GEORGE TRANSP. & RIG. CO. v. INTERNATIONAL PUB. EQUIP. CORP.

• Decision Date: 01 February 1977
• Docket Number: Civ. A. No. 76-1993.
• Citation: 425 F. Supp. 1351
• Parties: GEORGE TRANSPORT AND RIGGING COMPANY, INC. v. INTERNATIONAL PUBLICATIONS EQUIPMENT CORPORATION et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

425 F. Supp. 1351

GEORGE TRANSPORT AND RIGGING COMPANY, INC. v. INTERNATIONAL PUBLICATIONS EQUIPMENT CORPORATION et al.

Civ. A. No. 76-1993.

United States District Court, E. D. Pennsylvania.

February 1, 1977.

Robert R. Reeder, Philadelphia, Pa., for George Transport.

Stephen R. Bolden, Philadelphia, Pa., for International Publications Equipment Corp.

MEMORANDUM AND ORDER

RAYMOND J. BRODERICK, District Judge.

Plaintiff, George Transfer and Rigging Company, has brought this action against International Publications Equipment Corp ("IPEC"),¹ seeking to recover shipping charges in the amount of $4,072.95.² IPEC has moved pursuant to Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the complaint for lack of jurisdiction over the person. For the reasons hereinafter discussed, IPEC's motion is granted.

The facts as alleged by the plaintiff in its complaint are that plaintiff (a Maryland corporation with a place of business in Maryland) is a common carrier engaged in the business of moving goods between states, and that IPEC contracted with the plaintiff for plaintiff to transport goods through interstate commerce from the McCall Printing Company in Maryland. There were five separate shipments: two went to Indiana, two to Illinois, and one to New York. The complaint makes no reference whatsoever to Pennsylvania, nor does it make any reference to the route which the plaintiff carrier used to transport the goods to the various consignees, one in Illinois, one in Indiana, and one in New York. However, in its answer to IPEC's motion to dismiss, plaintiff attached an affidavit stating:

that part of the goods which were transported by GEORGE TRANSFER & RIGGING COMPANY, INC., at the request of INTERNATIONAL PUBLICATIONS EQUIPMENT CORPORATION specifically those goods which traveled to Berne, Indiana . . . were transported through the Commonwealth of Pennsylvania and more particularly utilized the Pennsylvania Turnpike . .. That the goods which were transported to New York likewise traveled through the Commonwealth of Pennsylvania.

There is no allegation that IPEC instructed plaintiff to go through Pennsylvania, nor did it designate the route plaintiff should take in delivering the goods. In fact, the above quoted affidavit indicates that the goods shipped from Maryland to Illinois did not go through Pennsylvania.

In answering plaintiff's interrogatories for the purpose of determining jurisdiction, IPEC stated that: it had not filed a certificate to do business in Pennsylvania; it did not do business in Pennsylvania; it had not made any shipment of its products into Pennsylvania, either directly or indirectly within the last twenty years; it had never solicited any business within Pennsylvania, either by telephone or by advertisement;³ it had not, within the last twenty years, entered into any contract for the sale of its goods or products within Pennsylvania, nor had it within the last twenty years owned or leased an interest in any real or personal property within Pennsylvania. Furthermore, in an affidavit attached to its motion to dismiss IPEC further stated that it "does not now and has never maintained any office within the Commonwealth of Pennsylvania, sales agents, distributorships, franchising arrangements, salesmen, representatives of any kind or nature whatsoever or place of business within the Commonwealth of Pennsylvania. . . . but has from time to time, as a national and international seller of equipment, had goods, wares and merchandise passed through the Commonwealth of Pennsylvania, for ultimate delivery to customers in other states."

Plaintiff asserts that there is jurisdiction over IPEC in this case because the defendant has satisfied the Pennsylvania long-arm statute's requirement of doing business within the state.⁴ 42 Pa.C.S.A. § 8302(a) (1976 Supp.) provides:

Any foreign corporation which shall have done any business in this Commonwealth without procuring a certificate of authority to do so from the Department of State as required by statute, shall be conclusively presumed to have designated the Department of State as its true and lawful attorney authorized to accept, on its behalf, service of process in any action arising within this Commonwealth. . .

Section 8309(a) of the Act defines what is meant by doing business within the Commonwealth in the following language:

Any of the following shall constitute "doing business" for the purposes of this chapter:

(1) The doing by any person in this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object.

(2) The doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object with the intention of initiating a series of such acts.

(3) The shipping of merchandise directly or indirectly into or through this Commonwealth.

(4) The engaging in any business or profession within this Commonwealth, whether or not such business requires license or approval by the Commonwealth or any of its agencies.

(5) The ownership, use or possession of any real property situate within this Commonwealth. (emphasis supplied).

In determining whether jurisdiction over the person has been obtained by the use of a long-arm statute, two questions are presented: first, whether the relevant provisions of the statute encompass the conduct of the defendant; and, second, assuming the statute is applicable, whether the exercise of jurisdiction over the defendant under the particular circumstances of the case complies with the constitutional requisite of due process of law. Columbia Metal Culvert Co., Inc. v. Kaiser Industries Corp., 526 F.2d 724, 730 (3d Cir. 1975); Shong Ching Lau v. Change, 415 F.Supp. 627, 631 (E.D.Pa.1976).

In attempting to determine whether the statute encompasses the conduct of IPEC in this situation, we have found several recent decisions from courts in Pennsylvania construing that portion of the long-arm statute which provides for the assertion of jurisdiction over a non-registered foreign corporation which ships merchandise directly or indirectly into the Commonwealth of Pennsylvania. Those decisions have unanimously sustained the exercise of jurisdiction over a non-registered foreign corporation which does in fact ship merchandise directly or indirectly into Pennsylvania. See, e. g., Columbia Metal Culvert Co., Inc. v. Kaiser Industries, Inc., 526 F.2d 724 (3d Cir. 1975); Crucible, Inc. v. Stora Kopparbergs Bergslags AB, 403 F.Supp. 9 (W.D.Pa.1975); Keene v. Multicore Solders Ltd., 379 F.Supp. 1279 (E.D.Pa.1974); Aquarium Pharmaceuticals Inc. v. Industrial Pressing and Packaging, Inc., 358 F.Supp. 441 (E.D. Pa.1973). We have been unable to find any case which has interpreted the meaning of the clause in section 8309(a)(3), "the shipping of merchandise . . . through this Commonwealth." However, in this case, we shall not pursue this question further because it has become obvious to us that the assertion of jurisdiction over the defendant on the basis of this record offends the due process clause of the fourteenth...