Seeley, T. v. Caesars Entertainment Corp.

J-A04013-19

2019 PA Super 87

THOMAS E. SEELEY AND DANIELLE : IN THE SUPERIOR COURT OF

SEELEY, H/W : PENNSYLVANIA

:

Appellants :

:

:

v. :

:

: No. 856 EDA 2014

CAESARS ENTERTAINMENT :

CORPORATION D/B/A/ BALLY'S :

CASINO, BALLY'S PARKPLACE, INC. :

D/B/A BALLY'S ATLANTIC CITY, AND :

BALLY'S CASINO :

Appeal from the Order Dated February 10, 2014

In the Court of Common Pleas of Philadelphia County Civil Division at

No(s): October Term, 2013 No. 001416

BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*

OPINION BY LAZARUS, J.: FILED MARCH 22, 2019

Thomas E. Seeley and Danielle Seeley (h/w) (collectively, the

Seeleys/Plaintiffs) appeal from the order sustaining Appellees’ preliminary

objections on the basis of lack of personal jurisdiction and dismissing Plaintiffs’

complaint in this slip and fall action. After careful review, we affirm.

In October 2011, Thomas Seeley slipped and fell on water that had

accumulated on the floor of a public bathroom in Bally’s Atlantic City (the

Casino/Bally’s) in New Jersey. On October 16, 2013, the Seeleys,1 New Jersey

residents, filed the underlying premises liability action in Philadelphia County,

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1 In Plaintiffs’ complaint, Danielle Seeley claims loss of consortium, stating

that “[a]s a result of [her husband’s] aforementioned injuries, [she] has been,

and may in the future be deprived of the care, companionship, consortium,

and society of her husband[.]” Plaintiffs’ Complaint, 9/16/13, at ¶ 18.

*Retired Senior Judge assigned to the Superior Court.

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against Caesars Entertainment, Corp. (Caesars), d/b/a Bally’s Casino, Bally’s

Park Place, Inc., d/b/a Bally’s Atlantic City, and Bally’s Casino (collectively,

Defendants). The complaint alleged that Defendants “regularly conduct”

business in Philadelphia County. On November 7, 2013, Defendants filed

preliminary objections asserting that the trial court lacked personal

jurisdiction2 over them, specifically stating that Bally’s, a New Jersey

corporation, and Caesars, a Delaware corporation with its principle place of

business in Nevada, do not engage in “continuous and systematic” business

activities in Pennsylvania or Philadelphia County and that Caesars has no

supervisory or oversight responsibilities with respect to Bally’s operations.3

The Seeleys filed an answer to Defendants’ preliminary objections. On

December 13, 2013, the court ordered the parties to conduct discovery

regarding the issues raised in Defendants’ preliminary objections. On January

31, 2014, Plaintiffs deposed Dina Brown, the senior executive assistant for the

vice president and general counsel of regional operations for Caesars

Entertainment. Brown stated at her deposition that Caesars Entertainment is

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2 We distinguish the concept of personal jurisdiction from venue. Personal

jurisdiction concerns whether the defendant has engaged in sufficient activity

within Pennsylvania to be subject to this state’s regulation. Venue, on the

other hand, concerns whether the forum chosen by the plaintiff (here,

Philadelphia County) is a proper locality within which to bring his or her action.

See Pa.R.Civ.P. 2179 (identifying counties in which venue lies for personal

actions against corporations).

3The objections also argue that the doctrine of forum non conveniens

mandated that the case be dismissed.

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the parent company and holding corporation4 of Bally’s Park Place, Inc., and

that Bally’s Park Place, Inc., owns Bally’s Atlantic City. 5 Brown Deposition,

1/31/14, at 9-10, 29, 36. Brown also stated that Caesars Entertainment is

the parent company of Harrah’s Philadelphia, a casino located in Chester,

Delaware County, Pennsylvania. Id. at 10. Moreover, Brown testified that

each individual casino has its own policies and procedures for operations,

which would include its own duty to maintain the premises to ensure that the

casino does not have any dangerous conditions. Id. at 30-31, 35.

On February 10, 2014, the trial court held a hearing on Defendants’

preliminary objections. At the hearing, Plaintiffs’ counsel moved into evidence

Brown’s deposition transcript as well as Philadelphia County docket entries

relating to lawsuits involving Bally’s. On February 10, 2014, the trial court

entered the instant order sustaining Defendants’ preliminary objections and

dismissing Plaintiffs’ complaint, as to all counts, with prejudice. Plaintiffs filed

a timely notice of appeal,6 raising the following issues:

(1) Whether the lower court erred in sustaining [Defendants’]

preliminary objection where the contacts of Caesar[]s[’] and

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4 “A holding company owns enough voting stock in another company to control

its policies and management. The company does not have any operation for

active business itself; instead it owns assets in one or more companies.”

https://www.investopedia.com/terms/h/holdingcompany.asp (last visited

2/21/19).

