J-S22023-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ARRO CONSULTING, INC. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

BENNETT, BREWER & ASSOCIATES, LLC, 

SUCCESSOR-IN-INTEREST TO 

COUGHENOUR SURVEYING

No. 1673 MDA 2016

Appeal from the Order Entered September 12, 2016

In the Court of Common Pleas of Lancaster County

Civil Division at No(s): 13-09159

BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

MEMORANDUM BY MOULTON, J.: FILED SEPTEMBER 05, 2017

ARRO Consulting, Inc. (“ARRO”) appeals from the September 12, 2016 

order entered in the Lancaster County Court of Common Pleas sustaining the 

preliminary objection filed by Bennett, Brewer & Associates, LLC (“BBA”) to 

ARRO’s complaint based on lack of personal jurisdiction. We reverse and 

remand.

ARRO is a Pennsylvania-based civil engineering and environmental 

consulting firm, which also has an office in Maryland. BBA is a Marylandbased land development firm with two offices in Maryland. On July 7, 2008, 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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BBA retained ARRO to perform engineering services for a land development 

project in Maryland.

On March 17, 2009, the parties entered into a professional services 

agreement (“Agreement”) under which ARRO agreed to perform professional 

engineering services for BBA on the Maryland project. The Agreement 

contains the following provision: 

GOVERNING LAW. The laws of the Commonwealth of 

Pennsylvania shall govern the validity of this Agreement, 

its interpretation and performance. Any litigation 

arising in any way from this Agreement shall be 

brought in the Courts of Common Pleas of 

Pennsylvania having jurisdiction.

Agmt., Std. Terms & Conds., at 3, ¶ 20 (emphasis added).1

On September 20, 2013, ARRO filed a breach of contract action 

against BBA in the Lancaster County Court of Common Pleas. On October 

23, 2013, BBA filed a preliminary objection to the complaint, asserting that 

the trial court lacked personal jurisdiction over BBA. On November 13, 

2013, ARRO filed a response. BBA filed a reply on November 19, 2013.

On September 9, 2016,2the trial court sustained BBA’s preliminary 

objection and dismissed ARRO’s complaint. The trial court determined that 

____________________________________________

1 The Agreement provides that “the attached standard terms and 

conditions are incorporated into and a part of this Agreement.” Agmt. at 4 

(full capitalization omitted).

2

“Although a praecipe for disposition was filed on November 19, 2013, 

. . . the Office of the Prothonotary failed to assign the case or forward the 

(Footnote Continued Next Page)
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the phrase “having jurisdiction” in the forum selection clause means that a 

party to the Agreement may file suit only in a Pennsylvania court of common 

pleas having personal jurisdiction over the parties. As a result, the trial 

court engaged in a minimum-contacts analysis and concluded that it lacked 

personal jurisdiction over BBA:

Not only does [BBA] lack sufficient contacts for a finding 

of specific personal jurisdiction, neither does [BBA] have 

such continuous and systematic contacts with Pennsylvania 

that would support a finding of general personal 

jurisdiction. [BBA] is a Maryland company with a Maryland 

address. It has never had a place of business in 

Pennsylvania, owned property in Pennsylvania, or had 

Pennsylvania employees or subcontractors. Other than 

maintaining a passive website, [BBA] does not solicit 

business from Pennsylvania. In fact, [BBA] has performed 

only one project in Pennsylvania, and this occurred after 

the events at issue in this case and under a contract with a 

non-Pennsylvania entity. Simply put, [BBA] does not have 

the minimum contacts necessary for the court to exercise 

personal jurisdiction. 

Trial Ct. Order, 9/12/16, at 4.

In its Pennsylvania Rule of Appellate Procedure 1925(a) opinion, the 

trial court further explained its ruling:

In ruling on [BBA’s] preliminary objections, the court found 

no ambiguity in the words of the Agreement. In order to 

give effect to the words “having jurisdiction,” the court 

determined that they limited the reach of the provision. 

