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CECERE v. OHRINGER HOME FURNITURE COMPANY (ET AL. (06/17/66)

decided: June 17, 1966.

CECERE
v.
OHRINGER HOME FURNITURE COMPANY (ET AL., APPELLANT)



Appeal from order of County Court of Allegheny County, No. 968 of 1964, in case of James Cecere et ux. v. Ohringer Home Furniture Company et al.

COUNSEL

Orrin G. Hatch, with him Pringle, Bredin, Thomson, Rhodes & Grigsby, for appellant.

John D. Stedeford, for appellee.

Ervin, P. J., Wright, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Watkins, J., absent). Opinion by Hoffman, J. Wright, J., concurs in the result.

Author: Hoffman

[ 208 Pa. Super. Page 139]

In October of 1962, the original defendant herein, Ohringer Home Furniture Company (Ohringer), delivered a packed and crated lamp to the home of plaintiffs, James and Theresa Cecere. On April 24, 1964, plaintiffs filed suit in trespass against Ohringer alleging that the packing used to protect the lamp during shipment was infested with maggots, moths and worms

[ 208 Pa. Super. Page 140]

    which damaged their property and made them ill.

Ohringer filed an answer denying plaintiffs' allegation and alleging that the Florence Art Company (Florence), an Illinois corporation, was responsible for any damages sustained by plaintiffs. Ohringer then attempted to join Florence as an additional defendant through substituted service on the Secretary of the Commonwealth in accordance with the provisions of § 1011B of the Business Corporation Law of May 5, 1933, P. L. 364, as amended, 15 P.S. § 2852-1011B. Florence filed preliminary objections to the complaint challenging the jurisdiction of the court over its person on the ground that it was not "doing business" in Pennsylvania. After a hearing the court dismissed Florence's preliminary objections and held that Florence was amenable to suit in Pennsylvania and subject to the jurisdiction of the Pennsylvania courts.

The sole issue in this case is whether Florence was "doing business" in Pennsylvania. The pertinent provisions of § 1011B of the Business Corporation Law provide:

"B. 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 within this Commonwealth." (Emphasis supplied)

The definition of "doing business" is given in § 1011C of the above act:

"C. For the purposes of determining jurisdictions of courts within this Commonwealth, the entry of any corporation into this Commonwealth for the doing of a series of similar acts for the purpose of thereby

[ 208 Pa. Super. Page 141]

    realizing pecuniary benefit or otherwise accomplishing an object, or doing a single act in this Commonwealth for such purpose, with the intention of thereby initiating a series of such acts, shall constitute 'doing business.'"

The lower court made the following findings of fact:

"This record reveals that Florence Art Company is a registered corporation of the State of Illinois and was not registered to do business in Pennsylvania. It maintains no office and owns no real or personal property in Pennsylvania. It had a manufacturer or sales representative in Pennsylvania, Mr. Milton B. Hartz, who had solicited for Florence Art for some two to three years prior to the date that the cause of action arose. Mr. Hartz was paid on a commission basis; he represented four other companies besides Florence Art; there was no written agreement between Florence Art and Mr. Hartz; he was not required to make any reports; he operated from his home. Florence Art exercised no control over his activities and method of selling Florence Art products. All sales were subject to the approval of Florence Art and shipment was made directly from it to the purchaser; all payments were made from the purchaser directly to Florence Art; Mr. Hartz had a definite territory to work; namely, Pennsylvania. At the time, Mr. Hartz became Florence Art's sales representative, it had ...


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