476 F.2d 1216 (3rd Cir. 1973), 71-2035, Gorso v. Bell Equipment Corp.

Docket Nº:71-2035 to 71-2039.
Citation:476 F.2d 1216
Party Name:James A. GORSO v. BELL EQUIPMENT CORPORATION, a corporation, v. The MARLEY COMPANY, a corporation and Societe de Construction Mecaniques de Bugey and Tichauer et Cie. Appeal of SOCIETE DE CONSTRUCTION MECANIQUES DU BUGEY and Tichauer et Cie, in No. 71-2035, (five cases). Jack CHICONELLA v. BELL EQUIPMENT CORPORATION, a corporation, v. The MARLEY CO
Case Date:March 02, 1973
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 1216

476 F.2d 1216 (3rd Cir. 1973)

James A. GORSO

v.

BELL EQUIPMENT CORPORATION, a corporation,

v.

The MARLEY COMPANY, a corporation and Societe de Construction Mecaniques de Bugey and Tichauer et Cie.

Appeal of SOCIETE DE CONSTRUCTION MECANIQUES DU BUGEY and Tichauer et Cie, in No. 71-2035, (five cases).

Jack CHICONELLA

v.

BELL EQUIPMENT CORPORATION, a corporation,

v.

The MARLEY COMPANY, a corporation and Societe de Construction Mecaniques du Bugey and Tichauer et Cie.

Clyde A. TEVIS

v.

BELL EQUIPMENT CORPORATION, a corporation,

v.

The MARLEY COMPANY, a corporation and Societe de Construction Mecaniques du Bugey and Tichauer et Cie.

Harry J. PHILLIPS

v.

BELL EQUIPMENT CORPORATION, a corporation,

v.

The MARLEY COMPANY, a corporation and Societe de Construction Mecaniques du Bugey and Tichauer et Cie.

Amedio VITALE

v.

BELL EQUIPMENT CORPORATION, a corporation,

v.

The MARLEY COMPANY, a corporation; Societe de Construction Mecaniques du Bugey, and Tichauer et Cie.

Nos. 71-2035 to 71-2039.

United States Court of Appeals, Third Circuit.

March 2, 1973

Argued Dec. 14, 1972.

As Amended April 5, 1973.

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Kim Darragh and Raymond H. Conaway, of Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, Pa., for appellant.

James E. Coyne, Lancaster, Mentzer, Coyne & Duffy, Pittsburgh, Pa., for appellee.

Before SEITZ, Chief Judge, and ALDISERT and ROSENN, Circuit Judges.

OPINION

SEITZ, Chief Judge.

This appeal arises out of the denial by the district court, 330 F.Supp. 834, of a motion to dismiss two impleaded defendants for lack of personal jurisdiction. The district court certified the question for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and this court accepted the appeal. Pennsylvania law applies since federal jurisdiction here is predicated upon diversity of citizenship.

Appellants are two French companies, Societe de Construction du Bugey and Tichauer et Cie. The former manufactures a tower crane used in the construction industry; the latter is its exclusive world sales agent. These two companies were impleaded by the original defendant and present appellee, Bell Equipment Corporation. Bell is a New York corporation which previously represented appellants in the United States as their national sales agent. Bell has maintained an office in Pennsylvania at all times relevant to this suit.

Through Bell, one of appellants' tower cranes was sold in December, 1965 to

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the Marley Company, a Kansas corporation engaged in construction. 1 It was delivered in February, 1966 to a Marley jobsite in Beverley, Ohio and was used on that site until its completion in early 1968. That February, it was moved to a new jobsite at Huff, Pennsylvania. Bell aided Marley in setting up the crane at both the Beverley and the Huff sites. In October, 1968, while being used at Huff, the crane collapsed and injured several workers, plaintiffs herein. 2

The French companies are not registered to do business in the Commonwealth of Pennsylvania nor do they maintain an office in the state. At the time of the sale of the crane, they possessed a national sales agent, Bell; but apparently neither of the two cranes of appellant Societe's manufacture which Bell sold in the United States was sold or delivered in Pennsylvania. However, Bell maintained an office in Pennsylvania throughout this period.

By the summer of 1968, Bell had terminated its relationship with appellants. However, even though it had ceased to represent the two French firms, it continued to service in Pennsylvania the crane which it had sold to Marley.

While the crane was being used at Huff, individual delivery on six orders was made to the jobsite from the Societe factory in France by appellant Tichauer. Five of these orders had been placed by Marley on December 1, 1967, some three months prior to the removal of the crane to Pennsylvania; we believe these five orders constitute one transaction. A sixth order was also placed; however, on the record before us, it is impossible to determine when it was made. For purposes of our decision, we will assume it was made subsequent to the crane's removal to the Huff jobsite and represents a separate transaction. Marley was forced to order these parts directly from appellants in France because by that time, Bell had ceased to represent the two French firms. No solicitation by appellants was involved; rather, Bell had advised Marley to contact appellants directly since there was no domestic distributor of the parts These parts were ordered from, and invoiced to, Marley's central office in Kansas City, Missouri. They were dropshipped to the Pennsylvania construction site.

After a hearing, the district court concluded that sufficient contacts existed between Pennsylvania and appellants for personal jurisdiction to lie consistent with both constitutional and state statutory requirements. 3 In reviewing this determination, two questions are posed: (1) whether state statutory requirements in fact have been met; and (2) if so, whether personal service can be made upon appellants consistent with due process requirements of the Fourteenth Amendment.

I. THE EVOLUTION OF THE PENNSYLVANIA STATUTE.

In 1968, Pennsylvania amended the terms of its "long-arm" statute as applied to foreign corporations so as to extend its reach. It presently states:

For the purposes of determining jurisdictions of courts within this Commonwealth, the doing by any corporation within this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object, or doing a single act in this Commonwealth for such purpose, with the intention of thereby initiating a series of such acts, shall constitute "doing business." For the purposes of this subsection, the shipping of merchandise

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directly or indirectly into or through this Commonwealth shall be considered the doing of such an act in this Commonwealth.

15 P.S. § 2011(C). This was the final step in a series of legislative responses to successive judicial interpretations of amendments to the "long-arm" statute. In each case, the state courts had construed the...

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