BRUNO SAMMARTINO, Plaintiff vs. CAPITOL WRESTLING CORPORATION and VINCENT J. McMAHON, Defendants

Civil Action No. 82-1979

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

August 26, 1983

COUNSEL:

Jon M. Lewis, Esq., 205 Coulter Building, Greensburg, PA 15601, for Plaintiff

Michael R. Plummer, 1500 Oliver Building, Pittsburgh, PA 15222, for Defendant

OPINION BY: MANSMANN

OPINION: MEMORANDUM OPINION

MANSMANN, District Judge

This matter is before the Court on a Motion to Quash Service and to Dismiss filed by Defendant Vincent J. McMahon ("McMahon"). n1 Plaintiff Bruno Sammartino ("Sammartino") brought this action against Defendant McMahon and Defendant Capital Wrestling Corporation ("Capitol Wrestling") alleging intentional misrepresentations and breach of contract. For the reasons set forth below, we hereby grant the Motion to Dismiss as to Defendant McMahon. n2

The facts of this case, accepting the averments of the Complaint as stating the facts, n3 may be summarized as follows:

Plaintiff is an individual who resides in Allegheny County, Pennsylvania.

Defendant Vincent J. McMahon is an individual who resides in Fort Lauderdale, Florida, and in Delaware.

Plaintiff's complaint sounds in two counts:

Count I avers that Plaintiff and Defendant Capitol Wrestling entered into an oral contracat or series of oral contracts in the late fall of 1973. These contracts were confirmed periodically. Plaintiff provided wrestling services and competed in various wrestling matches in exchange for a percentage of the income received by Capitol Wrestling.

Capitol Wrestling received income from admissions to live events as well as from the sale of broadcasting and re-broadcasting rights for television, cable television, movies and videotapes.

Plaintiff received income from admissions but alleges that he did not receive his percentage from the re-broadcasting rights. Plaintiff further alleges that he only recently learned that Capitol Wrestling received substantial amounts of money from re-broadcasting rights. According to Plaintiff, Defendant McMahon had previously told him that no monies were received from re-broadcasting rights, or that if any were received, the amounts were minimal. Moreover, Plaintiff alleges that both Defendants intentionally misrepresented the amounts received from the admissions to live events as well as from the re-broadcasting rights to wrestling matches in which Plaintiff appeared.

The averments of Count II are against Defendant Capitol Wrestling alone and need not be discussed at this time.

Defendant McMahon alleges that this Court is without in personam jurisdiction because he does not reside in Pennsylvania nor does he conduct any business in Pennsylvania in his individual capacity.

Defendant's challenge to this Court's in personam jurisdiction imposes on Plaintiff the burden of coming forward with facts in support of such jurisdiction. Compagnie des Bauxites de Guinea v. Ins. Co. of North America, 651 F.2d 877, 880 (3d Cir. 1981), aff'd, 456 U.S. 694 (1982).

A federal district court may consider and weigh all affidavits and interrogatories. See Fraley v. Chesapeake & Ohio Ry. Co., 397 F.2d 1 (3d Cir. 1968); Fannin v. Chesapeake & Ohio Ry. Co., 204 F.Supp. 154 (W.D. Pa. 1962). The evidence, however, must be viewed in the light most favorable to Plaintiff. Atlantic Lines, Ltd. v. M/V Domburgh, 473 F.Supp. 700 (S.D. Fla. 1979).

In diversity actions, a federal district court may exercise in personam jurisdiction over a nonresident defendant to the extent allowed under state law. See Fed.R.Civ.P. 4(e). This Court must make a two-fold analysis in determining whether in personam jurisdiction is proper under the long-arm statute of Pennsylvania: First, we must determine if Defendant's activities bring him within in the ambit of the statute. If Defendant's activities constitute "transacting business" within the meaning of the statute, then we must determine whether our exercise of in personam jurisdiction over this Defendant is consistent with due process. See Schwilm v. Holbrook, 661 F.2d 12 (3d Cir. 1981); Columbia Metal Culvert Co. v. Kaiser Industrial Corp., 526 F.2d 724 (3d Cir. 1975).

