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JENKINS v. DELL PUBL. CO.

March 30, 1955

William JENKINS, Susann Jenkins, Katheryn Jenkins, Sarah Jenkins, David Jenkins, and Faye Jenkins, by Agnes Jenkins, Their Natural Guardian, and Agnes Jenkins
v.
DELL PUBLISHING COMPANY, Incorporated, a New York Corporation



The opinion of the court was delivered by: MARSH

This diversity action comes before the court on the defendant foreign corporation's motion to dismiss the complaint for lack of jurisdiction. Specifically, the grounds set forth by defendant are:

'a. That the defendant is a corporation organized under the laws of New York and is not doing business in the Western District of Pennsylvania and was not and is not subject to service of process within the Western District of Pennsylvania and

 'b. That the defendant has not been properly served with process in this action.'

 The court is of the opinion that the defendant was doing business in Pennsylvania within the meaning of the statutes of Pennsylvania, and that the service of process was proper and valid and not in violation of the Constitution of the United States.

 It appears from the pleadings that the defendant is a corporation incorporated in the State of New York, with its principal place of business in New York City, and that the plaintiffs are individuals and residents of Allegheny County, Pennsylvania. The defendant is not registered as a foreign corporation with the Secretary of the Commonwealth of Pennsylvania.

 The plaintiffs allege invasion of privacy as a cause of action arising out of the unauthorized publication by the defendant of certain pictures of plaintiffs in the January, 1954 issue of defendant's magazine called 'Front Page Detective'.

 No specific complaint was made at argument or in defendant's brief concerning the mechanics of executing the service of process upon the Secretary of the Commonwealth. It appears to us that the service was proper and in accordance with the law. Act of September 26, 1951, P.L. 1475, § 22, 15 Purdon's Pa.Stat.Ann. § 2852-1011, subd. B.

 From the defendant's answers to interrogatories and stipulations filed, it appears that the January, 1954 issue of 'Front Page Detective' was sold and distributed in Allegheny County, Pennsylvania, by Pittsburgh News Company which purchased or procured the magazine from the defendant. It also appears that the defendant employs travelling representatives who act as liaison men between defendant and distributors in Pennsylvania and other states. These representatives do not sell the magazines and maintain no office, desk space or telephone in Pennsylvania, but they are employed to encourage the sale and circulation of defendant's magazines, and check and inspect displays of these magazines by dealers in order to see that defendant's magazines receive due emphasis. These representatives are paid out of the New York office. The magazines are shipped by the defendant's printers to the Pennsylvania distributors, who make payment directly to the defendant in New York.

 It is apparent from the answers that the activities of the defendant corporation, through their representatives, are continuous and systematic, and that the injury claimed, if existent, is closely connected with the activities of these agents. If the alleged injury does not grow out of these activities, it is certainly directly aggravated by them.

 It is also apparent that the alleged invasion of privacy arises out of the exhibition of the photographs of plaintiffs in defendant's magazine distributed in and around Pittsburgh, Pennsylvania, and that the defendant corporation, by its agent, entered into Pennsylvania for the doing of these continuous and systematic acts for the purpose of expediting the sales and increasing the distribution of defendant's magazine and thereby helping defendant to realize pecuniary benefits. Pittsburgh is the place where the exhibition of plaintiffs' pictures is most likely to do plaintiffs the most harm; it is the place where the cause of action arose, *fn1" and if agreeable to the concepts of due process, it is the place where the action ought to be tried. If the forum be inconvenient, the defendant may seek change of venue under 28 U.S.C.A. § 1404(a).

 The tests for this type of case were plainly laid down in Partin v. Michaels Art Bronze Co., Inc., 3 Cir., 1953, 202 F.2d 541, 542. First is the question, 'whether the State seeks to assert jurisdiction under a given set of facts'; second, 'whether the assertion of jurisdiction by the State is permitted, under the circumstances, by the Constitution of the United States'. Const. Art. 1, 8, cl. 3; Amend. 14.

 In respect to the first question: The Act of September 26, 1951, P.L. 1475, § 22, 15 Purdon's Pa.Stat.Ann. § 2852-1011B, in its pertinent part 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 ...


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