FORT WAYNE CORRUGATED P. CO. v. ANCHOR HOCKING G. CORP.
Decision Date | 24 January 1940 |
Docket Number | No. 385.,385. |
Parties | FORT WAYNE CORRUGATED PAPER CO. v. ANCHOR HOCKING GLASS CORPORATION et al. |
Court | U.S. District Court — Western District of Pennsylvania |
Patterson, Crawford, Arensburg & Dunn, Chas. F. C. Arensburg, and James M. Barrett, Jr., all of Pittsburgh, Pa., for plaintiff.
Reed, Smith, Shaw & McClay, Elder W. Marshall and John C. Bayne, all of Pittsburgh, Pa., for defendant.
This is a civil action by the Fort Wayne Corrugated Paper Company, a corporation incorporated under the laws of Indiana, against the Anchor Hocking Glass Corporation and the Anchor Hocking Glass Corporation of Pennsylvania, two corporations incorporated under the laws of Delaware. The Anchor Hocking Glass Corporation has filed two motions which are now before us: The first one dated July 11, 1939 wherein it moves the Court to quash the return of Service of the summons served on it. The second motion is dated November 17, 1939. In it, it moves to dismiss the suit alleging that this Court was without venue to hear and determine the same, and in the same motion it moves to quash the return of service of pluries summons made on it September 23, 1939. The Anchor Hocking Glass Corporation of Pennsylvania, a wholly owned and controlled subsidiary of the Anchor Hocking Glass Corporation, has filed an answer. It, therefore, probably means that if the motions of the Anchor Hocking Glass Corporation prevail that the same cause of action will have to be tried in two different Courts and be subject to separate appeals, etc.
The motion of the Anchor Hocking Glass Corporation dated July 11, 1939 to quash the return of the service of the summons upon it June 21, 1939 is on the ground that the person served is not an officer or agent of the Anchor Hocking Glass Corporation but is an officer or agent of its wholly owned and controlled subsidiary, the Anchor Hocking Glass Corporation of Pennsylvania. These facts having been established, the motion should be sustained. Cannon Manufacturing Company v. Cudahy Packing Company, 1925, 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634; Philadelphia & R. R. Co. v. McKibbin, 1917, 243 U.S. 264, 37 S.Ct. 380, 61 L. Ed. 710; Peterson v. Chicago, R. I. & P. R. Co., 1907, 205 U.S. 364, 27 S.Ct. 513, 51 L.Ed. 841; Consolidated Textile Corp. v. Gregory, 289 U.S. 85, 53 S.Ct. 529, 77 L.Ed. 1047; Mechanical Appliance Co. v. Castleman, 215 U.S. 437, 30 S.Ct. 125, 54 L.Ed. 272; La Varre v. International Paper Company, 1929, D.C., 37 F.2d 141. In Cannon Manufacturing Company v. Cudahy Packing Company, supra, it is stated 267 U.S. 333, 45 S.Ct. 251, 69 L.Ed. 634: In * * *"the present case, the books of the parent corporation and those of the subsidiary corporation are kept separate.
In the motion of the Anchor Hocking Glass Corporation of November 17, 1939, it moves to quash the return of service made upon it September 23, 1939. The marshal in his return on service states: "I hereby certify and return, that on the twenty-third day of September, 1939, I received the within summons and on the twenty-third day of September, 1939, at 9:50 A. M. Daylight Savings Time, I served the within summons and complaint on the Anchor Hocking Glass Corporation, a foreign corporation, by serving William C. Porter, personally, who is a representative, agent and manager in charge of the Sales Department of Anchor Hocking Glass Corporation at the Anchor Hocking Glass Corporation office, 811 Investment Building, Fourth Avenue, Pittsburgh, Pennsylvania at which time I made known the contents of the within summons to William C. Porter, agent, by reading to him and leaving with him a copy of the within summons and complaint."
The reason contended for in support of this motion is that it is not doing business in the State of Pennsylvania and that the service on William C. Porter as its agent was not service upon it. The Anchor Hocking Glass Corporation is not registered in the State of Pennsylvania nor has it appointed an agent upon whom service can be made for it. It sells glass products, including tableware and glass containers manufactured at its plant located at Lancaster, Ohio. It wholly owns and controls the Anchor Hocking Glass Corporation of Pennsylvania, which formerly had a plant located at Connellsville, Pennsylvania, which was abandoned in 1938. It sells a considerable amount of its manufactured product in Pennsylvania. It has three agents in Pennsylvania for the purpose of making sales; two of these agents including the one served solicit orders. After orders have been received they are sent to the Anchor Hocking Glass Corporation at Lancaster, Ohio, for acceptance or rejection. These agents, two of whom are located in Pittsburgh and one in Philadelphia, do not receive any salary. They are furnished with catalogs, order blanks and samples by the Anchor Hocking Glass Corporation. Their payment is on a commission basis. They do not collect any money from purchasers. These agents lease and pay for the rental of the offices which they occupy and for telephone service.
On the office door in the Investment Building, appears the name: "Anchor Hocking Glass Corp. Hocking Division, William C. Porter, Repr." The office is listed in the Pittsburgh Telephone Directory as "Anchor Hocking Glass Corp. (Tableware Div.) Investment Bl." and in the Pittsburgh City Directory as "Anchor Hocking Glass Corp. (Tableware Div.) William C. Porter, Rep., Table glassware, 810 Investment Bldg." Similar listings and markings were made in relation to the office located in the Fulton Building.
In Real Silk Hosiery Mills, Inc., v. Philadelphia Knitting Mills Company, 3 Cir., 46 F.2d 25, 26, the Court adopted the opinion of Judge Dickinson of the District Court. In the opinion of Judge Dickinson, it is stated:
The ruling of the District Court was sustained, refusing to set aside the service on the ground that the defendant was not doing business in Pennsylvania. The present case seems to be substantially in fact the same as the...
To continue reading
Request your trial-
Marquest Medical Products, Inc. v. Emde Corp., Civ. A. No. 80-K-61.
...(S.D.N.Y.1971); and substantial passage of time during which pre-trial preparation was undertaken, Ft. Wayne Corrugated Paper Co. v. Anchor Hocking Glass Corp., 31 F.Supp. 403 (W.D.Pa.1940). Cf. Hasse v. American Photograph Corp., 299 F.2d 666, 669 (10th Cir. 1962) (filing of Rule 13(a) com......
-
Blank v. Bitker
...from the nonresident defendant's failure to answer, whereas here Bitker did answer and object. In Fort Wayne Corrugated Paper Co. v. Anchor Hocking Glass Corp., D.C., 31 F.Supp. 403, waiver of the venue defense resulted because that defense was not raised till five months after the action w......
-
Altman v. LIBERTY EQUITIES CORPORATION
...of substantial passage of time during which pre-trial preparation was undertaken by other parties, Ft. Wayne Corrugated Paper Co. v. Anchor Hocking Glass Corp., 31 F.Supp. 403 (W.D.Pa.1940), but cf. Blank v. Bitker, 135 F.2d 962 (7th Cir. 1943); McGah v. V-M Corp., 166 F.Supp. 662 (N.D.Ill.......
-
Cohen v. American Window Glass Co.
...India Tire Co., D. C., 10 F.Supp. 53; Lauricella v. Evening News Publishing Co., D.C., 15 F.Supp. 671; Fort Wayne Corrugated Paper Co. v. Anchor Hocking Glass Corp., D.C., 31 F. Supp. 403; Loeb v. Star & Herald Co., 187 App.Div. 175, 175 N.Y.S. 412; Tauza v. Susquehanna Coal Co., 220 N.Y. 2......