author: WIEAND, Judge:

text:
    505 A.2d 616
    William J. SKINNER and Mary Skinner, his wife, Appellants, v. FLYMO, INC.; Darwin Eckstrom and Jonathan Randall, individually and trading as Eckstrom-Randall Company; Outdoor Power Equipment Institute, Inc.; United States Testing Co., Inc.; and American National Standards Institute, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 31, 1985.
    Filed Feb. 21, 1986.

      Ellen M. Viakley, Pittsburgh, for appellants.
    Mark L. Austrian, Pittsburgh, for appellees.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   WIEAND, Judge:

William J. Skinner was injured when the blade of a rotary lawn mower came into contact with his foot while he was cutting the lawn at his employer’s residence in Warren County. He commenced an action to recover damages against five defendants, one of which was Outdoor Power Equipment Institute, Inc. (OPEI), a nonprofit trade association whose members were manufacturers of outdoor power equipment. OPEI filed preliminary objections raising questions of jurisdiction. The trial court sustained these preliminary objections, holding that OPEI was not subject to the jurisdiction of the Pennsylvania courts. Skinner appealed. We affirm.

OPEI is a Delaware corporation whose only office is located in Washington, D.C. It is not registered to do business in Pennsylvania and does not maintain an office or other place of business in this Commonwealth. OPEI sponsors a certification program pursuant to which its members are entitled to submit samples of their products to an independent laboratory for testing. If a product meets specified safety standards, the manufacturer can purchase from OPEI a label which contains a certification that the product complies with these standards. Flymo, Inc., an Ohio manufacturer of lawn mowers, was a member of the trade association and routinely purchased labels from OPEI for attachment to its lawn mowers. The mowers manufactured by Flymo, Inc. were distributed throughout the United States. One of Flymo’s lawn mowers was being used by Skinner at the time he was injured. The mower, bearing an OPEI label, had been sold to Skinner’s employer in Pennsylvania by Eckstrom-Randall Company, a distributor of Fly-mo lawn mowers.

The averments of the complaint were that the lawn mower, even though it complied with the safety standards used in OPEI’s certification program, was unreasonably dangerous. The gravamen of the complaint against OPEI was that it had been negligent in failing to establish adequate safety standards for the design and manufacture of rotary lawn mowers. OPEI’s preliminary objections, duly endorsed with notice to plead, challenged whether it was subject to in personam jurisdiction in Pennsylvania. In these preliminary objections, OPEI averred, inter alia, that it did not pay taxes in Pennsylvania, had not appointed an agent to accept service in Pennsylvania, was not listed in any telephone directory in Pennsylvania, and had no officers or employees in Pennsylvania. Further, it alleged, it had never conducted educational symposia in Pennsylvania, owned no property in Pennsylvania, had sales in Pennsylvania of less than $650 after January 1, 1982, and had only one Pennsylvania member which, however, was not engaged in the manufacture of walk-behind mowers. Skinner did not file a responsive pleading and, therefore, has admitted the averments of fact contained in OPEI’s preliminary objections. 5 Std.Pa.Prac.2d § 25:6. See: Pa.R.C.P. 1026, 1029.

Jurisdiction over a nonresident defendant may be based either upon the specific acts of the defendant which gave rise to the cause of action, or upon the defendant’s genera] activity within the forum state. See: Burger King Corp. v. Rudzewicz, 471 U.S. —, — n. 15, 105 S.Ct. 2174, 2182 n. 15, 85 L.Ed.2d 528, 541 n. 15 (1985). In order for a Pennsylvania court to assert specific jurisdiction, the cause of action must arise out of the defendant’s activities within the Commonwealth. See: 42 Pa.C.S. § 5322. See also: Burger King Corp. v. Rudzewicz, supra at —, 105 S.Ct. at 2182, 85 L.Ed.2d at 540-541. General jurisdiction, on the other hand, exists regardless of whether the cause of action is related to the defendant’s activities in Pennsylvania, as long as the defendant’s activities in this Commonwealth are “continuous and substantial.” See: Bork v. Mills, 458 Pa. 228, 231-232, 329 A.2d 247, 249 (1974); Slota v. Moorings, Ltd., 343 Pa.Super. 96, 104-07, 494 A.2d 1, 5-6 (1985); Whalen v. Walt Disney World Co., 274 Pa.Super. 246, 251, 418 A.2d 389, 391 (1980). See also: 42 Pa.C.S. § 5301(b). Accord: Burger King Corp. v. Rudzewicz, supra, 471 U.S. at — n. 15, 105 S.Ct. at 2182 n. 15, 85 L.Ed.2d at 541 n. 15.

Pennsylvania courts may exercise specific jurisdiction over nonresident defendants “to the fullest extent allowed under the Constitution of the United States and [it] may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.” 42 Pa.C.S. § 5322(b). Where the forum state seeks to assert specific jurisdiction over an out-of-state defendant, who has not consented to be sued there, the Due Process Clause of the Fourteenth Amendment to the United States Constitution “is satisfied if the defendant has ‘purposefully directed’ his activities at residents of the forum and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, supra at —, 105 S.Ct. at 2182, 85 L.Ed.2d at 540-541 (citation omitted). See: Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404, 411 (1984). The critical question in determining whether the defendant has purposefully directed his activities at residents of the forum is not whether it was foreseeable that defendant’s activities would have an injurious effect in the forum state, but whether the defendant’s conduct and his connection with the forum state were such that he could reasonably anticipate being “haled” into court there. Burger King Corp. v. Rudzewicz, supra, 471 U.S. at —, 105 S.Ct. at 2183, 85 L.Ed.2d at 542; United Farm Bureau Mutual Insurance Co. v. United States Fidelity and Guaranty Co., 501 Pa. 646, 657, 462 A.2d 1300, 1305 (1983), quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294, 100 S.Ct. 559, 565-566, 62 L.Ed.2d 490, 501 (1980). This question, in turn, must be resolved by examining the defendant’s contacts with the forum state.

