IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

_______________________________________________ 

PIZONKA, REILLEY, BELLO & 

McGRORY, P.C. 

 

BY: DOUGLAS T. GOULD, ESQUIRE 

ATTORNEY I.D. NO. 78357 

144 East DeKalb Pike, Suite 300 

King of Prussia, PA 19406 

(610) 992-1300 ATTORNEYS FOR PLAINTIFF 

 BANK EXPRESS INTERNATIONAL 

 

BANK EXPRESS INTERNATIONAL, CIVIL ACTION NO.: 02-CV-4076 

 Plaintiff 

 

 v. 

KANG, BANKCARD SERVICES, et al., 

 Defendants 

PLAINTIFF BANK EXPRESS' OPPOSITION TO DEFENDANTS’ MOTION TO 

DISMISS AND STRIKE PLAINTIFF’S AMENDED COMPLAINT

Plaintiff Bank Express International, Incorporated (“Bank Express”), by and through its 

attorneys, Pizonka, Reilley, Bello & McGrory, P.C., hereby files its Opposition to Defendants’ 

Motion to Dismiss and Strike Plaintiff’s Amended Complaint. For all the reasons set forth 

herein, Plaintiff respectfully requests that this Court deny Defendants’ Motion to Dismiss and 

Strike Plaintiff’s Amended Complaint or, in the alternative, grant discovery on the issue of 

Defendants’ contacts with this forum. 

I. INTRODUCTION

Bank Express initiated this action by filing a Complaint against all Defendants in the 

Court of Common Pleas of Montgomery County, Pennsylvania (“Court of Common Pleas”). 

After filing preliminary objections in state court, all defendants removed this action from the 

Case 2:02-cv-04076-SD Document 7 Filed 09/27/2002 Page 1 of 22
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Court of Common Pleas to this Court. On or about August 26, 2002, Bank Express filed its 

Amended Complaint. Thereafter, on September 10, 2002, defendants served their Motion to 

Dismiss and Strike Plaintiff’s Amended Complaint. Bank Express therefore files this Opposition 

thereto. 

Bank Express initiated this action after eleven of its business-owner clients improperly 

terminated their binding contracts with Bank Express within a four-month period. Bank Express 

believes, and therefore has alleged in its Amended Complaint, that the eleven business owners 

terminated their contracts due to inducement by defendant, Credit Card Services, Incorporated, 

d/b/a Bank Card Services (BCS”), a direct competitor of Bank Express. It is believed that BCS 

managed to induce the business owners to terminate their binding contracts by utilizing 

confidential business information that its agent, former Bank Express employee Joone Johe, 

misappropriated from Bank Express. 

Bank Express alleges that BCS is liable for intentionally inducing the eleven business 

owners to terminate their binding Pennsylvania contracts with Bank Express. Bank Express 

alleges that BCS knowingly, intelligently and voluntarily used confidential information, which 

BCS improperly obtained from a former Bank Express employee, to unfairly compete with Bank 

Express. BCS injured Bank Express when it approached business owners legally contracted with 

Bank Express and induced them to breach their contracts. 

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II. FACTS1

A. Bank Express And Its Services 

Bank Express is a Pennsylvania corporation authorized to operate pursuant to the laws of 

the Commonwealth of Pennsylvania and having a principal place of business located at 489 

Shoemaker Road, Suite 110, King of Prussia, Pennsylvania 19406. Bank Express is in the 

business of enabling business owners to generate revenue through their utilization of automated 

teller machines (“ATM”) at their business locations. 

Bank Express enables a business owner to generate revenue by monitoring the accurate 

electronic processing of each cash withdraw (“transaction”), which a customer makes from an 

ATM maintained at a business owner’s establishment. Bank Express monitors this electronic 

processing from its principal place of business in King of Prussia, Pennsylvania. Bank Express 

obtains signed contracts from each business owner with which it contracts to provide ATM 

processing services. 

In addition, Bank Express oversees the procurement of ATMs for business owners by 

securing lease agreements between a business owner and a third-party leasing company. Bank 

Express always secures lease agreements for business owners from its principal place of business 

in King of Prussia, Pennsylvania. Bank Express does not secure lease agreements for business 

owners from third-party leasing companies until a business owner has completed and signed a 

“Lease Application.” The address of Bank Express’ principal place of business, in Pennsylvania, 

is clearly printed across the bottom of each Lease Application provided by Bank Express. Bank 

 

1

 The Statement of Facts is drawn from Bank Express' Amended Complaint. Since defendants 

have filed no affidavits in support of this motion, all of the allegations in the Amended 

Complaint must be deemed true for purposes of this motion. 

Case 2:02-cv-04076-SD Document 7 Filed 09/27/2002 Page 3 of 22
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Express will not begin to contact third-party leasing companies until it has received a business 

owner’s signed Lease Application in Pennsylvania. 

