Hartley v. Sioux City and New Orleans Barge Lines, Inc.

• Decision Date: 29 October 1965
• Docket Number: Civ. A. No. 65-752.
• Citation: 247 F. Supp. 1015
• Parties: James R. HARTLEY, Libellant, v. SIOUX CITY AND NEW ORLEANS BARGE LINES, INC., Respondent.
• Court: U.S. District Court — Eastern District of Pennsylvania

247 F. Supp. 1015

James R. HARTLEY, Libellant, v. SIOUX CITY AND NEW ORLEANS BARGE LINES, INC., Respondent.

Civ. A. No. 65-752.

United States District Court W. D. Pennsylvania.

October 29, 1965.

Hymen Schlesinger, Pittsburgh, Pa., for libellant.

Donald L. Very, Campbell, Thomas & Burke, Pittsburgh, Pa., for respondent.

JOHN L. MILLER, District Judge.

Plaintiff filed two actions arising out of the same accident aboard defendant's vessel, M V Waverly, on March 30, 1965. Civil Action No. 65-752 was brought under the Jones Act, 46 U.S.C. § 688, to recover damages for injuries resulting from defendant's negligence and the unseaworthiness of the vessel. Recovery for maintenance and cure and damages for failure to provide maintenance and cure is sought in the action at No. 65-37 in Admiralty. Now before the Court in both actions are motions to quash service of process and to dismiss for lack of personal jurisdiction and for improper venue.

In both actions, service of process was effected through the Secretary of the Commonwealth in accordance with the Pennsylvania Business Corporation Law, 15 P.S. § 2852-1011(B), as amended August 13, 1963.¹ That Act sets forth two jurisdictional requirements which must be satisfied before a non-registered, foreign corporation can be validly served thereunder: (1) the corporation must have "done business" in this Commonwealth as that phrase is defined in the Act and (2) the action must arise within this Commonwealth.

Nothing has been presented to contradict the allegations by plaintiff that defendant is a foreign corporation, with its principal office at Houston, Texas, which is doing business in Pennsylvania. Furthermore, it is alleged by plaintiff that the accident out of which these causes of action arose occurred aboard defendant's vessel while it was being operated on the Illinois River in the vicinity of Morris, Illinois. Thus the only question involved here with regard to service of process under the Pennsylvania Business Corporation Law is whether these are actions "arising within this Commonwealth."

Plaintiff contends that filing the actions in this Court is all that is required to satisfy the statute in this regard. It is his position that the word "arising" means that the action start or be started in courts existing within this Commonwealth. With this construction of the law, we can not agree.

Prior to August 13, 1963, the relevant portion of the Pennsylvania Business Corporation Law included the following wording: "Any foreign business corporation * * * shall be conclusively presumed to have designated the Secretary of the Commonwealth * * * to accept * * * service of process in any action arising out of acts or omissions of such corporation within this Commonwealth." The Supreme Court of Pennsylvania, interpreting this language as it applied to a situation in which a product manufactured and sold in Illinois to a New Jersey corporation caused injury to plaintiff in Pennsylvania, said, in Rufo v. Bastian-Blessing Co., 405 Pa. 12, 20, 173 A.2d 123, 127 (1961), "The question is not where the injury occurred or where the cause of action arose; where did the company's negligent acts or omissions take place?" (Emphasis supplied) The Court then went on to say (at page 20, 173 A.2d at page 127):

If the legislature mean (sic.) `cause of action' or `right of action', it could and would have so stated. Indeed, if the legislature meant `cause of action' or `right of action', it would have omitted the words `out of acts or omissions of the corporation' and the provision would have read `in any action arising within the Commonwealth.'

Responding to the Court's decision, the legislature amended the Pennsylvania Business Corporation Law in 1963, by adopting the language suggested by the Court: "in any action arising within this Commonwealth." It is apparent that the legislature intended to state that the second requirement for service under the Act must be that the cause of action be one arising within the Commonwealth. It was so held in Electrosonics International, Inc. v. Wurlitzer Co., 234 F.Supp. 913 (E.D.Pa.1964). It is elementary that a cause of action does not arise upon the starting of an action in court; indeed the cause of action must have arisen at some time prior to the commencement of the action in court.

Because this cause of action arose in Illinois where plaintiff was injured, these are not actions "arising within this Commonwealth" and the service upon the Secretary of the Commonwealth under the Pennsylvania Business Corporation Law must be quashed. We are not unmindful of the holdings on this issue by this Court in three other cases, in Spry v. Eastern Gas & Fuel Associates, 234 F.Supp. 580 (W.D.Pa. 1964) and Sterling Box...