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EVANS v. DELL PUBL. CO.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA


June 30, 1961

Kathryn M. EVANS, Individually, and William Evans, a minor by Kathryn M. Evans, his parent and natural guardian, Plaintiff,
v.
DELL PUBLISHING COMPANY, Inc., a Foreign Corporation, Defendant

The opinion of the court was delivered by: GOURLEY

This matter comes before the Court on defendant's motion to dismiss the complaint for the reason that it is not 'doing business' in Pennsylvania and, therefore, is not subject to service of process by registered mail via the Sect of the Commonwealth.

The sole question presented is whether the activities of defendant are sufficient to constitute the 'doing of business' within the Commonwealth of Pennsylvania, 15 Pa.P.S. 2852-1011.

 In support of its position defendant has executed an affidavit under oath that it does not conduct any business actively in Pennsylvania. Plaintiffs, on the other hand, allege in their complaint that defendant is engaged in doing business in Pittsburgh, Pennsylvania.

 In view of the settled law of this circuit that the allegations contained in a complaint, for purposes of evaluating a motion to dismiss, shall be considered and accepted as true just as the Court would so construe an affidavit. It would, therefore, appear that two irreconcilable positions are advanced which raise a factual dispute. Kroese v. General Steel Castings Corporation et al., 3 Cir., 179 F.2d 760, 15 A.L.R.2d 1117.

 The District Court may decide the issue of jurisdiction either itself or refer it to a jury for resolution, 28 U.S.C.A. 1332(a)(1); Seideman v. Hamilton, 3 Cir., 275 F.2d 224.

 In course of argument, plaintiff counsel represented to the Court that he desired to amend the complaint to join as an additional defendant, Dell Distributing Company, Inc.

 Now, therefore, this 30th day of June, 1961, motion of defendant to dismiss the complaint for lack of jurisdiction is hereby refused, it being provided that at the time of the administration of the above jury proceeding, the question of whether defendant was engaged in 'doing business' in Pennsylvania should be submitted for jury determination under appropriate instructions.

 Finally, it is ordered that plaintiff must file amendment to complaint on or before July 17, 1961, and defendant shall file answer to complaint and/or amended complaint on or before August 7, 1961.

19610630

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