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PELLEGRINI ET UX. v. ROUX DISTRIBUTING CO. (11/15/51)

November 15, 1951

PELLEGRINI ET UX.
v.
ROUX DISTRIBUTING CO., INC.



COUNSEL

Peter P. Liebert, 3rd, John J. McDevitt, 3rd, Philadelphia, for appellant.

H. P. Abramson, S. Regen Ginsburg, Philadelphia, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Dithrich

[ 170 Pa. Super. Page 70]

DITHRICH, Judge.

Plaintiffs, husband and wife, brought an action of trespass against defendant-appellant, Roux Distributing Co., Inc. (hereinafter called Roux Co.), in the Municipal Court of Philadelphia County. The complaint demanded damages for injuries to the wife-plaintiff, allegedly suffered as a result of defendant's negligence. Roux Co., a foreign corporation, filed preliminary objections which raised questions of jurisdiction. After depositions were taken on issues of fact the objections were overruled, the court holding that Roux Co. was not 'doing business' within the Commonwealth so as to be amenable to the jurisdiction of the court but that certain conduct of defendant was equivalent to a general appearance by which it waived its right to question the power of the court. This appeal is under the Act of March 5, 1925, P.L. 23, 12 P.S. ยง 672 et seq.*fn1

The broad question before this Court is whether it is within the judicial power of the court below to enter a valid judgment in personam against the defendant foreign corporation in this transitory action.

'Whether a foreign corporation is subject to the jurisdiction of a Pennsylvania court depends upon whether it is doing business within the Commonwealth which rests fundamentally upon a conclusion of ultimate

[ 170 Pa. Super. Page 71]

    fact. New v. Robinson-Houchin Optical Company, 357 Pa. 47, 49, 53 A.2d 79; and Holliday v. Pacific Atlantic Steamship Corporation, 354 Pa. 271, 274, 47 A.2d 254'. Lutz v. Foster & Kester Co., Inc. 367 Pa. 125, 127, 79 A.2d 222, 223. See also Kaffenberger v. Kremer, D.C., 63 F.Supp. 924.

Roux Co., a New York corporation, not registered to do business in Pennsylvania, is engaged in the business of selling cosmetic products to beauty supply and drug dealers throughout the United States, including Philadelphia. The dealers in turn distribute Roux Co. products to beauty shops and other users. All sales made by the Roux Co. are subject to the terms enumerated in a book of order blanks sent to each dealer. It is specified that all merchandise is sold f. o. b. New York and becomes the property of the purchaser when placed aboard the carrier. Each order blank contains a statement to the effect that Roux Co. reserves the right to refuse to accept any order for any reason without recourse. Moreover, it is expressly stated that no representative of Roux Co. has authority to alter or vary the conditions under which the merchandise is sold. At no time has the Roux Co. maintained an office in Philadelphia. It owns no real estate in Philadelphia and has no supplies, bank accounts or securities located there. Nor is it listed in the Philadelphia telephone directory.

The only contacts, ties or relations of Roux Co. in Philadelphia at the time of service of process arose out of the activity of four or five female 'demonstrators and sales representatives' whose duties were 'to contact users, beauty salons, and take care of problems and instruct them in the use of the products and, occasionally, as an incident to this work, they would receive orders from these users or beauty shops, ...


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