Myers v. Mooney Aircraft, Inc.

• Decision Date: 14 November 1967
• Parties: Bessie K. MYERS, and the Fulton National Bank of Lancaster, executor of the Estate of Helen Elizabeth Myers, deceased, Lancaster, Pennsylvania, v. MOONEY AIRCRAFT, INC., Appellant. Rocco P. URELLA, Executor of the Estate of Maurice F. Wilhere, Deceased, and Mary Wilhere, wife, Maurice F. Wilhere, Jr., and Mary Wilhere, mother, survivors of Maurice F. Wilhere, Deceased, v. FULTON NATIONAL BANK OF LANCASTER, Administrator of the Estate of Helen Elizabeth Myers, Deceased, and Mooney Aircraft Corporation. Appeal of MOONEY AIRCRAFT CORPORATION.
• Court: Pennsylvania Supreme Court

Page 505

240 A.2d 505

429 Pa. 177

Bessie K. MYERS, and the Fulton National Bank of Lancaster, executor of the Estate of Helen Elizabeth Myers, deceased, Lancaster, Pennsylvania, v. MOONEY AIRCRAFT, INC., Appellant.

Rocco P. URELLA, Executor of the Estate of Maurice F.

Wilhere, Deceased, and Mary Wilhere, wife, Maurice

F. Wilhere, Jr., and Mary Wilhere,

mother, survivors of Maurice

F. Wilhere, Deceased, v. FULTON NATIONAL BANK OF LANCASTER, Administrator of the

Estate of Helen Elizabeth Myers, Deceased, and

Mooney Aircraft Corporation.

Appeal of MOONEY AIRCRAFT CORPORATION.

Supreme Court of Pennsylvania.

Nov. 14, 1967.

Rehearings Denied April 25, 1968.

Bernard M. Borish, Philadelphia, for appellants.

John Milton Ranck, Lancaster, for appellees Myers and others.

Frank E. Roda, Lancaster, Charles A. Lord, Philadelphia, for appellees Urella and others.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION

JONES, Justice.

On August 9, 1962, at Forest Hills, Maryland, an airplane, allegedly piloted by Helen Myers, crashed and both Helen Myers and her passenger, Maurice Wilhere were killed. This airplane had been manufactured by Mooney Aircraft, Inc., (Mooney), a Texas corporation.

As a result of this accident, two trespass actions were instituted in the Court of Common Pleas of Lancaster County: (1) the personal representative and survivors of Maurice Wilhere sued the personal representative of the Helen Myers Estate and Mooney (herein described as the Wilhere action) and (2) the personal representative of the Helen Myers Estate sued Mooney (herein described as the Myers action).

In the Wilhere action, the complaint was filed on July 24, 1963, and service of process on Mooney was sought to be effected on the same date by delivery of a copy of the complaint to one Henry Weber, a distributor and director of Mooney, at Weber's place of business in Lancaster County, said service purporting to be made under the provisions of Pa.R.C.P. 2180(a)(2), 12 P.S. Appendix. In the Myers action, the complaint was filed on August 9, 1963, and service of process on Mooney was sought to be effected by two methods: (a) by delivery of a copy of the complaint to Weber at his place of business on August 12, 1963, purportedly in compliance with Pa.R.C.P. 2180(a)(2) and (b) by service of a copy of the complaint on August 22, 1963, by registered mail, upon the Secretary of the Commonwealth under the provisions of Section 1011, subd. B of the Business Corporation Law of 1933, as amended. ¹

In the Wilhere action, Mooney filed neither an appearance nor an answer and, on April 7, 1965--over one and one-half years after service was made--, a default judgment was entered against Mooney. One year later, Mooney filed a petition to strike off the default judgment on the ground that, by reason of defective service, the court had failed to acquire jurisdiction so as to permit the entry of an In personam judgment. The Court below entered an order denying Mooney's petition to strike off the judgment; from that order an appeal has been taken. ²

In the Myers action, Mooney filed preliminary objections--over two and one-half years after service was made--, raising a question of jurisdiction over its person by reason of defective service of the complaint. The court below entered an order overruling the preliminary objections; from that order an appeal has been taken. ³

In both the Wilhere and Myers actions, the record before this Court consists solely of certain depositions, affidavits and exhibits which were introduced in evidence in a trespass action in the United States District Court for the Western District of Pennsylvania, i.e., Donnelly v. Mooney Aircraft, Inc., No. 63--458 Civil Action. ⁴ In large part, both the Myers and Wilhere actions involve identical factual and legal issues: therefore, the records in both action were consolidated and we will consider both appeals in this opinion.

