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WENZEL v. MORRIS DISTRIBUTING CO. (07/02/70)

decided: July 2, 1970.

WENZEL
v.
MORRIS DISTRIBUTING CO., INC., APPELLANT



Appeal from order of Court of Common Pleas of Potter County, Sept. T., 1966, No. 60, in case of Gilbert Wenzel, doing business as Wenzel Appliances, v. Morris Distributing Co., Inc.

COUNSEL

M. Rosenn, with him Henry Greenwald, John A. Duvall, and Rosenn, Jenkins and Greenwald, and Mahaley & Duvall, for appellant.

Harold B. Fink, Jr., for appellee, submitted a brief.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy.

Author: Pomeroy

[ 439 Pa. Page 366]

In June, 1966, the plaintiff-appellee, Gilbert Wenzel, filed a complaint in assumpsit naming as defendant the Morris Distributing Co., Inc., a foreign corporation (hereinafter "Morris"). The complaint alleged that Morris, a wholesaler of electrical appliances, through its agent, one Robert Madigan, had entered into an oral contract with plaintiff in 1959; that under the terms of that contract the plaintiff, doing business as Wenzel Appliances, was "to take on and sell" at retail RCA appliances purchased from Morris; that within an undefined area plaintiff was to have the exclusive franchise for the retail sale of such appliances; and that Morris would make good the warranties pertaining to the appliances. The complaint further alleged that Morris had breached this contract by giving another retailer an exclusive franchise to market the prescribed product line and by failing to perform its agreement with plaintiff by fulfilling the warranty obligation with respect to faulty products. The plaintiff sought damages for loss of good will and for Morris' failure to perform under the warranty.

Together with the complaint and pursuant to Pennsylvania Rule of Civil Procedure 2180(c), plaintiff filed a petition for approval of service of process upon the Secretary of the Commonwealth. This petition averred that Morris was not qualified to do business in the Commonwealth and had not otherwise designated the Secretary as its agent for service. On July 1, 1966, the court granted the petition, and thereafter the complaint was served upon the Secretary and upon Morris by registered mail.

Morris then filed preliminary objections stating that it was a New York corporation which was not doing business in the Commonwealth; it sought judgment in its favor by reason of the court's lack of jurisdiction over its person. A hearing was held at which testimony

[ 439 Pa. Page 367]

    was taken from Madigan and one Ben Horowitz, the treasurer of Morris. Following the hearing, the court dismissed the objections, and Morris appealed to this Court under the authority of the Act of March 5, 1925, P.L. 23, § 1, 12 P.S. § 672. We affirm.

Subject to the restrictions of the Fourteenth Amendment to the United States Constitution, a foreign corporation's amenability to service of process in Pennsylvania is governed by section 1011 of the Business Corporation Law, Act of May 5, 1933, P.L. 364, § 1011, as amended, 15 P.S. § 2011. Subsection B of that provision, in material part, reads as follows: "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." 15 P.S. § 2011B. Application of this section thus depends upon whether a corporation has "done any business in this Commonwealth," a term defined in subsection C, which at the time this suit was commenced (June 23, 1966) read as follows: "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 realizing pecuniary benefit or otherwise accomplishing an object, or doing a single act in this Commonwealth for such purposes, with the intention of thereby initiating a series of such acts, shall constitute 'doing business.'" 15 P.S. § 2011C.*fn1 At

[ 439 Pa. Page 368]

    issue is whether Morris may be said to have "done business" in this Commonwealth within ...


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