5Brown stated that Bally’s Park Place, Inc., does business as Bally’s Atlantic

City. Brown Deposition, 1/31/14, at 9-10.

6 The trial court did not order Plaintiffs to comply with Pa.R.A.P. 1925(b) and

file a concise statement of errors complained of on appeal.

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Bally’s with Pennsylvania were sufficient for it to exert

personal jurisdiction over them?

(2) Whether the lower court would have erred if it sustained

[Defendants’] preliminary objections on subject matter

jurisdiction grounds where it was competent to determine

controversies of the general class to which the present case

belongs.

(3) Whether the lower court would have erred if it sustained

[Defendants’] preliminary objections on the doctrine of

forum non conveniens where none of the Appellees

sustained their burden of establishing, with detailed facts on

the record, that the Seeleys’ chosen forum was oppressive

or vexatious to them and, in addition, arguments of that

nature are not properly the subject to preliminary

objections.

Appellants’ Brief, at 5.

Our standard of review of a trial court's order granting preliminary

objections challenging personal jurisdiction is as follows:

When preliminary objections, if sustained, would result in the

dismissal of an action, such objections should be sustained only in

cases which are clear and free from doubt. . . . 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. This Court will reverse the trial court’s

decision regarding preliminary objections only where there has

been an error of law or an abuse of discretion. Once the moving

party supports its objections to personal jurisdiction, the burden

of proving personal jurisdiction is upon the party asserting it.

Courts must resolve the question of personal jurisdiction based on

the circumstances of each particular case.

Schiavone v. Aveta, 41 A.3d 861, 865-66 (Pa. Super. 2012), citing Gaboury

v. Gaboury, 988 A.2d 672, 675 (Pa. Super. 2009) (citations and quotations

omitted).

“A defendant’s activities in the forum [s]tate may give rise to either

specific or general jurisdiction.” Mendel v. Williams, 53 A.3d 810, 817 (Pa.

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Super. 2012). When a state exercises personal jurisdiction over a non-

resident defendant in a suit arising out of or related to the defendant’s

contacts with the forum, the state is exercising specific jurisdiction.

Schiavone, 41 A.3d at 866 (citations omitted). In order for a Pennsylvania

court to exercise personal (specific) jurisdiction over a non-resident

defendant, the following two requirements must be met: (1) jurisdiction must

be authorized by the Pennsylvania Long-Arm Statute;7 and (2) the exercise of

jurisdiction must comport with constitutional principles of due process.

Kenneth K. Oaks, Ltd. v. Josephson, 568 A.2d 215, 216 (Pa. Super. 1989).

On the other hand, personal (general) jurisdiction over a non-resident

defendant exits regardless of whether plaintiff’s cause of action is related to

the defendant’s activities in the forum state. When the non-resident is a

corporation, like Defendants, general personal jurisdiction is established when

the corporation: (1) is incorporated under or qualified as a foreign corporation

under the laws of this Commonwealth;8 (2) consents, to the extent authorized

by the consent;9 or (3) carries on a continuous and systematic part of

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7 Pennsylvania’s Long-Arm Statute is codified at 42 Pa.C.S. § 5322(a).

8 Caesars is incorporated in the state of Delaware and Bally’s is incorporated

in New Jersey. N.T. Preliminary Objections Hearing, 2/10/14, at 13.

9Defendants have clearly not consented to being sued in Pennsylvania, as is

evident from their filing of preliminary objections on the basis of lack of

personal jurisdiction.

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its general business within this Commonwealth. See 42 Pa.C.S. §

5301(a)(2)(i-iii) (emphasis added).

Here, Plaintiffs argue on appeal that the trial court has general personal

jurisdiction10 over Defendants “because they have continuous and systematic

contacts with the forum State directly and through the operation of Harrah’s

Philadelphia,” a subsidiary of Caesars. Appellants’ Brief, at 15.

Instantly, is it undisputed that none of the parties reside in or are

incorporated in Pennsylvania. Bally’s Casino, the site of the alleged accident,

is located in and incorporated in the state of New Jersey. Moreover, its parent

corporation and holding company, Caesars, is incorporated in Delaware with

its principal place of business listed as Las Vegas, Nevada. While Chester

Downs and Marina, LLC, d/b/a/ Harrah’s Philadelphia Casino and Racetrack,

located in Chester, Delaware County, Pennsylvania, is also owned by Caesars,

Brown’s deposition testimony established that, as a parent corporation,

Caesars is nothing more than a holding company to Harrah’s and Bally’s

Casino. Each casino owned by Caesars has its own employees, facility

departments, management teams, and property managers. Brown

Deposition, 1/31/14, at 33.