Bank Express also sends each business owner monthly transaction summaries and 

surcharge checks. The surcharge checks reflect the amount each business owner is entitled to, 

based upon the preceding month’s surcharge revenue. Each transaction summary and surcharge 

check is generated and mailed to each business owner from the principal place of business of 

Bank Express. The return address for each mailing envelope, containing a transaction summary 

or surcharge check, is Bank Express’ address in King of Prussia, Pennsylvania. Additionally, 

each check identifies its maker as “BANK EXPRESS INT’L, INC., 489 SHOEMAKER ROAD, 

STE 110, KING OF PRUSSIA, PA 19406.” 

B. The Business Owners and Their Breaches 

The eleven “Business Owner” defendants to this action are business owners in California 

who knowingly and voluntarily entered contracts with Bank Express. 2

 The Owner Defendants 

entered these contracts with Bank Express, whereby each Owner Defendant requested that Bank 

Express perform automated teller machine processing services (“processing services”) for five 

years. Bank Express performed all of its contractual obligations, the amounts of money charged 

by Bank Express were fair and reasonable for its processing services, and Plaintiff’s prices 

reflected the amounts the Owner Defendants agreed to pay Bank Express. 

Each and every Owner Defendant was on notice that he/she/it was forming a contractual 

relationship with a Pennsylvania corporation. Bank Express and the Owner Defendants utilized 

two different drafts of contracts that are at issue in this litigation. 

 

2

 For the purposes of this Response, Bank Express will refer to these Defendants collectively as 

the “Owner Defendants.” 

Case 2:02-cv-04076-SD Document 7 Filed 09/27/2002 Page 4 of 22
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The first contract draft begins “WHEREAS, Bank Express International, Inc. (BEI), a 

Pennsylvania Corporation located at 489 Shoemaker Road Suite 110, King of Prussia, 

Pennsylvania 19406 is in the business of providing Automated Teller Machine [ ] processing 

services.” Paragraph eleven of the first contract draft also states “[t]his contract shall not be 

effective until accepted by BEI and signed by its duly authorized representative.” Paragraph 

twelve of the first contract draft also states “[t]his contract shall be governed by, construed and 

enforced in accordance with the laws of the Commonwealth of Pennsylvania.” Seven of the 

Owner Defendants signed contracts containing this language. 

The second draft of the contracts between Bank Express and the Owner Defendants 

identifies Plaintiff’s original business address, in large font, across the bottom of the contract as 

“8 Cynwyd Road, Suite 100, Bala Cynwyd, Pa 19004.” Three of the Merchant Defendants 

signed the second draft of Plaintiff’s contract. 

The eleventh named Owner Defendant, Yeo Jung Lee and/or Secatide, Incorporated is an 

individual and/or is a corporation trading as Hiway Liquor (“Hiway”), with a business address of 

1950 Fremont Blvd., Seaside, CA 93955. Between May 2, 2000 and May 3, 2002, Bank Express 

attempted to secure Hiway a lease agreement with four (4) different leasing companies. All 

attempts were rejected, as Hiway had derogatory credit, insufficient credit and/or minimal 

personal credit. All attempts to secure Hiway a lease agreement were made by Bank Express 

from its principal place of business in King of Prussia, Pennsylvania. On or about May 3, 2000, 

Bank Express leased an ATM from ACH LEASING LLC and leased the ATM to Hiway in 

reliance upon a five year ATM Site Location Agreement (“Location Agreement”) between Bank 

Express and Hiway. Pursuant to the Location Agreement, Bank Express was to pay Hiway a 

Case 2:02-cv-04076-SD Document 7 Filed 09/27/2002 Page 5 of 22
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monthly fee for the placement of the ATM and a percentage of each surcharge. The Location 

Agreement specifically identifies Bank Express as the “Operator.” It also specifically states 

“[t]he jurisdiction and venue for any legal proceeding to interpret or enforce this agreement shall 

be in the county where [Bank Express] . . .maintains its principal place of business or residence.” 

The Location Agreement identifies this principal place of business of Bank Express as its former 

location at, 8 Cynwyd Rd., Suite 100, Bala Cynwyd, Pa 19004. 

C. BCS and Its Misconduct 

BCS, like Bank Express, is in the business of providing ATM services to companies such 

as the Owner Defendants. Bank Express alleges that in February 2002, BCS induced eight 

business owners to breach their Pennsylvania Contracts with Bank Express; and in March 2002, 

BCS induced two additional business owners to breach their Pennsylvania Contracts; finally, in 

May 2002, one additional inducement occurred. Bank Express contends that BCS knew that 

Bank Express was a Pennsylvania corporation, with a principal place of business in 

Pennsylvania, at the time BCS approached the relevant business owners, and that BCS was 

knowingly, intelligently and willfully committing intentional, wrongful acts against a 

Pennsylvania corporation. Bank Express alleges that BCS was in possession of copies of the 

relevant Pennsylvania contracts with which it intentionally interfered. 