The provision is not a blanket consent to Pennsylvania’s 

jurisdiction. Such an interpretation would fail to give effect 

to the words “having jurisdiction.” Instead, the provision 

is the consent of the parties that if Pennsylvania courts 

(Footnote Continued) _______________________

file [to the trial judge] until August 11, 2016.” Trial Ct. Order, 9/12/16, at 2 

n.1.
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have jurisdiction, then any litigation arising from the 

[A]greement must be brought in Pennsylvania. 

Trial Ct. Order, 11/7/16, at 3. 

On appeal, ARRO raises the following issue: “Did the trial court err in 

dismissing the complaint by failing to give effect to the forum selection 

clause set forth in the written agreement between the parties?” ARRO’s Br. 

at 4.

Our standard of review is as follows:

In determining whether the trial court properly sustained 

preliminary objections, the appellate court must examine 

the averments in the complaint, together with the 

documents and exhibits attached thereto, in order to 

evaluate the sufficiency of the facts averred. When 

sustaining the trial court’s ruling will result in the denial of 

claim or a dismissal of suit, preliminary objections will be 

sustained only where the case is free and clear of doubt, 

and 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.

Haas v. Four Seasons Campground, Inc., 952 A.2d 688, 691 (Pa.Super. 

2008) (quoting Rambo v. Greene, 906 A.2d 1232, 1235 (Pa.Super. 2006)). 

Moreover, “the burden of proof initially rests upon the party contesting 

personal jurisdiction; once that party has provided proof, the burden then 

shifts to the non-moving party to adduce evidence demonstrating there is a 

basis for asserting jurisdiction over the moving party.” Id.

ARRO asserts that the “Governing Law” provision in the Agreement 

contains a binding forum selection clause by which BBA consented to the 

exercise of personal jurisdiction by Pennsylvania courts. Thus, ARRO 
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contends that the trial court erred in conducting a minimum-contacts 

analysis and dismissing the complaint for lack of personal jurisdiction. We 

agree.

It is well settled that the “parties to a contract may agree in advance 

to submit to the jurisdiction of a given court.” Cont’l Bank v. Brodsky, 

311 A.2d 676, 677-78 (Pa.Super. 1973). This Court has stated:

Personal jurisdiction can be established by consent of 

the parties; when such consent is established, the famous 

“minimum contacts” framework developed by the United 

States Supreme Court in International Shoe Co. v. 

Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 

(1945), is inapplicable. See e.g., Ins. Corp. of Ireland 

v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 

703, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (“Because the 

requirement of personal jurisdiction represents first of all 

an individual right, it can, like other such rights, be 

waived.”) . . . .

Frontier Leasing Corp. v. Shah, 931 A.2d 676, 680 (Pa.Super. 2007); see 

also Provident Mut. Life Ins. Co. v. Bickerstaff, 818 F.Supp. 116, 118 

(E.D.Pa. 1993) (stating that although usually “the plaintiff must show that 

the defendant has sufficient minimum contacts with the forum state” to 

establish personal jurisdiction, “in actions involving forum selection 

clauses[,] analysis of the contacts with the forum state is inappropriate”). 

“Instead, the court must consider the validity and effect of the forum 

selection clause to determine if” the defendant consented to personal 

jurisdiction in the chosen forum. Provident, 818 F.Supp. at 118.
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Our court has stated that “the modern trend is to uphold the 

enforceability of forum selection clauses where those clauses are clear and 

unambiguous.” Patriot Comm. Leasing Co. v. Kremer Rest. Enters., 

LLC, 915 A.2d 647, 650 (Pa.Super. 2006). A forum selection clause is 

subject to principles of contract interpretation and is generally enforceable 

“when the parties have freely agreed that litigation shall be conducted in 

another forum and where such agreement is not unreasonable at the time of 

litigation.” Autochoice Unlimited, Inc. v. Avangard Auto Fin., Inc., 9 

A.3d 1207, 1215 (Pa.Super. 2010) (quoting Cent. Contracting Co. v. C.E. 

