'Defendant, a non-registered foreign corporation, has filed a motion to dismiss and an amended motion to dismiss the complaint challenging the jurisdiction of the Court over its person upon the grounds that (1) it was not 'doing business' in Pennsylvania and (2) the action did not arise out of any 'acts or omissions' of the defendant in Pennsylvania.'
Shortly thereafter the United States District Court discussed the requirements for substituted service under the Pennsylvania Business Corporation Law as follows:
' § 1011, subd. B clearly sets forth two jurisdictional requirements which must be satisfied before a nonregistered foreign corporation may be validly served with process through the Secretary of the Commonwealth [emphasis supplied] * * *.'
The very cases cited by American are then considered by the United States District Court, and the change 0f law explained, i.e.:
'In Rufo v. Bastian-Blessing Company, 405 Pa. 12, 173 A.2d 123 (1961) 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 (1957) and Mays v. Oxford Paper Company, supra (195 F.Supp. 414 (E.D.Pa.1961; Wood, J.)). 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 omission's 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 the instant case, the pleadings point toward Anderson, Indiana -- the place of manufacture of the sliding board -- as the place where American's alleged act of negligence occurred. In that circumstance, the situation of American may be summarized, as this Court sees it, as follows:
(1) American would have been required to show that it relied on the law of Pennsylvania as incorrectly stated in the Florio case of 1957 when it filed its general appearance. Since such reliance is a matter beyond the pleadings, considerably more than the mere assertion of the pleader would have been necessary in this respect.
(2) American would have had to show authority which would justify the withdrawal of its general appearance even though it had shown reliance on the Florio rule.
(3) It would have had to show that it had been served by substituted service on the Secretary of the Commonwealth -- which obviously was not the fact, or
(4) American would have had to persuade this Court that the provisions of the Business Corporation Law as to substituted service are pertinent to summons by personal service.
In connection with the last-mentioned weakness in the third-party defendant's position, it is particularly to be noted that not one of the cases cited or discussed concern the personal service of summons, i.e. Florio v. Powder Power Tool Corp., 248 F.2d 367 (3rd Cir. 1957); Rufo v. Bastian-Blessing Co., 405 Pa. 12, 173 A.2d 123 (1961); Kramer v. Lakeside Laboratories, 200 F.Supp. 530 (E.D.Pa., January 2, 1962); Mays v. Oxford Paper Company, 195 F.Supp. 414 (E.D.Pa.1961). There is no justification for an assertion that the latest interpretation of the Pennsylvania Corporation Law as to substituted service controls and decides a case wherein there was actual, personal service upon an agent of a foreign corporation at its established place of business in the Commonwealth of Pennsylvania.
To the contrary, it would seem that the matter would be governed by the applicable Pennsylvania rules relating to personal service, jurisdiction and venue such as Rules 1006, 1042, 2179 and 2180, 12 P.S.Appendix, Rules of Civil Procedure. It has not been shown that there was any lack of compliance with such rules.
For the foregoing reasons, it is the ruling of this Court that the motions of third-party defendant to set aside service, vacate appearance of counsel, and dismiss the complaint of third-party plaintiff against American Playground Device Co. as third-party defendant are denied and it is SO ORDERED.
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