At or about the time it induced the termination of the Bank Express Contracts, BCS hired 

a former employee of Bank Express, namely an individual known as Joone Johe (“Johe”) and at 

all relevant times thereafter, Johe acted in his individual capacity as an officer, agent, authorized 

representative, servant and/or employee of BCS. Prior to being employed by BCS, Johe was 

employed by Bank Express as a sales representative for its ATM services. Pursuant to his 

Case 2:02-cv-04076-SD Document 7 Filed 09/27/2002 Page 6 of 22
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employment with Bank Express, Johe was responsible for soliciting customers for Bank Express 

in the geographic areas where the Owner Defendants are located. 

During the term of his employment with Bank Express, Johe had access to Bank Express' 

confidential information, including, but not limited to, customer lists, sources of supply, 

employees, personnel policies, sales and services merchandising, business plans, existing 

agreements, and pricing/billing schedules. Bank Express alleges that all of the confidential 

information and items set forth above were, and should have been known by Johe, and later 

BCS, to be competitively sensitive information which Bank Express treated, and Johe, and later 

BCS, knew or should have known were given to Johe while Johe was held by Bank Express in a 

position of confidence and trust. Johe, and later BCS, knew, or should have known, that Johe 

was to treat, as confidential, proprietary information inasmuch as the disclosure of such 

information and items would operate to the detriment of Bank Express, and to the commercial 

advantage of Plaintiff’s competitors, such as BCS. During the term of Johe’s employment with 

Bank Express, Johe was Plaintiff’s representative in dealing with various of Plaintiff’s 

customers, including the Owner Defendants. 

When he left employ with Bank Express, Johe took for his future use and for the future 

use of BCS, without express or implied consent or permission of Bank Express, various 

confidential information and other assets belonging to Bank Express, including but not limited to 

confidential information concerning the Owner Defendants. This information included but was 

not limited to files, agreements, pricing information, literature and sales copies of orders directly 

connected to the Owner Defendants, and Johe provided and gave BCS this confidential 

information. 

Case 2:02-cv-04076-SD Document 7 Filed 09/27/2002 Page 7 of 22
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Sometime after leaving his employ with Bank Express, Johe, acting on his own behalf 

and on behalf of BCS, or other BCS representatives, approached one or more of Plaintiff’s 

customers, in particular the Owner Defendants, for the purpose of inducing Plaintiff’s customers 

to cancel and breach their contracts with Bank Express. Subsequently, The Owner Defendants 

all left ATM servicing with Bank Express and went to servicing with BCS. 

Bank Express alleges that Johe and BCS used, and will continue to use, the confidential 

information belonging to Bank Express to their commercial and competitive advantage and to 

the commercial and competitive detriment of Bank Express and further, that Johe and BCS have 

made disparaging and untrue comments about Bank Express to several of Plaintiff’s customers, 

including the Owner Defendants, for the sole purpose of causing harm to Bank Express' 

business. 

D. Defendants’ Motion to Dismiss 

In their Motion, the defendants now come to this Court and seek to avoid answering for 

their wrongful acts within the forum state where their acts caused significant monetary damage. 

Because, however, the facts as set forth in Plaintiff’s Amended Complaint are sufficient to 

establish the Court’s jurisdiction and venue, the defendants’ Motion should be denied. In the 

alternative, in accordance with the Third Circuit’s directive in Renner v. Lanard Toys Limited, 33 

F.3d 277 (1994), Bank Express requests the Court to order a period of discovery so that Bank 

Express may determine the full scope and nature of defendants’ contacts with this forum. 

III. ARGUMENT

A. The Court Has Personal Jurisdiction Over The Non-Resident Defendants 

The defendants challenge the Court’s in personam jurisdiction, even though the following 

facts are either uncontested or must be deemed true for purposes of this motion: 

Case 2:02-cv-04076-SD Document 7 Filed 09/27/2002 Page 8 of 22
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• The Owner Defendants knowingly delivered to Pennsylvania for final execution, a 

contract governed by Pennsylvania law, under which the Owner Defendants entered 

into a long-term contract for Bank Express, a Pennsylvania corporation located in 

Pennsylvania, to render services in Pennsylvania for the Owner Defendants; 

• The Owner Defendants reaped the benefits of this contract by repeatedly and without 

objection accepting payment forwarded to them from Pennsylvania and cashing Bank 

Express’ checks, which were drawn on a Pennsylvania bank; 

• BCS interfered with the above-described contractual relationships, knowing that its 

interference would cause harm in Pennsylvania, by misappropriating Bank Express’ 

confidential information, and inducing the Owner Defendants to break their 

Pennsylvania contracts; and 

• The harm caused by the defendants’ conduct is felt in Pennsylvania, because Bank 

Express’ principal place of business is located in Pennsylvania, and its services were 

performed for the Owner Defendants from this Commonwealth. 

