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FURNIVAL MACH. CO. v. JOSEPH T. BARTA ASSOCS.

May 29, 1979

FURNIVAL MACHINERY COMPANY
v.
JOSEPH T. BARTA ASSOCIATES, INC.



The opinion of the court was delivered by: LUONGO

MEMORANDUM

This is a diversity action for breach of warranties given in connection with the sale of a ten-passenger private airplane. Furnival Machinery Company (Furnival), which purchased the airplane in 1977, brought this action against Joseph T. Barta Associates, Inc. (Barta), which sold the airplane. Furnival effected service of process on Barta pursuant to the Pennsylvania "long-arm" statute. Fed.R.Civ.P. 4(d)(7). On August 4, 1978, Barta a New York corporation moved to dismiss the complaint for lack of personal jurisdiction. Fed.R.Civ.P. 12(b)(2). On August 22, 1978, I entered an order directing the parties to create a factual record so that I could determine whether Barta was subject to suit in a Pennsylvania forum. Document No. 7. Although my order called for the parties to complete discovery within sixty days and file their briefs by November 15, 1978, their final written submissions were not filed until April of this year. The factual record is still not as complete as it might be, but I believe that it provides an adequate basis for resolution of Barta's motion. For the reasons hereafter stated, I conclude that Barta's motion should be denied.

 This action was commenced shortly before the effective date of Pennsylvania's revised Judicial Code, and it is therefore governed by the prior "long-arm" statute, which was enacted in 1972. That statute authorizes service upon any foreign corporation that has "done any business in (Pennsylvania) without procuring a certificate of authority to do so," Id. § 8302(a), and it defines "doing business" in subsection (a) of section 8309. Subsection (b) of that section also provides:

 
"In addition to the provisions of subsection (a) of this section the jurisdiction . . . of courts of the Commonwealth shall extend to all foreign corporations and the powers exercised by them to the fullest extent allowed under the Constitution of the United States."
 
42 Pa.Cons.Stat.Ann. § 8309(b) (Purdon Supp.1978).

 As Judge Ditter has pointed out, section 8309(b)

 
"eliminates the need to engage in the type of dual-tiered analysis which has typically been used in deciding questions of personal jurisdiction. Instead of first determining whether a foreign corporation's contacts with the forum fall within the terms of the applicable statute, and, if so, then determining if the statute as so applied comports with due process, courts in Pennsylvania may now proceed directly to the constitutional issue."
 
Inpaco v. McDonald's Corp., 413 F. Supp. 415, 418 (E.D.Pa.1978).

 The constitutional issue here is whether Barta, a New York corporation, has sufficient contact with Pennsylvania "such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice.' " International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 85 L. Ed. 278 (1940)). In applying the International Shoe test, "the facts of each case must be weighed to determine whether the requisite "affiliating circumstances' are present." Kulko v. California Superior Court, 436 U.S. 84, 92, 98 S. Ct. 1690, 1697, 56 L. Ed. 2d 132 (1978) (quoting Hanson v. Denckla, 357 U.S. 235, 246, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958)). It is therefore necessary to recite in some detail the facts that appear on the present record.

 According to the complaint, Furnival is a Delaware corporation with its principal place of business in Hatfield, Pennsylvania. Complaint (Document No. 1) P 1. Barta, on the other hand, is a New York corporation "with its principal office and place of business at Hanger D, (Westchester) County Airport, White Plains, New York." Id. P 2.

 At some point in 1977, Thomas O'Malley, Furnival's pilot, learned that Barta wished to sell a used ten-passenger Beechcraft KingAir 100 aircraft. In late June or early July of that year, O'Malley made a telephone call from Pennsylvania to Barta's place of business in New York, and inquired about the airplane. This call "was paid for by Furnival." Wreath Affidavit (Document No. 8) P 1. Barta, in response to the telephone call, mailed a specification sheet describing the airplane to Furnival at a post office box in Plymouth Meeting, Pennsylvania. Id. P 3. After Furnival's president, Robert G. Thomson, reviewed the specifications, Furnival's board of directors "authorized the purchase of the subject aircraft and the trade-in of the company's then owned airplane, a Piper Navajo Chieftain." Id. P 4.

 Thompson, the president of Furnival, wanted certain work done on the Beechcraft airplane before Furnival acquired it. He believed that Larry Byerly's firm could do the work according to his specifications. Thomson also knew (through O'Malley) that Larry Byerly wanted to acquire Furnival's Navajo airplane. Thompson therefore asked Larry Byerly to put together a three-way transaction. In Byerly's words:

 
"Bob Thompson asked me to see if I could work something out where he could get the (Beechcraft) King Air with certain things done to it. He wanted a lot of extra stuff done to it and I would get that Navajo. In other words I'd kind of act like his agent and go in and say "Here's the deal' and I would end up with the Navajo to help him purchase the airplane. My primary job there was to do his painting, his interior work, his flush toilet that he wanted put in the airplane and some radio work which we would be able to do and he knew it. And he ...

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