Archive/File: people/b/bradbury.scott/Edeiken-v-Bradbury-A1.02
Last-Modified: 2001/02/07

Melvin v. Melvin, 398 Pa.Super. 1, 580 A.2d 811 (1990)

 Rule 237.3 which the Defendant invokes in his Petition, requires that
this be embodied in a proposed Answer to be filed if the requested
relief is granted.  While the Defendant pays lip service to this
critical requirement by claiming that Preliminary Objections asserting
lack of jurisdiction would be presented.   This is a contention that
this Court cannot accept.

 Neither Preliminary Objections or a determination of jurisdiction can be
litigated in a vacuum.   Any such defense must be based on the facts set
forth in the Complaint. Defendant Bradbury failed to even attempt to
present this Court with some reason to find that a meritorious defense
exists. Indeed, the contrary is the case.

 In his Petition Defendant Bradbury states that no Complaint exists on
the record.  Implicit in this is the admission that he is unaware of the
specific allegations which Plaintiff relies upon in bringing this case in
this jurisdiction.  Any claim that the Complaint fails to assert
jurisdiction, the basic proposition of any set of Preliminary Objections,
is, therefore, pure speculation.  This Court should not deal in
speculation. Moreover, as will be shown in a later section of this
Memorandum, it cannot be asserted that jurisdiction does not exist as a
matter of law.

  The Defendant has had ample opportunity to revise his Petition in
conformity with the record and present this Court with some justification
for his claim.  As with the requirement that he present some reasonable
explanation for his failure to act, he chose to do nothing.  He chose
instead to refuse to participate in any discovery refusing to answer
interrogatories, refused to produce documents relevant to the claims in
his Petition, and refused to appear for a deposition.

 The law is clear that this Court cannot, as Defendant requests, opening
the default judgment taken against him so that he may file Preliminary
Objections, unless he demonstrates that there was a reasonable
explanation for his failure to act and that his proposed defense has
legal merit.  These are mandatory requirements that cannot be waived or
excused.  The Defendant has failed to meet either requirement and,
therefore, his Petition must be denied.

B.  THE COURTS OF PENNSYLVANIA HAVE JURISDICTION OVER THE DEFENDANT IN
THE INSTANT MATTER

 Implied in the Petition filed by the Defendant is the assertion that
jurisdiction cannot be asserted without some physical presence in the
Commonwealth.  It is impossible to determine what facts or law form the
basis for this assertion as it is not specifically set forth in the
Petition and the Plaintiff has never received a Memorandum of Law that
would explain the reasoning upon which Defendant relies.  It is the
position of the Plaintiff that the facts set forth in the Complaint and
in other portions of the record clearly demonstrate that jurisdiction
exists in this case.  The Defendant and his accomplices conceived and
executed a plan to harass and defame the Plaintiff and took specific
actions inside the Commonwealth to put that plan into effect.  Since the
injuries for which compensation is sought occurred within Pennsylvania
the question of whether his presence was physical or electronic is
irrelevant.

 The standard for evaluating Preliminary Objections claiming that the
court does not have jurisdiction is well established. Such objections
should be sustained only in cases which are clear and free from doubt.
Barber v. Pittsburgh Corning Corp., 317 Pa.Super. 285, 302-03, 464 A.2d
323, 332 (1983), cert. denied 467 U.S. 1205, 104 S.Ct. 2387, 81 L.Ed.2d
346 (1984), citing Botwinick v. Credit Exchange, Inc., 419 Pa. 65, 213
A.2d 349 (1965).

"Moreover, when deciding a motion to dismiss for lack of personal
jurisdiction the court must consider the evidence in the light most
favorable to the non-moving party."  Barber v. Pittsburgh Corning Corp.,
supra.  See also Kenneth H. Oaks, Ltd. v. Josephson, 390 Pa.Super. 103,
568 A.2d 215, (1989)

 There is an important distinction that understood at the beginning of
any analysis of this issue.  Jurisdiction over a nonresident defendant
may be based either upon the specific acts of the defendant which gave
rise to the cause of action - known as specific jurisdiction --, or upon
the defendant's general activity within the forum state - known as
general jurisdiction.

There is no claim of general jurisdiction in the Complaint filed in this
matter.  The Plaintiff claims, rather, that the acts of the Defendant
inside Pennsylvania are such that specific jurisdiction exists.