Since, it is well-settled, defendants who thus purposefully avail themselves of the forum state’s 

laws and knowingly cause harm in the forum are subject to personal jurisdiction, Defendants’ 

motion to dismiss should be denied. 

Fed. R. Civ. P. 4(e) authorizes the Court to exercise jurisdiction over the non-resident 

defendants “to the extent permissible under the law of” Pennsylvania. Pennzoil Prod. Co. v. 

Colelli & Assocs., Inc., 149 F.3d 197, 200 (3d Cir. 1998). Under Pennsylvania’s long-arm 

statute, 42 Pa. C.S.A. § 5322(b), the Court may assume in personam jurisdiction “to the 

constitutional limits of the due process clause of the fourteenth amendment.” Mellon Bank 

(East) PSFS, Nat’l Ass’n v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992). Under the well-settled 

due-process standard, the Court has in personam jurisdiction where a defendant has “minimum 

contacts” with the forum, and the Court’s exercise of jurisdiction would not frustrate “traditional 

Case 2:02-cv-04076-SD Document 7 Filed 09/27/2002 Page 9 of 22
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notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 

310, 316 (1945).3

The “minimum contacts” necessary to satisfy the requirements of the due process clause 

are a function of the nexus among the defendant, the forum, and the litigation, and they exist 

whenever the defendants’ acts are of such character that the defendant “may ‘reasonably 

anticipate being haled into court” in the forum state. General Elec. Co. v. Deutz AG, 270 F.3d 

144, 151 (3d Cir. 2001); Imo Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998). Here, 

all defendants have such minimum contacts with Pennsylvania. The Owner Defendants 

purposefully availed themselves of Pennsylvania’s laws by entering into Pennsylvania contracts, 

for a Pennsylvania corporation to render services in Pennsylvania. Similarly, BCS is subject to 

personal jurisdiction in Pennsylvania on the basis of its intentional interference with these 

contracts, and the injury that it has inflicted in Pennsylvania. 

 1. The Owner Defendants Have Minimum Contacts With Pennsylvania 

 Arising From Their Servicing Relationship With Bank Express 

In the Amended Complaint, Bank Express asserts breach of contract and unjust 

enrichment claims against the Owner Defendants. The claims arise out of the Owner 

Defendants' agreements with Bank Express for the provision of money access services. 

 

3

 Defendants do not argue in their Memorandum of Law that it would be unfair for them to 

respond to this lawsuit in Pennsylvania. In any event, it is clear that the defendants could not 

discharge their burden with respect to such an argument. It is well-settled that the mere burden 

of having to litigate in a foreign forum falls short of reaching constitutional significance. See

Sawtelle v. Farrell, 70 F.3d 1381, 1395 (1st Cir. 1995). The defendants entered into, and then 

breached, long-term Pennsylvania contracts, and have evidenced by their removal of the case 

from state court, and subsequent joint filing of their motion to dismiss, that they are more than 

capable of responding to the claims. Indeed, it seems likely that BCS, for obvious reasons, has 

taken responsibility for their defense. 

Case 2:02-cv-04076-SD Document 7 Filed 09/27/2002 Page 10 of 22
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Although they do not (and cannot) dispute that they knew they were contracting with a 

Pennsylvania entity for its services, some of which they knew were rendered in Pennsylvania, the 

Owner Defendants seek to escape answering in this jurisdiction for their acts by erroneously 

proposing that there can never be jurisdiction to adjudicate contract-based claims against a nonresident unless the non-resident “initiated” the contractual relationship. Based on this fallacy, 

the Owner Defendants argue that did not “initiate” their contracts with Bank Express, and 

therefore, conclude that they cannot be subject to jurisdiction. See Defs.’ Memo. at 4-5. 

The Owner Defendants’ proposed basis for avoiding Bank Express’ claims is unavailing 

for two reasons. First, it is a plain misstatement of the law for the Owner Defendants to suggest 

that the existence of minimum contacts is determined based solely on a narrow inquiry into how 

a contractual relationship was “initiated.” To the contrary, as the Third Circuit has recently 

explained: “[i]t is not significant that one or the other party initiated the relationship.” General 

Elec., 270 F.3d at 151. Rather, the analysis looks to “the facts as a whole,” including whether 

the parties entered into a long-term relationship and otherwise engaged in activity that constitutes 

something more than mere “informational communication.” Id.; Remick, 238 F.3d at 256. 

Second, even if it were true that “initiation” was the touchstone of personal jurisdiction, 

discovery would be necessary to ascertain the manner in which the contracts in question were 

initiated. 

