was conducted in the Pittsburgh, Pennsylvania, area on behalf of Folger's Coffee, a product of the defendant, The Folger Coffee Company, a wholly-owned subsidiary of the defendant, The Procter & Gamble Company. As part of that campaign, coupons advertising Folger's Coffee and offering savings on the purchase of that product were distributed to the general public within the Pittsburgh, Pennsylvania, area.
Some of the coupons which offered certain "cents off" the regular price of Folger's coffee contained the words "From Procter & Gamble," imprinted thereon; others contained the statement that they could be redeemed by sending them to "Procter & Gamble, 2150 Sunnybrook Drive, Cincinnati, Ohio 45237."
The plaintiffs argue from the foregoing, particularly from the appearance of the name "Procter & Gamble" on the coupons, the redemption address, and the wholly-owned subsidiary status of Folger that the defendant, Procter & Gamble, was doing business in Pennsylvania. Plaintiffs offer no other basis or argument for jurisdiction.
Defendant, The Procter & Gamble Company does not dispute any of the foregoing facts or that they are sufficient evidence of doing business. Their point, and we believe it is well-taken, is that plaintiffs have the wrong "Procter & Gamble."
Through the affidavits of James W. Nethercott (see fn. 1) and the affidavit of Charles F. Clark, Comptroller of defendant, The Folger Coffee Company, the defendant, The Procter & Gamble Company, has established, inter alia, that:
1. The Procter & Gamble Company is an Ohio corporation with its principal place of business in Cincinnati, Ohio, and is not registered in Pennsylvania.
2. The Procter & Gamble Company has no office, agent, telephone listing, bank account, plant, real or other property in Pennsylvania.
3. It does business in Ohio, and all of its 10,000 employees are located there, including all of its officers.
4. The Folger Coffee Company is a wholly-owned subsidiary of the Procter & Gamble Company.
5. Folgers processes and sells coffee; The Procter & Gamble Company never has done so.
6. The Procter & Gamble Distributing Company (Distributing Co.) is an Ohio corporation having its principal office in Cincinnati, Ohio. It is a wholly-owned subsidiary of The Procter & Gamble Company.
7. Distributing Co. and Folger have their own board of directors, officers and employees, who determine their policies and carry on their business and who have independent responsibilities for the management of their business, including control over day-to-day operations.
8. The Procter & Gamble Company did not participate in any way in the distribution of the coupons in question, rather it was Folger and Distributing Co. which were solely responsible.
9. The name "Procter & Gamble" is a trade name and not the name of any particular corporate entity.
10. The address "Procter & Gamble, 2150 Sunnybrook Drive, Cincinnati, Ohio 45237" is the address of a coupon processing center operated by The Procter & Gamble Distributing Company.
11. Folger paid Distributing Co. for all its expenses incurred in processing the coupons in question.
Plaintiffs offered no direct rebuttal or counter-affidavit to any of the foregoing factual assertions. Instead they urge, in effect, that we find that The Procter & Gamble Company was doing business here because of the appearance of the name "Procter & Gamble" on the coupons and because of the wholly-owned subsidiary status of Folgers, and, perhaps, Distributing Co. However, the proofs are to the contrary and we find that not only was The Procter & Gamble Company not doing business in Pennsylvania, it was not doing anything here.
The foregoing does not end our inquiry into the matter of in personam jurisdiction. It is well settled that even though a parent foreign corporation is not personally "doing business" in a state it may be deemed to be vicariously present if a subsidiary that is personally "doing business" in the state is a mere "alter ego" of the parent. See generally 2 Moore's Federal Practice § 4.25(6). Thus, if Folger or Distributing Co. was merely the "alter ego" of Procter & Gamble, in personam jurisdiction would exist here.
However, establishing an "alter ego" relationship between parent and subsidiary for jurisdictional purposes is not an easy task. The Supreme Court declared in Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S. Ct. 250, 69 L. Ed. 634 (1925) that so long as the separation between parent and subsidiary is real, though perhaps just a formality, it cannot be said that the one corporation is the alter ego of the other. In Cannon, jurisdiction was sought in North Carolina over a Maine corporation which had created a subsidiary corporation to market its goods in North Carolina. The parent corporation marketed its goods in several other states directly rather than through separate corporations. Although noting that the Maine corporation "dominates the (subsidiary) corporation, immediately and completely; and exerts its control both commercially and financially in substantially the same way, and mainly through the same individuals, as it does over those selling branches or departments not separately incorporated which are established to market the Cudahy products in other states," (267 U.S. at 335, 45 S. Ct. at 251) the Court refused to pierce the corporate veil, saying that, because the two entities' books and transactions generally evidenced a maintenance of recognized corporate formalities, "(t)he corporate separation, though perhaps merely formal, was real." 267 U.S. at 337, 45 S. Ct. at 251. Pennsylvania, like most jurisdictions, has adopted the Cannon rule. See Botwinick v. Credit Exchange, Inc., 419 Pa. 65, 213 A.2d 349 (1965).
In the instant case, defendant The Procter & Gamble Company has established by affidavits that the directors, board meetings, shareholder meetings, records, accounts, tax returns, and decisions concerning day-to-day operations of its two subsidiaries, Folger and Distributing Co., are entirely separate from Procter & Gamble. Again, plaintiffs have failed to produce any evidence from which we could conclude otherwise, i. e., that the corporate separation was not real. Therefore, we will grant defendant The Procter & Gamble Company's motion to dismiss.