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KITZINGER v. GIMBEL BROTHERS (04/22/76)

decided: April 22, 1976.

KITZINGER
v.
GIMBEL BROTHERS, INC. (ET AL., APPELLANT)



Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1973, No. 2955, in case of David Wayne Kitzinger, a minor by his parents and natural guardians, Charles M. Kitzinger and Dolores Kitzinger and Charles M. Kitzinger and Dolores Kitzinger, in their own right v. Gimbel Brothers, Inc., a corporation v. Textile Alliance, Ltd., additional defendant.

COUNSEL

Will J. Bangs, with him H. W. Turner, David Klaber, Owen S. Walker, and Kirkpatrick, Lockhart, Johnson & Hutchison, and Choate, Hall & Stewart, for additional defendant, appellant.

George I. Buckler, with him Meyer, Darragh, Buckler, Bebenek & Eck, for appellee.

Watkins, P. J., Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. (Jacobs, J., absent). Opinion by Hoffman, J. Jacobs, J., did not participate in the consideration or decision of this case.

Author: Hoffman

[ 240 Pa. Super. Page 348]

In January, 1973, the minor plaintiff in the action which gives rise to this appeal sustained serious injuries when his pajamas caught fire. The minor plaintiff and his parents sued Gimbel Brothers, Inc., ("appellee," herein), the seller of the pajamas. Appellee moved to join the supplier of the pajamas, Textile Alliance, Ltd., ("appellant," herein), as an additional defendant. Appellant, a Hong Kong concern with no offices in the United States, raised preliminary objections to personal jurisdiction under the Pennsylvania "long-arm" statute. The lower court dismissed the objections and this appeal followed. We agree that the court has jurisdiction over appellant and, therefore, affirm.

For purposes of this appeal, the operative facts are not in dispute. Plaintiffs below filed a complaint against appellee based on appellee's negligence and on § 402A of the Restatement of Torts (Second), alleging that the pajamas were defective because they were not flameresistant. In April, 1974, the lower court granted appellee leave to join appellant as an additional defendant. See Pa.R.C.P. 2253. Appellee alleged that appellant manufactured*fn1 and sold the pajamas to appellee and that appellee would, therefore, be entitled to indemnification or contribution if appellee were found liable for minor plaintiff's injuries.

[ 240 Pa. Super. Page 349]

Service of process was made pursuant to Pennsylvania's "long-arm" statute, Act of November 15, 1972, P.L. 1063, No. 271, § 8301 et seq.; 42 Pa.C.S. § 8301, et seq. (Supp. 1975-76), (a) by serving the summons and complaint upon the Secretary of the Commonwealth; (b) by mailing the summons and complaint by certified mail to appellant's offices in Hong Kong; and (c) by mailing the summons and complaint by certified mail to appellant, c/o British Mist, Inc., at British Mist's New York offices.*fn2

After pretrial discovery was completed, appellant filed preliminary objections on November 27, 1974. The lower court dismissed the objections on December 13, 1974. Appellant challenges that order, appealable by virtue of the Act of March 5, 1925, P.L. 23, § 1; 12 P.S. § 672. See also, Action Industries, Inc. v. Wiedeman, 236 Pa. Superior Ct. 447, 346 A.2d 798 (1975).

The resolution of this appeal turns on §§ 8302 and 8309 of the "long-arm" statute which provide that: "8302(a) . . . Any foreign corporation which shall have done business in this Commonwealth without procuring a certificate of authority to do so from the Department of State as required by statute, shall be conclusively presumed to have designated the Department of State as its true and lawful attorney as authorized to accept, on its behalf, service of process in any action arising within this Commonwealth . . ." (Emphasis added). Section 8309 defines "doing business", inter alia, as "(3) The shipping of merchandise directly or indirectly into or through this Commonwealth."

In depositions and in argument before the lower court, the parties focused on appellant's business relationship with appellee. The record indicates that appellant, a ...


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