The Due Process Clause permits a state to exercise in personam jurisdiction over a nonresident defendant when there exist “certain minimum contacts” between the defendant, the forum state, and the litigation. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790, 797-798 (1984); Calder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804, 811 (1984); Helicopteros Nacionales de Columbia, S.A. v. Hall, supra, 466 U.S. at 413-14, 104 S.Ct. at 1872, 80 L.Ed.2d at 411; International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945); Kenny v. Alexson Equipment Co., 495 Pa. 107, 117-118, 432 A.2d 974, 980 (1981); Slota v. Moorings, Ltd., supra, 343 Pa.Super. at 102-03, 494 A.2d at 3. This minimum contacts analysis is not susceptible of any talismatic jurisdictional formula; the facts of each case must be weighed in determining whether jurisdiction is proper. Burger King Corp. v. Rudzewicz, supra, 471 U.S. at —, 105 S.Ct. at 2189, 85 L.Ed.2d at 549. Nevertheless, the Supreme Court has provided some broad guidelines which may be applied on a case by case basis to determine the sufficiency of a defendant’s contacts with the forum state.

Random, fortuitous, or attenuated contacts between a defendant and the forum state will not support an exercise of jurisdiction. Id. at —, 105 S.Ct. at 2183, 85 L.Ed.2d at 542; Keeton v. Hustler Magazine, Inc., supra, 465 U.S. at 774, 104 S.Ct. at 1478, 79 L.Ed.2d at 797; World-Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. at 299, 100 S.Ct. at 568, 62 L.Ed.2d at 502. Jurisdiction is only proper “where the contacts proximately result from actions by the defendant himself which create a ‘substantial connection’ with the forum State.” Burger King Corp. v. Rudzewicz, supra, 471 U.S. at —, 105 S.Ct. at 2184, 85 L.Ed.2d at 542 (emphasis in original). See: McGee v. International Life Insurance Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223, 226 (1957). Unilateral activity in the forum state by others having a relationship with a nonresident defendant cannot satisfy the requirement that a defendant have minimum contacts with the forum state. Burger King Corp. v. Rudzewicz, supra, 471 U.S. at —, 105 S.Ct. at 2183, 85 L.Ed.2d at 542; Helicopteros Nacionales de Columbia, S.A. v. Hall, supra, 466 U.S. at 416-17, 104 S.Ct. at 1873, 80 L.Ed.2d at 412; World-Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. at 298, 100 S.Ct. at 567, 62 L.Ed.2d at 502; Slota v. Moorings, Ltd., supra, 343 U.S. at 102-03, 494 A.2d at 4. Thus, the Due Process Clause has forbidden “the exercise of personal jurisdiction over an out-of-state automobile distributor whose only tie to the forum resulted from a customer’s decision to drive there, World-Wide Volkswagen Corp. v. Woodson, supra; over a divorced husband sued for child-support payments whose only affiliation with the forum was created by his former spouse’s decision to settle there, Kulko v. California Superior Court [436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978) ]; and over a trustee whose only connection with the forum resulted from the settlor’s decision to exercise his power of appointment there, Hanson v. Denkla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).” Burger King Corp. v. Rudzewicz, supra, 471 U.S. at — n. 17, 105 S.Ct. at 2183-2184 n. 17, 85 L.Ed.2d at 542 n. 17. However, if the efforts of a commercial enterprise are “purposefully directed” toward residents of the forum state, the absence of the actor’s physical contacts with the forum cannot defeat an assertion of personal jurisdiction in that state. Id. at —, 105 S.Ct. at 2184, 85 L.Ed.2d at 543. Indeed, even a single act by a foreign defendant within the forum state may support jurisdiction, though that act will not be sufficient if its nature and the quality and the circumstances of its commission create only an “attenuated” affiliation with the forum. Id. at — n. 18, 105 S.Ct. at 2184 n. 18, 85 L.Ed.2d at 543 n. 18.

“Once it has been decided that a defendant purposefully established minimum contacts with the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.’ ” Id. at —, 105 S.Ct. at 2184, 85 L.Ed.2d at 543. Factors to be considered include “ ‘the burden on the defendant,’ ‘the forum State’s interest in adjudicating the dispute,’ ‘the plaintiff’s interest in obtaining convenient and effective relief,’ ‘the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,’ and the ‘shared interest of the several States in furthering fundamental substantive social policies.’ ” Id. at —, 105 S.Ct. at 2184, 85 L.Ed.2d at 543, quoting World-Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. at 292, 100 S.Ct. at 564, 62 L.Ed.2d at 498.

These considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required. On the other hand, where a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable. Most such considerations usually may be accommodated through means short of finding jurisdiction unconstitutional. For example, the potential clash of the forum’s law with the “fundamental substantive social policies” of another State may be accommodated through application of the forum’s choice-of-law rules. Similarly, a defendant claiming substantial inconvenience may seek a change of venue. Nevertheless, minimum requirements inherent in the concept of “fair play and substantial justice” may defeat the reasonableness of jurisdiction even if the defendant has purposefully engaged in forum activities.

