Appeal from order of Court of Common Pleas of Delaware County, March T., 1961, No. 1665, in case of William C. Frisch v. Alexson Equipment Corporation, Equipment Rentals Company, Briggs & Stratton Corporation et al.
John W. Wellman, with him Chadwick, Petriken, Smithers & Ginsburg, for appellant.
Donald M. McCurdy, with him Jacques H. Fox, and Fox and McCurdy, for appellee.
Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Roberts.
W. C. Frisch (Frisch) instituted a trespass action in the Court of Common Pleas of Delaware County, on April 24, 1961, against five defendants, including Briggs & Stratton Corporation (Briggs), a Delaware corporation not registered to do business in Pennsylvania. This action was commenced by the issuance of a summons the personal service of which upon an alleged agent of Briggs at the agent's Philadelphia address failed.*fn1 In the meantime, Frisch attempted
to make a substituted service of his complaint upon Briggs, under the provisions of the Business Corporation Law of 1933,*fn2 by sending a copy of the complaint by registered mail to the Secretary of the Commonwealth and to Briggs at its office in Milwaukee, Wisconsin.
Briggs, by preliminary objections, challenged the validity of the substituted service upon two grounds: (a) that it had not "done any business" in Pennsylvania and (b) that Frisch's action did not arise "out of acts or omissions of" Briggs in Pennsylvania. Interrogatories, Briggs' answers thereto and Frisch's answer to Briggs' preliminary objections were duly filed. On the basis of the record before it -- the complaint, the preliminary objections, the answers to interrogatories and the answers to the preliminary objections -- the court below dismissed Briggs' preliminary objections "without prejudice to the rights of [Briggs] to raise the question of jurisdiction at trial." From that order Briggs has appealed.*fn3
The present action was commenced on April 24, 1961; it is the statutory law in effect at that time which governs this case.*fn4 See: Kilian v. Allegheny County Distributors, 409 Pa. 344, 350, 351, 185 A.2d 517 (1962). Construing the statute in effect when this action was commenced, we said in Rufo v. The Bastian-Blessing Co., 405 Pa. 12, 14, 173 A.2d 123 (1961): "Section 1011B clearly sets forth two jurisdictional requirements which must be satisfied before a non-registered foreign corporation may be validly served with process through the Secretary of the Commonwealth: (1) the corporation must have 'done business' in the Commonwealth [as defined in § 1, Act of November 10, 1959, P. L. 1406, 15 P.S. § 2852-1011 (Pkt. Pt.)] and (2) the action must arise out of 'acts or omissions' of the corporation within the Commonwealth." Both parties and the court below are in full accord with this construction of § 1011B; the divergence in their views lies in the application of § 1011B to the factual situation herein presented.
Has Frisch, relying on substituted service to obtain in personam jurisdiction over Briggs, satisfied the dual requirements of § 1011B permitting such substituted service by demonstrating that Briggs has "done any business" in Pennsylvania and that this trespass action arises "out of acts or ...