NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-3491

_____________

MARK J. CERCIELLO, M.D.,

 Appellant

v.

S. TERRY CANALE, M.D. 

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 12-cv-06933)

District Judge: Hon. Joel H. Slomsky 

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Submitted Under Third Circuit LAR 34.1(a)

April 8, 2014

Before: AMBRO, JORDAN and ROTH, Circuit Judges.

(Filed: April 23, 2014)

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OPINION OF THE COURT

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JORDAN, Circuit Judge.

Dr. Mark J. Cerciello appeals an order of the United States District Court for the 

Eastern District of Pennsylvania dismissing his lawsuit against Dr. S. Terry Canale for 

lack of personal jurisdiction. For the reasons that follow, we will affirm. 
2

I. Background1

A. Factual Background

Cerciello is a board-certified orthopedic surgeon, a member of the American 

College of Forensic Examiners, a Certified Forensic Physician, and, until his suspension 

on September 24, 2011, a Fellow of the American Academy of Orthopaedic Surgeons

and the American Association of Orthopaedic Surgeons (together, “AAOS”)2. Since 

1969, Cerciello has maintained an orthopedic clinical practice in Allentown, 

Pennsylvania. In addition, prior to his suspension from AAOS, Cerciello “sporadically 

engaged in providing forensic orthopedic consulting opinions in malpractice” cases and 

had testified as an expert witness. (App. at 24 (Complaint).) One such opinion is at the 

root of this case. 

After providing an expert witness report in a malpractice suit against a fellow 

orthopedic surgeon, Cerciello received a letter from AAOS‟s General Counsel notifying 

him that the doctor whom he had testified against had filed a formal grievance requesting

 

1 We accept Cerciello‟s allegations as true and construe disputed facts in his favor 

for the purposes of this appeal. IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 257 (3d 

Cir. 1998) (citing Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 142 (3d Cir.1992)).

Still, Cerciello “bears the burden to prove, by a preponderance of the evidence,” that 

personal jurisdiction is proper. Carteret Sav. Bank, 954 F.2d at 146. To meet that burden, 

he must “establish[] jurisdictional facts through sworn affidavits or other competent 

evidence.” Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 101 n.6 (3d Cir. 2004). In 

other words, “bare pleadings alone” are insufficient to withstand a motion to dismiss for

lack of personal jurisdiction. Id.

In addition, because we write solely for the benefit of the parties, we recite only 

the facts essential to our disposition. 

2

The parties treat those organizations as functionally the same and so do we. 

Similarly, the parties treat AAOS as a corporation, and we therefore do so as well.
3

that the Committee on Professionalism of AAOS review whether Cerciello had violated 

the organization‟s Standards of Professionalism in Orthopaedic Expert Witness 

Testimony. Following an investigation – in which Cerciello failed to appear or defend 

his actions because he believed the grievance to be “patently frivolous” (App. at 27

(Complaint)) –AAOS‟s Board of Directors voted to suspend him from membership for a 

period of two years. That suspension was subsequently published in a disciplinary notice 

in the December 2011 edition of the monthly magazine AAOS Now, which is mailed and 

emailed to AAOS‟s 27,000 members nationwide, including many practicing orthopedic

surgeons in Pennsylvania, as well as being available on AAOS‟s public website. Both 

the decision to publish the suspension and the posting about it online occurred in Illinois, 

where AAOS is headquartered. 

Canale has served as AAOS Now‟s Editor-in-Chief since 2007, and he confirmed 

in his deposition that, in that capacity, he “authorized” the publication of Cerciello‟s 

suspension, as he does all articles that appear in the newsletter. In his Answering Brief, 

Canale maintains that publication of the suspension was “consistent with [AAOS‟s] 

Grievance Procedures and Bylaws,” which Cerciello does not refute. (Appellee‟s Br. at 

7.) Cerciello also does not refute that the article announcing the suspension was prepared 

by AAOS‟s Office of General Counsel and that Canale had no knowledge of the 

suspension itself until the announcement was sent to him for editing. 
4

Though he is Editor-in-Chief of the organization‟s publication, Canale is not a 

current corporate officer or director of AAOS.

