This recital of the statute serves to emphasize that the situation of the defendant as a manufacturer of malt or brewed beverages in significantly different from that of sellers of products not so directly made a matter of public concern. The condition of defendant's engaging in any commercial activities in Pennsylvania is compliance with numerous comprehensive state laws and regulation by the Pennsylvania Liquor Control Board. In that sense, the out of state brewer enjoys no greater scope of activity and suffers no less restraint than does the local manufacturer. Pennsylvania enforces its comprehensive authority to regulate importation of intoxicating beverages within its borders and in so doing does not violate the Commerce Clause of the Federal Constitution. In our view, an out of state manufacturer which subjects itself to the authority of the state as a condition of its doing business, in a practical sense, is also doing business in a legal sense.
We have so far not considered whether the doing of business by the defendant Schlitz in the Commonwealth of Pennsylvania would, under Pennsylvania law, support the substituted service of process employed in this case. Although the cases of action asserted by the plaintiff against Schlitz does not arise from business done or activities conducted by Schlitz in Pennsylvania, the Fourth Amendment to the Constitution of the United States does not prevent Pennsylvania courts from taking jurisdiction. Pennsylvania is free to accept or decline jurisdiction. Perkins v. Benquet Consolidated Mining Co., 1952, 342 U.S. 437, 72 S. Ct. 413, 96 L. Ed. 485. The only cases we have found which touch even remotely on the question whether the state courts would open their doors to this suit are Law v. Atlantic Coast Line R. Co., 1951, 367 Pa. 170, 79 A.2d 252, and Holliday v. Pacific Atlantic Steamship Corporation, 1946, 354 Pa. 271, 47 A.2d 254, in which concededly the problem at hand was not reached since the service of process was set aside in each on the ground that the foreign corporation was not 'doing business.' There is thus justification for the statement that existing Pennsylvania authorities warrant substituted service as attempted here only where the cause of action arose from business conducted or activities performed within the state. Under the 1951 amendment to the Pennsylvania Business Corporation Law, 15 P.S. § 2852-1011(B), any foreign 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 any action arising out of acts or omissions of such corporation within this Commonwealth. (Emphasis supplied.)
Plaintiff's petition for authorization to serve the Secretary of the Commonwealth of Pennsylvania as defendant's agent for service of process has its warrant only in the foregoing section. That section indicates that Pennsylvania has not chosen to exercise the full extent of jurisdiction conferred upon it over foreign corporations operating within its sphere.
The argument finds some support also in the 1956 amendment to Rule 2179(a), Pennsylvania Rules of Civil Procedure, 12 P.S. Appendix, which provides for venue of personal actions against a foreign or domestic corporation or similar entity 'in and only in * * *
'(2) a county where it regularly conducts business;
'(3) the county where the cause of action arose; or
'(4) a county where a transaction or occurrence took place out of which the cause of action arose.'
Such construction of the Pennsylvania law is consistent with the views set forth in the opinion of the court and in the concurring opinion of Chief Judge Biggs, in Partin v. Michaels Art Bronze Co., Inc., 3 Cir., 1953, 202 F.2d 541. We are bound by that decision. Accordingly, in the absence of an allegation or proof that the cause of action here asserted arose from or was connected with business or activities conducted by the defendant Schlitz in the Commonwealth of Pennsylvania, the motion to dismiss must be granted.
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