The opinion of the court was delivered by: DUSEN
In this personal injury action for serious injuries alleged to have been suffered by plaintiff (a stevedore) while unloading cargo from an Alcoa ship in the Virgin Islands, plaintiff apparently contends that John W. McGrath Corp., a stevedoring concern, was at fault in the activities carried on by its personnel in stowing the cargo in the above-mentioned ship in Baltimore and/or New York prior to its arrival in the Virgin Islands. The case is now before the court on the motion of John W. McGrath Corp. to Quash Service and Dismiss the Complaint (Document No. 5).
Plaintiff attempted service of a Summons and Complaint upon the defendant, John W. McGrath Corp. (hereinafter called 'McGrath Corp.') of New York, by serving an Office Manager of a subsidiary company, Atlantic and Gulf Stevedores, Inc. (hereinafter called 'Atlantic & Gulf'), a Pennsylvania corporation, at its office in Philadelphia. In the return of service, Atlantic & Gulf is alleged to be an agent for McGrath Corp. However, the record (see Exhibits C and D to Document No. 5, p. 21 of Document No. 14, and Document No. 15) establishes that McGrath Corp., with its principal place of business in New York City, is a New York corporation, not qualified to do business in Pennsylvania, not doing business in Pennsylvania, and without any office, place of business, property or authorized agent to accept service of process in Pennsylvania for McGrath Corp. The affidavit (Document No. 15( of John W. McGrath (President of both corporations) contains the following:
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).
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.