  In order for a Pennsylvania court to exercise specific jurisdiction,
the cause of action must arise out of the defendant's activities and
their effect within the Commonwealth.  Skinner v. Flymo, Inc. 351
Pa.Super. 234, 505 A.2d 616 (1986)  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."  Bork
v. Mills 458 Pa. 228, 329 A.2d 247 (1974); Slota v. Morrings 343
Pa.Super. 96, 494 A.2d 1 (1985); Whalen v. Walt Disney World Co. 274
Pa.Super. 246, 251, 418 A.2d 389, 391 (1980). Pennsylvania has long
evidenced an interest in extending in personal jurisdiction over foreign
defendants acting or doing business within its boundaries for acts
occurring outside the state.  This interest must be balanced against a
foreign defendant's constitutional right due to process. However, as
noted in the landmark case of International Shoe Co. v. Washington, 326
U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945):

"Due process requires only that in order to subject a defendant to a
judgement in person and, if he be not present with in the territory of the
forum, he have certain minimum contacts with it such that maintenance of
the suit does not offend 'traditional notions of fair play and
substantial justice."

Pennsylvania's Long Arm Statutes go back to the Act of June 13, 1896 P.L.
586 but successive restrictive judicial constructions of the long-arm
statute by Pennsylvania courts led to legislative amendments which
produced the current act which, effectively, broadened the scope of that
jurisdiction.  Garfield v. Homowack Lodge, Inc., 249 Pa.Super 392, 396,
378 A.2d 351, 354 (1977).  Today under the Pennsylvania Long Arm Statute
in personal jurisdiction over a foreign individual or corporation is
co-extensive with the permissible limits of jurisdiction under the due
process clause of the federal constitution.  Crompton v. Park Ward
Motors, Inc., 299 Pa.Super. 40, 445 A.2d 137 (1982).

The current long arm statute can be found at 42 Pa.C.S.A. Sec. 5322 which
states:

(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 a 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 the 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.

(1) Contracting to supply services or things in this Commonwealth.

(2) Causing harm or tortuous injury by an act or omission in this
Commonwealth

(3) Causing harm or tortuous injury in this Commonwealth by an act or
omission outside this Commonwealth.

(4) Having an interest in, using, or possessing real property in this
Commonwealth.

 It should be clear that this Statute does not require physical presence
in the Commonwealth.  The statute specifies that acts performed outside
the Commonwealth may be the basis for jurisdiction as long as they are
directed at the Commonwealth and cause injuries within the borders of
Pennsylvania.

Further the statute specifically provides that 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. Sec.
5322(b) The leading case of Proctor & Schwartz, Inc. v. Cleveland Lumber
Co., 228 Pa.Super. 12, 323 A.2d 11 (1974) dealt with the 1972 amendment
to the Long Arm Statute and provided that in order for the minimum
contacts to be present; (1) the defendant must have purposely availed
itself of the privilege of acting within the forum state thus invoking
the benefits and protection of its laws, (2) the cause of action must
arise from defendant's activities within the forum state and (3) the
acts of the defendant must have a substantial enough connection with the
forum state to make the exercise of jurisdiction over it reasonable.
See also Gallants v. Fosdick 320 Pa.super. 38, 466 A.2d 1049 (1983)
Purdon's Penn.

Other cases specify that when forum state seeks to assert specific
jurisdiction over and 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.  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 that
defendant's conduct and his connection with the forum state were such
that he could reasonably anticipate being "haled" into court there.
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294, 100 S.Ct.
559, 565-566, 62 L.Ed.2d 490, 501 (1980); Skinner v. Flymo, Inc. 505
A.2d 616, 351 Pa.Super 234 (1986).  The application of these
decisions in the present case is obvious.  The Defendant and his
accomplices is obvious and fatal to any claim that jurisdiction does not
exist in this case.  The acts of the Defendant both in sending obscene
and harassing communications to a resident of Pennsylvania and in
sending defamatory communications directly to a Pennsylvania business in
order to induce it to break off a business relationship conducted within
Pennsylvania with a Pennsylvania citizen is exactly the type of
activities that for which the Pennsylvania courts should be able to
redress.

