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STATE PUB. SCH. BLDG. AUTH. v. TECTUM CORP.

September 9, 1963

STATE PUBLIC SCHOOL BUILDING AUTHORITY, a public corporation and governmental instrumentality of the Commonwealth of Pennsylvania, Plaintiff,
v.
TECTUM CORPORATION, (formerly known as Alliance Manufacturing Company), an Ohio Corporation, Defendant and Third-Party Plaintiff, v. HUNTER, CAMPBELL & REA, Third-Party Defendant (two cases)



The opinion of the court was delivered by: FOLLMER

This matter is before the Court on the following motions:

1. Of defendant, Tectum, to dismiss or quash the return of service on the grounds that Tectum is an Ohio corporation, is not subject to service of process in Pennsylvania, is not licensed to do business in Pennsylvania, is not doing business in Pennsylvania, and was not properly served.

 2. Of third-party defendant, Hunter, (a) to dismiss or quash the return of service as to Tectum on the following grounds: (1) no venue; (2) Tectum is an Ohio corporation and was not and is not subject to service of process in Pennsylvania, is not licensed to do business in Pennsylvania, and is not doing business in Pennsylvania, Tectum was not properly served; and (b) to dismiss third-party complaint because for reasons stated there can be no liability on the part of third-party defendant.

 The suits were originally filed in the Court of Common Pleas of Dauphin County, Pennsylvania, and transferred to this Court to Civil Action No. 7487 having reference to a public school building in Cresson Borough, Cambria County, Pennsylvania, and Civil Action No. 7815 having reference to a public school building in Lawrence Township, Clearfield County, Pennsylvania.

 Pennsylvania Procedural Rule 1503, 12 P.S.Appendix, Venue, provides, in part, as follows:

 '(b) An action by the Commonwealth or the head of an executive or administrative department, a departmental administrative board or commission or an independent administrative board or commission, or an officer or instrumentality of the Commonwealth, may also be brought in Dauphin County.'

 State Public School Building Authority is an instrumentality of the Commonwealth, Merner v. Department of Highways, 375 Pa. 609, 612, 101 A.2d 759 (1954). Accordingly, venue was properly laid in Dauphin County.

 Copy of the complaint in Civil Action No. 7487 was served on December 11, 1961, by the Sheriff of Philadelphia County who was deputized for that purpose by the Sheriff of Dauphin County, by handing a copy of the same to Robert Wright *fn1" at the office of defendant at Philadelphia. Subsequently the case was removed to this District and filed to Civil Action No. 7487. Thereafter, Hunter, Campbell & Rea was brought in as a third-party defendant. Service of the third-party complaint was made December 4, 1962, by the United States Marshal of the Western District of Pennsylvania by handing a copy thereof to W. Walter Campbell, Copartner, at its place of business, 5th Avenue and 36th Street, Altoona, Pennsylvania.

 Copy of the complaint in Civil Action No. 7815 was served on July 27, 1962, by the Sheriff of Philadelphia County who was deputized for that purpose by the Sheriff of Dauphin County, by handing a copy of the same to Miss Fox *fn2" at the office of defendant at Philadelphia. Subsequently the case was removed to this District and filed to Civil Action No. 7815. Thereafter Hunter, Campbell & Rea was brought in as a third-party defendant. Service of the third-party complaint was made December 4, 1962, by the United States Marshal of the Western District of Pennsylvania by handing a copy thereof to W. Walter Campbell, Copartner at its place of business, 5th Avenue and 36th Street, Altoona, Pennsylvania.

 Service having been made by the Sheriff of Philadelphia County by deputization of the Sheriff of Dauphin County on person or persons in charge of defendant's office in Philadelphia was a proper service providing it is found defendant is doing business in Pennsylvania, Pennsylvania Procedural Rule 2180.

 Tectum is an Ohio corporation and has conducted activities, operations or corporate functions in Pennsylvania since 1955. It maintains no inventories in Pennsylvania, does not consign any of its products to anyone within the State of Pennsylvania, and maintains no security interest in its products delivered to Pennsylvania. Tectum did maintain a regional office in Philadelphia, and it did adjust complaints on its products located in Pennsylvania. Defendant's Philadelphia office was furnished with furniture and equipment which it owned. It had two full time employees in the Philadelphia office. A number of defendant's other employees have on occasion operated in Pennsylvania. The name 'Tectum' was inscribed on the office door, it was listed in the office directory and in local telephone directories in both the alphabetical and classified sections. The stationery used in the Philadelphia office referred to that office as a 'regional office' of defendant.

 Defendant's employees canvassed or otherwise serviced the eastern half of Pennsylvania (in which it had three distributors), the New England states, New Jersey, New York, Delaware, Maryland, Virginia and Washington, D.C. Defendant's full time salaried employees travel in Pennsylvania assisting local distributors to effect distributor sales. Defendant advertises in a number of trade journals which appear in Pennsylvania, the cost of which was $ 3,860.15, representing about 5% Of defendant's advertising budget for such journals.

 Orders received by defendant's Pennsylvania distributors are reported first to the Philadelphia regional office and then forwarded to the main office in Columbus, Ohio. Defendant's Philadelphia staff helped train employees of Pennsylvania distributors; they would also accompany distributors' employees when they made sales promotion calls on architects and engineers. Defendant's regional manager of its Philadelphia office, Wright, visited its distributors and encouraged sales of defendant's products; if distributor's employee was new, he, Wright, would personally make the promotion; he would present the material, demonstrate its uses and its physical qualities and describe its applicability to various architectural problems.

 Defendant's product had been approved as a material suitable for installation on Authority projects, it had given some trouble, the Authority took the position that defendant's product would no longer be acceptable on its projects and so advised defendant. Defendant's sales manager, Albyn, came to Pennsylvania for the purpose of persuading the Authority to reconsider its decision, to permit defendant's product to be used and suggested a specific warranty to protect the Authority. Eventually a ten ...


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