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YENTZER v. TAYLOR WINE COMPANY (11/13/62)

November 13, 1962

YENTZER
v.
TAYLOR WINE COMPANY, INC., APPELLANT.



Appeal, No. 55, Jan. T., 1963, from order of Court of Common Pleas of Cameron County, May T., 1960, No. 37, in case of Frederick W. Yentzer v. Taylor Wine Company, Inc. Order affirmed; reargument refused December 28, 1962.

COUNSEL

A. Grant Walker, John H. Cartwright, and Gifford, Graham, MacDonald & Illig, for appellant.

Edwin W. Tompkins, II, and Tompkins & Tompkins, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.

Author: Eagen

[ 409 Pa. Page 339]

OPINION BY MR. JUSTICE EAGEN

This is an action of assumpsit instituted in Cameron County, Pennsylvania, based upon the breach of an implied warranty. The defendant, being an unregistered

[ 409 Pa. Page 340]

    foreign corporation, substituted service of the complaint was made upon the Secretary of the Commonwealth of Pennsylvania in accordance with the provisions of the Business Corporation Law, Act of May 5, 1933, P.L. 364, § 1011B, as added to by the Act of September 26, 1951, P.L. 1475, § 22, as amended, 15 P.S. § 2852-1011B.

Within twenty days, the defendant filed a motion to quash the service of process and to dismiss the action,*fn1 contending that it was not "doing business" in Pennsylvania within the meaning of the Act of November 10, 1959, P.L. 1406, § 1, 15 P.S. § 2852-1011. This motion was overruled and the defendant was given the opportunity to answer over or to file preliminary objections to the complaint "unless notice of an appeal from this decision is filed according to law." No appeal from this order was filed.

The defendant then filed preliminary objections to the complaint in the nature of a demurrer*fn2 and a motion for a more specific statement. Subsequently, or exactly eight months later, without leave of court or consent of the plaintiff, the defendant filed additional preliminary objections to the complaint, alleging that the facts pleaded clearly indicate that the court lacked jurisdiction over the person of the defendant*fn3 and requesting dismissal of the action. Up to this point, no decision had been rendered by the court upon the merits of the preliminary objections originally filed. Subsequently, the court rendered a decision

[ 409 Pa. Page 341]

    dismissing the objections raised to the jurisdiction, but directed that the plaintiff file a more specific statement within twenty days. From this order, the defendant filed this appeal under the Act of March 5, 1925, P.L. 23, 12 P.S. § 672 et seq. Counsel then agreed that no answer ...


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