A clear example of how this has been applied by Pennsylvania courts can
be found in case of Fulper v. Ravanno, et al. Court of Common Pleas of
Northampton County 1994-C-5204 (attached hereto and made part hereof as
Exhibit "A").  In that case an action in wrongful death and survival was
filed against a New Jersey hospital and several physicians practicing in
New Jersey sounding in medical malpractice.  The underlying incident was
an operation performed at the New Jersey facilities on a citizen and
resident of New Jersey.  When the operation went awry a call was placed
to a Pennsylvania hospital who arranged for a Pennsylvania ambulance
company to pick up the patient.  Judge Hogan found that since the
patient died in Pennsylvania (the defining injury in an action for
wrongful death) specific jurisdiction was proper in Pennsylvania even
though the only contact with the Commonwealth was a telephone call to a
Pennsylvania hospital.  In fact, Judge Hogan found that this doctrine
even applied to a physician who was not involved in the telephone call
and did not know about it until after it happened.  This is an even more
expansive view of jurisdiction than would be required to find that this
Court has specific jurisdiction over this Defendant.

The crucial factor in making a determination of jurisdiction is, as
always, the facts of the case. In making this determination, the courts
have found that the minimum contacts analysis required is not
susceptible of any talismanic jurisdictional formula; the facts of each
case must be weighed in determining whether jurisdiction is proper.
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.  Skinner v. Flymo, Inc. 505
A.2d 616, 351 Pa.Super 234 (1986)  As long as those standards are met
jurisdiction is proper even if the contact consists of a single
telephone call made from outside the state.  Action Industries, Inc. v.
Wiedman 236 Pa.Super 447, 346 A.2d 798 (1975) The instant matter is an
action commenced because of the Defendant's campaign of harassment and
defamation designed to intimidate the Plaintiff from presenting the
historic reality of the Holocaust and exposing the fraudulent and
anti-Semitic rationale of the crackpots who.  As part of that
campaign the Defendant, as set forth in the Complaint, continually
bombarded the Plaintiff with obscene communications, many threatening
violence. Ironically  Pennsylvania's criminal law (18 Pa.C.S.A. Sec.
5504, Harassment by communication or address) explicitly provides that:

"Any offense committed under paragraph (a)(1) of this section may be
deemed to have been committed at either the place at which the telephone
call or calls were made or at the place where the telephone call or
calls were received."  If this Court were to accept the position of the
Defendant in his Petition (and no Memorandum of Law has been received by
the Plaintiff that would explain it further) this Court would be in the
position of declaring that there would be valid jurisdiction to hold the
Defendant criminally liable but that there would not be sufficient
contact with this Commonwealth to establish jurisdiction in a civil
court.

Further, as part of Defendant's campaign, he forged communications and
sent those forgeries and other defamatory material to a business in
Pennsylvania for the stated purpose of interfering with the business
relationship between the Plaintiff and the recipient.  It is simply
ludicrous to assert that there are no contacts with a forum state with
such repeated behavior. Ultimately the Complaint sets forth facts which
clearly establish that the Defendant entered Pennsylvania by means of
electronic communication with the stated purpose of harassing and
defaming the Plaintiff.  He cannot now complain that he is being forced
to account for his behavior in the place where that behavior occurred
and where he inflicted an injury.  To allow him to do so would be a
denial of the basic rights of the Plaintiff to seek redress in the
courts.

C.  THIS COURT SHOULD IMPOSE SANCTIONS UPON DEFENDANT AS THIS PETITION IS
FRIVOLOUS AND DISHONEST BROUGHT ONLY FOR THE PURPOSE OF DELAY.

In his reply to the Petition, the Plaintiff asks that sanctions be
imposed on the Defendant for his conduct in filing this Petition. In
deciding this issue this Court should look to what was done, how it was
done, and what the effect filing it has been.

The Defendant in this matter was served with a Writ of Summons at the
end of December,1999.  Rather than retaining counsel and fighting this
in a civilized manner, the Defendant returned all process and
intensified his campaign of harassment extending it to direct and
violent harassment of Plaintiff's parents, siblings and spouse.  No
counsel entered an appearance for Defendant until after the dire reality
that a judgment had been taken against him was pressed home by the
scheduling of a hearing for the assessment of damages in this case.

At that time Defendant filed his first and only pleading in this case:
this Petition.  While there were several acceptable modes whereby
challenging this judgment, Defendant chose the sole mode that would
allow for a stay of proceedings.  Pursuant to that end, he filed a
Petition claiming relief pursuant to Rule 236.3, Pennsylvania Rules of
Civil Procedure.  There were two stark realities about that Petition.
First it did not even minimally meet the mandatory standards for such
relief and, second,, it was dishonest.

