Electrosonics International, Inc. v. Wurlitzer Company
Decision Date | 08 September 1964 |
Docket Number | Civ. A. No. 35048. |
Citation | 234 F. Supp. 913 |
Parties | ELECTROSONICS INTERNATIONAL, INC. v. The WURLITZER COMPANY. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Albert Ring, Philadelphia, Pa., for plaintiff.
David A. Saltzburg, Philadelphia, Pa., for defendant.
This case is now before the court on defendant's Motions to Quash Return of Service of the Summons and Complaint or to Dismiss the Action (Documents 3 and 10).1
The Amended Complaint alleges that on May 3, 1962, plaintiff issued a purchase order covering 2500 Resonant Reed Relays, as specified in the order which is attached as Exhibit A to the Amended Complaint (Document 9). The last sentence of paragraph 3 and paragraph 4 of the Amended Complaint contain this language:
The affidavits and answers to interrogatories establish that the defendant Ohio corporation accepted the order in New York State, where the relays were manufactured and shipped.
A. Contention that service of process on the defendant has been validly made under 15 P.S. § 2852-1011, subd. B.
15 P.S. § 2852-1011, as amended by the Act of 1963, Aug. 13, P.L. ___, No. 377, §§ 1 and 2, provides, inter alia:
The record makes clear that defendant is doing business in Pennsylvania within the meaning of the above-quoted 15 P.S. § 2852-1011, subds. B and C, as amended by the above-mentioned Act of 1963. (See paragraphs 8-10 and 15 of the answers to interrogatories (Document 12) and page 10 of defendant's brief, as well as Rufo v. Bastian-Blessing Co., 405 Pa. 12, 14-18, 173 A.2d 123 (1961).) The principal issue for determination in this case is whether the cause of action alleged in the above-quoted language from paragraphs 3 and 4 of the Amended Complaint constitutes an "action arising within this Commonwealth."
The purchase order was accepted in New York, the contract was formed there, and New York was the place of performance of the contract. Insofar as the cause of action consists of the failure of defendant to meet the production and shipping schedules for the relays and its shipment of relays which were defective at the time of shipment, the following legal principles indicate that the cause of action arose in New York at or before the time of delivery of the defective relays to the common carrier or at the time of the failure to deliver the relays to the carrier according to the delivery schedule in New York:2
Upon this record, and by applying the above principles, it is evident that the cause of action in this case arose in New York and that this cause of action is not one "arising within this Commonwealth."3 Since this cause of action was not one "arising within this Commonwealth," the service upon the Secretary of the Commonwealth under § 1011, subd. B must be quashed.
B. Contention that service of process has been validly made on the Pennsylvania corporation, as an agent of the Ohio corporation.
In addition to serving the Secretary of the Commonwealth, plaintiff also attempted service by serving Mr. Kull, the credit manager of Wurlitzer Company of Pennsylvania, a subsidiary of the defendant. Plaintiff contends that this service was valid under the provisions of F.R.Civ.P. 4(d) (3) and (7), alleging that the subsidiary was actually an agent of the defendant. Affidavits and answers to interrogatories have been filed (see the documents listed in footnote 1, supra) which establish the following:
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