Youngdahl & Co., 209 A.2d 810, 816 (Pa. 1965)). Furthermore:

[A] forum selection clause in a commercial contract 

between business entities is presumptively valid and will 

be deemed unenforceable only when: 1) the clause itself 

was induced by fraud or overreaching; 2) the forum 

selected in the clause is so unfair or inconvenient that a 

party, for all practical purposes, will be deprived of an 

opportunity to be heard; or 3) the clause is found to 

violate public policy. 

Midwest Fin. Acceptance Corp. v. Lopez, 78 A.3d 614, 629 (Pa.Super. 

2013) (quoting Autochoice, 9 A.3d at 1215).

Here, ARRO and BBA included a forum selection clause within the 

“Governing Law” provision of their Agreement, which states: “Any litigation 

arising in any way from this Agreement shall be brought in the Courts of 

Common Pleas of Pennsylvania having jurisdiction.” Agmt., Std. Terms & 

Conds., at 3, ¶ 20. Thus, our first task it to consider the validity and effect 

of the forum selection clause. See Provident, 818 F.Supp. at 118. 
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In determining the parties’ intent, we must construe “all provisions in 

the agreement” together so that “each will be given effect.” LJL Transp., 

Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 647-48 (Pa. 2009). “Thus, 

we will not interpret one provision of a contract in a manner which results in 

another portion being annulled.” Id. at 648. 

We conclude that the mandatory language “shall be brought” 

evidences the parties’ intent to choose Pennsylvania, as opposed to 

Maryland, as the forum for resolving legal disputes. Despite this 

unambiguous language, the trial court found that BBA did not consent to 

personal jurisdiction in Pennsylvania. This interpretation, however, renders 

the remainder of the forum selection clause meaningless. By interpreting 

the phrase “having jurisdiction” as meaning “having personal jurisdiction,” 

the trial court failed to give effect to the words immediately preceding 

“having jurisdiction” – “shall be brought in the Courts of Common Pleas of 

Pennsylvania.”

The only interpretation that gives effect to all words in the forum 

selection clause is that “having jurisdiction” means having subject matter 

jurisdiction over the dispute. Because the courts of common pleas have 

subject matter jurisdiction over breach of contract claims, see 42 Pa.C.S. 

§ 931(a), the trial court is a “Court[] of Common Pleas of Pennsylvania 

having jurisdiction” over the parties’ dispute. Therefore, we conclude that, 
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by signing the Agreement containing the forum selection clause, BBA 

consented to personal jurisdiction in the trial court.3

We also reject BBA’s contention that the forum selection clause is 

unenforceable because it would be unreasonable for BBA to litigate this 

matter in Pennsylvania. Not only do Maryland and Pennsylvania border one 

another, but BBA intentionally retained ARRO for its project knowing that 

ARRO was a Pennsylvania company. BBA claims that it would be “unduly 

burdensome” to defend itself in Pennsylvania because the project at issue is 

located in Maryland and ARRO would not be prejudiced by litigating the case 

in Maryland. BBA’s Br. at 24. That, however, is not the standard. BBA has 

not alleged, let alone proven, that the forum selection clause was induced by 

fraud, that Pennsylvania is so inconvenient that BBA will be deprived of an 

opportunity to be heard, or that the clause violates public policy. See 

Midwest, 78 A.3d at 629. Nor has BBA alleged any change in 

circumstances between the time it signed the Agreement and the time of 

this litigation. Therefore, BBA failed to meet its burden of proving that 

litigating this action in Pennsylvania would be unreasonable.

Accordingly, because the Agreement contains a valid and enforceable 

forum selection clause, and the trial court has subject matter jurisdiction 

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3 To conclude otherwise would mean that BBA consented to jurisdiction 

in Pennsylvania, but only if ARRO could establish personal jurisdiction over 

BBA in Pennsylvania. As explained above, such an interpretation would 

render the forum selection clause largely meaningless.
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over this matter, we conclude that the trial court erred in sustaining BBA’s 

preliminary objection.

Order reversed. Case remanded for further proceedings. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/5/2017