is received, the travel agent issues the ticket, collects the money, deducts his commission, and remits the balance to the Philadelphia office. The Philadelphia office deposits all money received for tickets and freight in a depository account with a Philadelphia bank from which only the New York office can make withdrawals. In 1962 the Philadelphia office handled roughly one million dollars in collected fares and charges.
Defendant's freight operation in Philadelphia is not fully explained in the present state of the record. Alitalia has no provisions for carrying freight from any place in Pennsylvania to the New York terminal. However, the Philadelphia office is able to issue waybills and also makes arrangements with other carriers to transport freight to New York, at which point Alitalia is able to handle it.
The Court can conclude little from the sparse information before it on defendant's freight operations. However, it is quite clear that the Philadelphia office is doing more than 'mere solicitation' of passenger traffic.
Defendant argues that the five charter flights that have landed in Philadelphia were contracted for in New York and were under the direction and control of the charterer. It also points out that the travel agents representing defendant are in no sense 'legal' agents. But even if the Court were to agree with these contentions, Alitalia is not able to escape the consequences of the fact that it has employees in Pennsylvania who are selling tickets and thus, binding the company. The requirement that the employee confirm the availability of space with the New York reservation department before making a ticket sale does not render the employee's actions less binding. In reality, this is not the case of a representative who solicits an offer which is transmitted to an out-of-state principal for acceptance or rejection. Rather, the more correct analogy is to the salesmen who must check the stockroom supply before making a sale.
The Shambe case stated that 'solicitation plus' in Pennsylvania required that: (1) The company must be present in the State; (2) by an agent; (3) duly authorized to represent it in the State; (4) the business transacted therein must be by or through such agent; (5) the business engaged in must be sufficient in quantity and quality; and (6) there must be a statute making such corporations amenable to suit. Lutz held this rule to require that the agent must have the power to bind the corporation, which power these employees do have. The facts of the Shambe case satisfied all of these requirements except number 5. The Court believes that in this case one million dollars worth of passenger and freight sales passing through the Philadelphia office is more than sufficient quantity and quality. Shambe v. Delaware & Hudson R.R. Co., supra, Convery v. Clairol, Inc., 123 F.Supp. 29 (E.D.Pa.1954).
This case is not controlled by Vereen v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 209 F.Supp. 919 (E.D.Pa.1962) because in that case there was no evidence that defendant did anything more than solicit. Here, however, defendant's Philadelphia office is actually making sales. The same distinction can be drawn as to Strauss v. Delta Air Lines, Inc., supra.
Since Alitalia is present and doing business within Pennsylvania, it is subject to service of process. Having already been served in accord with the applicable law, it is properly before the Court.
And Now, to wit, this 10th day of June, 1963, for the reasons set forth above, it is Ordered, Adjudged and Decreed that the motion of defendant to dismiss the complaint and to quash service of the summons and complaint be and it is hereby Denied; the motion of plaintiff to transfer the action to the United States District Court for the Southern District of New York is likewise DENIED, no showing having been made of the necessity or advisability thereof.
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