The opinion of the court was delivered by: SNYDER
The Plaintiffs, James J. Parise, Jr. and his wife, Deborah L. Parise (Parise), bring this suit pursuant to 28 U.S.C. § 1332 for personal injuries allegedly suffered by the Husband-Plaintiff as a result of the negligence of the employees of the Defendant, AAA Warehouse Corporation a/k/a Triple A Warehouse (AAA), and for damages suffered by the Wife who was forced to quit her job in order to care for her husband, and for her loss of the society, companionship and services of her husband.
Parise reside in Jefferson County, Pennsylvania, within the territorial jurisdiction of this Court. AAA is an Indiana corporation engaged in the loading of goods and products for shipment and transportation in interstate commerce with its principal offices in Indianapolis, Indiana.
Parise aver that on September 10, 1972, the Husband-Plaintiff was injured when a railroad car door disengaged and fell directly on top of him. At the time of the accident, he and several other men were attempting to close the sliding door on a freight car loaded with flour which had been delivered to the siding of their employer, Jefferson Wholesale Grocery Company (Jefferson). The flour had been stored in AAA's warehouse in Indianapolis for International Multi-Foods, Inc. (International), a food distributor incorporated in Minnesota. Jefferson purchased the flour from International who then instructed AAA to load the flour into the freight car in question. This was done by AAA's employees in Indianapolis and the freight car was transported to its destination by the Penn Central and the Baltimore and Ohio Railroads. The Complaint alleges that AAA failed to inspect, maintain, repair and/or warn of the alleged defective condition of the freight car.
Parise filed this action on July 3, 1974, and service was made on AAA by registered mail through the Secretary of the Commonwealth. AAA now moves this Court to dismiss the case for lack of jurisdiction contending service was not proper under Pennsylvania's "Long-Arm" Statute or in the alternative, if the Statute is interpreted as providing jurisdiction over the Defendant in the circumstances of this case, it is contended the Statute is unconstitutional as contravening the minimum contacts requirement of the Due Process Clause of the Fourteenth Amendment.
Where federal jurisdiction is predicated upon diversity of citizenship, in personam jurisdiction "is determined in accordance with the law of the state where the court sits, with 'federal law' entering the picture only for the purpose of deciding whether a state's assertion of jurisdiction contravenes a constitutional guarantee." Arrowsmith v. United Press International, 320 F.2d 219, 223 (2d Cir. 1963). Accord, Gorso v. Bell Equipment Corporation, 476 F.2d 1216 (3d Cir. 1973). Acquisition of jurisdiction over the Defendant here is sought pursuant to the "Long-Arm" Statute of Pennsylvania, 42 Pa. S. § 8301 et seq., Act of November 15, 1972, P.L. 1063, No. 271, eff. in 90 days, providing that to be amenable to jurisdiction in Pennsylvania, a foreign corporation must be "doing business" within the State, as statutorily defined: (42 Pa. S. § 8309(a))
" General rule. -- Any of the following shall constitute 'doing business' for the purposes of this chapter:
(1) The doing by any person in this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object.
(2) The doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object with the intention of initiating a series of such acts.
(3) The shipping of merchandise directly or indirectly into or through this Commonwealth.
(4) The engaging in any business or profession within this Commonwealth, whether or not such business requires license or approval by the Commonwealth or any of its agencies.
(5) The ownership, use or possession of any real property situate within this Commonwealth."
Chief Judge Seitz of our Circuit has outlined the development of this statute in the Gorso case: (476 F.2d at 1218-1220)
"In 1968, Pennsylvania amended the terms of its 'long-arm' statute as applied to foreign corporations so as to extend its reach. It presently states:
15 P.S. § 2011(C). This was the final step in a series of legislative responses to successive judicial interpretations of amendments to the 'long-arm' statute. In each case, the state courts had construed the legislative purpose as not intending to extend jurisdiction over a foreign corporation in a specified instance even though it was constructively present within the state. Each time, the legislature thereafter had amended the statute so as to broaden its scope.
For our purposes, only the last two amendments of the statute need be examined. The first amendment in 1963 involved the companion statute to § 2011(C) -- § 2011(B) [15 P.S. § 2011(B) (1967)]. Previous to the amendment, the statute had read, in part:
'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 [out of acts or omissions of such corporation] within this Commonwealth. . . .'
Based upon this language, the Supreme Court of Pennsylvania had held that before jurisdiction over a foreign corporation would lie, the tortious activity sued upon must have arisen out of an act or omission by the foreign corporation while it was actually present within the state. Rufo v. Bastian-Blessing Co., 405 Pa. 12, 173 A.2d 123 (1961). The legislative response in 1963 was to amend § 2011(C) by striking out the requirement of 'acts or omissions' within the Commonwealth -- the language upon which the state supreme court had predicated its decision.
The second, and most recent, step came in response to judicial interpretations of the 'doing business' and 'entry' requirements found in the predecessor of § 2011(C). The Superior Court of Pennsylvania construed the statute as not extending jurisdiction over a foreign lamp manufacturer which dealt through independent contractors in Pennsylvania. Cecere v. Ohringer Furniture Co., 208 Pa.Super. 138, 220 A.2d 350 (1966). This decision was based upon the interpretation the Supreme Court of Pennsylvania had given these terms. See, e.g., Miller v. Kiamesha-Concord, Inc., 420 Pa. 604, 218 A.2d 309 (1966). The superior court concluded that although the Commonwealth had the constitutional power ...