plant of defendant to the customer via common carrier; however, on rare occasions they are transported personally by the defendant.
4. All products sold in Pennsylvania are serviced by the defendant; however, visits by employees of defendant for the purpose of servicing the products sold are only made on the average of twice a year.
5. Officers or employees of the defendant may visit Pennsylvania once a year for a national plastics industry convention or for pleasure.
6. The manufacturer's sales representatives which solicited business for the defendant in Pennsylvania were Valley Forge Machinery Company and Stanley Berg Machinery Company. Valley Forge Machinery did not solicit directly for the defendant but through Kavanagh Sales, a sales organization separate and distinct from defendant although owned by the same principals. At the time of service in this action, and for approximately one year prior thereto, Kavanagh Sales was no longer operating and Valley Forge Machinery was not soliciting business for the defendant. At the time of service, and continuing to date, Stanley Berg Machinery Company acts as a sales representative for defendant in Pennsylvania. However, both Valley Forge and Stanley Berg operated as independent contractors upon a strict commission basis and all sales solicited by them were made subject to the approval of either the defendant or Kavanagh Sales in Massachusetts.
It is readily apparent, and undisputed by the defendant, that the sales by defendant in Pennsylvania constitute a "series of similar acts for the purpose of thereby realizing pecuniary benefit" within the meaning of 15 P.S. § 2011(C). However, the test of whether the defendant is amenable to the jurisdiction of this Court "includes the 'entry' into the Commonwealth by the foreign corporation by the physical presence of agents or property". Cecere v. Ohringer Home Furniture Co. etc., 208 Pa.Super. 138, 147, 220 A.2d 350, 356, (1966). Neither the distribution and sale of products by the defendant, Rachelson v. E. I. duPont deNemours & Co., 257 F. Supp. 257 (E.D.Pa.1966); Cecere, supra, nor the presence of independent sales representatives of the defendant, Miller v. Kiamesha-Concord, Inc., 420 Pa. 604, 218 A.2d 309 (1966), in Pennsylvania are in and of themselves sufficient to constitute "entry" so as to render the defendant amenable to the jurisdiction of this Court.
In Frisch v. Alexson Equipment Corporation, 423 Pa. 247, 224 A.2d 183 (1966), the case upon which plaintiff principally relies, the foreign corporation was not registered to do business in Pennsylvania and had no offices in Pennsylvania. Its officers and employees visited Pennsylvania and maintained close contact with Pennsylvania distributors. The Supreme Court held that "through its salaried employees who made regular monthly visits in Pennsylvania, through the sporadic visits of its executives and other employees and through the close collaboration with its distributors and those dealing with its products, even though on an independent contract basis" the foreign corporation had entered Pennsylvania performing a series of similar acts for pecuniary profit and was thereby rendered amenable to the jurisdiction of that Court. Frish, supra, at 252-253, 224 A.2d 183.
An examination of the record in this case does not disclose either the regular visits of salaried employees or the close collaboration with the sales representatives found to exist by the Supreme Court in Frisch. The defendant's officers and employees who have been to Pennsylvania and who have visited customers in Pennsylvania have done so on an infrequent and sporadic basis. The defendant's sales representatives are clearly independent contractors and there is no evidence of any sort in this record which would permit this Court to conclude, or which even suggests, that there was close collaboration between the defendant and the defendant's sales representatives.
This case is similar to Cecere, supra, where the foreign corporation maintained no office and owned no real estate or personal property in Pennsylvania. It had a manufacturer or sales representative in Pennsylvania who was paid on a commission basis against which there was no right to draw. The foreign corporation exercised no control over the representative's activities and method of selling its products and all sales were subject to the approval of the foreign manufacturer. The Court concluded, albeit reluctantly, that the foreign corporation was not "doing business" in Pennsylvania as that term was defined by the Pennsylvania Courts.
In the light of the present posture of the relevant Pennsylvania law, this Court must conclude that the defendant is not amenable to service of process in this jurisdiction and sustain the defendant's motion to dismiss.
That issue must be determined in accordance with the laws of the State where this Court sits, Federal law being relevant only to decide whether the State's assertion of jurisdiction is offensive to due process requirements in compliance with International Shoe Co. v. State of Washington, etc., 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). Having concluded that defendant is not subject to the jurisdiction of this Court, there is no necessity to determine whether venue is proper or whether this action should be stayed pending submission of the dispute to arbitration.