It claimed, inter alia, that no Complaint had been filed in this matter
even though a Complaint is clearly shown on the docket.  By this shabby
ruse Defendant sought to evade the requirements of the Rule establishing
the relief he sought.  Although four months have passed since that
initial Petition was filed Defendant has failed to amend that dishonest
pleading or notify this Court or his opposing counsel of a change in the
allegations that he is making.  By this course of action Defendant and
his counsel have failed to correct a material misrepresentation which
has a substantial impact on the manner in which this issue must be
briefed and argued.

Moreover Defendant has, during the pendency of this Petition, failed to
complete the discovery required to establish a record in this case.
Defendant has refused to answer interrogatories.  Defendant has failed to
provide documents relating to his claim even after promising to do so.
Defendant and his counsel have refuse to appear and be deposed on the
factual issues relevant their Petition.  Defendant has even refused to
enter into stipulations regarding the uncontested facts.  Finally this
Court must consider the fact that there are already sanctions
outstanding against the Defendant.  There has been an open defiance of
Orders entered by this Court. Defendant has made no attempt whatsoever
to comply with the sanctions or curb his contempt.

The only use Defendant has made of the period of grace provided by the
misleading Petition he filed with this Court.  Defendant Bradbury had,
during this period, intensified and enlarged his campaign of criminal
harassment.  It now includes violent threats against Plaintiff's parents
and family and a deliberate effort to destroy a business operated by
Plaintiff's wife by sending his usual lies and smears to her superiors.
Moreover, Defendant has extended his campaign in a manner which
substantially threatens to integrity of these judicial proceedings.  One
of the prime targets of his inchoate rage has been Sara Salzman.  After
witnessing and being a victim of his treats of violence and witnessed
criminal harassment of others, Ms. Salzman agreed to testify in this
matter.

As a result, Defendant Bradbury and his accomplices have attempted to
intimidate her as means of dissuading her from testifying.  Not only has
she been a target of defamatory publications and outrageous invasions of
her privacy but Ms. Salzman, her children and her father have been
threatened with physical violence.  As a final outrage against human
decency and as a conclusive demonstration of the contempt in which
Defendant Bradbury holds our laws and our society, he and his
accomplices have false reports of child abuse to child protective
agencies in the city where Ms. Salzman lives.  They even boast openly of
having done so and encourage others to do the same.  (An Affidavit from
Ms. Salzman setting forth the attempts to intimidate this witness and
the reaction of her attorney to this criminal campaign are attached
hereto and made part hereof as Exhibit "B").

The Court should be aware that the Defendant herein is a mentally
unbalanced sociopath. He takes any course that even hints at approbation
as encouragement to accelerate and intensify the hate crimes that he
commits without a single qualm.  It is the position of the Plaintiff
that given his behavior during this action and before this Court that
severe sanctions should be imposed.

V.  CONCLUSIONS

This Honorable Court has before it a Petition to Open a Default Judgment
pursuant to Rule 237.3, Pennsylvania Rules of Civil Procedure.  Such
Petitions are equitable in nature and fall within the discretion of the
Court.   Before such discretion is exercised, however, it is mandatory
that the petitioner plead and prove that there is a reasonable
explanation for the failure to respond promptly to the Complaint and
that a meritorious defense exists.  Both of these prerequisites require
the pleading and proof of facts.  In this case the Petitioner has
fulfilled neither of these mandatory requirements.  On these grounds
alone the Petition should be denied.

 In addition to failing to meet the mandatory requirements for the
relief he seeks Petitioner ask this Court to adopt a theory of law
contrary to the accepted case law, statutes, and practice accepted as
law in this Commonwealth.  It is an approach that would reverse the
clearly stated policy of the law and, in this case, lead to the absurd
result of declaring that the courts of the Commonwealth do not have the
jurisdiction to redress a valid cause of action for injuries inflicted
and sustained within the Commonwealth.  It should be summarily rejected.

 Finally this Court should recognize that this was a dilatory and
frivolous Petition the only effect of which was to give the Defendant
additional time to attempt to criminally harass the Plaintiff into
dropping this valid action and attempt to compromise the integrity of
the legal process by criminally intimidating prospective witnesses.

 For the reasons stated above this Court should reject the Petition now
before it with prejudice, reschedule the assessment of damages hearing at
the earliest time possible, and impose appropriate sanctions upon the
Defendant.

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