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10 Plaintiffs do not argue that specific jurisdiction exists in the present case to

confer personal jurisdiction over Defendants. In any event, we would conclude

that specific jurisdiction does not exist where the long-arm statute, 42 Pa.C.S.

§ 5322, was not satisfied because Mr. Seeley’s slip-and-fall did not occur in

Pennsylvania and because an act outside of Pennsylvania did not cause an

injury in Pennsylvania.

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In their brief, Plaintiffs allege the following facts to support general

personal jurisdiction in this matter: (1) Caesars is the parent company of

Bally’s and both casinos have contacts with Pennsylvania; (2) for the last two

years Bally’s has advertised in print media in the Commonwealth (The

Philadelphia Inquirer and Philadelphia Magazine); (3) Bally’s has advertised

on Pennsylvania radio stations; (3) Bally’s has contracts with Pennsylvania

companies for kitchen equipment and paper goods; and (4) Bally’s uses a

Pennsylvania accounting firm. While Brown did state these facts at her

deposition, she was unable to quantify the yearly cost that Bally’s spent on

Pennsylvania print and radio advertising. Id. at 13. She also noted that “at

one point” Bally’s advertised on Philadelphia radio, again failing to state with

what frequency and duration. Id. Brown noted that any advertising Bally’s

did via the internet was “[n]ot specifically [geared] to Pennsylvania residents.”

Id. at 14. Finally, Brown was unable to estimate what percentage of Bally’s

patrons are Pennsylvania residents or what percentage of Bally’s own

employees are Pennsylvania residents. Id. at 14, 20.

The record shows that Bally’s, itself, does not have any subsidiaries that

conduct business in Pennsylvania, nor does it conduct any of its own business

in Pennsylvania. Brown Deposition, 1/31/14, at 13. Moreover, Bally’s does

not own or lease any property in Pennsylvania, nor is it a registered business

in Pennsylvania. Id. at 14-15, 23. Brown stated that neither Caesars nor

Bally’s has any plans and is not currently under contract for any type of

Pennsylvania business. Id. at 15. Brown also noted that Bally’s does not

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provide for transportation to or from their casino to Pennsylvania residents.

Id. at 18. While Caesars is a registered business in Pennsylvania, its principle

place of business is 1 Caesars Palace Drive, Las Vegas, Nevada. Id. at 23.

Finally, Brown testified that Caesars does not pay taxes to the state of

Pennsylvania and the sole pecuniary benefit Caesars receives from

Pennsylvania comes from Harrah’s. Id. at 23, 25.

Considering the evidence in the light most favorable to Plaintiffs, as the

non-moving party, we simply cannot conclude that the fact that Caesars owns

Harrah’s, located in Delaware County, Pennsylvania, is evidence of its

“systemic and continuous” carrying on of business within Pennsylvania such

that we would find sufficient contacts exist within the state to confer personal

jurisdiction in the underlying matter. Skinner v. Flymo, Inc., 505 A.2d 616

(Pa. Super. 1986) (jurisdiction is only proper where contacts proximately

result from actions by defendant himself which create substantial connection

with the forum state). See Botwinick v. Credit Exchange, Inc., 213 A.2d

349 (Pa. 1965) (Pennsylvania could not exercise personal jurisdiction over

foreign corporation where subsidiary and parent corporation maintain bona

fide separate and distinct corporate existence).

Plaintiffs have failed to provide sufficient evidence of Caesars’ contacts

with Pennsylvania through its ownership of Harrah’s, as imputed to Bally’s, or

that Bally’s own personal contacts with the forum state were so continuous

and systematic for purposes of our courts to assume jurisdiction. Cf. Barber

v. Pittsburgh Corning Corp., 464 A.2d 323 (Pa. Super. 1983) (preliminary

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objections properly dismissed and personal jurisdiction established where

defendants purposely availed themselves of benefits and protections of

Pennsylvania laws and constantly and substantially conducted recurring

business affairs through operations of its industrial subsidiaries). Simply put,

Plaintiffs have failed to show contacts between Defendants and the

Commonwealth of Pennsylvania which would have made Defendants

reasonably aware they could be haled into court in Pennsylvania. Bristol-

Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (primary focus

of personal jurisdiction inquiry is defendant’s relationship to forum state);

Mendel, 53 A.3d at 817 (general jurisdiction exercised against foreign

corporation where its affiliations with forum state are “continuous and

systematic” to render them essentially at home).11

Order affirmed.12

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/22/19

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11 See International Shoe Co. v. Washington, 326 U.S. 310, 317 (1945)

(setting forth well-established notion that state court may exercise personal

jurisdiction over nonresident defendant where there exists “minimum

contacts” between defendant and forum state).

12Having determined the trial court correctly dismissed the action for lack of

personal jurisdiction, we need not consider the remaining claims of subject

matter jurisdiction and forum non conveniens on appeal.

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