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JOHNSON v. FOUR STATES ENTERPRISES

December 13, 1972

Ervin E. JOHNSON and Catherine L. Johnson
v.
FOUR STATES ENTERPRISES, INC., et al.


Newcomer, District Judge.


The opinion of the court was delivered by: NEWCOMER

The above captioned defendants have filed a motion to dismiss the complaint because of lack of diversity. The plaintiffs filed a pro se complaint on June 3, 1970. Service was attempted upon Four States Enterprises, Inc. on June 3, 1970 at 401 Noble Street, Philadelphia, Pennsylvania. Service was unsuccessful and the United States Marshall was informed successful service might be completed at 3200 Richmond Street, Philadelphia, Pennsylvania, under the name Regency Builders. Service was again attempted upon Four States Enterprises, Inc. at 3200 Richmond Street, Philadelphia, Pennsylvania, on July 10, 1970, and was again unsuccessful.

 On February 17, 1971, the plaintiffs filed a Praecipe for an Alias Summons upon Four States Enterprises, Inc. at 1326 Disston Street, Philadelphia, Pennsylvania. Also on February 17, 1971, a pro se amended complaint was filed. A motion to dismiss was filed by defendants Scolnick and Myers on May 27, 1971, service having been completed as to Scolnick on May 8, 1971 by personal service on him at 1846 Strahle Street, Philadelphia, Pennsylvania. Service was completed as to Myers on May 8, 1971, by service upon Scolnick, in view of the fact that Myers lived at 1844 Strahle Street, Philadelphia, Pennsylvania, and Scolnick was his next door neighbor. On June 15, 1971, The Honorable Edward R. Becker denied the motion to dismiss.

 Service was completed on July 12, 1971 as to Four States Enterprises, Inc., by serving the registered agent, James Gilbert Brown at 1326 Disston Street, Philadelphia, Pennsylvania. Unfortunately, James Gilbert Brown was the New Jersey registered agent for Four States Enterprises, Inc. and not the Pennsylvania registered agent, the corporation being a New Jersey corporation with registered offices located at 716 Federal Street, Camden, New Jersey. Compounding plaintiffs' misfortune was the fact that by that date, July 12, 1971, the State of New Jersey had, on February 8, 1971, voided the corporate charter of Four States Enterprises, Inc. for failure to pay the $25.00 franchise tax due December 31, 1967.

 On August 2, 1971, plaintiffs retained an attorney and a second amended complaint was filed alleging breach of a construction contract, property damage because of said breach, and injury to plaintiffs' financial credit rating because of a law suit that ensued after the breach and because of the breach, wherein plaintiffs here were named defendants there.

 A brief history of this case and some background information will be helpful at this point. The play and players are as follows. Regency Builders, Inc. is a corporation incorporated under the laws of Pennsylvania for the purpose of home repair contracting. It is licensed to do business in the State of New Jersey with its principal place of business in that state at 15 South Haddon Avenue, Haddonfield, New Jersey. Its registered agent is William A. McDowell, who resides at 313 Briarwood Avenue, Haddonfield, New Jersey. The President of Regency Builders, Inc. is Jack Scolnick and the Secretary is Ellis Myers. The Directors of the Corporation are also Mr. Scolnick and Mr. Myers. They list their addresses as respectively, 1844 Strahle Street, Philadelphia, Pennsylvania, and 1846 Strahle Street, Philadelphia, Pennsylvania.

 The Strahle Construction Corporation is a Pennsylvania corporation incorporated to carry on general construction business. Its registered office is 1326 Disston Street, Philadelphia, Pennsylvania. The first Directors were E. Myers of 2811 N. Kensington Avenue, Philadelphia, Pennsylvania, J. Scolnick of 2811 N. Kensington Avenue, Philadelphia, Pennsylvania, and H. Secoda of 1326 Disston Street, Philadelphia, Pennsylvania. The incorporators were J. G. Brown of 1326 Disston Street, Philadelphia, Pennsylvania, Mildred Brown of 1326 Disston Street, Philadelphia, Pennsylvania, and Dora Seave of 1243 Englewood Street, Philadelphia, Pennsylvania.

 Now comes a twist. Four State Enterprises, Inc. is a Pennsylvania corporation incorporated to repair and remodel houses. Its registered office is at 1326 Disston Street, Philadelphia, Pennsylvania. The first Directors were Jack Scolnick of 1844 Strahle Street, Philadelphia, Pennsylvania, Ellis Myers of 1844 Strahle Street, Philadelphia, Pennsylvania, and M. Scolnick of 1844 Strahle Street, Philadelphia, Pennsylvania. The incorporators were Mildred Brown of 1326 Disston Street, Philadelphia, Pennsylvania, Loretta Muszynski of 4476 Richmond Street, Philadelphia, Pennsylvania, and Herman Secoda of 2735 East Madison Street, Philadelphia, Pennsylvania.

 Some time prior to November 12, 1967, the plaintiff received in the mail an advertising circular which stated in part:

 
Rural Route, Star Route, Post Office Box Holder, Local, Special Bonus, limited time only! Just for you! New fun popcorn popper. Three quart model. It's electric -- with big three quart capacity. Heat resistant glass cover. Pan lifts off base -- for easy serving and cleaning. Nonskid table legs. Plug in any 110-120 volt outlet for convenience. Great for those "at home evenings" with the family. Look inside for complete details!
 
Aluminum Roofing. Roofing by Four States. Beauty and extra savings for your home. This price includes labor and roofing for any size home -- up to 800 square feet. No more leaky roofs and ruined interiors. The improved modern appearance of an aluminum roof. Your home is cooler in summer and warmer in winter. Many months to pay. Low monthly payments. Payment nothing for months after installation. $299.00 installation included.
 
Aluminum Patti-o-port. Get quality at lowest prices! Completely installed! Includes all labor and materials. Custom made, always cool, Rust proof. Adds value to your home. Play area for children. Any size up to giant eight feet x 20 feet. Like adding another room to your home for a carport for your car's protection. Your family will enjoy this sun and rain shelter . . . Keeps damaging sun rays, snow or hail off your car . . . and now about the convenience of quick cover when a shower wants to spoil a family barbecue? Save hundreds of dollars or more over similar aluminum covers. Many months to pay. Low monthly payments. Pay nothing for months after installation. $99.00 no down payment.
 
Free bonus. Call now! Out of town call collect. Pennsylvania (215) 627-6700. Allentown-434-3453. New Jersey (609)-966-2468. Delaware (302)-OL-2-8728. If you act promptly we will include this bonus with a purchase of our aluminum siding special. New, fun, popcorn popper.
 
700 square feet of aluminum siding, plus 300 square feet of genuine quarry ribbon stone. Completely installed. Includes labor and material for any average size home up to 1,000 square feet. Stop unnecessary problems. Wood board splitting, high fuel costs, chilly drafts, uncomfortable living due to poor insulation. Enjoy everlasting home beauty, comfortable living and savings. Now your home can be made into a truly modern home. This price includes labor and materials for any average size home up to 1,000 square feet. Budget terms available. Low monthly payments. Pay nothing for months after installation. No money down.

 Enclosed with the circular was a business reply card addressed to Four States Enterprises, Inc., P.O. Box 441, Feasterville, Pennsylvania 19048.

 On November 12, 1967, the plaintiff executed a contract with Four States Enterprises, Inc. for the construction of a frame garage and pink wood tone aluminum siding. The cash price was $2,900.00. The unpaid cash balance was $2,900.00. The life insurance tacked on to the unpaid balance was $258.70. That left a ...


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