of similar acts' in Pennsylvania; to hold that their purpose was not the realization of pecuniary benefit is to ignore the obvious.'
Similarly, in the instant cases I find no difficulty in holding that the various activities of the defendant constituted doing business in Pennsylvania. Defendant's activities pointed to one objective, namely, realizing pecuniary benefit.
By both the provisions of Pennsylvania Procedural Rule 2179(a) and those of Section 1011 of the Pennsylvania Business Corporation Law, 15 P.S. § 2852-1011,
there can be no question but that Tectum was doing business in Pennsylvania, jurisdiction is here and venue is properly placed, Kulicke v. Rollway Bearing Company, Inc., D.C.E.D.Pa., 131 F.Supp. 572 (1955); Solt v. Interstate Folding Box Company, D.C.E.D.Pa., 133 F.Supp. 7 (1955).
In the instant cases the defendant was personally served through its employees in its Philadelphia office and is thus distinguishable from the holding of the Court in Rufo, supra, that under the facts of that case defendant company could not be validly served under Section 1011, subd. B of the Pennsylvania Business Corporation Law, Baxter v. Coppock, D.C.E.D.Pa., 202 F.Supp. 907 (1962).
Defendant's motion to dismiss or quash the return of service in each case will be denied, and the motion of third-party defendant to dismiss or quash the return of service as to defendant in each case will likewise be denied.
As to the motion of third-party defendant to dismiss the third-party complaint in each case:
In the instant cases the Court exercised its discretion and permitted defendant and third-party plaintiff to bring in third-party defendant. Federal Rules of Civil Procedure 14(a); 3 Moore F.P.2d Ed. P14.05, Page 414.
At this stage of the proceedings the Court is unable to state as a certainty that there is no possibility of liability on the part of third-party defendant to third-party plaintiff.
In 3 Moore F.P.2d Ed., P14.07, Page 418, it is stated:
'A long line of decisions have allowed impleader, despite a difference in the legal nature of the claims of the plaintiff and the third-party plaintiff, where a single 'group or aggregate of operative facts' was involved. * * *'
Paragraphs 7 and 8 of both Complaints state:
'7. Plaintiff make4(sic) known the particular purpose for which the Tectum tile (roof deck material) was required and Defendant warranted said decking to be fit for the purpose intended.
'8. In accepting Tectum roof deck Plaintiff relied on the warranty of fitness for purpose intended and on
the Defendant's skill, judgment and experience in the design and manufacture of roof decking.'
Both complaints later allege that the roof decking materials supplied by the defendant were defective and that plaintiff has suffered damages by reason of defendant's 'breach of warranty.'
The liability of third-party defendant is based upon the improper design, construction and ventilation of the school buildings which caused the presence of excessive moisture in the buildings. It is further alleged in third-party complaints that this excessive moisture damaged the material supplied by third-party plaintiff and caused the damage alleged in plaintiff's complaints. We must assume the facts alleged in the third-party complaints to be true, Gartner v. Lombard Bros., Inc., 3 Cir., 197 F.2d 53 (1952).
The motion to dismiss third-party complaint in each case at this state of the proceeding is certainly premature and will be denied.