users of defendant's products. These employees carried samples of the products of defendant on their very person for what purpose, other than to advise defendant's customers on the new products being manufactured by the defendant and generally to promote the defendant's products.
Unlike the case of Swavely v. Vandergrift, 19 Pa.Dist & Co.R.2d 153, affirmed 397 Pa. 281, 154 A.2d 779, here (as in Mays v. Oxford Paper Company, D.C., 195 F.Supp. 414) we have a clear case of agency between the defendant and its local representatives. The representatives are salaried employees and not independent contractors who have interests in products of some other companies. Although defendant has no office or property in Pennsylvania, we think that the constant contacts with defendant's customers in Pennsylvania by two salaried employees because of the purpose of their job and because Pennsylvania is their exclusive territory constitute the defendant's entry into the Commonwealth within the meaning of § 1011, subd. C. Certainly, the defendant has derived a pecuniary benefit of substantial magnitude as a result of its entry into the Commonwealth. Defendant had gross sales of $ 152,229.00 and $ 119,142.00 in Pennsylvania for the years 1959 and 1960 respectively.
Even though the defendant had been doing business within the meaning of 1011, subd. C, did this action arise out of any 'acts or omissions' of the defendant in Pennsylvania as required by 1011, subd. B?
In Rufo v. Bastian-Blessing Company, 405 Pa. 12, 173 A.2d 123 the Supreme Court of Pennsylvania had the occasion to construe the meaning of this portion of § B, i.e., 'action(s) arising out of acts or omissions * * * within this Commonwealth'.
Prior to Rufo, the law of this Circuit and this District was that if an injury occurred in Pennsylvania the action did arise out of 'acts or omissions' of the defendant in Pennsylvania within the meaning of § 1011, subd. B and service upon an unregistered foreign corporation in accordance with the provisions of said section was valid. Florio v. Powder Power Tool Corp., 3 Cir., 248 F.2d 367 and Mays v. Oxford Paper Company, supra. In the absence of any legislative intent or Pennsylvania Supreme Court decision, this law remained. However, in Rufo, the Pennsylvania Supreme Court held that service on an unregistered foreign corporation under § 1011, subd. B was valid in an action arising out of 'acts or omissions' occurring in Pennsylvania and invalid where the harm or injury occurred in Pennsylvania but the 'acts or omissions' constituting negligence or breach of warranty occurred outside of Pennsylvania. In Rufo, the Pennsylvania Supreme Court, after examining the facts and finding that the acts or omissions constituting negligence or breach of warranty did not occur in Pennsylvania but in Illinois, held that service upon the unregistered foreign corporation in accordance with the provisions of § 1011, subd. B was invalid.
We now apply the principle of Rufo to the instant case. The acts or omissions constituting negligence and breach of warranty relate to the manufacture of one of defendant's products 'IMFERON'. Said product was manufactured in Wisconsin; the conclusion, therefore, is inescapable -- that this action did not arise out of 'acts or omissions' by the defendant in Pennsylvania. Accordingly, we hold that service on the defendant non-registered foreign corporation under the provisions of § 1011, subd. B was invalid.
For reasons stated in the foregoing opinion defendant's motion to dismiss and amended motion to dismiss will be granted.
It is so ordered.