Namie v. DiGirolamo

• Decision Date: 27 November 1963
• Citation: 195 A.2d 517,412 Pa. 589
• Parties: Ackle NAMIE and Lillian Namie, his wife, v. Henry T. DIGIROLAMO and Belgrade Shoe Co., a Corporation. Appeal of BELGRADE SHOE CO., a Corporation.
• Court: Pennsylvania Supreme Court

195 A.2d 517

412 Pa. 589

Ackle NAMIE and Lillian Namie, his wife, v. Henry T. DIGIROLAMO and Belgrade Shoe Co., a Corporation.

Appeal of BELGRADE SHOE CO., a Corporation.

Supreme Court of Pennsylvania.

November 27, 1963.

William J. Lancaster, Herbert Grigsby, Pittsburgh for appellant.

William S. Schweers, McArdle, Harrington & McLaughlin, Pittsburgh for appellee.

Thomas R. Eddy, Pittsburgh, for Henry T. DiGirolamo.

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

ROBERTS, Justice.

Belgrade Shoe Company, a non-registered foreign corporation, appeals from an order of the Court of Common Pleas of Allegheny County dismissing its preliminary objections which raised the question of jurisdiction over the person. Service of process was made upon the Secretary of the Commonwealth pursuant to the Act of May 5, 1933, P.L. 364, art. X, § 1011, as amended, 15 P.S. § 2852-1011 (Supp.1962). ^[1]

The 'acts of omissions' of Belgrade are alleged to have arisen out of an automobile collision between Lillian Namie and Henry T. DiGirolamo on May 27, 1960, at the intersection of Sixth Avenue and Grant Street, Pittsburgh. The complaint in the trespass action which followed alleged that DiGirolamo was acting within the course and scope of his employment with Belgrade and upon the business of that corporation at the time of the collision. (The complaint, of course, alleged acts of negligence on the part of principal and agent.)

At the request of the court below, Belgrade submitted an affidavit of its president to support its preliminary objections. The affidavit alleges the following material facts:

Belgrade is a Maine corporation engaged in the manufacture and sale of shoes; it has no employees or agents within Pennsylvania. From 1950 to July 29, 1960, Henry T. DiGirolamo was a manufacturer's representative for Belgrade Shoes in Pennsylvania, West Virginia, Western New York, and parts of Ohio and Maryland. Mr. DiGirolamo resided in Pittsburgh and was advertised in the classified telephone directory there as 'Belgrade Shoe Co. Moxees Division, Representatives--Henry T. DiGirolamo.'

The affidavit further avers that no written contract existed between Belgrade and DiGirolamo and that he was free to represent other manufacturers. He was supplied with a list of Belgrade's accounts and with samples of its shoes, but was not required to solicit those accounts. Belgrade exercised no control or direction over DiGirolamo's contact with customers or the frequency or manner of any contact. Other than samples, no materials or equipment was supplied by the corporation. Mr. DiGirolamo was paid on a draw against commission basis and was responsible for his own social security and withholding obligations.

The affidavit recites that the corporation exercised no physical control over DiGirolamo's activities, that he was his own master and free to conduct his operations as he desired. He had no authority to bind the corporation to any contract. He was not reimbursed for any expenses except those incurred in attending, at the invitation of the corporation, an annual shoe exhibit in New York.

Belgrade's affidavit continues that DiGirolamo was not required to meet any sales quotas and had no authority to make or accept payments, fix prices or terms. All orders were accepted, filled and shipped in Maine, and all payments were received there. Just as DiGirolamo was permitted to discontinue representing Belgrade at any time, the corporation could terminate his representation. Finally, the corporation stated that it did not own or rent any office space, building, display areas or property of any kind in Pennsylvania.

Also at the direction of the court, DiGirolamo's deposition was taken. The deposition reveals that he represented only Belgrade and had been their representative since 1950. Approximately four times a year, in addition to meeting at the New York show, representatives of the company came to Pittsburgh to discuss with him the accounts and business of Belgrade. He was a member of a group insurance program for which the company paid the premium. DiGirolamo called on twenty outlets for Belgrade in Allegheny County, and he regarded his earning power at $10,000 annually, or a draw against commissions of $200 per week. He testified that he would have to forward $200,000 in orders at 5% to warrant that draw, but that he never reached that goal. However, he continued to receive $200 every week. DiGirolamo felt that he would not have received his draw if he sold any other line of shoes and that he was not permitted to do anything that would divert his attention from Belgrade. At the termination of his representation, there was no settlement of accounts between him and the company. He operated his own car and deducted all expenses for its operation. He was of the opinion that use of an automobile was required by his activities, although he was never specifically directed to travel in that manner. DiGirolamo did take up the matter of delinquent accounts at the request of Belgrade. On occasion, the company would advise him of a new account through correspondence and would set up appointments subject to his schedule. Changes of territory were made...