Kenny v. Alexson Equipment Co.
| Decision Date | 14 July 1981 |
| Citation | 432 A.2d 974,495 Pa. 107 |
| Parties | Gerard M. KENNY and Kathleen Kenny, v. ALEXSON EQUIPMENT COMPANY, Thomas Lindstrom and Company, Clyde Iron Works, Incorporated, Microdot Co., Incorporated, AMCA International Corporation, American Tubular Elevator Company and International Brotherhood of Operating Engineers, Local 542, and Wm. M. Anderson Co., Inc. and Piracci Construction Co., and Dominic A. Piracci, Sr., Appellants. Edmund KOLLHOFF and Helen Kollhoff, v. ALEXSON EQUIPMENT COMPANY, Thomas Lindstrom and Company, Clyde Iron Works, Incorporated, Microdot Co., Incorporated, AMCA International Corporation, American Tubular Elevator Company and International Brotherhood of Operating Engineers, Local 542, and Wm. M. Anderson Co., Inc. and Piracci Construction Co., and Dominic A. Piracci, Sr., Appellants. |
| Court | Pennsylvania Supreme Court |
Gerard M. Kenny (Kenny) and his wife, Kathleen Kenny, instituted suit in the Court of Common Pleas of Philadelphia County as a result of injuries sustained by Kenny on November 8, 1973 while riding on a construction elevator powered from ground level by a hoist. The elevator dropped from a high elevation at a construction site in Philadelphia.
Edmund Kollhoff (Kollhoff) and his wife, Helen Kollhoff, also instituted suit in the Court of Common Pleas of Philadelphia County for injuries sustained by Kollhoff as a result of the same occurrence while riding on the elevator with Kenny.
Kenny and Kollhoff were a pipefitter and sheetmetal worker, respectively, in the employ of Wm. M. Anderson Company (Anderson) which was engaged in construction of the Federal Court Building in Philadelphia. Their respective complaints, which were identical except as to personal data of the individual plaintiffs, named as defendant Alexson Equipment Company (Alexson) (appellee herein). The complaints alleged that Alexson had leased the hoist elevator to their employer Anderson.
Alexson joined Piracci Construction Co., a Maryland corporation, as an additional defendant alleging it was the seller of the hoist which powered the elevator. Thereafter, Alexson petitioned the court and was granted leave to join Dominic A. Piracci, Sr., (Piracci, Sr.) (appellant herein) as an additional defendant on the grounds that Alexson had purchased the hoist from Piracci, Sr. rather than Piracci Construction Co.
On December 23, 1976, Alexson filed a praecipe pursuant to which a Writ of Summons was issued to join Piracci, Sr. as an additional defendant. The sheriff served the writ by registered mail to the Secretary of the Commonwealth in Harrisburg and to Piracci, Sr. at 2552 Woodbrook Avenue, Baltimore, Maryland, pursuant to the Long-Arm Statute then in effect. 1
On January 24, 1977, Piracci Sr. filed a preliminary objection to the Writ of Summons on the ground that the Court of Common Pleas of Philadelphia County was without personal jurisdiction over him. The Court of Common Pleas dismissed the preliminary objection and denied the motion to dismiss the Writ of Summons. Consolidated appeals from the orders of the Court of Common Pleas were filed in the Superior Court and heard by a panel of that court which affirmed. 428 A.2d 253. We granted allowance of appeal and now reverse.
Piracci, Sr. is an individual who is not and has never been a resident of the Commonwealth of Pennsylvania. At all times relevant to this action he was and continues to be a resident of Maryland. Piracci, Sr. does not and has never done business in Pennsylvania nor has he maintained an office or usual place of business here.
The hoist alleged by Alexson to have been defective and to have caused injuries to Kenny and Kollhoff, was sold by Piracci, Sr. to Alexson. The sale was negotiated in Maryland where delivery and payment were made. Alexson maintained an office in Baltimore, Maryland to which Piracci, Sr. invoiced the sale of the hoist. Alexson also maintained offices in Gloucester City, New Jersey and Philadelphia.
The record fails to disclose what use Alexson made of the hoist after it was purchased from Piracci, Sr. on January 21, 1972. However, almost eleven months later, it appears that the hoist was to be shipped by Alexson, from its Gloucester City, New Jersey location, where it apparently was then located, to Anderson in Philadelphia, where the accident occurred.
The facts upon which the lower courts relied as the basis for bringing Piracci, Sr. within the reach of the Long-Arm Statute was that the check with which Alexson paid Piracci, Sr. for the hoist was drawn on a Philadelphia bank and was imprinted with the address of Alexson's Philadelphia office. The lower courts reasoned that Piracci, Sr. was, thus, put on notice that the hoist would be shipped to Philadelphia. The Court of Common Pleas concluded that it had jurisdiction pursuant to 42 Pa.C.S.A. § 8309(a)(3) which stated that the shipping of merchandise "directly or indirectly into or through this Commonwealth" shall constitute "doing business." The Superior Court, on the other hand, held that jurisdiction over Piracci, Sr. was obtained under 42 Pa.C.S.A. § 8305 which provided for jurisdiction over any non-resident individual who shall have caused any harm within this Commonwealth.
