (Foreign), a New York business related to St. George's and hired by it to recruit and then select among potential candidates for admission to the school, is an alter ego of St. George's as alleged by appellants. St. George's and Foreign solicited students by placing advertisements in the New York Times and the Wall Street Journal that principally publicized the pass rate achieved by St. George's graduates on the 1982 Educational Commission for Foreign Medical Graduates Exam. These solicitations stated that "United States and Canadian citizens may direct inquires to "Foreign, at its New York address. Other advertisements contained scholarship and loan information. Although these advertisements were not aimed specifically at Pennsylvania residents, appellants argue that because the newspapers are circulated throughout Pennsylvania, appellees attempted to avail themselves of the Pennsylvania student market. Furthermore, appellants contend that approximately six percent of St. George's students matriculating with decedent did in fact come from Pennsylvania, and that, as a result, Pennsylvania residents annually paid several hundred thousand dollars of tuition to St. George's.
Appellants also emphasize a media swing undertaken in February, 1980 by Dr. Modica and Dr. Geoffrey Bourne, Chancellor and Vice-chancellor of St. George's, respectively. They toured nine cities, including Philadelphia, in order to "gain exposure and establish credibility among consumers and medical community constituents" for the school. St. George's University Newsletter, Vol. 3, no. 1. While in Philadelphia Drs. Modica and Bourne appeared on radio and television shows that reached, according to appellees, an audience of over 400,000. There is no evidence, however, that they attempted to recruit students during this tour.
The final Pennsylvania contact alleged by appellants is a joint international program established by St. George's and Waynesburg College. This program is memorialized in a "Memorandum of Intent to Establish a Co-operative Relationship Between St. George's University School of Medicine Grenada, West Indies, and Waynesburg College, Waynesburg, Pennsylvania, U.S.A." The Memorandum summarizes discussions between Dr. Modica and Dr. Wellington Friday, the Institutional Development Coordinator and Coordinator for International Programs at Waynesburg, held on march 24, 1980 in New York City. According to the memorandum, the agreement would allow st. George's, then a 4 1/2 year medical program, to ...