The Supreme Court long ago abandoned inflexible analyses, such as the “place of 

initiation” analysis the Owner Defendants propose. See International Shoe Co. v. Washington, 

326 U.S. 310 (1945). The more flexible modern approach is illustrated by Remick v. Menfredy, 

238 F.3d 248 (3d Cir. 2001), in which the Court of Appeals established that “in many instances, 

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personal jurisdiction can arise primarily from a nonresident defendant’s contract with a forum 

resident.” Remick, 238 F.3d at 256. In Remick, the Third Circuit held that the district court had 

jurisdiction “as a matter of law” where “the[] facts as a whole” indicated that the contacts were 

something more than mere “informational communications.” Id. The “initiation” of the 

contractual relationship was just one of many facts that the Remick Court considered in its 

analysis. Under Remick, other facts which indicate that contacts are more than mere 

“informational communication” include whether the agreement was executed or delivered in the 

forum, whether the agreement was subject to the forum state’s law, whether payment was sent to 

or from the forum, whether services were rendered in the forum, and whether the contracting 

party knew the plaintiff was located in the forum. See Remick, 238 F.3d at 256. In addition, in 

the commercial context, it is of particular significance that the parties intended to, or did, 

“establish a common venture extending over a substantial period of time.” General Elec., 270 

F.3d at 151. 

In the instant case, as in Remick, the facts as a whole indicate that the Owner Defendants 

did much more than merely engage in “informational communication” to Pennsylvania. Rather, 

the Amended Complaint demonstrates that the each of the Owner Defendants knowingly 

delivered to Pennsylvania for final execution, a contract governed by Pennsylvania law, under 

which the Owner Defendants retained Bank Express, a Pennsylvania corporation they knew was 

located in Pennsylvania, to render services in Pennsylvania for the Owner Defendants for a 

substantial period of time. The Owner Defendants reaped the benefits of these contracts by 

repeatedly accepting payment forwarded to them from Pennsylvania and cashing Bank Express’ 

checks, which were drawn on a Pennsylvania bank. The Owner Defendants’ establishment of a 

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“common venture extending over a substantial period of time” and other conduct involving 

Pennsylvania, is precisely the kind of conduct that the Remick Court considered, and held to rise 

above mere “informational communication,” and thus is sufficient to qualify as one of the “many 

instances [in which] personal jurisdiction can arise primarily from a nonresident defendant’s 

contract with a forum resident.” Remick, 238 F.3d at 256. Accordingly, as in Remick, this Court, 

“as a matter of law,” has personal jurisdiction over the Owner Defendants. Id. at 257. 

Even if the “minimum contacts” analysis could be decided solely by reference to the 

initiation of the contract, as the Owner Defendants erroneously propose, the Amended Complaint 

should not be dismissed, but rather, it would be necessary to conduct a period of discovery 

regarding the circumstances under which the contracts were initiated and the nature of the Owner 

Defendants’ other contacts with the forum. See Renner v. Lannard Toys Ltd., 33 F.3d 277, 283-

84 (3d Cir. 1994) (vacating order of dismissal entered without affording plaintiff opportunity for 

discovery on issues of personal jurisdiction). 

 2. BCS Has Minimum Contacts With Pennsylvania Arising From 

 Its Intentional Torts 

BCS implausibly claims that it is not subject to personal jurisdiction in Pennsylvania, 

based on its intentional torts. It is well-settled, however, that an entity that targets its intentional 

acts to cause harm to an in-forum plaintiff and its contracts—as BCS did here—is subject to 

personal jurisdiction pursuant to the so-called “tort-out/harm-in” provision of Pennsylvania’s 

long-arm statute. See, e.g., Supra Medical Corp. v. McGonigle, 955 F. Supp. 374, 381-83 (E.D. 

Pa. 1997) (discussing long-arm statute, and finding jurisdiction over non-resident defendants 

based on misappropriation of Pennsylvania plaintiff’s trade secrets). Accordingly, BCS is 

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subject to personal jurisdiction in this forum with respect to Bank Express’ claims for 

misappropriation, disparagement, and tortious interference. 

When an intentional tort is alleged, the Third Circuit has directed that the question of 

personal jurisdiction must be answered by reference to the three-pronged “effects” test suggested 

by the Supreme Court in Calder v. Jones, 465 U.S. 783 (1984). Under Calder’s “effects” test, 

the Court personal jurisdiction exists if: 

(1) The defendant committed an intentional tort; 

(2) The plaintiff felt the brunt of the harm in the forum such that the forum 

can be said to be the focal point of the harm suffered by the plaintiff as a 

result of that tort; [and] 

(3) The defendant expressly aimed his tortious conduct at the forum such that 

the forum can be said to be the focal point of the tortious activity. 

Remick, 238 F.3d at 258 (quoting Imo Indus., Inc. v. Kiekert AG, 155 F.3d 254, 265-66 (3d Cir. 

1998)). 