3 As far as the record shows, his editorial 

responsibility is to “review all the material that goes into the publication” of AAOS Now

for grammar and typographical errors, for which he receives an annual salary. (App. at 

58 (Canale‟s Deposition).) Canale also practices as an orthopedic surgeon in Memphis, 

Tennessee, where he lives. 

In 2012, after Cerciello‟s suspension had already been published in AAOS Now,

Canale visited Philadelphia for a meeting of AAOS. Though Canale had his medical 

training in Philadelphia several decades ago, he has returned since only twice: once “five 

or six years ago, and then about 15 years ago,” when he was invited to speak at Jefferson 

Hospital as an honored guest.4 (App. at 65 (Canale‟s Deposition).) 

B. Procedural History

Cerciello brought suit against Canale in Pennsylvania‟s Court of Common Pleas,

alleging tortious interference with contractual relations, commercial disparagement, 

defamation, and false light invasion of privacy.5 Canale removed the case to the District 

Court and thereafter filed a Motion to Dismiss on multiple grounds, including lack of 

 

3

In the past, Canale has served in various positions as an officer of AAOS.

4 Canale lived in Philadelphia during his residency at Jefferson Medical College. 

He moved to Tennessee upon graduation and has lived there for the past forty years. 

5 Cerciello did not sue AAOS but brought this suit against Canale after AAOS

sought a declaratory judgment against Cerciello in federal district court in Illinois in a 

case involving essentially the same dispute. Am. Acad. of Orthopaedic Surgeons v. 

Cerciello, No. 12 C 3863, 2013 WL 1679396, at *1 (N.D. Ill. Apr. 16, 2013). That case 

has since been transferred to the Eastern District of Pennsylvania. Id. at *3. 
5

personal jurisdiction. The District Court granted the motion, holding that there was no 

basis to exercise personal jurisdiction over Canale. 

This timely appeal followed. 

II. Discussion6

Cerciello disputes the District Court‟s dismissal of his suit. His arguments seem to 

assume that Canale acted as a corporate officer of AAOS or, in the alternative, that 

Canale‟s contacts with Pennsylvania were sufficient in an individual capacity to support 

jurisdiction. We cannot accept those assumptions. 

A federal district court may assert personal jurisdiction over a nonresident to the 

extent authorized by the laws of the state in which it sits. Fed. R. Civ. P. 4(e); see also 

Pennzoil Prod. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 200 (3d Cir. 1998). When a 

challenge to personal jurisdiction is raised, a court undertakes a two-part inquiry, asking 

(1) whether a plaintiff has produced sufficient facts to show that there is a statutory basis 

for such jurisdiction under the laws of the forum state; and (2) whether the nonresident 

has sufficient “minimum contacts” with the state to satisfy the strictures of constitutional

due process. See Eurofins Pharma U.S. Holdings v. BioAlliance Pharma SA, 623 F.3d 

147, 155 (3d Cir. 2010). 

 

6

The District Court had subject matter jurisdiction under 28 U.S.C. § 1332. We 

have jurisdiction over Cerciello‟s appeal pursuant to 28 U.S.C. § 1291. “Whether 

personal jurisdiction may be exercised over an out-of-state defendant is a question of 

law.” Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 329 (3d Cir. 2009) (quoting 

Mellon Bank (East) PSFS, N.A. v. Di Veronica Bros., Inc., 983 F.2d 551, 554 (3d Cir.

1993)). We therefore review de novo the District Court‟s determination that it lacked 

personal jurisdiction. Id. 
6

Section 5322(a) of Pennsylvania‟s long-arm statute authorizes courts of the 

Commonwealth to exercise specific jurisdiction when, in relevant part, a defendant is: 

1) Transacting any business in this Commonwealth. 

...

(3) Causing harm or tortious injury by an act or omission in this 

Commonwealth.

(4) Causing harm or tortious injury in this Commonwealth by an act or 

omission outside this Commonwealth. ...