Burger King Corp. v. Rudzewicz, supra, 471 U.S. at —, 105 S.Ct. at 2184-2185, 85 L.Ed.2d at 543-544 (citations omitted).

In the instant case, OPEI’s only “activity” was the sale of labels to an Ohio manufacturer of lawn mowers. There was no activity whatsoever that was purposefully directed toward residents of Pennsylvania. Indeed, there was only one manufacturer in Pennsylvania who was a member of OPEI, and this manufacturer was not engaged in making walk-behind, power lawn mowers. Even safety standards were not promulgated by OPEI but by an independent organization. The only connection between OPEI’s activity as a trade association, i.e., administering the certification program, and the Commonwealth of Pennsylvania was Flymo’s fortuitous shipment into this Commonwealth of a lawn mower bearing the OPEI label. This unilateral action of Flymo was insufficient to support jurisdiction over OPEI in Pennsylvania. OPEI itself did not sell or distribute lawn mowers, nor did it do any specific act which was sufficient to render it subject to the in personam jurisdiction of the Pennsylvania courts. Given the tenuous relationship between OPEI’s out-of-state certification activities and Skinner’s injury in Pennsylvania, it seems clear that OPEI could not reasonably have anticipated being haled into court here. We conclude, as did the trial court, that OPEI did not purposefully establish sufficient minimum contacts with Pennsylvania to subject it to specific jurisdiction in this Commonwealth.

Where a cause of action does not arise out of a nonresident defendant’s activities within Pennsylvania, jurisdiction may nevertheless be asserted if the defendant’s activities within the Commonwealth, though unrelated to the cause of action, are continuous and substantial. Bork v. Mills, su pra, 458 Pa. at 231-232, 329 A.2d at 249; Slota v. Moorings, Ltd., supra, 343 U.S. at 104-07, 494 A.2d at 5-6. See: 42 Pa.C.S. § 5301(a)(2)(iii). An examination of decisions in other jurisdictions which have applied this or a similar standard to activities of trade and professional associations is instructive. The continuous and substantial contacts necessary to assert jurisdiction over a trade or professional association may be summarized as follows: (1) a high percentage of the associations’ members resided in the forum state, see, e.g., Bennett v. J. C. Penney, supra note 2 (over fifty members resided in forum state); Indian Head Inc. v. Allied Tube & Conduit Corp., supra note 2 (10.6% of membership); ECOS Electronics Corp. v. Daniel Woodhead Co., supra note 2 (9% of membership); Arnstein v. Manufacturing Chemists Association, Inc., supra note 2 (10% of membership); (2) the associations received substantial income from annual membership dues of members in the forum state, see, e.g., Bennett v. J.C. Penney, supra ($40,000); Indian Head Inc. v. Allied Tube & Conduit Corp., supra ($39,000); Arnstein v. Manufacturing Chemists Association, Inc., supra ($200,000); (3) large sums of money were earned by selling the associations’ publications in the forum state, see, e.g., Indian Head Inc. v. Allied Tube & Conduit Corp., supra ($483,000 in 1980, $473,000 in 1981); Sherman College of Straight Chiropractic v. American Chiropractic Association, Inc., supra note 2 ($2,300); and, perhaps most significantly, (4) the associations held repeated committee meetings and/or educational symposia in the forum state, see, e.g., Bennett v. J. C. Penney, supra (meetings held on regular basis); Indian Head Inc. v. Allied Tube & Conduit Corp., supra (at least four seminars held in four years); Sherman College of Straight Chiropractic v. American Chiropractic Association, Inc., supra (three or four seminars held within five year period); Health Care Equalization Committee v. Iowa Medical Society, supra note 2 (American Medical Association appointed Committee on Quackery which had numerous and significant contacts with the forum state); Arnstein v. Manufacturing Chemists Association, Inc., supra (four symposia held within a one to two year period); Bogus v. American Speech & Hearing Association, supra note 2 (three of fifty-six workshops conducted in one year held in forum state). In those cases in which the trade or professional associations’ activities were not deemed substantial, these contacts were not present. See, e.g., Bartholomew v. Virginia Chiropractors Association, supra note 2 (only .06% of membership resided in forum, sale of pamphlets, journals, and other educational material generated very little income, no seminars or workshops held in forum); Golf City, Inc. v. Wilson Sporting Goods Co., supra note 2 (association not “transacting business” merely because some of its members resided in forum and received association’s publications there); Academy of Ambulatory Foot Surgery v. American Podiatry Association, supra note 2 (approximately 4% of membership resided in forum, little revenue from product sales and advertising, no meetings held within forum after 1964); Health Care Equalization Committee v. Iowa Medical Society, supra (American College of Radiology had less than 1% of membership in forum); Friends of Animals, Inc. v. American Veterinary Medical Association, supra note 2 (.009% of membership resided in forum, sale of publications in forum amounted to only $100, no meetings held in forum after 1963).

