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BIEL v. HERMAN LOWENSTEIN (06/04/63)

June 4, 1963

BIEL
v.
HERMAN LOWENSTEIN, INC., APPELLANT.



Appeal, No. 281, March T., 1962, from order of Court of Common Pleas of Allegheny County, April T., 1962, No. 2759, in case of Adolph L. Biel, administrator of estate of Alexander John Bielski, deceased, v. Herman Lowenstein, Inc., Oxman Steel Corp., Carroll Transport, Inc. et al. Order affirmed; reargument refused July 26, 1963.

COUNSEL

Norman J. Cowie, with him Pringle, Bredin & Martin, for appellant.

Louis Vaira, for appellee.

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

Author: O'brien

[ 411 Pa. Page 559]

OPINION BY MR. JUSTICE O'BRIEN

Appellant, Herman Lowenstein, Inc., one of several defendants in actions under the wrongful death*fn1 and survival*fn2 statutes raises the question of jurisdiction*fn3 of the person in this appeal. Appellee's decedent was

[ 411 Pa. Page 560]

    killed on August 2, 1961, while a passenger in an automobile on the Penn Lincoln Parkway ramp in Braddock Hills Borough, Allegheny County. A tractor hauling a trailer loaded with scrap steel ran into the rear end of the vehicle in which decedent was seated and which vehicle was stopped because of the condition of traffic.

Appellant is a New Jersey corporation having its principal place of business in Elizabeth, New Jersey. Service of process was made pursuant to the non-resident motorist provision of The Vehicle Code.*fn4 Appellee-plaintiff in the complaint in trespass averred that "Herman Lowenstein, Inc., having its principal place of business at 901 East Grand Street, Elizabeth, State of New Jersey, ... is a New Jersey Corporation" and "The Oxman Steel Corporation a Pennsylvania Corporation having its principal place of business at ... Philadelphia, Pennsylvania ... is a corporation engaged in the scrap steel business ..." and "Carroll Transport, Inc., having a place of business at ... Pittsburgh, Pennsylvania ... is an Ohio corporation, lawfully authorized to transact business as an Interstate Motor Carrier under I.C.C. Certificate ... had under its use, control, responsibility and possession an International tractor and a 1951 Trail Mobile trailer involved in the accident ..., belonging to John William Mostoller ..." and "John William Mostoller ... is a resident of Boswell, Somerset County, Pennsylvania ... said tractor and trailer aforesaid, were in use, control, responsibility and possession of ..., Carroll Transport, Inc."

Other pertinent averments are: "6. On July 31, 1961, at the direction of Carroll Transport, Inc., the said John W. Mostoller did make a delivery of a load of steel to Lyndon, N.J. under the I.C.C. certification

[ 411 Pa. Page 561]

    and direction of the Carroll Transport, Inc., and while returning, the said John W. Mostoller picked up a load of machine-shop turnings from Herman Lowenstein, Inc., Consignor, of 901 East Grand Street, Elizabeth, New Jersey, consigned to the Oxman Steel Corporation of 1011 Chestnut Street, Philadelphia, Pennsylvania, delivery to be made to the Penn Steel Corporation at Pittsburgh, Pennsylvania, ...


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