Keene v. Multicore Solders Ltd., Civ. A. No. 73-729.

• Decision Date: 09 April 1974
• Docket Number: Civ. A. No. 73-729.
• Citation: 379 F. Supp. 1279
• Parties: Elizabeth KEENE v. MULTICORE SOLDERS LTD., et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

379 F. Supp. 1279

Elizabeth KEENE v. MULTICORE SOLDERS LTD., et al.

Civ. A. No. 73-729.

United States District Court, E. D. Pennsylvania.

April 9, 1974.

Stephen A. McBride, Media, Pa., for Keene.

Patrick J. O'Connor, Philadelphia, Pa., for Multicore Solders Ltd.

Barton L. Post, Philadelphia, Pa., for Multicore Sales Corp.

Francis E. Shields, Philadelphia, Pa., for Arrow Electronics.

William F. Sweeney, Philadelphia, Pa., for Alpha Metals, Inc.

OPINION

LUONGO, District Judge.

Plaintiff Elizabeth Keene (Keene) instituted this suit for damages for harm allegedly caused to her by exposure, in the course of her employment in Pennsylvania, to ersin multicore solder manufactured, sold or distributed by defendant corporations. One of the defendants, Multicore Solders, Ltd. (Multicore), has moved, pursuant to F.R.Civ.P. 12(b), to dismiss the suit against it for lack of jurisdiction.

Multicore is a British corporation which has its offices and manufacturing facilities in England. It does not maintain an office in Pennsylvania, and it does not directly sell its products here, but its products have been sold and used regularly in Pennsylvania for many years. Since 1958, Multicore's only sales in the United States have been to British Industries, Ltd., an unrelated New York corporation which serves as Multicore's exclusive sales agent for the United States under written agreement. The sales are actually made by a subsidiary of British Industries, Multicore Sales Corporation, also a New York corporation.

Service was made on Multicore pursuant to the Pennsylvania long-arm statute. Multicore argues that its operations do not constitute "doing business" in Pennsylvania, a statutory prerequisite for obtaining Pennsylvania jurisdiction over a non-registered foreign corporation. Alternatively, it argues that if the statute by its terms reaches Multicore, the statute violates due process.

At the outset, it is necessary to dispel the confusion as to which long-arm statute governs in these proceedings. On November 15, 1972, the legislature repealed Pennsylvania's two long-arm statutes, 15 P.S. § 2011 et seq., and 12 P.S. § 341 et seq., and in their place enacted 42 P.S. § 8301 et seq., effective on February 15, 1973. Plaintiff Keene filed her complaint on March 29, 1973, and process was served on Multicore on May 10, 1973. "While substantive rights are settled as of the time the cause of action arises, rights in procedural matters, such as jurisdiction and service of process, are determined by the law in force at the time of the institution of the action." Kilian v. Allegheny County Distributors, 409 Pa. 344, 350-351, 185 A.2d 517, 520 (1962). In this case, the complaint was filed and process was served after the new Pennsylvania long-arm statute took effect, therefore the new statute governs.

The new Pennsylvania long-arm statute provides, in pertinent part:

"§ 8302. Nonqualified foreign corporations

(a) General rule. — 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. Service of process shall be made in the manner provided by section 8307 of this title (relating to procedure for service of process)."

* * * * * *

"§ 8309. Acts affecting jurisdiction (a) General rule.— 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.

* * * * * *

(b) Exercise of full constitutional power over foreign corporations. — In addition to the provisions of subsection (a) of this section the jurisdiction and venue of courts of the Commonwealth shall extend to all foreign corporations and the powers exercised by them to the fullest extent allowed under the Constitution of the United States."

* * * * * *

The statute identifies two elements which must be present for a Pennsylvania court to exercise long-arm jurisdiction over a foreign corporation: (1) the cause of action must have arisen within Pennsylvania, and (2) the foreign corporation must have done business in Pennsylvania. Because Keene alleges that she contracted illness from her exposure to Multicore's product at her place of employment in Chester, Pennsylvania, the first requirement is met. What remains to be considered is whether Multicore has "done business" in Pennsylvania within the meaning of the statute.

Under § 8309(a)(3), "the shipping of merchandise directly or indirectly into or through this Commonwealth" constitutes "doing business" in Pennsylvania. This language signifies the legislature's intent to define "doing business" more expansively than it did in the previous version of the long-arm statute. Under the repealed long-arm, 15 P.S. § 2011, subd. C,¹ the direct or indirect shipment of merchandise into the state constituted "doing business" only if a series of shipments "for the purpose of thereby realizing pecuniary benefit . . ." or a single shipment "with the intention of . . . initiating a series of such acts" was made. The old statute "contemplated a systematic course of conduct as contrasted with isolated and sporadic occurrences." Gorso v. Bell Equipment Corp.,² 476 F.2d 1216, 1221 (3d Cir. 1973) quoting Myers v. Mooney Aircraft, Inc., 429 Pa. 177, 185, 240 A. 2d 505 (1967). Under the present statute, a single direct or indirect shipment of goods into Pennsylvania satisfies the statutory requirement of "doing business." Aquarium Pharmaceuticals, Inc. v. Industrial Pressing & Packaging, Inc., 358 F.Supp. 441 (E.D.Pa.1973).

In the instant case, the change in statutory language does not affect the result. Multicore has derived income from the sale of its product in the United States. In order to systematically cultivate and serve this market, Multicore designated British Industries as its exclusive sales agent. Since 1958, British Industries has sold Multicore's product on a regular basis in Pennsylvania. Through its exclusive sales agent, Multicore has made a series of indirect shipments into Pennsylvania. This "systematic course of conduct" by a foreign manufacturer would, in my view, satisfy even the test for "doing business" under 15 P.S. § 2011, subd. C, now repealed.³ It follows, a fortiori, that Multicore has "done business" under the present long-arm with its more expansive definition of the term.

The only remaining question is whether the exercise of jurisdiction over Multicore as authorized by the long-arm statute would violate due process. Under the test of International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), due process permits the exercise of jurisdiction over a foreign corporation where that corporation has "certain minimum contacts" with the forum state "such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" In Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), the Court elaborated upon the "minimum contacts" test, observing that while "the application of that rule will vary with the quality and nature of the defendant's activity . . ., it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." 357 U.S. at 253, 78 S.Ct. at 1240.

In applying the test of International Shoe and Hanson, many courts have concluded that where a foreign corporation's volume of business and pattern of product distribution is such that it should reasonably anticipate that its product may ultimately be used in the state, due process permits the state to exercise jurisdiction over it.⁴ In Pennsylvania those courts considering the constitutional reach of long-arm jurisdiction have unanimously upheld jurisdiction in cases where the pattern of product distribution rendered reasonably foreseeable the use of manufacturer's product in Pennsylvania.⁵

Given these precedents, I conclude that Multicore "has purposefully availed itself of the privilege of conducting activities" in Pennsylvania. Hanson v. Denckla, supra. There is nothing unfair about requiring Multicore to defend its product in Pennsylvania where the product has been regularly and systematically sold. Indeed, unfairness would result if Multicore were able to insulate itself for jurisdictional purposes from all that transpired after its sale to British Industries. The "consumers" of Multicore's product are in Pennsylvania, and Multicore derives profits from the sale of its products here. The sale to British Industries is merely a...