In Arnstein v. Manufacturing Chemists Association, Inc., supra, the plaintiff filed a wrongful death action in a federal district court in Pennsylvania against Manufacturing Chemists Association, Inc. (MCA), a nonprofit trade association of chemical companies. MCA’s activities within the chemical industry had included sponsoring research, conducting committee studies, workshops, and symposia; developing recommended procedures for packaging and handling chemicals; promoting plant safety through incentive programs of annual awards; furnishing educational materials for high school and college chemistry courses; and publishing statistical handbooks, manuals of recommended practice, and safety data sheets. MCA sought to have the action dismissed for lack of jurisdiction. MCA’s contacts with Pennsylvania were as follows: (1) ten percent of its members were Pennsylvania corporations, (2) its Pennsylvania members paid dues totalling approximately $200,000 annually, (3) various Pennsylvania residents were employed by member companies to participate in the activities of MCA and its standing committees, (4) approximately four MCA symposia had been held in Pennsylvania, (5) MCA communicated with its Pennsylvania members regarding MCA affairs, and (6) MCA sent various publications into Pennsylvania. The Federal District Court for the Eastern District of Pennsylvania deemed two of these contacts to be especially significant:

Given the emphasis upon education and standard-setting, it is reasonable to conclude that the conduct of symposia and committee studies is an important part of MCA’s “business.” In this context, the holding of four such meetings in Pennsylvania within a fairly limited period looms in importance in demonstrating continuous and substantial contacts with Pennsylvania.
Moreover, when the nature of MCA’s membership is taken into account, the fact that 10 percent of its members are citizens of Pennsylvania is also significant. Unlike a business conducted for profit, and to a greater degree than most non-profit enterprises and professional associations, MCA’s “business” was with its members. In a sense, its members were its “customers.”

Id. at 14. The district court, applying Pennsylvania law, determined that MCA’s contacts with Pennsylvania were sufficiently continuous and substantial to subject it to in personam jurisdiction.

A contrary conclusion was reached on different facts in Union National Bank of Pittsburgh v. L.D. Pankey Institute, 284 Pa.Super. 537, 426 A.2d 624 (1980). There, survival and wrongful death actions had been brought against L.D. Pankey Institute, a nonprofit dental institute. The institute filed preliminary objections raising questions of jurisdiction in which it averred the following facts: “it is a non-profit corporation organized under the laws of Florida; its only business is advanced dental education; it is not qualified to do business in Pennsylvania; has not incurred or paid taxes in this state; has not appointed an agent for service of process in this state; is not listed in any telephone directories in this state; has not filed any reports with any governmental agency in this state; has no assets, offices or any place of business in this state; has no officers, agents, employees, salesmen, representatives, teachers, or professors in this state; and does not ship any goods into or through this state.” Id., 284 Pa.Superior Ct. at 540-541, 426 A.2d at 626. The institute’s answers to interrogatories revealed, however, that it had received over $100,000 in tuition from 125 dentists who were enrolled in educational classes held in Pennsylvania. The dentists participating in these programs had not been solicited in their homes or offices by the institute, but had written or called the institute’s registrar for information. The answers to interrogatories also indicated that one member of the institute’s faculty lived in Pennsylvania, and that the institute purchased approximately $200 worth of goods from Pennsylvania companies.

The Superior Court reversed the order of the trial court dismissing the institute’s preliminary objections and held that the institute’s activities, although “continuous” by sending informational packets to dentists, were not “substantial.” “[EJxcept for sending the packets, and buying slightly over $200 worth of goods,” the Court observed, “the institute has done nothing, owns nothing, and is represented by no one, in Pennsylvania.” Id., 284 Pa.Superior Ct. at 543, 426 A.2d at 627. The Court concluded that “[i]t would be unfair, and therefore a violation of the Fourteenth Amendment, to subject a defendant to suit not because of what it did but because of what someone else did.” Id. It was not enough that Pennsylvania dentists had enrolled in the institute’s classes.

The case sub judice is factually similar both to Pankey and to the line of cases in which courts have refused to exercise jurisdiction over trade and professional associations. Like the institute in Pankey, OPEI is not incorporated in Pennsylvania and does not maintain any offices here. It is not qualified to do business in this Commonwealth. It has not incurred or paid any taxes in Pennsylvania. It is not listed in any telephone directories in this Commonwealth. It has no officers, agents, employees, salesmen, or representatives in Pennsylvania and ships no goods into this Commonwealth. None of the significant contacts appearing in Arnstein and the line of cases upholding jurisdiction over trade associations were present in this case: the percentage of OPEI members residing in Pennsylvania at the time of Skinner’s injury was miniscule, constituting less than two percent of its total membership; OPEI received little income from dues paid by its sole Pennsylvania member, amounting to less than $8,000; its revenue from the sale of informational publications in Pennsylvania was trivial, totalling less than $650 over a two year period; and, most importantly, it held no committee meetings or educational symposia in this Commonwealth. To the extent that these activities of OPEI established a connection with Pennsylvania, that connection was far too tenuous to be deemed “continuous and substantial.” Accordingly, OPEI is not subject to general jurisdiction here.

For the foregoing reasons, an attempt to subject OPEI to in personam jurisdiction in the Pennsylvania courts would offend both the Pennsylvania long-arm statute and procedural due process. The trial court properly sustained OPEI’s preliminary objections raising questions of jurisdiction.

Order affirmed.

      . The rigid three pronged test adopted by this Court in Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 323 A.2d 11 (1974), was criticized by the Chief Justice of the Supreme Court of Pennsylvania in Kingsley & Keith (Canada) Ltd. v. Mercer International Corp., 500 Pa. 371, 374 n. 1, 456 A.2d 1333, 1335 n. 1 (1983) (affirmance by an equally divided court). In a later decision in United Farm Bureau Mutual Insurance Co. v. United States Fidelity and Guaranty Co., supra, six justices, although evenly divided as to the result, adopted the more flexible, minimum contact analysis of jurisdictional due process. Only Justice Nix (now Chief Justice) advocated employment of the three pronged test first adopted by the Superior Court in Proctor & Schwartz, Inc. v. Cleveland Lumber Co., supra. By adopting the more flexible, less rigid, "minimum contacts” approach, we give deference to the admonition of the United States Supreme Court that personal jurisdiction may not turn on the application of “mechanical” tests. See: Burger King Corp. v. Rudzewicz, supra, 471 U.S. at —, 105 S.Ct. at 2185, 85 L.Ed.2d at 545; International Shoe Co. v. Washington, supra, 326 U.S. at 319, 66 S.Ct. at 159, 90 L.Ed. at 103.

