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June 26, 1951


The opinion of the court was delivered by: GRIM

Plaintiff, Charles Moore, a citizen and resident of Philadelphia, Pennsylvania, has brought this suit for $ 25,000 damages, alleging that he was 'assaulted, battered, falsely imprisoned, deprived of his civil liberties, humiliated, vilified and shamed and he sustained a severe mental and nervous shock' as a result of actions of employees of defendants, Atlantic Coast Line Railroad Company, a Virginia corporation, and the Pennsylvania Railroad Company, a Pennsylvania corporation.

Plaintiff, a Negro, avers the following facts: On September 26, 1947, he purchased from defendants a round-trip coach passenger ticket from Philadelphia, Pennsylvania, to Savannah, Georgia, and return. At 3:18 P.M. on that same day he boarded Train No. 105 on which he travelled from Philadelphia to Florence, South Carolina, occupying Seat No. 42, the reserved seat assigned to him, in Car CH9, which was owned by the Pennsylvania Railroad. The next morning at about 1:00 o'clock in Florence, South Carolina, defendants' employees obtained the services of four police officers who, with defendants' conductor, woke the plaintiff, swore at him, threatened him with physical harm and with imprisonment in jail, placed him under arrest, physically evicted him from Car CH9, which was restricted to white passengers, and forced him into Car CH3 in the same train, which car was restricted to Negroes and owned by Atlantic Coast Line.

 Plaintiff asserts two causes of action, one a common law or diversity cause of action for assault, battery, false imprisonment and humiliation, and the other a federal cause of action for 'violation of the Constitution and laws of the United States and of the regulations of the Interstate Commerce Commission.'

 Defendant Atlantic Coast Line has filed a motion to dismiss this suit on three grounds: (1) that, not being subject to service in this District, Atlantic Coast Line was not properly served with process; (2) that venue is improperly laid in this District as to Atlantic Coast Line; and (3) that exclusive primary jurisdiction of the subject matter of this action lies with the Interstate Commerce Commission.

 The principal question presented in the case is whether Atlantic Coast Line has been properly served with process so as to be subject to the jurisdiction of this court. Atlantic Coast Line contends that it is not subject to service in the Eastern District of Pennsylvania because it is not 'doing business' here. Following are the uncontroverted facts relating to Atlantic Coast Line's activities in this district.

 The Atlantic Coast Line Railroad Company (hereinafter sometimes referred to as the defendant) is an interstate railroad incorporated under the laws of Virginia, with its principal office in Wilmington, North Carolina. Defendant's northern terminal is Richmond, Virginia; none of its tracks extends into Pennsylvania; and it has never operated any railroad line, station, terminal, yard, shop or other transportation facility in Pennsylvania. It maintains two offices in Philadelphia, one for the solicitation of passenger business and the other for the solicitation of freight business. Defendant's name appears on the doors of these offices and in local telephone directories. The offices are leased in the defendant's name, the leases having been executed by the defendant at Wilmington, North Carolina, and the office furniture in each of the offices belongs to the defendant. It maintains no local bank account, salaries of its Philadelphia employees are paid by checks from its general office at Wilmington, North Carolina, drawn on North Carolina banks, and office supplies are furnished to the Philadelphia offices from Wilmington, North Carolina.

 In the passenger office, the Division Passenger Agent, with the help of a Traveling Passenger Agent and a Clerk-Stenographer, solicits passenger traffic throughout eastern Pennsylvania, Delaware, and southern New Jersey. He contacts people interested in making trips to the south and furnishes information about schedules and costs, in an attempt to induce them to travel over defendant's lines. The passenger office will, if a prospective passenger so desires, secure tickets for the passenger from the local ticket office of the railroad on whose lines the travel is to originate, usually The Pennsylvania Railroad Company. Tickets so obtained are usually obtained on credit extended by the railroad issuing the tickets and, within seventy-two hours from the time the tickets are obtained, the credit extension slips issued in the name of the prospective passenger are redeemed with cash supplied by the passenger to defendant's passenger solicitation office and by it turned over to the ticket office of the railroad issuing the tickets. No tickets are made up or sold by defendant's local passenger office. During the year 2947, which is the year in which the alleged assault occurred, approximately 3,000 passengers obtained tickets through defendant's local passenger office in the manner above indicated. There is nothing to indicate that 1947 was not an average business year for the railroad. If complaints are made by passengers residing in this district (or Delaware and southern New Jersey), the main office notifies the Philadelphia office. An employee of the Philadelphia office then calls on the complaining parties, obtains all the facts possible, and attempts to pacify them or to show them where they have been wrong in making complaints. Adjustments, if any, are not handled through the local office.

 In the freight office, the office manager, with the assistance of a Chief Clerk, a Freight Service Agent, and a Stenographer, solicits freight for handling over the defendant's lines. Both outbound and inbound freight are solicited through the giving of such information as will induce shippers to patronize defendant's lines. The freight office handles no cash, waybills, or bills of lading, although in the course of a year it does trace several hundred lost or delayed freight shipments by telephone or wire inquiries to offices of the defendant located on its lines south of Richmond, Virginia.

 Defendant has not registered to do business in Pennsylvania and has no agent designated to receive service of process here.

 Defendant does not operate any trains in this state, although passenger cars and freight cars owned by it travel over the lines of railroads located within Pennsylvania as part of the trains of such railroads, and it is compensated for such use of its cars on a mileage rental basis. Some of the defendant's dining and tavern cars on some through trains operating between Florida and New York are similarily leased to The Pennsylvania Railroad Company while on its lines between New York and Washington. While on The Pennsylvania Railroad Company's lines, the dining and tavern cars are operated as part of The Pennsylvania Railroad's trains, and are in the charge of Pennsylvania Railroad conductors, engineers and other supervisory personnel. The dining car and tavern car waiters and stewards on such cars are paid by the defendant, which purchases provisions for such cars and retains all receipts for meals and beverages served. As to such cars, The Pennsylvania Railroad Company absorbs costs of icing, watering and fueling. Costs of running repairs, servicing, inspecting, air conditioning and heating such cars are prorated between the various railroads over whose lines they travel. These cars are manned by the same employees for an entire trip in order to provide uninterrupted service to passengers, and they operate at a loss- in other words, the receipts do not equal the wages and costs of supplies. While on The Pennsylvania Railroad Company's lines, the dining and tavern car stewards and waiters are subject to the rules, regulations and orders of The Pennsylvania Railroad Company, which has the right to hire and fire such employees and to exclude from its trains any such employees objectionable to it.

 Rule 4(d)(7) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides that service of process on a foreign corporation is valid if made in the manner prescribed by the law of the state in which the service is made. Therefore, this case is governed by the procedural requirements for valid service in Pennsylvania.

 Service in Pennsylvania upon a foreign corporation in a county other than the county where its registered office or principal place of business is located is prescribed by Pennsylvania Rule of Civil Procedure 2180(a)(2), 12 P.S. Appendix, which is as follows: 'Rule 2180.

 '(a) Service of process * * * shall be made upon a corporation * * * by handing a true and ...

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