Kraus v. American Tobacco Co.
| Decision Date | 13 April 1925 |
| Docket Number | 20 |
| Citation | 283 Pa. 146,129 A. 60 |
| Parties | Kraus, Appellant, v. American Tobacco Co. et al |
| Court | Pennsylvania Supreme Court |
Argued March 18, 1925
Appeal, No. 20, March T., 1925, by plaintiff, from order of C.P. Allegheny Co., Jan. T., 1923, No. 700, setting aside service of writ, in case of Samuel Kraus v. American Tobacco Co. and R. H. Kelley. Reversed.
Affidavit of defense raising question of law and replication filed thereto. Before HAYMAKER, J.
The opinion of the Supreme Court states the facts.
The following order was made: "The return of the service of the writ of summons in this case upon the American Tobacco Company by the sheriff of Dauphin County is vacated and set aside." Plaintiff appealed.
Error assigned was, inter alia, order, quoting it.
The order appealed from is reversed and the record is remitted to the court below so that it may proceed forthwith to consider and determine the questions of fact indicated in this opinion, and adjudge the validity of the service accordingly.
Leonard S. Levin, for appellant. -- The intention of the legislature was that the revocation was to be valid only where there was a bona fide removal from the State and cessation of business and for a fictitious removal: National Bank v. Chase Co., 17 Pa. Dist. R. 869; Mutual Reserve Assn. v Phelps, 190 U.S. 147; Mutual Ins. Co. v. Spratley, 172 U.S. 617; Hunter v. Mutual Reserve Assn., 218 U.S. 587; Fashion Co. v. Brobst, 18 Lancaster L.R. 231; Milsom Fertilizer Co. v. Kelly, 10 Pa.Super. 565; Kernchen Co. v. English, 70 Pa.Super. 293; Nonantum Worsted Co., 3 Pa. Dist. R. 428; Bragdon v. Campbell Co., 19 Pa. C.C.R. 305; West Jersey Ice Mfg. Co. v. Armour & Co., 12 Pa.Super. 443.
John G. Frazer, with him Reed, Smith, Shaw & McClay, for appellee, cited: Nat. Bank v. Chase, 17 Pa. Dist. R. 869; Peoples Tobacco Co. v. Am. Tobacco Co., 246 U.S. 79.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Samuel Kraus, a wholesale tobacco dealer in the City of Pittsburgh, sued the American Tobacco Company, a New Jersey corporation, and R. H. Kelley, alleging that defendants had conspired to control the sale of tobacco, especially in the State of Pennsylvania, and, in pursuance of this conspiracy, had refused to sell to plaintiff because he had failed to maintain the prices established by them, resulting in heavy damages to him, which he sought to recover. Service was made October 24, 1922, upon the secretary of the Commonwealth, as agent for defendant corporation, and an affidavit of defense was filed by the latter, raising the question of law that the person served was no longer its agent.
The affidavit admitted that defendant, in 1915, registered in Pennsylvania as a foreign corporation, appointing the secretary of the Commonwealth as its agent for the service of processes in this State; but defendant averred that it ceased to do business in Pennsylvania in July, 1916, and, on January 11, 1917, filed with the proper official a paper, so certifying, wherein it attempted to revoke the prior appointment of the secretary of the Commonwealth as its agent for the service of process. Defendant further averred that, since the time of filing such revocation, it had not carried on any business within the confines of Pennsylvania, owned property, or maintained an office in the State. It therefore contended that the service of the writ on the secretary of the Commonwealth, as its agent, was illegal and should be set aside.
In an answer, or replication, to defendant's affidavit of defense, plaintiff averred that, "since July, 1916, up to the date of the bringing of the suit, defendant had maintained a permanent office in the City of Pittsburgh," and had continued to do business within the State of Pennsylvania; plaintiff therefore contended that the service on the secretary of the Commonwealth should be adjudged good and sufficient.
Depositions were taken, and "the preliminary question as to the legality of the service of the writ was, by agreement of counsel, argued before the court in banc," which entered an order vacating and setting aside the service; this appeal followed.
In an opinion accompanying the order appealed from, the court below states: "Depositions have been taken by both sides on the question of doing or carrying on corporate business by defendant after its attempted revocation of agency, but we are unable to see the necessity of passing on that question of fact, for the reason that we are of opinion the validity of the service does not depend on whether defendant continued to carry on business within the State." In other words the court below concluded, defend...
To continue reading
Request your trial
-
Kelly v. Johnson Nut Co.
...591, 31 S. Ct. 127, 54 L. Ed. 1155, 30 L. R. A. (N. S.) 686; Insurance Co. v. Scott, 136 N. C. 157, 48 S. E. 581; Kraus v. American Tobacco Co., 283 Pa. 146, 129 A. 60; Wilson v. Martin-Wilson Automatic Fire Alarm Co., 149 Mass. 24, 20 N. E. 318; Collier v. Mutual Reserve Fund Life Ass'n (C......
-
Carlisle v. Kelly Pile & Foundation Corporation
...of the liability of the foreign corporation for acts of an intrastate nature done by it in Pennsylvania." See Kraus v. American Tobacco Co., 283 Pa. 146, 129 A. 60, 61, and Kelly v. International Clay Products Co., 291 Pa. 383, 140 A. 143, 145. Cf. Steinberg v. Aetna Fire Ins. Co., D.C.E.D.......
-
Hughes v. Hughes
...Barkley, 211 Pa. 313; Lehigh Val. Ins. Co. v. Fuller, 81 Pa. 398. The Act of March 5, 1925, P.L. 23, is available to defendant: Kraus v. Tobacco Co., 283 Pa. 146. G. Von Phul Jones, with him Robert W. Beatty, for appellee. -- The proceeding under the Act of 1907 contemplates a remedy agains......
-
Kraus v. American Tobacco Co.
...in case of Samuel Kraus v. American Tobacco Co. and R. H. Kelly. Affirmed. Trespass for conspiracy to maintain improper prices. See 283 Pa. 146. under Act of March 5, 1925, P.L. 23, to determine jurisdiction of court in first instance. Before HAYMAKER, J. Rule to show cause why service shou......