Mallory v Norfolk SRR Co., civilian. A. No. 3 PAE 2021, Schedule. Op. J-49-2021 (Pa. Dec. 22, 2021) may be one of the most cited decisions from Pennsylvania state courts these days, as defendants file a series of motions seeking the dismissal of their clients for lack of personal jurisdiction where the defendant’s only connection with Pennsylvania is the defendant’s registration to do business in the Commonwealth. We’ve blogged about this before here and here, and we hoped that the bold statement made in Mallory would clarify the previously murky law on the point, but the battle over consent jurisdiction rages on.
by Mallory seems clear enough: “Pennsylvania’s legislative scheme is unconstitutional insofar as it grants Pennsylvania courts general jurisdiction over foreign corporations that are not ‘home’ in Pennsylvania pursuant to Happy new year and Daimler.” Mallory, Underwear. Op. to *38. Nonetheless, plaintiffs have repeatedly attempted to interpret it as applying only to companies with no “footprint” in Pennsylvania. See for example Emery v U.S. Steel Corp., Civil. A. No. 210402850 (Ct. Com. Pl. Phila. Feb. 7, 2022) (Glynnis, J.) (granting defendant’s motion for reconsideration and reversing the previous decision dismissing the preliminary objections based on personal lack of jurisdiction); Stapelton vs. U.S. Steel Corp., civilian. A. No. 200101462 (Ct. Com. Pl. Phila. Feb. 22, 2022) (Crumlich, J.) (dismissing motion for summary judgment on procedural grounds but ordering defendant to file motion for reconsideration based on Mallory).
Instead of directly addressing this forced interpretation, some judges have managed to avoid it entirely by finding a very thin theory of specific jurisdiction even in cases originally subject to a theory of jurisdiction by general consent. Daniels vs. CSX Corp., Civil. A. No. 180800363 (Ct. Com. Pl. Phila. April 4, 2022) (denying the motion for reconsideration filed under Mallory because the original preliminary objections asserted that both general jurisdiction and specific jurisdiction were lacking, even though the complaint alleged a basis for specific jurisdiction); Addison v U.S. Steel Corp., civil. A. No. 201201236 (Ct. Com. Pl. Phila. May 5, 2022) (agreeing that the quashing of previously quashed preliminary objections was proper under Mallory).
Jurisdictions outside the Commonwealth also cannot agree. There is currently a split between state supreme courts who have considered the issue and a 6-5-2 split between federal appeals courts who have weighed in on the issue of jurisdiction over consent by recording. For example, the decision of the Supreme Court of Pennsylvania in Mallory contradicts the decision of the Supreme Court of Georgia rendered three months earlier in Cooper Tire & Rubber Co. v. McCall312 Ga. 422 (2021) discussed here.
The Mallory the song and dance seem to be such that even the Supreme Court of the United States has noticed. On April 25, 2022, the United States Supreme Court granted certoriari to perhaps finally clarify, once and for all, whether general jurisdiction extends to corporations whose only connection with the forum state is registration to do business. Mallory v. Norfolk Southern Rwy. Co., civil. A. No. 21-1168 (cert. issued April 25, 2022). The Supreme Court’s decision will have a significant impact not only on jurisdictional case law in the future, but also on the bloated rolls of the Philadelphia Court of Common Pleas. Until Mallory, plaintiffs have been able to use general consent jurisdiction to drag foreign defendants into what is considered one of the nation’s major judicial hells. Whether under Mallory this will continue remains to be seen. Stay tuned for further updates as state courts wrestle with jurisdiction by consent while balancing their overloaded post-COVID cases and awaiting guidance from the Supreme Court.