Appeal from judgment of Court of Common Pleas of Philadelphia County, Aug. T., 1968, No. 1022-B, in case of Harry Nettis et ux. v. Di Lido Hotel.
David A. Saltzburg, with him Bennett, Bricklin & Saltzburg, for appellant.
Michael M. Goss, with him Weinstein and Bobrin, for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent). Opinion by Cercone, J.
[ 215 Pa. Super. Page 285]
Plaintiff Minnie Nettis was injured at the Di Lido Hotel in Miami, Florida, while on vacation there in
[ 215 Pa. Super. Page 286]
the summer of 1967. She and her husband Harry Nettis sued the hotel in the Common Pleas Court of Philadelphia County, Pennsylvania. The sheriff made service of the complaint pursuant to Pa. R.C.P. 2180(a) (2) on August 28, 1968 by handing a copy of it to Bob Siegel, a travel agent, at his place of business located at 211 South Broad Street, Philadelphia, Pennsylvania.
Defendant hotel filed preliminary objections to the service of the complaint in trespass objecting to the jurisdiction of the court for the reason that defendant was a foreign corporation not doing business in the Commonwealth of Pennsylvania and did not have an agent authorized to accept service of process in Pennsylvania.
Plaintiff's answer asserted the propriety of the jurisdiction and service on the ground that defendant was doing business in Pennsylvania and Siegel was defendant's agent in Pennsylvania.
After oral deposition of Bob Siegel and argument, the court below dismissed the preliminary objections and in a memorandum opinion declared that the service was valid because defendant was doing business in Pennsylvania according to the provisions of the 1968 Amendment to the Pennsylvania Business Corporation Law of 1933, Sec. 1011C.*fn1 However, the lower court did not decide the question of whether or not Bob Siegel was an agent upon whom service could be properly made under Pa. R.C.P. 2180(a) (2). The lower court should have decided this question for, unless Siegel, the person served, was defendant's agent, the fact that defendant was doing business in Pennsylvania would not of itself have given the court jurisdiction.
[ 215 Pa. Super. Page 287]
If defendant was doing business in Pennsylvania and had no agent to represent it here, the proper method of service was not under Section 2180(a) (2), but under Section 1011B of the Pennsylvania Business Corporation Law of 1933, as amended, supra, by serving a copy of the complaint on the Secretary of the Commonwealth: Myers v. Mooney Aircraft, Inc., 429 Pa. 177 (1967). In the Myers case two persons were killed at Forest Hills, Maryland, in an airplane that had been manufactured by Mooney Aircraft, Inc., a Texas corporation. Suits in behalf of the deceased persons were brought in Lancaster County, Pennsylvania. In one of the actions, service was made under the provisions of Pa. R.C.P. 2180(a) (2) on a Henry Weber, a distributor and director of Mooney, at Weber's place of business in Lancaster County. In the other action, service of process on Mooney was sought to be effected by two methods: one, by delivery of a copy of the complaint to Weber at his place of business purportedly in compliance with Pa. R.C.P. 2180(a) (2); and two, by service of a copy of the complaint by registered mail upon the Secretary of the Commonwealth under the provisions of Sec. 1011B of the Pennsylvania Business Corporation Law of 1933, as amended, supra.
The court in Myers, supra, found that Mooney was doing business in Pennsylvania but had no agent in Pennsylvania; that Weber was an independent contractor and, therefore, the complaints served on Weber under Pa. R.C.P. 2180(a) (2) failed to establish the court's jurisdiction over defendant. The court did, however, uphold the service made upon the Secretary of the Commonwealth under the provisions of Sec. 1011B of the ...