42 Pa. Cons. Stat. § 5322(a). Separately, § 5322(b) operates as a catch-all, allowing 

courts to assert jurisdiction “to the fullest extent allowed under the Constitution of the 

United States,” and noting that even “the most minimum contact” can confer jurisdiction. 

Id. § 5322(b). In other words, under §5322(b), courts “need only decide whether holding 

... [the nonresident defendant] subject to a suit in Pennsylvania would be a violation of 

due process,” bypassing a separate statutory analysis that would be required under 

§5322(a). Scoggins v. Scoggins, 555 A.2d 1314, 1319 (Pa. Super. Ct. 1989) (alterations 

in original) (internal quotation marks omitted)). When there is an assertion of specific 

jurisdiction, as in this case,7the constitutional inquiry requires a court to consider, first,

 

7 A court may sometimes assert “general” personal jurisdiction over a defendant 

based on his overall contacts with a state. General jurisdiction is proper only if the 

defendant has maintained “continuous and systematic” contacts with the forum state. 

Helicopteros Nacionales de Columbia, S.A. v. Hall. 466 U.S. 408, 416 (1984). This 

involves showing “significantly more than mere minimum contacts,” Provident Nat’l 

Bank v. Cal. Fed. Sav. & Loan Ass’n, 819 F.2d 434, 437 (3d Cir. 1987) (citations 

omitted), and the supporting facts underlying jurisdiction must be “extensive and 

persuasive,” Reliance Steel Prods. v. Watson, Ess, Marshall, 675 F.2d 587, 589 (3d Cir. 

1982). Cerciello does not contend that Canale has sufficient contacts to warrant general 

jurisdiction over him in Pennsylvania, and rightly so. General jurisdiction is not 

appropriate here since Canale‟s contacts are neither “continuous and systematic” nor 

“extensive and persuasive.” As the District Court correctly noted, the only question is 
7

whether the defendant “purposefully directed his activities” at the forum, Burger King 

Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (internal quotation marks omitted); second,

whether the litigation “arise[s] out of or relate[s] to” those activities, Helicopteros 

Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984); and third, if the first two 

requirements are met, whether the exercise of jurisdiction otherwise “comport[s] with 

„fair play and substantial justice,‟” Burger King, 471 U.S. at 476 (quoting Int’l Shoe Co. 

v. Washington, 326 U.S. 310, 320 (1945)). 

Unfortunately, the precedents associated with the exercise of specific jurisdiction 

are not consistent when it comes to jurisdiction over people sued in their individual 

capacities for wrongs associated with corporate acts. On the one hand, some decisions

appear to have adhered to a bright-line rule that a defendant‟s acts must be undertaken in 

an individual capacity, rather than a corporate capacity, to warrant the exercise of

jurisdiction. See J.C. Snavely & Sons, Inc. v. Springland Assocs., Inc., 600 A.2d 972, 974 

(Pa. Super. Ct. 1991) (“Mr. Knapp‟s contacts as an agent of Springland Associates are 

not attributable to him for purposes of establishing specific jurisdiction.”). This so-called 

“corporate shield” doctrine8sometimes protects defendants who are thus sued in their 

individual capacities for what are corporate acts. Maleski by Taylor v. DP Realty Trust, 

 

whether Canale‟s contacts with Pennsylvania were sufficient to support specific 

jurisdiction. 

8 Other courts have used the term “fiduciary shield doctrine.” See, e.g., 

Newsome v. Gallacher, 722 F.3d 1257, 1278-79 (10th Cir. 2013); Grober v. Mako 

Products, Inc., 686 F.3d 1335, 1345 (Fed. Cir. 2012), reh‟g denied (Sept. 14, 2012); 

Snowstorm Acquisition Corp. v. Tecumseh Products Co., 739 F. Supp. 2d 686, 700 n.8

(D. Del. 2010). 
8

653 A.2d 54, 62 (Pa. Commw. Ct. 1994). But other Commonwealth courts have taken a 

more flexible approach,

9

looking to a handful of factors to determine whether jurisdiction 

is appropriate, id. at 63. One particularly significant factor is the status of the employee

as an officer or director of the corporation in question. Cf. id. (“To determine whether 

there is jurisdiction over a [nonresident] corporate officer or director ..., it is necessary 

under this case-by-case approach to examine factors such as the officer‟s role in the 

corporate structure, the quality of the officer‟s forum contacts and the extent and nature 

of the officer‟s participation in the alleged tortious conduct.”).

