Fulton. Burns is also the Treasurer of New Superior and the Vice President and Treasurer of Diversified Industries, Inc. Armstrong serves as the Assistant Treasurer of Diversified Industries, Inc. The contacts of Burns and Armstrong with employees of New Superior and their visits to the Superior plant at Carnegie have all been in connection with their duties as officers of New Superior or Diversified Industries, Inc.
For us to say that defendant Fulton has been doing business in this Commonwealth sufficient to subject it to this Court's jurisdiction, we must find that New Superior is merely its alter ego. The record now before the Court does not reveal that defendant Fulton has ever exercised such complete domination of the finances, policies and business practices of New Superior so that New Superior has no separate mind, will or existence of its own. Fisser v. International Bank, 282 F.2d 231, 238 (2 Cir. 1960). Indeed, the record tends to support the contention of defendant Fulton that New Superior is not its subsidiary. Even if there is some connection between defendant Fulton and New Superior, the separate corporate identity of the latter has been maintained so that the former can not be said to be doing business in Pennsylvania.
Because we conclude that the service of process was inadequate here and this Court has no jurisdiction over the person of defendant Fulton, it is unnecessary for us to consider the question of venue. For the reasons stated, the motion of defendant Fulton to dismiss the action as to it must be granted.
NEW SUPERIOR'S MOTION
It is the position of defendant New Superior that the complaint should be dismissed because plaintiff's own allegations therein deny the existence of a contract between plaintiffs and defendant New Superior and thus deny any basis upon which relief can be granted. The collective bargaining agreements at issue in this action were originally made between plaintiffs and defendant Copperweld. When the plant was sold by Copperweld, the buyer agreed to assume the obligations and liabilities of Copperweld under the collective bargaining agreements. The sales agreement, with this last provision in it, was assigned to New Superior. Defendant New Superior's contention stems from the averments in paragraph 24 of the complaint which states:
'24. At no time whatsoever did the plaintiff unions or any of the employees whom they represented at the said plant either agree to the sale thereof to Superior, agree to any of the terms and provisions of the said Sales Agreement, relinquish any rights whatsoever which they had, may have had or may or will hereafter have against Copperweld, Superior or Fulton, or agree to the substitution by Superior for or to the status and position of Copperweld, or as successor to Copperweld, under the said Basic Agreement, Pension Agreement and Insurance Agreement, or any of them.'
While it is true that the allegations in a complaint must be taken as true, when considering a motion to dismiss, we realize that 'a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). In that regard, it is no longer the rule that pleadings filed in the federal courts will be construed strictly against the pleaders. De Loach v. Crowley's, Inc., 128 F.2d 378 (5 Cir. 1942). The federal rules require that 'all pleadings shall be so construed as to do substantial justice.' Rule 8(f), Federal Rules of Civil Procedure.
An examination of the 'Agreement' between plaintiffs and Copperweld (Exhibit A of the Complaint) and the 'Insurance and Pension Agreements' (Exhibit B) reveals that, despite the allegations of paragraph 24, the possible substitution of a successor to each of the parties was contemplated by them at the time the agreements were entered into.
Furthermore, it is evident from reading the complaint that defendant New Superior continued the operation of the plant from November 1961, until the termination of operations in 1962, a period of more than four months. During that time, New Superior employed plaintiffs' members and dealt with plaintiffs on the basis of the agreements now in dispute without objection from plaintiffs until the termination notices were sent to the employees. Plaintiffs' willingness to continue operations under the collective bargaining agreement with New Superior, as Copperweld's successor, may indicate their subsequent consent to the assignment of the contract. In such a situation we can not say that it appears beyond doubt that plaintiffs can not prove any facts which would entitle them to relief. Whether they are indeed entitled to any relief in this action can best be determined after a full hearing and development of all the facts.
Defendant New Superior further contends that certain prayers for relief in the complaint should be dismissed because plaintiffs' claim of failure to adequately secure the pension and insurance benefits is res judicata, having been determined by a prior adjudication between plaintiffs and defendant New Superior in the Court of Common Pleas of Allegheny County, Pennsylvania. For a prior proceeding to constitute a bar to a subsequent action there must be a judicial determination in the first action of the same issues sought to be adjudicated in the second and both actions must involve the same parties. Florasynth Laboratories, Inc. v. Goldberg, 191 F.2d 877 (7 Cir. 1951).
Neither the pleadings nor the record of the proceedings which defendant New Superior contends is a bar to this action has been put into evidence before this Court. It is 'the general rule that courts will not travel outside a record in order to notice proceedings in another case, even between the same parties in the same court, unless the proceedings are put in evidence.' Funk v. Commissioner of Internal Revenue, 163 F.2d 796, 800-801 (3 Cir. 1947).
Even if we were disposed to take judicial notice of those proceedings, however, it would avail defendant nothing.
Defendant New Superior contends that a consent decree entered by the Court of Common Pleas constitutes a bar to this action. Under the law of Pennsylvania, a consent decree is not recognized as a judicial determination of the matters in controversy, but 'is merely an agreement between the parties -- a contract binding the parties thereto to the terms thereof.' Universal Builders Supply, Inc. v. Shaler Highlands Corp., 405 Pa. 259, 175 A.2d 58 (1961). By the terms of that decree, nothing therein was to be construed or interpreted to be 'an admission or finding concerning any averment contained in plaintiffs' complaint.'
Without a judicial determination of the issues in controversy, we can not say that the prior proceeding constitutes a bar to any of the matters involved in this action. Furthermore paragraphs (A)(3) and (4) and (B)(2), (3), (4) and (5) of plaintiffs' prayer for relief seek not only the adequate funding of the pension and insurance trusts, but also an accounting of those trusts and information relating to the pension and insurance rights of plaintiffs' individual members.
Defendant New Superior also contends that the complaint should be dismissed because the injunctive relief requested by plaintiffs is prohibited by the Norris-LaGuardia Act (29 U.S.C. § 104) and thus the Court lacks jurisdiction over the subject matter. Since plaintiffs do not seek a preliminary injunction, we need not decide this matter now. Whether plaintiffs are entitled to permanent injunctive relief can best be determined after a full development of all the facts. For the reasons stated, the motion of defendant New Superior to dismiss the complaint must be denied.
An appropriate order will be entered.