§ 97 of Williston on Contracts (Rev.Ed.)
2. A cause of action arose as soon as there was any delay in performance as required by the terms of the contract. Johnson v. Fenestra, Incorporated (Erection Division), 305 F.2d 179, 182 (3rd Cir. 1962). See § 1291 of Williston on Contracts (Rev.Ed.)
3. The law of the place of performance (in this case New York) determines whether a breach of contract has occurred, the right to damage, and the measure of damages. Plotnick v. Pennsylvania Smelting & Refining Co., 194 F.2d 859 (3rd Cir. 1952). See §§ 358, 370, 372 and 413 of the Restatement of Conflicts of Law.
Upon this record, and by applying the above principles, it is evident that the cause of action in this case arose in New York and that this cause of action is not one 'arising within this Commonwealth.'
Since this cause of action was not one 'arising within this Commonwealth,' the service upon the Secretary of the Commonwealth under § 1011, subd. B must be quashed.
B. Contention that service of process has been validly made on the Pennsylvania corporation, as an agent of the Ohio corporation.
In addition to serving the Secretary of the Commonwealth, plaintiff also attempted service by serving Mr. Kull, the credit manager of Wurlitzer Company of Pennsylvania, a subsidiary of the defendant. Plaintiff contends that this service was valid under the provisions of F.R.Civ.P. 4(d)(3) and (7), alleging that the subsidiary was actually an agent of the defendant. Affidavits and answers to interrogatories have been filed (see the documents listed in footnote 1, supra) which establish the following:
1. The credit manager of Wurlitzer Company of Pennsylvania, Mr. Kull, was not an officer of the defendant, its managing agent, general agent, nor anyone authorized by law or appointed by the defendant to receive service of process.
2. Mr. Kull was an employee of the Wurlitzer Company of Pennsylvania and not an employee of the defendant.
3. The defendant Ohio corporation is 'doing business' within Pennsylvania under 15 P.S. § 2852-1011, subd. C (see page 915 above).
4. Wurlitzer Company of Pennsylvania is a subsidiary of the defendant and is a Pennsylvania corporation.
5. Wurlitzer Company of Pennsylvania sells items manufactured by the defendant, but does not solicit orders for the defendant. Those items sold by the subsidiary which are manufactured by the defendant account for approximately 85% Of the subsidiary's business. These same items are sold for the subsidiary's own account and not 'on account' of the defendant.
6. The defendant, in addition to those products such as organs, pianos, phonographs, etc., which it sells to Wurlitzer Company of Pennsylvania, also manufactures and sells to others different items, such as coin-operated phonographs, electronic components, etc. It also sells to the Government various other items which the latter uses in defense contracts.
7. Wurlitzer Company of Pennsylvania does not solicit orders for the defendant. The defendant's employees regularly solicit orders in Pennsylvania, although some Pennsylvania customers regularly deal directly with the defendant's plants. For the last two fiscal years, sales by defendant in interstate commerce from manufacturing points outside of Pennsylvania for shipment to Pennsylvania purchasers have aggregated approximately:
Year ended March 31, 1963 $ 1,543,000
Year ended March 31, 1964 $ 1,594,000
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