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BEV-MARK v. SUMMERFIELD GMC TRUCK CO. (07/13/79)

decided: July 13, 1979.

BEV-MARK, INC., D/B/A TUBOY TRUCKING COMPANY, AND POLAR TRANSPORT, INC. AND MARK L. FELDMAN
v.
SUMMERFIELD GMC TRUCK CO., INC. AND PETERBILT MOTORS CO. AND CONSOLIDATED EQUIPMENT CORPORATION. APPEAL OF SUMMERFIELD GMC TRUCK CO., INC.



No. 2066 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Pennsylvania, Trial Division, at No. 2164 March Term, 1976.

COUNSEL

Charles B. Burr, II, Philadelphia, for appellant.

Peter McCausland, Norristown, for appellees Bev-Mark, Inc., Polar Transport, Inc. and Feldman.

Van der Voort, Hester and Wieand, JJ.

Author: Hester

[ 268 Pa. Super. Page 75]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County dismissing the preliminary objections of the appellant, which challenged the in personam jurisdiction of the court.

The action below was initiated to recover for personal injuries and property damage resulting from the breakdown of a tractor-trailer unit in Pennsylvania.

[ 268 Pa. Super. Page 76]

In October of 1974, appellee Feldman was driving a tractor owned by appellee Bev-Mark, near Gary, Indiana, when he felt the rear of the tractor sway. An inspection revealed that the spring hangar bolts were loose. This was repaired the same day at the Summerfield GMC Truck garage (appellant herein), located immediately adjacent to Interstate 80-94 in Gary, Indiana.

Three weeks later (October 30, 1974), appellee Feldman was driving the same tractor to haul a trailer owned by appellee Polar, on Interstate 80 in Pennsylvania, when suddenly the trailer swayed to the right off the road and overturned, causing personal injuries to appellee Feldman as well as damages to the tractor, trailer and the merchandise in the trailer. Appellees initiated the instant action in March of 1976 naming as defendants the manufacturer of the tractor, the retail seller and appellant, who serviced the truck.

Appellant filed preliminary objections challenging the in personam jurisdiction of the court. The court dismissed the objections and an appeal was taken to this court. On August 24, 1977, we remanded the action to the lower court for development of the record.

After depositions were taken and interrogatories answered, the lower court again dismissed appellant's objections and thus this appeal.

The lower court in dismissing appellant's objections found that sufficient "minimum contacts" had been established under the Pennsylvania Long Arm Statute, Act of November 15, 1972, P.L. 1063, No. 271, §§ 8301 et seq., 42 Pa.C.S.A. §§ 8301, et seq. (now found in the "Judicial Code" 42 Pa.C.S.A. §§ 5322-23) to allow exercise of "in personam" jurisdiction of appellant.

Appellant contends that its conduct, upon which the exercise of jurisdiction is based, was no more than an isolated incident, clearly insufficient to sustain the court's exercise of jurisdiction.

[ 268 Pa. Super. Page 77]

The preliminary objections alleged that appellant had no office or place of business in any county in Pennsylvania; that the cause of action did not arise from any activity of appellant in this state; that appellant is not registered to do business and has no real or personal property of any kind in Pennsylvania; that appellant has no offices, managing or general agents authorized by appointment or by law to receive service of process in Pennsylvania; that appellant or its agents, have not ...


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