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December 28, 1951


The opinion of the court was delivered by: BARD

Plaintiff is a Pennsylvania corporation that has its principal place of business in Allentown, Pennsylvania. Defendant is a Delaware corporation that has its principal place of business in Los Angeles, California; defendant is not registered with the Secretary of the Commonwealth as a foreign corporation authorized to transact business in Pennsylvania. Plaintiff manufactures phonograph records. Defendant makes vegetable shell products used in the manufacture of plastics. This suit is for breach of warranty in a product sold by defendant to plaintiff for the manufacture of plastic records. It is now before me on defendant's motion to dismiss the complaint on the ground that defendant is not amenable to service of process in Pennsylvania since it is not 'doing business' in this Commonwealth.

In relating why I find that defendant is 'doing business' in Pennsylvania for the purposes of this suit only, I have omitted all of the many facts that tend toward an opposite conclusion or that I consider irrelevant to this opinion.

 Like all progressive companies today, defendant is constantly seeking new markets for its products. To develop such new markets, defendant often employs outside chemical concerns on a fee basis to test different raw materials and to determine the industrial potential of different vegetable shell products in various kinds of plastic compounds.

 Sometimes, however, defendant enters into an arrangement with a manufacturer who is a prospective customer to make these tests and experiments. If these experiments develop a new plastic that gives equal or better performance and is cheaper than the substance the manufacturer is then using, the natural culmination of such an arrangement is that the manufacturer will order defendant's product to make and use this new plastic.

 It was such an arrangement that brought about this suit. In 1946 or 1947 defendant's president contacted plaintiff's president to see if plaintiff would be willing to use its facilities to test a substance called Plastofil in the manufacture of plastic records. Plaintiff agreed, and for more than a year many chemical compounds were tested in plaintiff's plant. As a result of these tests, defendant claimed to have developed a new plastic, Agilite-R. Defendant's president prepared a report on Agilite-R, a copy of which was supplied to plaintiff. On May 20, 1948 plaintiff ordered from defendant 70,000 pounds of Plastofil, a component part of Agilite-R. The report and this order comprise the basis of plaintiff's claim for breach of warranty.

 Defendant's president lives and works in Easton, Pennsylvania, but spends less than 10% of this time in Pennsylvania on defendant's business. For his convenience defendant rents a small office in Easton. This office is not listed in any directory in Easton and does not have defendant's name on its door. The personnel in this office are a half time secretary and a full time chemist. The duties of this chemist, who has the misleading title of Sales Engineer, are to act as a consultant to aid in the development of new uses for defendant's products and to work with defendant's customers to see that defendant's products are used properly.

 During the experimental stage of Plastofil and Agilite-R plaintiff worked exclusively with defendant's president and this chemist. The report on Agilite-R gave Easton as defendant's address.

 Except for the order of 70,000 pounds of Plastofil, which was sent to Los Angeles via the Easton office, plaintiff's contact with defendant was solely through defendant's Easton office.

 Since jurisdiction over this case is based upon diversity of citizenship only, I must apply the Pennsylvania law of 'doing business' to determine the validity of service of process. *fn1" Pulson v. American Rolling Mill Co., 1 Cir., 170 F.2d 193; Read v. Corbitt Co., D.C., 10 F.R.D. 125, 128.

 'The essential elements which constitute 'doing business,' as required by our laws, are the same as those necessary under the due-process clause of the federal Constitution. We must ascertain if the following requisite essentials appear in this case: (1) The company must be present in the state; (2) by an agent (citing cases); (3) duly authorized to represent it in the state (citing cases); (4) the business transacted therein must be by or through such agent (citing cases); (5) the business engaged in must be sufficient in quantity and quality (citing cases); (6) there must be a statute making such corporations amenable to suit (citing case). The term 'quality of acts' means those directly furthering, or essential to, corporate objects; they do not include incidental acts. (Citing cases.) By 'quantity of acts' is meant those which are so continuous and sufficient to be termed general or habitual. A single act is not enough. (Citing case.) Each case must depend on its own facts, and must show that the essential requirement of jurisdiction has been complied with.'

 It is clear that (1), (2), (3), (4) and (6) are present in this case. Defendant does have a small office in Easton, staffed by its president, a chemist and a part time secretary. All of plaintiff's dealings with defendant were handled by the personnel in this office. The Act of June 8, 1911, as amended, *fn2" permits suits against non-registered foreign corporations doing business in Pennsylvania on contracts entered into with such corporations.

 The crucial element is (5): whether defendant's business was sufficient in quantity and quality.

 Certainly, the development of new products and of new uses for its old products not only furthers but may also be essential to the ...

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