      . A few cases involved the question of whether the association’s activities were "continuous and substantial” for purposes of determining personal jurisdiction. See, e.g., Indian Head Inc. v. Allied Tube & Conduit Corp., 560 F.Supp. 730, 733 (S.D.N.Y.1983); Health Care Equalization Committee v. Iowa Medical Society, 501 F.Supp. 970, 984-986 (S.D.Iowa 1980); Arnstein v. Manufacturing Chemists Association, Inc., 414 F.Supp. 12 (E.D.Pa.1976). Cf. Bennett v. J.C. Penney, 603 F.Supp. 1186 (W.D.Mich.1985) (court, in determining whether defendant-association purposefully availed itself of the privilege of acting within the forum state, analyzed the same factors used to determine whether a nonresident defendant’s activities are “continuous and substantial”). Other decisions concerned the "transacting business” test under the Clayton Act, 15 U.S.C. § 22, for purposes of determining venue. See, e.g., Bartholomew v. Virginia Chiropractors Association, 612 F.2d 812 (4th Cir.1979), cert. denied, 446 U.S. 938, 100 S.Ct. 2158, 64 L.Ed.2d 791 (1980); Golf City, Inc. v. Wilson Sporting Goods Co., 555 F.2d 426 (5th Cir.1977); Indian Head Inc. v. Allied Tube & Conduit Corp., supra at 730-732; Sherman College of Straight Chiropractic v. American Chiropractic Association, Inc., 534 F.Supp. 438 (N.D.Ga.1982); ECOS Electronics Corp. v. Daniel Woodhead Co., 1982-1 Trade Cas. (CCH) ¶ 64583 (N.D.Ill.1982); Academy of Ambulatory Foot Surgery v. American Podiatry Association, 516 F.Supp. 378 (S.D.N.Y.1981); Health Care Equalization Committee v. Iowa Medical Society, supra at 980-983; Bogus v. American Speech & Hearing Association, 389 F.Supp. 327 (E.D.Pa.1975); Friends of Animals, Inc. v. American Veterinary Medical Association, 310 F.Supp. 620 (S.D.N.Y. 1970). Under this test, venue is proper whenever a foreign corporation does business of any substantial character. Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 372-373, 47 S.Ct. 400, 403, 71 L.Ed. 684, 688-689 (1927) (emphasis added). Courts have phrased the test in terms of whether the corporation’s activities were "continuous,” see Indian Head Inc. v. Allied Tube & Conduit Corp., supra at 731, or were "occasional,” “sporadic,” “peripheral,” or "isolated,” see Sherman College of Straight Chiropractic v. American Chiropractic Association, Inc., supra at 444; Bogus v. American Speech & Hearing Association, supra at 330. Given the linguistic and conceptual similarity between the "transacting business” and "continuous and substantial” tests, we conclude that cases applying the former standard are relevant to our analysis here. See Arnstein v. Manufacturing Chemists Association, Inc., supra at 14.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    505 A.2d 625
    Frank CIBRONE v. Charles STOVER and Stover & Company, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 30, 1985.
    Filed Feb. 18, 1986.

      Kevin Brode, Pittsburgh, for appellants.
    Robert C. Little, Pittsburgh, for appellee.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   DEL SOLE, Judge:

This case involves an action in trespass for damages suffered by the Appellee, arising out of a malicious prosecution and false arrest allegedly initiated by the Appellants. A non-jury verdict was rendered in favor of Appellee against Appellant and Appellant’s counterclaim was denied. Appellant’s exceptions to the non-jury verdict were dismissed and this appeal followed.

Appellee, Frank Cibrone, was manager of a bakery which was owned by his mother and formerly owned and operated for many years by his father prior to the father’s death. Appellant, Charles Stover, is President of a bakery supply company which sold flour and supplies to the bakery for many years, including the time the bakery was operated by Appellee’s father. Appellants allegedly believed Appellee was owner of the bakery because all of their dealings were with Appellee since the death of the father.

In September and October 1979, Appellee signed three checks payable to Stover & Co., Inc., two of which were drawn on the bakery bank account and one drawn on the personal bank account of Appellee, under the name “Cib’s Pizza & Hoagies”. Check # 1 was dated September 6, 1979 and was delivered to Appellants’ sales representative on September 4, 1979. This check was not honored by the bank and was returned marked “Not Sufficient Funds” (NSF) on September 11, 1979, after twice being presented.

Following a telephone conversation with Appellants’ representative, Appellee signed another check (# 3) to cover check # 1. Check # 3 was written on October 2 or 3 and dated October 5. This check was also returned NSF by the drawee bank on October 5 as it was presented for payment on October 4. Checks # 1 and 3 were drawn on the bakery account.

A third check, # 2, was drawn on Cib’s Pizza & Hoagie account. It was dated September 11 and was delivered to Appellants’ representative 2 or 3 days before September 11th. This check was to cover supplies delivered after the date of check # 1. Check # 2 was also returned NSF after being presented twice. Appellee testified that he paid $800 in cash of the $831.80 amount specified in check # 2. Appellant denied, receipt of cash for this check and testified the cash paid was for additional supplies delivered under a C.O.D. arrangement.

