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BORK ET UX. v. MILLS (11/20/74)

decided: November 20, 1974.

BORK ET UX., APPELLANTS,
v.
MILLS



Appeal from order of Superior Court, Oct. T., 1972, No. 601, affirming orders of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1970, No. 3708, in case of Arthur L. Bork and Gloria Bork, his wife v. Robert Henry Mills and Thomas H. Crawford, administrator of the estate of Harry Carrell Crawford, deceased.

COUNSEL

John Philip Diefenderfer, with him Stuckert, Yates & Krewson, for appellants.

John G. Jenemann, with him Joseph R. Thompson, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Manderino. Mr. Justice Roberts and Mr. Justice Nix join in this dissenting opinion.

Author: O'brien

[ 458 Pa. Page 229]

Appellant Gloria Bork was a passenger in a car owned and driven by her father, Harry Carrell Crawford, when the Crawford car collided with a truck owned by appellee, Robert Henry Mills, on U. S. Route 13, near Painter, Virginia. Mrs. Bork was blinded as a result of the accident. On December 31, 1970, Mr. and Mrs. Bork filed a complaint in the Court of Common Pleas of Philadelphia against Mills and against the administrator of Mr. Crawford's estate. Counsel for both defendants raised preliminary objections to jurisdiction and venue. The objections of both defendants were sustained on the question of jurisdiction, and the Superior Court affirmed the decision. We granted allocatur solely to consider whether it was proper to

[ 458 Pa. Page 230]

    sustain the preliminary objections of Robert Henry Mills, a resident of Maryland.

To establish that the court had jurisdiction over Mills, appellants' complaint alleged: "3. The defendant, Robert Henry Mills, on, prior to and subsequent to July 11, 1969, has acted individually, or through agents, servants, or employees, or for an employer unknown, within the Commonwealth of Pennsylvania in the business, inter alia, of hauling freight for hire to points within Philadelphia County, and, in the alternative, other counties of the Commonwealth."

It is appellants' position that this allegation is sufficient to extend the Commonwealth's jurisdiction under "the long-arm statute," Act of July 1, 1970, P. L. 444, No. 152, § 2, 12 P.S. § 342 repealed and replaced, Act of November 15, 1972, P. L. 1063, No. 271, 42 Pa. C.S. § 8301-8311, which provides: "[A]ny nonresident of this Commonwealth who, . . . shall have done any business in this Commonwealth . . . shall be conclusively presumed to have designated the Department of State as his agent for the receipt service of process in any civil action or proceeding instituted in the courts of this Commonwealth against such individual, if and only if at the time the cause of action accrued or the harm or financial loss occurred, the nonresident . . . shall have been doing any business within this Commonwealth as heretofore provided."

The court held that appellants' complaint was insufficient because it did not set forth factual allegations concerning Mills' doing business in our state. Appellant argues that, since Mills did not specifically deny appellants' allegation, replying instead, simply that "Defendant, Robert Henry Mills, does not do business in Philadelphia County," we must assume, as Mills apparently admits in his brief, that Mills is and has been hauling freight within the Commonwealth of Pennsylvania,

[ 458 Pa. Page 231]

    although not in Philadelphia County, since sometime ...


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