The Long-Arm Statute then in effect 2 set forth three bases for the exercise of jurisdiction over non-resident individuals. Those sections provided that any non-resident individual who commits a tortious act 3 or does business within the state 4 or causes harm within the state by way of an action outside the state 5 will be subject to the jurisdiction of Pennsylvania.
Alexson argues that Piracci, Sr. should be amenable to jurisdiction under section 8304 which permits the exercise of jurisdiction over a non-resident individual "doing business" in Pennsylvania. Doing business is defined in section 8309. Subsection 8309(a)(3) states that "(t)he shipping of merchandise directly or indirectly into or through this Commonwealth" shall constitute doing business.
In the past, several lower federal and Pennsylvania courts have held that a non-resident defendant indirectly ships merchandise into the Commonwealth when it is reasonably foreseeable that such merchandise will find its way into this jurisdiction. Testa v. Janssen, 482 F.Supp. 1195 (W.D.Pa.1980) citing Washington v. U. S. Suzuki Motor Corp., 257 Pa.Super. 482, 390 A.2d 1339 (1978), see also Kerrigan v. Clarke Gravely Corp., 71 F.R.D. 480 (M.D.Pa.1975). This rule has been held applicable even if an independent middleman ships the product into the jurisdiction and is himself a nonresident. Testa v. Janssen, supra. Furthermore, "(a) single shipment is sufficient to subject a foreign individual or corporation to personal jurisdiction under (sub) section 8309(a)(3)." Columbia Metal Culvert Co. v. Kaiser Industries, Inc., 526 F.2d 724, 728 (3d Cir. 1975). This section is a formulation of what has been referred to as the "stream of commerce" theory of jurisdiction. "The 'stream of commerce' theory asserts that a manufacturer or seller, by marketing its product in interstate commerce, has submitted voluntarily to the jurisdiction of a state to which it's product travels." See : Donohue, Pennsylvania's New Long-Arm Statute, 79 Dick.L.Rev. 51 (1974); Henegan, Long-Arm Jurisdiction in Products Liability Actions: An "Effects Test" Analysis of World-Wide Volkswagon Corp. v. Woodson, 45 Alb.L.Rev. 179, 189 (1980). 6
In the present case, Piracci, Sr. sold the hoist to Alexson which was engaged in the business of leasing hoists in Maryland, New Jersey and Pennsylvania. Alexson then shipped the equipment into the Commonwealth of Pennsylvania. Alexson is essentially arguing that it was foreseeable that the hoist sold by Piracci to Alexson would be shipped by Alexson to Pennsylvania and urges us to find Piracci, Sr. amenable to jurisdiction under section 8304 and subsection 8309(a)(3).
Alexson has also argued, and the Superior Court agreed, that the hoist sold by Piracci, Sr. caused harm within the Commonwealth of Pennsylvania, thus bringing Piracci, Sr. within the reach of section 8305. Section 8305 "... requires that (1) the non-resident (shall) have acted outside of Pennsylvania, (2) his action (shall) have caused 'any harm' within Pennsylvania, and (3) the cause of action (shall) have arisen out of the conduct causing the harm." B.J. McAdams, Inc. v. Boggs, 426 F.Supp. 1091, 1098 (E.D.Pa.1977). This section is a formulation of what has been termed the "effects test" of extra-territorial jurisdiction. Under the "effects test," derived from the American Law Institute's Restatement (Second) of Conflict of Laws § 37 (1971):
A state has power to exercise judicial jurisdiction over an individual who causes effects in the state by an act done elsewhere with respect to any cause of action arising from these effects unless the nature of the effects and of the individual's relationship to the state make the exercise of such jurisdiction unreasonable.
Unquestionably, the sale of the hoist in Maryland from Piracci, Sr. to Alexson constituted an act outside the Commonwealth. The alleged resulting harm was the personal injuries sustained by Kenny and Kollhoff in Philadelphia. In support, Alexson...
To continue reading
Request your trial
-
Simmers v. American Cyanamid Corp.
...411; International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945); Kenny v. Alexson Equipment Co., 495 Pa. 107, 117-118, 432 A.2d 974, 980 (1981); Slota v. Moorings, Ltd., supra, 343 Pa.Super. at 102-103, 494 A.2d at 3. Random, fortuitous, or attenuate......
-
Modern Mailers, Inc. v. Johnson & Quin, Inc., Civ. A. No. 93-4409.
...purposely availed itself of the privilege of conducting business in Pennsylvania. Id. 466 A.2d at 1053 (citing Kenny v. Alexson Equip. Co., 495 Pa. 107, 432 A.2d 974 (1981)). The court also noted that although the defendant's gross receipts from Pennsylvania were only 3.7% of its total gros......
-
Derman v. Wilair Services, Inc.
...and, (2) the exercise of jurisdiction under statute must meet constitutional standards of due process); see also Kenny v. Alexson, 495 Pa. 107, 117, 432 A.2d 974, 980 (1981). The Due Process Clause of the fourteenth Amendment of the United States Constitution permits personal jurisdiction o......
-
Slota v. Moorings, Ltd.
...the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Kenny v. Alexson Equipment Co., 495 Pa. 107, 117-118, 432 A.2d 974, 980 (1981). The due process clause "does not contemplate that a state may make a binding judgment in personam against an......