The factual allegation in the affidavit of plaintiff's counsel is that the defendant's aircraft landed at and took off from an airport in Pennsylvania during the course of the fatal flight. He alleges, based upon findings in the report of the Civil Aeronautics Board, that the plane had been having mechanical difficulties from the time of the inception of the flight at Columbia, South Carolina; that inspection and maintenance should have been performed during the stopover at Wilkes Barre, Pennsylvania, but were not; that repairs should have been made at Wilks Barre, and that the flight should have been halted if the necessary repairs could not be made; that these omissions by defendant were part of the pattern of defendant's negligent conduct which caused the crash. The factual allegation (the landing and take off at Wilkes Barre, Pennsylvania) has not been controverted by defendant's affidavits which were directed only to the extent of defendant's business activities in Pennsylvania.
Defendant contends that, in determining whether service was proper under § 2852-1011, subd. B, the Court should conduct a hearing preliminarily to determine whether there were any acts or omissions by defendant at the landing and take off within Pennsylvania and whether defendant was guilty of any negligent acts or omissions in Pennsylvania giving rise to this cause of action. I cannot accept defendant's contention. It is sufficient if plaintiff has alleged in her complaint, or, as here, in an affidavit, that there were acts or omissions within the Commonwealth of Pennsylvania giving rise to the cause of action. In my view, the allegation of 'acts or omissions * * * within this Commonwealth' for the purpose of service under § 2852-1011, subd. B should be approached much the same way as allegations of jurisdictional amount in diversity cases under 28 U.S.C.A. § 1332. Thus, the complaint should be dismissed only (to paraphrase the statement of the Supreme Court in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S. Ct. 586, 590, 82 L. Ed. 845) '* * * if, from the face of the pleadings, it is apparent, to a legal certainty, * * *' that the cause of action did not arise out of an act or omission within the Commonwealth '* * * and that (the) claim was therefore colorable for the purpose of conferring jurisdiction * * *.'
Where a preliminary challenge is made to a jurisdictional fact in an action and on an issue where trial by jury is a matter of right, the issue should not be adjudicated summarily but should be submitted for jury determination. Shaffer v. Coty, Inc., 183 F.Supp. 662 (D.C.S.D.Calif. 1960). Had the defendant here denied that its plane landed and took off within the Commonwealth of Pennsylvania, that would have presented a simple, clear-cut issue, unrelated to the merits, which the Court might very well hear and determine in limine.
Instead, the issue raised is whether defendant's acts or omissions during the stopover in Pennsylvania constituted negligence. A preliminary trial on that issue would be impractical and unwise since it would, in effect, require a trial on the merits and a summary determination of issues properly to be resolved by a jury.
The defendant also argues that the provisions of 15 P.S. § 2852-1011, subds. B and C are not applicable to it. Its argument is: it is a foreign corporation whose entire activities within Pennsylvania are interstate in nature; under § 2852-1011,
it is not required to obtain a certificate of authority, therefore it is not subject to any of the provisions of Article X of the Business Corporation Law dealing with foreign business corporations (15 P.S. § 2852-1001 to § 2852-1016), including those relating to service of process on foreign corporations ( § 2852-1011). This argument gives much greater effect to the exclusionary language used in § 2852-1001 than it warrants. The exemption is only from the requirement to obtain a certificate of authority before doing business in Pennsylvania. It was granted to avoid constitutionally prohibited burdens on interstate commerce, it was not intended to relieve such corporations from service of process if their activities within the state are such as to manifest their presence here. United Fruit Co. v. Dept. of Labor & Industry, 344 Pa. 172, 25 A.2d 171 (1942). The standard of 'presence' within the state established by § 2852-1011, subds. B and C is within the constitutional limits set forth in International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945).
Defendant's view of the scope of the exemption of § 2852-1011 would confine the applicability of § 2852-1011, subds. B and C to those foreign business corporations which, under Article X, are required to obtain a certificate of authority.
Where the legislature intended such a limitation it knew how to express it. It did so in § 2852-1006 wherein, dealing with the requirement to maintain a registered office in the Commonwealth, it provided 'Every foreign business corporation, required by the provisions of this article to obtain a certificate of authority to do business in this Commonwealth, * * *.' (Emphasis supplied.) It did not use such words of limitation in § 2852-1011, subd. B. It clearly intended the reach of § 2852-1011, subd. B to extend to any foreign business corporation which has done business within the Commonwealth (as that term is defined in § 2852-1011, subd. C) provided the cause of action arose out of acts or omissions of such corporation within the Commonwealth. Rufo v. The Bastian-Blessing Co., 405 Pa. 12, 173 A.2d 123 (1961). All that is required to satisfy the definition of doing business in § 2852-1011, subd. C is the doing of a series of similar acts for the purpose of realizing pecuniary benefit. From defendant's activities it is clear that it has done such acts and is subject to service under the provisions of § 2852-1011, subd. B for a cause of action arising out of its acts or omissions within the Commonwealth.
In light of my holding on the validity of service of process under § 2852-1011, subd. B, it is not necessary for me to decide whether the service of process upon the alleged office of the defendant in Pennsylvania was proper.
AND NOW, this 26th day of November, 1962, it is ordered that defendant's motions: (a) to reconsider the Order of July 27, 1962; (b) to strike the affidavit of Kenneth Syken, Esquire; and (c) to dismiss or quash service of summons, be and they are hereby denied.