We shall first consider whether Defendant's activities are sufficient for the embrace of Pennsylvania's long-arm statute, 42 Pa. C.S.A. § 5322 (Purdon 1981). n4

In determining whether Defendant McMahon is transacting or has transacted business in Pennsylvania, we may examine only his individual activities, i.e., only those activities conducted on his own behalf. See Martin v. Sturm, Ruger & Co., 548 F.Supp. 1 (E.D. Pa. 1981); Spelling-Goldberg Productions v. Bodek & Rhodes, 452 F.Supp. (E.D. Pa. 1978).

It is well established that individuals conducting business within the Commonwealth for and on behalf of a corporation do not thereby submit themselves to the personal jurisdiction of the courts of the Commonwealth. See, e.g., Parliment Import Co. v. Gibson Wine Co., 537 F.Supp. 75, 76 (E.D. Pa. 1982); Di Bonaventure v. Home Lines, Inc., 536 F.Supp. 100 (E.D. Pa. 1982); Techno Corp. v. Dahl Associates, 521 F.Supp. 1036, 1037 (W.D. Pa. 1981); Stop-A-Flat Corp. v. Electra Start of Michigan, Inc., 507 F.Supp. 647 (E.D. Pa. 1981). The Court in Spelling-Goldberg Productions made clear that:

Establishing personal jurisdiction over an individual on the basis of "doing business" requires that the evidence show not only that the individual did business within Pennsylvania . . . but that the business was done by the individual for himself and not for or on behalf of his corporation.

Spelling-Goldberg Productions, 452 F.Supp. at 454.

In the instant case, the evidence does not support a finding that Defendant McMahon's activities in Pennsylvania were conducted on his own behalf or in his individual capacity. Although Plaintiff has shown, and Defendant has admitted, that Mr. McMahon has conducted and does conduct business in Pennsylvania, the evidence does not reflect that Mr. McMahon's activities were or are conducted on his own behalf or other than on behalf of Defendant Capitol Wrestling. The record does not support a contrary conclusion.

Thus, Mr. McMahon's activities are not sufficient to establish in personam jurisdiction under the Pennsylvania long-arm statute.

Accordingly, we must grant Defendant McMahon's Motion to Dismiss the Complaint as to him.

An appropriate Order will issue.

ORDER

And now, this 26th day of August, 1983, in light of the foregoing Opinion, Defendant Vincent J. McMahon's Motion to Dismiss is hereby GRANTED.

n1 We note that Defendant McMahon has also filed a Motion to Strike Portions of Sammartino's Affidavit. The affidavit in question, and the information contained therein, is not dispositive to our resolution of Defendant's Motion to Dismiss. Thus, in resolving the Motion to Dismiss, we rely heavily upon the affidavit and deposition of Mr. McMahon. Plaintiff has not proffered facts which would alter our decision on the Motion to Dismiss, even with all of his affidavits left intact. Therefore, we need not rule on the Motion to Strike.

n2 Service was successfully effected on Defendant McMahon after the motion was filed. Therefore, we need not address those aspects of the motion concerning service of process.

n3 See Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).

n4 Section 5322 states in pertinent part:

(a) General rule. - a tribunal of this Commonwealth may exercise personal jurisdiction over a person (or the personal representative of a deceased individual who would be subject to jurisdiction under this subsection if not deceased) who acts directly or by an agent, as to a cause of action or other matter arising from such person:

(1) Transacting any business in this Commonwealth. Without excluding other acts which may constitute transacting business in this Commonwealth, any of the following shall constitute transacting business for the purpose of this paragraph:

(i) The doing by any person in this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object.

(ii) The doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object with the intention of initiating a series of such acts.

(iii) The shipping of merchandise directly or indirectly into or through this Commonwealth.

(iv) The engaging in any business or profession within this Commonwealth, whether or not such business requires license or approval by any government unit of this Commonwealth.

(v) The ownership, use or possession of any real property situate within this Commonwealth.

42 Pa.C.S.A. § 5322 (Purdon 1981).

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