The opinion of the court was delivered by: POLLAK
Plaintiff is a Pennsylvania corporation. Its principal business, according to the affidavit of its general manager, is "selling goods, consisting of towels, dishcloths, washcloths and other cut goods to the retail trade." Defendant Gen-Tex Printing Co., alleged in the complaint to be "a corporation organized and existing under the laws of a state other than the Commonwealth of Pennsylvania," is located in Brooklyn. Defendant's office manager has said in affidavit that defendant's "sole business consists of the imprinting of cloth (i. e., towels, washcloths) manufactured by others."
According to the complaint as amplified by the affidavit of plaintiff's general manager, plaintiff, beginning in November, 1976, sent "towels, dishcloths and cut goods" to defendant's Brooklyn plant for the imprinting of designs pursuant to prices quoted by defendant to plaintiff. This happened with some regularity until, according to the complaint, a fire at defendant's plant on May 17, 1977 consumed goods and silk screens belonging to plaintiff of the value of $ 11,358.44. The present lawsuit was brought by plaintiff to recover for this loss. Defendant has moved to dismiss for lack of In personam jurisdiction, or, in the alternative, for an order transferring this action to the Southern District of New York.
The jurisdictional question is governed by 42 Pa.C.S.A. § 8309(b) (Supp.1978), which extends jurisdiction over foreign corporations "to the fullest extent allowed under the Constitution of the United States."
According to an affidavit submitted by its office manager, defendant maintains no sales office, telephone, or sale representative in the Commonwealth and has never sent an employee here for corporate purposes. Its customers "send their goods to (the) plant in Brooklyn, New York, for the purpose of having those goods imprinted with the designs selected by the customers (and) then take their goods back" after the imprinting is complete. These customers include plaintiff and two other Pennsylvania manufacturers. And, defendant avers that all three Pennsylvania customers approached defendant, unsolicited, on the recommendation of others in the industry.
Defendant's argument in support of dismissal rests principally on three cases: Middle Atlantic States Engineering Inc. v. Camden City Municipal Utilities Authority, 426 F. Supp. 299 (E.D.Pa.1977); Swindell v. Guyandotte Water and Sewer Development Association, 425 F. Supp. 830 (W.D.Pa.1977); and George Transport and Rigging Company, Inc. v. International Publications Equipment Corp., 425 F. Supp. 1351 (E.D.Pa.1977). Those cases, however, involved transactions that had little, if any, relation to Pennsylvania. In Middle Atlantic States Engineering, jurisdiction was found wanting when a Pennsylvania corporation sued a New Jersey municipal corporation on the basis of a contract negotiated and executed in New Jersey where plaintiff had a business office regarding the evaluation, planning and coordination of New Jersey sewage facilities. In Swindell, a Pennsylvania corporation sought jurisdiction over a non-profit wholly-local Virginia citizens association, which had dealt with plaintiff through plaintiff's West Virginia office, for the purpose of securing engineering services for a West Virginia water and sewage facility. And in George Transport and Rigging, the defendant's only contact with the Commonwealth was its use of Pennsylvania highways to deliver goods for a Maryland plaintiff from Maryland to Indiana and New York. These three decisions denying jurisdiction seem proper enough, but they do not seem to require dismissal of an action in which a foreign corporation is being asked to defend a lawsuit arising out of a transaction, to which it was a party and which had foreseeable consequences in the forum state. See D. Currie, The Growth of the Long Arm: Eight Years of Extended Jurisdiction in Illinois, 1963 U.Ill.L.F. 533, 549.
Generally speaking, the question whether that fictive nomad called a foreign corporation has a constitutionally detectable "presence" outside its customary habitat is not the sort of question which yields a ready answer one way or another. It is perhaps even more than is true with most legal problems a matter of a little more or a little less. The facts of one case have only a limited transfer value to other situations: In large measure, this is so for the very reason that the entire doctrinal inquiry will "due process of law" be offended if this unentity is required to "appear" here? smacks of the kind of elegant unreality that only lawyers can admire. Nevertheless, to the extent that the inquiry can be put in sharper focus under the lens of comparable facts, it would seem that more useful lessons can be derived from M & N Meat Company v. American Boneless Beef Corp., 380 F. Supp. 912 (W.D.Pa.1974), than from the cases defendant relies on. There, a Pennsylvania plaintiff through a Chicago broker ordered three loads of beef, stored in New York, from a Massachusetts defendant. At plaintiff's direction, defendant shipped the first load of beef to Indiana and Tennessee, but defendant allegedly failed to supply the remaining beef; whereupon plaintiff brought suit in the Western District of Pennsylvania. Judge Snyder concluded that, by virtue of the Pennsylvania long-arm statute, as construed in Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 323 A.2d 11 (1974), there was proper In personam jurisdiction over the defendant.
To be sure, there are some factual differences between M & N Meat Company v. American Boneless Beef Corp. and the present case. For example, in the present case defendant insists that it has nothing to do with the shipment to or from its Brooklyn plant of the goods on which it prints designs, whereas in M & N Meat Company v. American Boneless Beef Corp. defendant was the shipper and at least some part of the shipment which was consummated seems to have passed through Pennsylvania. On the other hand, the present case is one in which defendant and plaintiff, according to the uncontradicted allegations, appear to have had a continuous business relationship for approximately half a year. Under these circumstances, Judge Snyder's rationale in M & N Meat Company v. American Boneless Beef Corp. would seem of equal force here. Defendant "could reasonably foresee that its transaction would have realistic economic impact on the commerce of Pennsylvania;" the transaction was the genesis of the litigation; and therefore, "It is only just under the facts of this case to presume that the Defendant should have anticipated that in the event of his inability to conform to the terms of the contract, for whatever reasons, he would be required to defend in the forum most affected by the agreement." 380 F. Supp. at 915, 917.
In support of its alternative motion to transfer this action to a federal court in New York, pursuant to 28 U.S.C. § 1404(a),
defendant argued that two individuals whom it desired to implead Milton Rinzler, the owner of the building where the fire occurred, and Vincent Violano, the repairman who serviced defendant's sprinkler system were amenable to process in New York but not in this forum. But soon after filing the motion to transfer, defendant moved for leave to join Rinzler and Violano as third-party defendants in this forum a motion granted by Judge Davis before this case was reassigned to me. Both Rinzler and Violano have been served, but to date neither one has filed an answer or other response to the third-party complaint, and on motion of the defendant default judgments have been entered against both. As matters now stand, therefore, the question of transfer reduces to a question of the balance of convenience as between the litigants. Defendant's understandable preference to be sued in its home jurisdiction does not suffice to displace plaintiff's home preference, reflected in plaintiff's choice of this forum. Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970). Were the case one in which third-party defendants could not be sued here, the motion to transfer would be seen in a different light. But that is not the present posture. Accordingly, the motion to transfer will be denied but without prejudice to its renewal should the posture of the case appear to change.
For the reasons set forth in this Memorandum an order denying both the defendant's motions will be entered concurrently with ...