us the complained of 'acts or omissions' of Up-Right took place before November 9, 1959. Therefore, we must refer to the old standard as to what constitutes doing business. That is, the 'solicitation of business' plus 'other activities' tests as set forth in Shambe v. Delaware & H.R. Co., 1927, 288 Pa. 240, 135 A. 755, 758 and Lutz v. Foster & Kester Co., 1951, 367 Pa. 125, 79 A.2d 222. Also see § 5, subd. B of the Pennsylvania Business Corporation Law, 15 P.S. § 2852-5, subd. B.
Up-Right employs two full-time factory representatives in Pennsylvania, one in the Pittsburgh area, the other in the Philadelphia locality. They work on a salary plus commission basis; their remuneration, along with reimbursements for expenses on behalf of their employer, is mailed to their homes from Berkeley, California. Their job is to demonstrate the use of scaffolding manufactured by Up-Right and to solicit orders for them.
Creighton is Up-Right's factory representative for the eastern half of Pennsylvania and part of New Jersey. Up-Right has listing in the Philadelphia telephone directories, setting forth its address as being in the Land Title Building. Although the number listed is a private one, all calls to this number are answered by a public stenographer in room 714 Land Title Building. For this service she is paid by Creighton who is reimbursed by his employer. She maintains similar services for several other firms having no connection with Up-Right. The lease of the office is in the name of the public stenographer. Even though it does not appear on the office door, the name of Up-Right Scaffold Co. is listed on the directories in the lobbies of the Land Title Building and room 714 is given as the office number. All telephone calls to Up-Right in this area, whether from prospective customers or customers with complaints, are received at this office. Creighton calls this number on the average of three times a day to get the messages relayed to him. All mail addressed to Up-Right at the Land Title Building is forwarded by the public stenographer to Creighton at his home in Chestnut Hill.
When Creighton called on a potential customer, he demonstrated to him the use of the portable equipment. The scaffolding is made of aluminum alloy tubing. In general, the scaffolding is of two types, sectional and unitary. The sectional type can be built up by adding duplicate parts so that heights of many stories can be reached from the outside of buildings. After they are dismantled by the user, the parts can be easily stacked, transported away and conveniently stored. The unitary type, weighing from 177 to 217 pounds, consists of three component parts, a supporting section, a telescoping ladder and a platform. This model is for one-man spot maintenance and construction work and can be extended quickly to reach heights from 9 to 31 feet. If the customer decided to buy one of the various types of scaffold, he signed an order form supplied by Up-Right. Creighton would then send the order form to his employer in Berkeley, California, for acceptance or rejection. If Creighton was not sure of the customer's credit, he would send the customer's name to Dun & Bradstreet and that firm would then forward the customer's credit rating, if any, to Up-Right in California.
Up-Right maintained the right to accept or reject the order for two reasons. One was to maintain control over credit extension to customers. The other was to protect itself from an overly ambitious customer who might desire to attain heights beyond the safe employment of standard equipment. For example, it would be folly to use this equipment, starting from the ground level, to clean William Penn's hat atop City Hall in Philadelphia. The risk of extending credit was not too great for most of the customers were either contractors or firms which had a building or two to maintain. If there was no danger that the customer would extend the use of the equipment beyond its intended purposes, or if the customer's credit was unimpeachable, Creighton had the authority to accept full payment either in cash or by check to close a deal or to extend credit without seeking prior approval of the sale by his employer. On occasions, he did sell the demonstration unit to customers without prior approval. Unon his sale of a demonstration unit he was immediately sent another one from his employer's plant in Teterboro, New Jersey.
He also made calls on his customers at their places of business to show them how to set up the equipment. If there were complaints concerning the condition of the equipment he would call to ascertain the extent of the damage. When the damage was extensive he would instruct them to send the equipment to the Teterboro plant. If it were merely a loose part, he would sell them a new part to replace the defective one. Additionally, he made calls in connection with delinquent accounts.
The annual number of completed sales solicited in Pennsylvania and the annual dollar volume of such sales for the past four years were as follows:
1956 263 $ 151,000
1957 241 135,000
1958 289 156,000
1959 252 193,000
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