The opinion of the court was delivered by: MASTERSON
Plaintiff's complaint in this action charges the defendant, hereinafter referred to as Raymond, with negligent manufacture and design of a fork-lift truck. The accident resulting from the alleged negligence occurred on July 28, 1964, in Pennsylvania, while the plaintiff was operating the truck. The subject-matter jurisdiction of this Court has been properly invoked pursuant to Title 28 U.S.C.A. § 1332. The federal venue requirements also have been complied with in accordance with Title 28 U.S.C.A. § 1391(a).
The defendant moves for summary judgment on the ground that service of process was improper because this court lacks personal jurisdiction over the defendant. It is proper to consider such a motion, when based upon an allegation of a lack of personal jurisdiction, as a motion to dismiss. Cf. Navios Corp. v. National Maritime Union of America, 236 F. Supp. 657, 659 (E.D.Pa., 1964); also, see generally, Moore, Federal Practice, Volume 6, P56.03, pp. 2054, 2055. Plaintiff contends that this Court has personal jurisdiction over Raymond either on the basis of the latter's own entry into Pennsylvania and/or on the basis of its presence here through the person of its alleged agent, F. J. Schindler Co., hereinafter referred to as Schindler, which has its principal place of business in Philadelphia. For reasons discussed below, this Court has concluded that it does not have personal jurisdiction over the defendant. The Court has decided, however, that it will not unconditionally dismiss the action but rather will withhold dismissal for ten days to permit the plaintiff to file a motion to transfer pursuant to Title 28 U.S.C.A. § 1404(a).
Since this is a diversity action the defendant's amenability to suit here is determined in accordance with the law of Pennsylvania. See, Rachelson v. E. I. duPont deNemours and Co., 257 F. Supp. 257, 258 (E.D.Pa., 1966); Arrowsmith v. United Press International, 320 F.2d 219, 221-224, 6 A.L.R.3d 1072 (C.A. 2, 1963); and, generally Moore, Federal Practice, Volume 2, P4.25(7), pp. 1176-1183, and p. 33 in Supplement. The law relevant to disposition of the case is Pennsylvania Business Corporation Law, Pa.Stat.Ann. Title 15 § 2852-1011, subdivisions B & C, 15 P.S. § 2011.
As authorized by Rule 4(d)(7) of the Federal Rules of Civil Procedure, the plaintiff served the defendant-corporation pursuant to this statute by serving his complaint upon the Secretary of the Commonwealth and sending a copy of the complaint to the premises of the F. J. Schindler Co. The issue to be decided now is thus the narrow one of whether the defendant's activities in Pennsylvania were such as to satisfy Pennsylvania's statutory standard of "doing business".
At the hearing on defendant's motion counsel argued their respective contentions by reference to three affidavits and two oral depositions.
The following relevant facts were adduced from this evidence:
(1) Raymond is incorporated in New York. See, Affidavit, Lamb, p. 1;
(2) Raymond is neither registered to do business in Pennsylvania nor does it have any offices or plants here. See, Affidavit, Lamb, p. 1;
(3) Raymond sells products in Pennsylvania, and in the rest of the United States. See, Deposition, Lamb, p. 7;
(4) Raymond does not have salesmen who either make contracts with dealers or sell directly to customers. See, Deposition, Lamb, p. 17.
(5) Raymond advertises in nationally-circulated trade journals. See, Deposition, Lamb, p. 20;
(6) Raymond sends all its dealers, including Schindler, catalogs describing its products. See, Deposition, Lambs, p. 17, and Deposition, Schindler, pp. 8, 12;
(7) Raymond has a school at their plant in Greene, New York, to which they invite their dealers for the purpose of instructing them in the maintenance and use of their products. The school lasts only five days and ordinarily the dealers' representative will attend only once. Mr. Schindler did attend this school. See, Deposition, Schindler, p. 8, and Deposition, Lamb, pp. 15, 16;
(8) Raymond has a contract with F. J. Schindler Co. which establishes a protected dealership arrangement evidently authorizing Schindler to be the exclusive dealer of Raymond products in the Greater Philadelphia area. See, Deposition, Schindler, p. 4;
(9) Raymond itself does not directly sell to customers, but if it receives any inquiries about its products it forwards them to the local dealer such as ...