While Cerciello makes arguments justifying specific jurisdiction over Canale

based on the offending AAOS publication, none succeed for the simple reason that 

Canale is not an officer or director of AAOS and did not take any actions in an individual 

capacity to warrant jurisdiction. The complaint is about AAOS producing a publication, 

but there is simply no evidence that Canale had any corporate authority at AAOS when 

that publication occurred.10 True, he was “Editor-in-Chief,” but we cannot assume that 

meant he had any corporate control. We cannot even be sure what that meant about 

editorial content. The disciplinary notices, after all, were drafted by the AAOS General 

 

9 Commonwealth courts often cite federal district court cases on this subject, but 

those too are not consistent. Compare Donner v. Tams-Witmark Music Library, Inc., 480 

F. Supp. 1229, 1234 (E.D. Pa. 1979) (“It would be anomalous ... to permit a corporate 

officer to shield himself from jurisdiction by means of the corporate entity, when he 

could not interpose that same shield against substantive liability.”), with Simkins Corp. v. 

Gourmet Rest. Int’l, 601 F. Supp. 1336, 1345 (E.D. Pa. 1985) (“[A] corporate officer or 

director‟s actions taken in his corporate capacity are ... insufficient to bring him 

personally within the jurisdiction of this court.”). 

10 We are not suggesting that titles are dispositive. De facto control would of 

course be relevant, even without official office, but there is no evidence of that here. 
9

Counsel and included in AAOS Now only in accordance with an established AAOS 

protocol. 

Cerciello‟s argument that editors can be held liable for printing defamation misses 

the point. The question is not whether a court could properly assert personal jurisdiction 

over some other editor of some other publication. The question is about this editor and 

this publication. It is fact specific. Though not cited by either party in their briefs, the 

Supreme Court‟s decision in Calder v. Jones, 465 U.S. 783 (1984), held that an editor 

who was also the corporation‟s president was subject to personal jurisdiction in a state 

other than his domicile because a person with that level of authority “oversee[s] just 

about every function of the [publication],” including the sending of magazines to other 

states. Id. at 786 (internal quotation marks omitted). The same cannot be said of Canale

in this case. While he may review what is printed in AAOS‟s magazine, the record here 

– at least as presented to us – does not show his work to be similar to that of a “president” 

or any other corporate officer or fiduciary. Moreover, Cerciello has produced no 

evidence to indicate that Canale took any actions in an individual capacity, either in or 

related to Pennsylvania, sufficient to give rise to the claims in the Complaint. Canale‟s 

traveling to Philadelphia on two occasions in the last fifteen years for events unrelated to 

Cerciello‟s claim cannot serve as a jurisdictional hook for this case. 

While, through the catch-all provision in §5322(b), Pennsylvania allows even “the 

most minimum contact” to confer jurisdiction, that jurisdiction is nonetheless bound by 

the limits of the Constitution. As the District Court rightly indicated, Cerciello has not 

demonstrated that Canale “purposefully directed” his activities at Pennsylvania, and there 
10

is thus a failure to meet the constitutional prerequisites for the exercise of personal 

jurisdiction. See Burger King Corp, 471 U.S. at 472; see also Remick v. Manfredy, 238 

F.3d 248, 258 (3d Cir. 2001) (“We stated that „[s]imply asserting that the defendant knew 

that the plaintiff‟s principal place of business was located in the forum would be 

insufficient in itself.... The defendant must manifest behavior intentionally targeted at and 

focused on the forum for Calder to be satisfied.‟”). 

III. Conclusion

For the foregoing reasons, we will affirm the District Court‟s decision to dismiss 

Cerciello‟s claims for lack of personal jurisdiction.