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RUFO v. BASTIAN-BLESSING COMPANY (03/16/65)

decided: March 16, 1965.

RUFO, APPELLANT,
v.
THE BASTIAN-BLESSING COMPANY



Appeal from order of Court of Common Pleas No. 1 of Philadelphia County, June T., 1960, No. 1717, in case of Clementino Rufo, Clementino Rufo and Anna Rufo, his wife, Donata Cara, et al. v. The Bastian-Blessing Company.

COUNSEL

Rudolph J. Di Massa, for appellants.

Philip Price, with him George J. Miller, and Dechert, Price & Rhoads, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell concurs in the result.

Author: Cohen

[ 417 Pa. Page 108]

This is an appeal from an order dismissing plaintiffs' complaint in assumpsit for damages arising from the alleged breach of implied warranties of fitness for intended purpose and merchantable quality.

The complaint was filed July 12, 1960. It alleged that in March of 1956, in Philadelphia, plaintiff, Clementino Rufo, purchased from one J. F. Martin a refilled, portable cylinder of liquified gas for use in a torch in connection with his work, that defendant, Bastian-Blessing Company, manufactured a valve connected with such cylinder, that defendant impliedly warranted to plaintiff the fitness of the valve for said purpose, its merchantability, and its possession of all the qualities required by usage of trade, that plaintiff relied on defendant's skill and judgment and had no knowledge to the contrary, and that the breach of these warranties resulted in an explosion on December 8,

[ 417 Pa. Page 1091957]

, when gas escaped from the valve and caught fire, causing personal and property damage to plaintiffs.

The defendant is an Illinois corporation and is not registered in Pennsylvania. In July of 1960, substituted service of the complaint was had, purportedly pursuant to the Business Corporation Law, which, at that time, provided: "Any foreign business corporation which shall have done any business in this Commonwealth, without procuring a certificate of authority to do so from the Department of State, shall be conclusively presumed to have designated the Secretary of the Commonwealth as its true and lawful attorney authorized to accept, on its behalf, service of process in any action arising out of acts or omissions of such corporation within this Commonwealth." (Emphasis supplied). Act of May 5, 1933, P. L. 364, § 1011B, added by Act of September 26, 1951, P. L. 1475, § 22, 15 P.S. § 2852-1011B.

Defendant filed preliminary objections to the complaint, challenging the jurisdiction of the court over its person upon the grounds that (1) it was not doing business in Pennsylvania, and (2) the action did not arise out of any "acts or omissions" of defendant in Pennsylvania. The objections were overruled and defendant appealed to our Court, giving rise to our decision in Rufo v. The Bastian-Blessing Company, 405 Pa. 12, 173 A.2d 123 (1961). There we held that although defendant was doing business, within the meaning of the statutory provision cited above, no "acts or omissions" were done by the defendant in the Commonwealth. Accordingly, we held that the substituted service was improper and that the lower court had no jurisdiction over defendant's person. Our order was as follows: "Order reversed. Costs on appellees."

Defendant filed its bill of costs, and plaintiffs filed exceptions thereto. No taxation was had because plaintiffs obtained a rule to ...


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