The bakery filed for bankruptcy on October 5. Appellant subsequently asked Appellee if he would be paid and was advised the matter was in bankruptcy. This conversation occurred in mid-October and as a result, the claims were filed in bankruptcy court including the debts owing on checks # 2 and 3.

Appellant consulted his attorneys and was reportedly advised that the passing of NSF checks could constitute a crime. He allegedly only knew check # 3 was post-dated but was again reportedly advised that post-dating made no difference and it was still possible a crime had been committed.

Appellant took the checks to his local District Magistrate who processed the complaint which included review and approval by the County District Attorney. The District Magistrate issued arrest warrants and Appellee was arrested on January 9, 1980.

A hearing was held January 16, 1980 and after hearing evidence that the complaints were based on post-dated checks, the District Attorney’s Office withdrew the charges and all charges were dismissed by the Magistrate. The action, previously described, which gives rise to this appeal followed.

Appellant raises the following three issues:

1. Has the Appellee failed to prove want of probable cause and malice where (1) the Appellant had consulted with impartial counsel and obtained the approval of the District Attorney to the charges filed; and Appellee did in fact commit the offense charged?
2. Did the court err in barring the testimony of the representative from Equibank to show the condition of the bank accounts upon which Appellee was the sole signatory?
3. Did the court err in awarding damages in the amount of $7,500.00 for mental distress when Appellee presented no evidence of outrageous conduct by Appellant? Initially, we note,
In an action for malicious prosecution, the plaintiff must prove that the defendant instituted proceedings without probable cause, with malice, and that the proceedings were terminated in favor of the plaintiff. Absence of probable cause is an indispensible element of the action, and it is not conclusively established by an adjudication of innocence in the prior proceeding.

Wainauskis v. Howard Johnson Co., 339 Pa.Super. 266, 276-277, 488 A.2d 1117, 1122 (1985) quoting DeSalle v. Penn Central Transportation Co., 263 Pa.Super. 485, 490-491, 398 A.2d 680, 682-683 (1979).

“Probable cause is defined as ‘... a reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinary prudent man in the same situation in believing that the party is guilty of the offense.’ ” Wainauskis v. Howard Johnson Co., supra. 339 Pa.Super. at 277, 488 A.2d at 1122 quoting Hugee v. Pennsylvania Railroad Co., 376 Pa. 286, 290, 101 A.2d 740, 742 (1954).

Therefore, for Appellee Cibrone to have succeeded, he was required to prove that Appellant Stover was without reasonable grounds of suspicion, supported by circumstances sufficient to warrant an ordinary prudent man in the same «situation, in believing that Cibrone was guilty of issuing or passing a bad check in violation of 18 Pa.C.S.A. § 4105.

Our review of the record reveals that prior to going to the Magistrate’s office to file the complaint, the Appellant consulted his attorney. The trial transcript states in part:

Mr. Little: If the Court please, Mr. Stover has testified that he talked to Mr. Thompson and Mr. Altman. I think it is already made of record. I will stipulate that he talked to Mr. Altman’s office before he went to the magistrate’s office.
The Court: Come to the bar, Mr. Altman. If you were to testify, what would you propose to add to the record?
Mr. Altman: That Mr. Stover consulted us, Your Honor, and sent us the checks. We researched the matter. It was our opinion that a postdated check is in fact a crime in Pennsylvania ... We advised Mr. Stover that it was a crime and it could be prosecuted.

Trial Transcript Vol. 2 at 32.

In addition, “(e)ach of the two complaints shows on its face that it was approved by the District Attorney’s Office of Allegheny County. These approvals were obtained by the defendants at the direction of Justice of the Peace Sebulsky.” Trial Court Opinion at 5.

While counsel are at odds as to whether or not the issuing of a post-dated check under the particular circumstances of this case constitutes a crime, resolution of this question is unnecessary for disposition of this matter. It is undisputed that advice of counsel was sought prior to initiating the complaint.

The advice of an attorney at law admitted to practice and practicing in the state in which the proceedings are brought whom the client has no reason to believe to be interested, is conclusive of the existence of probable cause for initiating criminal proceedings in reliance upon the advice if it is (a) sought in good faith, and (b) given after a full disclosure of the facts within the accuser’s knowledge and information.

Stritmatter v. Nese, 347 Pa. 9, 19-20, 31 A.2d 510, 515 (1943) quoting from Restatement (First) of Torts § 666 (1938). It is immaterial whether the advice given by the attorney is correct as long as the above stated conditions set forth in Stritmatter have been met. See Simpson v. Montgomery Ward & Co., 354 Pa. 87, 104, 46 A.2d 674, 682 (1946).

As previously stated, the burden was upon Appellee to prove Appellant proceeded without probable cause and he has failed to do so.

Judgment vacated. Jurisdiction relinquished.

      . § 4105. Bad checks provides in part:
      (a) Offense defined.—
      (1) A person commits an offense if he issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee.
      (2) A person commits an offense if he, knowing that it will not be honored by the drawee, issues or passes a check or similar sight order for the payment of money when the drawee is located within this Commonwealth. A violation of this paragraph shall occur without regard to whether the location of the issuance or passing of the check or similar sight order is within or outside of this Commonwealth. It shall be no defense to a violation of this section that some or all of the acts constituting the offense occurred outside of this Commonwealth.
      (b) Presumption. — For the purposes of this section as well as in any prosecution for theft committed by means of a bad check, an issuer is presumed to know that the check or order (other than a post-dated check or order) would not be paid, if:
      (1) the issuer had no account with the drawee at the time the check or order was issued; or

        (2) payment was refused by the drawee for lack of funds, upon presentation within 30 days after issue, and the issuer failed to make good within ten days after receiving notice of that refusal.