SERVICE IN THE MYERS ACTION UNDER SECTION 1011, SUBD. B OF

THE BUSINESS CORPORATION LAW

Mooney argues that the attempted substitute 'long arm' service of process under Section 1011, subd. B of the Act of 1933, supra, prior to the 1963 amendment thereof, in the Myers action was invalid because: (a) the action did not arise out of 'acts or omissions' in Pennsylvania and (b) Mooney was not engaged in 'doing business' within the statutory purview.

Resolution of these two issues depends upon what statute is applicable to the instant factual situation and whether, under the provisions of the applicable statute, Mooney was engaged in 'doing business' within the Commonwealth.

On August 13, 1963, the legislature amended the 'long-arm' statute permitting service of process upon unregistered foreign corporations by permitting service 'in any action arising in the Commonwealth', thus eliminating the prior statutory requirement 'in any action arising out of acts or omission of such corporations within this Commonwealth,' ⁵ but retaining under Section 1011, subd. C the definition of 'doing business' without, however, rendering Section 1011, subd. C dependent on Section 1011, subd. B. If the 1963 amendment is prevently applicable, then the broad legislative definition of 'doing business' provided in Section 1011, subd. C of that statute controls.

Section 1011, subd. B of the 1963 amendment provides: '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 within this Commonwealth. * * *' Section 1011, subd. C provides: 'C. For the purposes of determining jurisdiction of courts within this Commonwealth, 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'. (Emphasis added.)

This 1963 amendment became effective August 13, 1963. The complaint in the Myers action was filed four days before the effective date of the amendment and the service of the complaint was made nine days after such effective date. Does the 1963 amendment apply in the case at bar? We believe that it does.

In Killiam v. Allegheny County Distributors et al., 409 Pa. 344, 350, 185 A.2d 517, 520 (1962), this Court said: '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. (citing authorities).' (at p. 351, 185 A.2d at p. 520.) See also: Frisch v. Alexson Equipment Corp., 423 Pa. 247, 250, 224 A.2d 183 (1966). The question next arises: was this action Instituted when the complaint was filed four days prior to the effective date of the 1963 amendment or when the service was effected nine days thereafter? In King v. The Security Co. of Pottstown, 241 Pa. 547, 551, 552, 88 A. 789, 791 (1913), we said: 'The general rule of construction that legislation is to be given retroactive effect only when its language clearly requires such construction, is not questioned. But an exception to that rule obtains as to enactments which affect only procedure and practice of the courts. 'No person has a vested right in any course of procedure, nor in the power of delaying justice, or of deriving from technical and formal matters of pleading. He has only the right of prosecution or defense in the manner prescribed, for the time being, by or for the court in which he sues; and, if a statute alters that mode of procedure, he has no other right than to proceed according to the altered mode. The remedy does not alter the contract or the tort; it takes away no vested right'. Endlich on Interpretation of Statutes, 285. Another statement of the principle is this: 'Statutes which are designed to change the mode of judicial procedure, where such change relates to the method of enforcing a right and does not affect the right itself, are construed to apply to causes of action which accrued before enactment as well as to those to accrue thereafter.' 26 Am. & Eng.Ency.Law (2d ed.) 695. The purpose of this statute was purely remedial. It affected in no way any vested right of the defendant.' See also: Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 445, 446, 66 S.Ct. 242, 90 L.Ed. 185 (1946); Flaherty v. United Engineers & Constructors, Inc., D.C., 191 F.Supp. 661, 662, 663 (1961). In Flaherty, supra, the accident occurred on June 12, 1957, summons and complaint were filed on August 14, 1958 and, on July 22, 1959, the defendant attempted to bring upon the record a foreign corporation as an additional defendant by serving an alias summons and a complaint on the Secretary of the Commonwealth. On the date the complaint was filed Section 1011, subd. C of the 1957 act was in effect; that section was delected from the statute on July 11, 1959 but reenacted on November 10, 1959. The court held that, in the absence of an express reservation in the statute, the validity of the service on the foreign corporation should be determined under the statute in existence at the time of the service. In our view the validity of the resent service is to be determined under Sections 1011, subd. B and 1011, subd. C of the 1963 amendment to the Business Corporation Law.

The 1963 amendment being applicable, the prior statutory requisite that the action must arise of 'acts or omissions' in Pennsylvania is eliminated and the sole question is whether Mooney was 'doing business' in the Commonwealth and a resolution of that question...