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RUFO v. BASTIAN-BLESSING CO.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


April 25, 1963

Clementino RUFO, in his own right, Clementino Rufo, and Anna Rufo, his wife, Donata Cara, David Lanni, a minor, by John F. Lanni, his guardian, and John F. Lanni, in his own right
v.
The BASTIAN- BLESSING COMPANY

The opinion of the court was delivered by: DUSEN

This case is before the court on defendant's Motion to Dismiss on the grounds that the court has no jurisdiction over defendant and that the Complaint fails to state a claim upon which relief can by granted (Document 6). *fn1"

The action is one for damages allegedly sustained by plaintiffs when a refilled portable cylinder of liquified petroleum gas commercially known as 'Propane', to which was attached a valve manufactured by defendant company, exploded in Philadelphia in December 1957. The cylinder was obtained from one J. F. Martin in Philadelphia in March 1956 and was marked as the property of the Natural Gas Company. Plaintiffs allege that defendant breached certain implied warranties in connection with the manufacture of said valve. Defendant is a foreign corporation with principal offices in Illinois. The Complaint alleges that it is, and has been for a long time heretofore, regularly doing business in Pennsylvania, even though unregistered with the Pennsylvania Department of State, and that defendant 'by and in their distributive chain sold to plaintiff the said refill of bottled gas and sold it for the purpose to which it was put.' *fn2" Service was allegedly made pursuant to the provisions of Penna.R.Civ.P. 2180(c), 12 P.S.Appendix, after authorization for such service was granted by the court (Document 2). Defendant contends that the service was invalid, that the court has no jurisdiction over the defendant, and that the Complaint fails to state a claim for which relief can be granted because the statutory period of limitations has expired.

 This is the fourth suit which has been brought against defendant on this same claim, the first three having been brought in the state courts. In Rufo, etc. v. Martin, Suburban Propane Nat-Gas Co. of Pa., The Bastian-Blessing Company & Sterling Dockson Company, C.P. No. 1, Phila.County, No. 628, Dec. Term 1958, *fn3" the preliminary objections of Bastian-Blessing Company raising the question of jurisdiction over it *fn4" were sustained and the complaint dismissed as to it by order of Judge Hagan dated June 6, 1960. In Rufo, etc. v. Suburban Propane nat-Gas Co. of Pa., Bastian-Blessing Company and Sterling Dockson Company, C.P. No. 2, Phila. County, No. 629, Dec. Term 1958, *fn5" a judgment against Bastian-Blessing Company for want of appearance was stricken by Judge Hagan on the same date. Judge Hagan stated, as to both cases, that 'Defendant, the Bastian-Blessing Company, is not doing business in the Commonwealth of Pennsylvania under the law applicable to the present action.' See Exhibit N to Document 10. No appeal was taken from Judge Hagan's ruling. On the date that the above two cases were filed, the 'Solicitation Plus' doctrine was the law of Pennsylvania governing the jurisdiction over foreign corporations not registered to do business in Pennsylvania. See Lutz v. Foster & Kester Co., Inc., 367 Pa. 125, 79 A.2d 222 (1951).

 On July 12, 1960, after § 1011(C) (15 P.S. § 2852-1011(C)) had been reinstated in the Pennsylvania Business Corporation Act, after having been omitted from the 1957 revision thereof, the present plaintiffs filed another suit against the instant defendant and the Dockson Company. See Rufo, etc. v. The Bastian-Blessing Co. v. Sterling Dockson Company, C.P. No. 1, Phila. County, No. 1727, June Term 1960. The Complaint in that case is almost identical with the Complaint in the instant case. *fn6" The plaintiffs petitioned the court for authority to make substituted service, as required under Rule 2180(c) and 15 P.S. § 2852-1011(B), the petition was granted, and the Bastian-Blessing Company thereafter filed preliminary objections alleging, among other things, lack of jurisdiction over the person. These objections were dismissed and such dismissal was appealed to the Pennsylvania Supreme Court, which reversed the lower court, holding that these objections should have been sustained. This decision of the Supreme Court, which is reported at 405 Pa. 12, 173 A.2d 123 (1961), controls the present action. On the factual record presented, which is the same as that in the Supreme Court case, *fn7" the court decided that the Bastian-Blessing Company was 'doing business' within the meaning of § 1011(C), but that it was not validly served under 1011(B) because the 'acts or omissions' on which the suit was brought did not occur within the state.

 The fact that in the instant case the plaintiffs asked for authorization to serve the Complaint only under Rule 2180(c) and F.R.Civ.P. 4(d) and 4(d)(7) does not render the opinion of the Pennsylvania Supreme Court non-effective in this case for the following reasons, among others:

 A. In the aforementioned case, the authorization was given to serve the complaint under both Rule 2180(c) and the Business Corporation Act, § 1011(B) ( 15 P.S. § 2852-1011(B)).

 B. In the course of the decision, the Pennsylvania Supreme Court stated 405 Pa. at p. 21, 173 A.2d at p. 128:

 'There can be no doubt that the legislature, by its enactment of Section 1011, sub. B, and 1011, sub. C, intended to extend and enlarge the amenability to suit of a foreign corporation carrying on activities within the Commonwealth and to abolish the 'solicitation plus' doctrine previously enunciated by this Court * * *. It, however, by no means follows that the legislature intended to make foreign corporations suable without limitation. The very language of section 1011, sub. B contra indicates such intent.' *fn8"

 C. Although the defendant's activities in Pennsylvania consisted of solicitation and other activities, the 'other activities' shown in this record do not satisfy the requirements of the 'solicitation plus' doctrine. Lutz v. Foster & Kester Co., Inc., supra. *fn9"

  It is the settled rule in Pennsylvania that substituted service statutes must be strictly construed. Williams et ux. v. Meredith, 326 Pa. 570, 572, 192 A. 924, 115 A.L.R. 890 (1937). This rule is recognized by the United States Court of Appeals for the Third Circuit as is demonstrated in the recent decision in Cyrus Leport, Jr. v. White River Barge Line, 3 Cir., 315 F.2d 129, Opinion of Judge Kalodner filed March 7, 1963. *fn10"

 Although it is not necessary to determine the second ground in the defendant's Motion To Dismiss because of the holding that this court has no jurisdiction over defendant, it appears clear from the record that the Complaint states no claim for which relief could be granted because of the expiration of the applicable statute of limitations. See 12A P.S. § 2-725.

 ORDER

 And now, April 25, 1963, after consideration of the above Motion, the briefs of counsel (Documents 11 and 12), the letter of March 5, 1963, attached to defendant's brief, and the record, it is ordered that (1) defendant's Motion To Dismiss (Document 6) is granted, and (2) this action is dismissed.


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