      . Since we have determined that Appellee has failed to prove want of probable cause on Appellants part in instituting criminal proceedings, it is unnecessary to consider the other issues raised by Appellant.


author: BROSKY, Judge:

text:
    505 A.2d 628
    In re T.L.G. and D.A.G. Appeal of M.D.G.
    Superior Court of Pennsylvania.
    Submitted Nov. 4, 1985.
    Filed Feb. 27, 1986.

      Jeffrey B. Matzkin, Allentown, for appellant.
    George K. Keenan, Bethlehem, for appellee.
    Before BROSKY, POPOVICH and ROBERTS, JJ.
   BROSKY, Judge:

This case is before us on appeal from the trial court’s order of June 17, 1985, finding that appellant “refused and failed to perform his parental duties in regard to T.L.G. and D.A.G. for a period of at least six (6) months,” and terminating appellant’s parental rights to his two minor children. Appellant argues that it has not been shown by clear and convincing evidence that he failed or refused to perform his parental duties for a period in excess of six months. We agree, and, accordingly, we reverse.

Appellant and appellee, the natural parents of the children in question, were living together, unmarried, in Texas on July 7, 1978, when the two children were born. In August of 1979, appellee moved to Pennsylvania, taking the children with her. Appellant visited with the children in Pennsylvania during Christmas of 1979, but the police were called because of an argument between appellant and appellee, and the visit terminated unpleasantly. In the summer of 1980, the children visited appellant in Texas, and again a squabble arose, concerning when the children would be returned to appellee in Pennsylvania. In 1981, the parties met in Pennsylvania with their attorneys to attempt to reach an agreement on support and visitation, but no agreement could be reached. Appellant’s last visit with the children occurred in Texas during the summer of 1982.

Appellant was able to speak with the children by telephone for a period of time, but after mid-1982 appellee refused to permit the children to talk with him even by phone from her aunt’s house. She also maintained an unlisted phone number. Appellant stayed informed about the children by contacting various relatives of appellee. Through the years, appellant sent gifts to the children on holidays and birthdays.

On February 22, 1984, appellee filed a petition for the involuntary termination of appellant’s parental rights. A hearing was held on April 27, 1984. The trial judge listened to the testimony and concluded that appellant did not attempt to visit with the children since the summer of 1982, and had no contact whatsoever with them for a period of eight months (from July 7, 1983 until March of 1984); that he purposefully declined to comply with the mother’s (unilaterally-imposed) conditions which would have enabled him to visit with the children; that he failed to support the children throughout the years; that besides the gifts which appellant sent to the children two or three times a year, and regular phone calls to appellee’s aunt, the record was devoid of any evidence that appellant used any other means to maintain a place of importance in the lives of the children; and that appellant refused and failed to perform his parental duties for a period of at least six months. The trial court therefore terminated appellant’s parental rights on the basis of 23 Pa.C.S. § 2511.

Even where it is established that a parent has failed to perform parental duties for a period in excess of six months, such a finding does not, in and of itself, support an order terminating parental rights. In re Involuntary Termination of Parental Rights of Geraldine Mae Santelia to Anthony Dino Pellegrino, 318 Pa.Super. 413, 465 A.2d 21 (1983). Rather, the trial court must examine the individual circumstances and any explanation offered by the parent to determine if that evidence, in light of the totality of the circumstances, clearly warrants permitting the involuntary termination of said parent’s parental rights. In re Adoption of Orwick, 464 Pa. 549, 347 A.2d 677 (1975). The Superior Court’s scope of review in such a case is limited to a determination of whether the decree of termination is supported by competent evidence. In the Matter of the Adoption of G.T.M., 506 Pa. 44, 483 A.2d 1355 (1984).

Appellee conceded at the hearing that appellant continued making payments on appellee’s automobile after appellee moved to Pennsylvania, and that appellant paid $400.00 in 1981-82 and $140.00 since 1982 on the childrens’ behalf. Appellant testified that he had placed $3,500.00 for the children in a bank account in Texas (although he did not produce any records to substantiate his testimony). Appellee’s aunt and godmother, Marian Balleck, testified that, with the exception of a ten-month period when appellee first moved to Pennsylvania, she was on “very good and very friendly” terms with appellee (to the point of standing in for appellee’s mother during the wedding of appellee to her present husband); that appellant called her at least once a month, sometimes several times a week, from Texas to inquire about the children; and that appellant did not know appellee’s current address [appellee having moved in 1983], but would send cards and gifts to the children through her. Ms. Balleck identified photographs that she had taken of the children in clothing that appellant had purchased and sent up from Texas for the children on different occasions. At various times, appellant sent money to the aunt to buy things for the children, with instructions not to tell anyone where the money had come from. The trial court did not comment on the credibility of Ms. Balleck’s testimony.

From the testimony of appellant, appellee, and appellee’s aunt, it is clear that appellant attempted to maintain contact with his children, and that various conditions, including the inability of appellant and appellee to get along together and the distance (2,000 miles) separating them, prevented appellant from maintaining the amount and quality of contact that appellant sought. Not having appellee’s most recent address or her unlisted telephone number, he was unable to communicate directly with the children without appellee’s consent. He did send gifts, and make regular telephone inquiries of the aunt concerning the needs of the children. He also sent money to the aunt to be used for the children without appellee being aware of its source.