Notwithstanding BCS’ conclusory arguments to the contrary, it is obvious that the first 

two prongs of the “effects” test are satisfied in this case.4

 “Misappropriation,” “disparagement,” 

and “tortious interference” are all intentional torts, which trigger application of the second and 

third prongs of the test. The “brunt of the harm” arising from BCS’ misconduct has been felt in 

Pennsylvania, because: 1) Bank Express is a Pennsylvania corporation with its principal place of 

business in Pennsylvania, 2) the contracts with which BCS interfered are “centered” in 

Pennsylvania, as discussed above, and 3) Bank Express conducts its business in Pennsylvania. 

See Remick, 238 F.3d at 258 (noting that “brunt of the harm” prong was satisfied where 

plaintiff’s “professional activities are centered in Pennsylvania.”). 

 

4

 To the extent either of the first two prongs of Calder’s effects test is not satisfied, Bank Express 

should be entitled to discovery and/or the opportunity to amend its Complaint to satisfy the tests. 

Case 2:02-cv-04076-SD Document 7 Filed 09/27/2002 Page 14 of 22
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The final prong of Calder’s effects test is also satisfied, because BCS targeted its 

activities against Bank Express, in Pennsylvania. As the Third Circuit made abundantly clear in 

Remick, “alleged tortious conduct [that is] expressly aimed at injuring [an in-forum plaintiff] 

where he lives and works . . . is sufficient to satisfy” the third prong of Calder’s “effects” test. 

238 F.3d at 260. As in Remick, BCS has targeted Bank Express in Pennsylvania, because BCS 

injured Bank Express, knowing at all relevant times that Bank Express was a Pennsylvania 

corporation conducting its monitoring and other services out of its Pennsylvania place of 

business. 

BCS seeks to avoid the outcome dictated by Remick by arguing that “[a]iming the torts at 

the plaintiff is not a sufficient allegation under the ‘focal point’ test.” Defs.’ Memo. at 9. This 

abstract statement, however, is inapposite in cases where—as here—the conduct has been aimed 

at an “in-forum” plaintiff, and thus BCS’ statement serves only to emphasize that jurisdiction is 

proper under the facts of this case. The Third Circuit in Remick was careful to distinguish 

situations in which the defendant caused harm by directing conduct against the plaintiff in a 

different forum from those in which the defendant caused the harm by directing its acts against 

the interests of an in-forum plaintiff. See 238 F.3d at 260 (distinguishing Imo Industries on the 

grounds that that was a case in which “the German defendant’s alleged tortious conduct appeared 

to have been expressly aimed at injuring a French company and not the in-forum plaintiff”). As 

in Remick, this is clearly a case in which the defendant has knowingly directed its conduct 

against an in-forum plaintiff. Thus, as in Remick, BCS must answer in this forum for the harm it 

has intentionally caused here through its acts of misappropriation, disparagement, and intentional 

interference. See also McGonigle, 955 F. Supp. at 382-83 (holding that jurisdiction existed over 

Case 2:02-cv-04076-SD Document 7 Filed 09/27/2002 Page 15 of 22
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non-residents that caused harm in Pennsylvania by misappropriating Pennsylvania corporation’s 

confidential information). 

Remick also demonstrates that BCS’ knowing interference with Bank Express’ 

Pennsylvania contracts is an alternate basis for satisfaction of Calder’s “targeting” prong. In 

Remick, the Third Circuit held that jurisdiction could be asserted over the defendant, based on 

the defendant’s intentional interference with Pennsylvania contracts. See 238 F.3d at 260. 

Similarly, in the present case, BCS has interfered with Bank Express’ Pennsylvania contracts. 

As the Amended Complaint demonstrates, each of the Owner Defendants knowingly delivered to 

Pennsylvania for final execution, a contract governed by Pennsylvania law, under which the 

Owner Defendants entered into a long-term contract for Bank Express, a Pennsylvania 

corporation they knew was located in Pennsylvania, to render services in Pennsylvania for the 

Owner Defendants. The Owner Defendants reaped the benefits of this contract by repeatedly 

accepting payment forwarded to them from Pennsylvania and cashing Bank Express’ checks, 

which were drawn on a Pennsylvania bank. BCS had knowledge of all of these facts and the 

Pennsylvania nexus, because it employed Johe—Bank Express' former agent—and 

misappropriated his knowledge of the Owner Defendants relationships. BCS is thus subject to 

jurisdiction in Pennsylvania for its intentional acts of interference against these Pennsylvania 

relationships. Remick, 238 F.3d at 260. 

