entries in their respective books in the same way as if the two were wholly independent companies; that the Officers and agents of Atlantic and Gulf Stevedores exclusively control its independent management; that Atlantic and Gulf Stevedores has a separate corporate existence; its own officers and directors; its own property and is itself responsible for its contracts and to the persons with whom it deals; that the distinct and separate corporate existence of the two corporations is formally maintained and exercised, and in all respects observed; that John W. McGrath Corp. maintains and employs no solicitors or salesmen in Pennsylvania; * * *.'
Plaintiff has not placed any affidavit or other information, in accordance with the Rules, on the record to contradict the foregoing material submitted by affidavits and a deposition of persons having personal knowledge of these matters. As indicated by the comment to the order of January 23, 1962 (Document No. 31), the Van Schnapper affidavit (Document No. 16) may not be considered by the court.
Plaintiff has placed information on the record indicating
that McGrath Corp. and Atlantic & Gulf have the same President, Executive Vice President, Vice President, Vice President Operations,
and Secretary (see pp. 62 & 252 of P-2 and p. 4 of Document No. 14). Advertisements in trade publications published in New York have also been placed in the record, which include under the heading 'STEVEDORING CONTRACTORS AND TERMINAL OPERATORS' the McGrath Corp. 'New York and Albany' and Atlantic & Gulf Stevedores, Inc. 'Boston -- Philadelphia -- Baltimore -- Norfolk -- New Orleans -- Houston -- Galveston -- Corpus Christi -- St. John, N.B. -- Montreal -- Chicago -- Duluth' with the address 39 Broadway, New York, and one telephone number. (See plaintiff's Exhibits A-C attached to Document No. 14 and P-1 and P-2. It is noted that 'SUPERIOR DERRICK CORPORATION, New Orleans' is also included in Exhibit B.) The deposition of the Secretary of these corporations (Document No. 14) states that both companies are listed in the New York City phone book at this address and phone number, and both names are on the door of Room 918 at this address. However, this same deposition states that, although a staff of solicitors for non-New York ports operates in New York City, 'as far as I know, it doesn't work the reverse way' and that 'I don't know how Philadelphia would advertise' (p. 7 of Document No. 14).
The deposition taken by plaintiff also shows:
A. Mr. Toner is manager of Atlantic & Gulf of Pennsylvania and 'He's on his own as far as managership goes' (p. 19 of Document No. 14). He is in charge of hiring and firing the employees of Atlantic & Gulf (p. 16 of Document No. 14). He makes a monthly report of operations to the New York office (p. 10 of Document No. 14).
B. No one man supervises the activities of McGrath Corp. in the port of New York and of Atlantic & Gulf in the port of Philadelphia (p. 10 of Document No. 14). The President of these corporations does not go regularly or 'too often' to Philadelphia and does not travel too much. The Secretary has never been to the office of Atlantic & Gulf in Philadelphia (pp. 15 & 16 of Document No. 14).
C. The Secretary had no knowledge that there were any advertisements inserted in any Philadelphia paper by Atlantic & Gulf (p. 21 of Document No. 14).
D. The Secretary did not think that any joint purchases were made by these corporations.
Since Atlantic & Gulf was not acting in Philadelphia as agent for McGrath Corp. at the time service was made upon it, the service made on this basis must be quashed under the consistent decisions of this court. See Higgins v. California Tanker Co., 166 F.Supp. 569, 570 (E.D.Pa.1957); Rutter v. Louis Dreyfus Corporation, 181 F.Supp. 531, 533 (E.D.Pa.1960); and cases cited in these cases.
Also, this court has consistently followed Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S. Ct. 250, 69 L. Ed. 634(1925), in situations similar to the record in this case and held that service on a subsidiary corporation is not effective service on the parent. See Howell v. Kennecott Copper Corp., 21 F.R.D. 222 (E.D.Pa.1957), aff'd. 258 F.2d 946 (3rd Cir. 1958); Fitzgerald v. Hilton Hotels Corp., 183 F.Supp. 342 (E.D.Pa.1960).
The Motion To Quash the Service and Dismiss the Complaint as to the John W. McGrath Corp. will be granted.