Florio v. Powder Power Tool Corp.

• Decision Date: 26 October 1956
• Docket Number: Civ. A. 19911.
• Parties: Mario FLORIO, a minor, by his next friends and natural parents, Cesare Florio and Mary Florio, and Cesare Florio and Mary Florio, in their own right, v. POWDER-POWER TOOL CORP. and General Equipment Company, Incorporated.
• Court: U.S. District Court — Eastern District of Pennsylvania

148 F. Supp. 843

Mario FLORIO, a minor, by his next friends and natural parents, Cesare Florio and Mary Florio, and Cesare Florio and Mary Florio, in their own right, v. POWDER-POWER TOOL CORP. and General Equipment Company, Incorporated.

Civ. A. 19911.

United States District Court E. D. Pennsylvania.

October 26, 1956.

Freedman, Landy & Lorry, Philadelphia, Pa., for plaintiff.

Morris Passon, Philadelphia, Pa., for General Equipment Co.

John J. McDevitt, III, Philadelphia, Pa., for Powder-Power Tool Corp. GRIM, District Judge.

On December 4, 1954, an employee of a building contractor, while working in Wallingford, Delaware County, Pennsylvania, was using a "drive-it" tool for the purpose of driving studs into a steel beam. As he was doing this a metal stud was ejected from the tool in such a way that it struck plaintiff, Mario Florio, on the head and caused serious injury to his brain. Powder-Power Tool Corp., an Oregon corporation, made the "drive-it" tool and sold it to General Equipment Company, Incorporated, a Maryland corporation with a place of business in Pennsylvania, which resold it. In this diversity action, Florio, a Pennsylvania citizen, has sued both Powder-Power Tool Corp. and General Equipment Company, averring that both defendants were negligent in providing a tool which was dangerous, defective and not fit for the purpose intended.

Defendant General Equipment Company, Incorporated is making no contention at the present time, but defendant Powder-Power Tool Corp., which is not registered to do business in Pennsylvania, has filed a motion to dismiss the action against it, contending that no valid service of process has been made on it.

Plaintiff attempted to make service upon Powder-Power Tool Corp., in this action by having process served upon the Secretary of the Commonwealth under Section 1011, subd. B of the Pennsylvania Business Corporation Law of 1933, as amended:

"B. Any foreign business corporation which shall have done any business in this Commonwealth, without procuring a certificate of authority to do so from the Department of State, shall be conclusively presumed to have designated the Secretary of the Commonwealth as its true and lawful attorney authorized to accept, on its behalf, service of process in any action arising out of acts or omissions of such corporation within this Commonwealth. * * * Where process is issued against any such foreign business corporation by any court of the United States empowered to issue such process under the laws of the United States, the Secretary of the Commonwealth is authorized to receive such process in the same manner as herein provided for process issued by courts of this Commonwealth * * *." 15 P.S. § 2852-1011, subd. B.

Plaintiff contends that this method of service was correct for the reason that Powder-Power, a foreign corporation not registered in Pennsylvania, subjected itself to the provisions of Section 1011, subd. B by having done business in Pennsylvania within the statutory definition of "doing business" enacted in Section 22 of the Act of September 26, 1951, P.L. 1475, which added, after Section 1011, subd. B of the Business Corporation Law, a new subsection C, as follows:

"C. For the purposes of this act, the entry of any corporation into this Commonwealth for the doing 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'."

Powder-Power contends that it has not done and is not now doing business in Pennsylvania as that term is defined in subsection C. If this contention is correct, Section 1011, subd. B does not apply and service upon the Secretary of the Commonwealth is not valid service upon Powder-Power.

Powder-Power Tool Corp. has sold its tools in Pennsylvania to General Equipment Company, Incorporated, its exclusive dealer in Pennsylvania, and to no other person or corporation in Pennsylvania. Its sales into Pennsylvania from 1952 to 1955, the year when the suit was started, have been:

                    1952                $ 2,647.89
                    1953                $22,596.46
                    1954                $29,664.82
                    1955                $17,662.14
                

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