Finally, to the extent the Court holds that the facts are not yet sufficiently developed to 

determine that BCS sufficiently “targeted” its activities toward Bank Express, Bank Express is 

entitled to a period of discovery to investigate the issue of BCS’ knowledge and intent. Renner, 

33 F.3d at 283-84. 

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B. Venue Is Appropriate In This Forum With Respect To Both The Owner 

 Defendants And BCS 

Venue is appropriate in this forum as a substantial part of the alleged events or omissions 

giving rise to Plaintiff’s claims occurred in this Commonwealth. As noted above, the Owner 

Defendants knowingly submitted to Pennsylvania, for final execution, contracts governed by 

Pennsylvania law, under which the Owner Defendants entered into long-term contracts with a 

Pennsylvania corporation, headquartered in Pennsylvania, for Bank Express to render services 

from Pennsylvania for the Owner Defendants. Additionally, BCS committed at least eleven 

intentional acts specifically aimed at a Pennsylvania corporation, with its principal place of 

business in Pennsylvania, for the specific purpose of causing injury to that corporation. 

Apparently recognizing that venue has been adequately alleged, Defendants spend 

considerable effort in their Memorandum of Law setting forth legal authority supporting the 

supposition that this Court can transfer venue in this matter. It should be noted at the outset that 

the burden of establishing that venue should be transferred rests with the movant. Jumara v. 

State Farm Ins. Co., 55 F.3d 873, 879-80 (3d Cir. 1995). Likewise, the burden of establishing 

that the balance of proper interests weighs in favor of transfer rests with the movant. Id. 

Additionally, in ruling on a motion to transfer, “plaintiff’s choice of venue should not be lightly 

disturbed.” Id. (citation and internal quotation omitted). Notwithstanding their heavy burden in 

this regard, the defendants do not provide this Court with authority indicating that the Court 

should transfer venue. This is the case as much authority supports Plaintiff’s contention that 

where defendants breach long-term contracts (or commit intentional torts against a plaintiff in 

the relevant forum) venue is appropriate where the plaintiff resides.5

 

5

 It should be noted that a careful review of all pleadings in this matter do not confirm that Credit 

Case 2:02-cv-04076-SD Document 7 Filed 09/27/2002 Page 17 of 22
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 1. Venue Is Appropriate In This Forum With Regard To The Owner 

 Defendants As A Substantial Part Of The Alleged Events Or 

 Omissions Giving Rise To Plaintiff’s Claims Occurred In This 

 Commonwealth 

As discussed at length above, the Owner Defendants intentionally created long-term 

business relationships with Bank Express whereby Bank Express was obligated to provide 

extensive servicing and electronic processing of transactions for the Owner Defendants. 

Additionally, each Owner Defendant received monthly statements and surcharge checks mailed 

to them by Bank Express from Pennsylvania. Indeed, the only alleged facts in this matter show 

that the vast majority of the substantial acts of performance under the parties’ contracts occurred 

within this forum. More importantly, the contracts at issue between the Owner Defendants and 

Bank Express where executed by Bank Express in Pennsylvania and became effective in 

Pennsylvania.6

 

Card Services, Incorporated, dba BankCard Services is/are California Corporation(s). Nor is it 

confirmed that either do not maintain continuous and systematic contacts with Pennsylvania. In 

fact, internet searches suggest that both “BankCard Services” and “Credit Card Service” offer 

Pennsylvania residents the ability to contract with both entities over the internet. It is unknown 

to Plaintiff at this time the extent of BankCard Services and Credit Card Services business 

dealings within the forum and discovery is necessary to determine the full extent of same. 

6

 The Owner Defendants ignore a long line of cases that hold that jurisdiction and venue are 

appropriate in the forum where the contracts at issue were executed. See Consolidated Rail 

Corp. v. New England Central R.R., Inc., 23 F.Supp.2d 549; West Coast Entertainment Corp. v. 

Bonafide Mngmnt System, Inc., 1999 WL 740391 (E.D. Pa.); Snider v. Slatkin, Inc., 105 F. 

Supp.2d 428 (E.D.Pa. 2000); DiMark Marketing, Inc. v. Losisiana Health Service & Indemnity 

Co., 913 F.Supp. 402 (E.D.Pa. 1996); Babn Technologies Corp. v. Bruno, 25 F. Supp.2d 593 

(E.D.Pa. 1998). As these cases make clear, a significant ground for a plaintiff to assert proper 

venue against a non-resident defendant is based upon the location of contract formation. 

Instead, defendants cite Franklin Interiors v. Wall of Fame Mngmt Co., Inc., 510 Pa. 597, 

511 A.2d 761 (Pa. 1986) for the proposition that the contracts at issue are actually California 

contracts. This interpretation of Frankin is strained. Defendants clearly ignore the language in 

Franklin which states: 

Case 2:02-cv-04076-SD Document 7 Filed 09/27/2002 Page 18 of 22
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 2. Venue Is Appropriate In This Forum With Regard To BCS As BCS 

 Committed Intentional Torts Against Bank Express With The 

 Intended Result Of Injuring Bank Express In This Forum. 