In In Re Adoption of Ostrowski, 324 Pa.Super. 216, 471 A.2d 541 (1984), a panel of our court reversed the trial court in a case factually similar to the case before us, finding no evidence of the appellant/father’s settled purpose of relinquishing his parental claim or his failure to perform parental duties. In Ostrowski, the appellant, who lived 800 miles from his child, visited with the child whenever he was in the area. He sent gifts and cards on birthdays and holidays, established a savings account for the child, and maintained medical coverage for him. There were two periods in excess of six months in which the father had no physical contact with the child. In finding an abuse of discretion on the part of the trial court, our court noted that a failure to perform parental duties for a period in excess of six months, standing alone, would not support an order terminating parental rights; rather, the trial court would then be obliged to examine the individual circumstances and any explanation offered by the parent in order to determine if the evidence, in light of the totality of the circumstances, clearly warranted permitting the involuntary termination of parental rights.

The burden of proof is upon the party seeking termination to establish by “clear and convincing” evidence the existence of the grounds for termination. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In Re: T.R., 502 Pa. 165, 465 A.2d 642 (1983). We have very carefully examined the record in the case before us, and we find, as did our court in Ostrowski, considering the totality of the circumstances, that the record does not support a determination that appellee has proven by clear and convincing evidence that appellant has exhibited such failure to perform parental duties as would justify the involuntary termination of his parental rights.

We therefore reverse the trial court’s order and remand this case for entry of an order in accordance with this Opinion. Jurisdiction is relinquished.

POPOVICH, J., concurs in the result.

      . The statute provides, in pertinent part: "The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds: (1) The parent by conduct continuing for a period of at least six months ... has refused or failed to perform parental duties.”

      . This is contrary to the trial court’s unsupported finding of fact that the aunt and appellee were not on speaking terms with one another.

      . The recent decision of our Supreme Court in In Re: Adoption of Faith M. and Victoria M., 509 Pa. 238, 501 A.2d 1105 (1985) is distinguishable from the case before us. In that case, in addition to failing to comply with a support order which had been voluntarily entered into (in the amount of f130.00 per month), the parent whose rights were terminated by the trial court made no effort to visit his children during a five year period, wrote no letters to them, and made only one phone call to one of his children during that period. In addition, the parent had hired legal counsel to terminate the parental relationship of his second wife’s former husband, and was well aware of the consequences of failing to perform parental duties. The Supreme Court therefore concluded that the trial court had not abused its discretion in terminating the father’s parental rights.


author: PER CURIAM: DEL SOLE, Judge,

text:
    505 A.2d 631
    COMMONWEALTH of Pennsylvania, Appellant, v. Larry PARNELL.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1985.
    Filed Feb. 26, 1986.

      Daniel E. Fitzsimmons, Deputy District Attorney, Pittsburgh, for Com., appellant.
    Raymond Radakovich, Pittsburgh, for appellee.
    Before ROWLEY, DEL SOLE and TAMILIA, JJ.
   PER CURIAM:

Order reversed. Case remanded for reinstatement of the Criminal Complaint. Jurisdiction relinquished.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

I respectfully dissent and would affirm the decision of the trial court that the criminal complaint refiled on June 26, 1984, violated Appellee’s Rule 1100 rights.

In Commonwealth v. Whiting, 509 Pa. 20, 500 A.2d 806 (1985), the Supreme Court of Pennsylvania stated:

Thus, where a prosecution is voluntarily terminated, and the record shows an attempt to manipulate or evade the requirements of Rule 1100, the speedy trial time period will be computed from the date of the original complaint. 500 A.2d at 808.

The Whiting court found that the record therein demonstrated that the Commonwealth’s motion to dismiss was based on lack of evidence to proceed, and not on bad faith.

The trial court in the instant case followed the principle of Whiting since it looked to determine whether the Commonwealth’s actions amounted to an attempt to evade Rule 1100. After the court heard testimony regarding the “agreement” between Commonwealth and Appellee, and concerning the fact that Appellee’s Rule 1100 rights were never explained to him, the following transpired:

THE COURT: Why didn’t they have the case nolle prossed later?
MR. FITZSIMMONS: The facts are as they are.
THE COURT: They are because they tried to circumvent Rule 1100.
T.T. 15-16.

Further, in the Opinion in support of the court’s Order, the Honorable Robert E. Dauer writes:

(T)he analysis requires the Court to determine whether the prosecution attempted to avoid Rule 1100 mandate by withdrawing the criminal complaint.
In the instant case, there can be no other reasonably inferred purpose of withdrawing the criminal complaint on January 19, 1984.

The Majority on page two of its Opinion states: “We disagree with the trial court’s finding”. Unlike the majority I don’t believe that an appellate court can make its own findings when it disagrees with the trial court. The Majority is setting itself up as a factfinder, which is not the function of an Appellate court. Once trial court determined that the Commonwealth was acting in bad faith, the only remaining issue is whether there is evidence to support that finding. My review of the transcript in this matter reveals evidence which would support the trial court’s finding. Herein, the testimony revealed that the complaint was not withdrawn because the Commonwealth lacked evidence to prosecute. Rather, the Commonwealth witnesses testified that they sought to obtain Appellee’s continued cooperation with knowledge that they could later refile the complaint against Appellee, avoiding requirements of Rule 1100. The trial court concluded that based on this testimony there could be no other reasonably inferred purpose to withdraw the charges except to avoid the Rule 1100 mandate. In view of the facts surrounding this case, I would find no reason to disturb the trial court’s determination.