There is a long series of federal court opinions that support Plaintiff’s assertion that BCS 

is amendable to both jurisdiction and venue in this forum. See Union Carbide Corp. v. UGI 

Corp., 73 F.2d 1186, 1189 (5th Cir. 1984) (held that jurisdiction in Texas court was properly 

grounded on defendant’s out-of-state acts tortiously interfering with plaintiff’s contract with 

another corporation; out-of-state acts gave rise to injury; see also Lake v. Lake, 817 F.2d 1416, 

1423 (9th Cir. 1987) (attorney who wrongfully obtained ex parte order in California had 

“purposeful contacts” with Idado where effects of order would be felt there where plaintiffs 

resided); Panavision Int’l v. Toeppen, 141 F.3d 1316 (9th Cir. 1998) (holding that defendant who 

attempted to extort money from a California corporation from outside of California held to have 

directed his activities toward that state); Kumarelas v. Kumarelas, 16 F.Supp.2d 1249 (D. 

Nevada 1998) (while in California, defendant coercively influenced the decedent to change the 

terms of a trust thus causing plaintiff/beneficiary residing in Nevada to suffer losses; jurisdiction 

held proper in Nevada under the “effects test” because defendant “must have known” that it was 

likely that plaintiff would feel the effects of defendant’s wrongful conduct in Nevada); National 

 

At best, the document of record, without more, is nothing other than an offer by 

Appellants to deal with Appellee under the terms and conditions of the written 

offer. Until accepted by the Appellee in the mode and manner expressly provided 

by the terms of the offer, this document remains an unaccepted offer and cannot, 

in itself, be considered a binding contract. This is hornbook law. Id. at 600. 

It should be noted that Franklin dealt with a document that was unsigned by a required party. 

The Court specifically ruled that the unsigned document was merely an offer requiring all 

signatures before becoming a contract. This is identical to the facts before this Court. In this 

case the Owner Defendants submitted to Bank Express contracts that required a signature from a 

authorized representative of Bank Express. Thus, when viewed against Franklin, it is clear that 

the “contracts” as submitted by the Owner Defendants were mere offers requiring execution by 

Bank Express to become actual contracts. As noted by Franklin, this is hornbook law. 

Case 2:02-cv-04076-SD Document 7 Filed 09/27/2002 Page 19 of 22
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Occupational Health Servs., Inc. v. Advanced Indus. Care, 50 F.Supp.2d 1111 (N.D. Okla. 1998) 

(California subcontractor who interfered with Oklahoma contract amenable to personal 

jurisdiction in Oklahoma even though all its acts occurred outside the state; held that party who 

tortiously interferes with contract of another is subject to jurisdiction in the state where the 

property rights under the contract exist); Centronics Data Computer Corp. v. Mannesmann, A.G., 

432 F.Supp. 659, 666-67 (D.N.H. 1977) (though defendant’s tortious acts occurred outside of 

New Hampshire, they were aimed specifically at corporation who resided there, thus jurisdiction 

held proper.) Accordingly, as with the owner defendants, venue is proper in this jurisdiction as 

to BCS. 

C. The Amended Complaint is Legally Sufficient 

In the final part of their Motion, the defendants allege a series of asserted “deficiencies” 

in the Amended Complaint, which they contend, require the Court to order Bank Express to replead. The asserted “deficiencies” amount to nothing more than defendants’ attempts to impose 

pleading requirements that do not exist in law, or to argue the sufficiency of evidence, which is 

not properly raised in a motion under Rule 12. Moreover, the defendants make virtually no 

effort to ground their complaints in legal authority. The fact of the matter is that Bank Express’ 

detailed Amended Complaint is legally sufficient, and none of the defendants’ arguments 

constitute sufficient grounds to grant for dismissal. In any event, Bank Express would be 

entitled to remedy any valid objection by filing an amended pleading. 

Case 2:02-cv-04076-SD Document 7 Filed 09/27/2002 Page 20 of 22
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IV. CONCLUSION

For all of the foregoing reasons, plaintiff Bank Express respectfully requests the Court to 

deny defendants’ motion pursuant to Fed. R. Civ. P. 12. 

RESPECTFULLY SUBMITTED: 

PIZONKA, MCGRORY, REILLEY, 

BELLO & MCGRORY, P.C. 

BY: 

 DOUGLAS T. GOULD, ESQ. 

Case 2:02-cv-04076-SD Document 7 Filed 09/27/2002 Page 21 of 22
CERTIFICATE OF MAILING

I, H. BRUCE HANSON hereby certificate that a true and correct copy of the foregoing 

Plaintiff Bank Express' Opposition To Defendants’ Motion To Dismiss And Strike Plaintiff’s 

Amended Complaint has been served upon the following counsel by first class mail, postage prepaid on September 27, 2002. 

David H. Oh, Esquire 

The Law Firm of David Oh, PC 

121 South Broad Street 

14th Floor 

Philadelphia, PA 19107 

 

 H. Bruce Hanson 

Case 2:02-cv-04076-SD Document 7 Filed 09/27/2002 Page 22 of 22