October 3, 1980
BLANCHE HALL, PLAINTIFF
PENNSYLVANIA HOSPITAL, AND STEPHEN L. CORSON, M.D., RONALD L. BOLOGNESE, M.D., RICHARD WOLFE MEDICAL INSTRUMENTS CORP., WISAP GMBH AND RICHARD WOLF GMBH; APPEALS OF: WISAP GMBH (NO. 567 OCTOBER TERM, 1979) AND RICHARD WOLF GMBH (NO. 1514 OCTOBER, 1978)
No. 1514 October Term, 1978, No. 567 October Term, 1979, Appeal from Orders dated April 18, 1978 (at No. 1514 October Term, 1978) and February 23, 1979 (at No. 567 October Term, 1979) of the Court of Common Pleas of Philadelphia County, Civil Trial Division, at No. 5321 December Term, 1973.
Before Hester, J., Montgomery, J., and Cirillo, J.*fn*
The Orders of the lower court are affirmed on the Opinions of Blake, J. (Appeal of Richard Wolf GmbH) and Takiff, J. (Appeal of WISAP GmbH).
IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION
BLANCHE HALL V. PENNSYLVANIA HOSPITAL and STEPHEN L. CORSON, M.D., RONALD L. BOLOGNESE, M.D., RICHARD WOLF MEDICAL INSTRUMENTS CORP., WISAP GmbH and RICHARD WOLF GmbH
DECEMBER TERM, 1973
DECEMBER 22, 1978
This matter is before the Motion Court upon the Preliminary Objections of Additional Defendant, RICHARD WOLF, GmbH(hereinafter "Wolf GmbH"). The gravamen of these Preliminary Objections is a Motion to Strike the Complaint against Wolf GmbH for lack of timely joinder pursuant to Pa.R.C.P. 2253; and a Petition to Dismiss the Complaint for lack of jurisdiction, service having been made on Wolf GmbH under the provisions of 42 PS 8307 (The Pennsylvania Long Arm Statute).
The pertinent facts are as follows:
Plaintiff's cause of action arose out of injuries allegedly sustained on 2/12/73 as a result of a surgical misadventure during surgery by defendant doctors at defendant hospital while using a hysteroscopic insufflator, manufactured in Germany by WISAP GmbH and Wolf GmbH, additional defendants. The hysteroscopic insufflator in question was shipped to Illinois by Wolf GmbH to its agent Richard Wolf Medical Instruments Corporation (hereinafter Wolf Instruments) on or about April 21, 1972.
Plaintiff commenced suit against defendant hospital by Complaint on 1/2/74 and service was made on 1/4/74. The defendant doctors were joined by Writ on 2/14/74 and they joined Wolf Instruments by Writ on 2/13/75. Wolf Instruments filed a Petition for Leave to Join as Additional Defendant Wolf GmbH on 8/11/75. Subsequently, by order of Court, per Hirsh, J., dated September 9, 1975, leave to file a complaint against Wolf GmbH was granted and Wolf Instruments filed its additional defendant Complaint against Wolf GmbH on 10/24/75. Wolf GmbH filed Preliminary Objections to the Complaint on 11/28/75. Injury to counsel for Wolf Instruments caused the removal of said Preliminary Objections from the Argument List until the instant Motions were refiled.
Pa.R.C.P. 2253 states:
"Neither praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than sixty (60) days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown."
It is clear that pursuant to Rule 2253, any defendant or additional defendant must join an additional defendant within sixty (60) days of service of the complaint upon the original defendant. Thereafter, no additional defendant may be joined without first obtaining leave of court.
In the instant case the original defendant was served on 1/4/74 and Wolf GmbH, the moving party, was joined by complaint, with leave of court, on 10/24/75, approximately nineteen (19) months after the period of time for joinder under Rule 2253 expired. The Motion presently before the court contests the sufficiency of the reasons advanced by Wolf Instruments in its Petition to Join Wolf GmbH, filed 8/11/75.
Wolf GmbH contends that Wolf Instruments has had knowledge from the commencements of its involvement in this action of the existence of a claim against Wolf GmbH and that Wolf Instruments has failed to adequately explain the delay for more than six months in filing a complaint against Wolf GmbH or advance any reasoning as to the sufficiency of causes for extension of time.
Wolf Instruments responds that a Complaint was not served against it until 4/22/75 and that Wolf Instruments was not aware of the nature of the claims against it until served by Complaint. Wolf Instruments asserts that the only delay chargeable to it is the delay from 4/22/75, the date of service upon Wolf Instruments, to 8/11/75, the date Wolf Instruments filed and served notice to all counsel of its Petition for Leave to Join Wolf GmbH as an Additional Defendant.
Upon review, taking cognizance of the complexity of this case as evidenced by the numerous pleadings and docket entries, and the attenuating factual and legal issues involving several West German Corporations, we cannot find any undue delay. The court, per Hirsh, J., properly granted leave to join upon cause shown.It is clear that the purpose and policy of Rule 2253 is "an attempt to provide a means to simplify and expedite the disposition of matters involving numerous parties without subjecting the original plaintiff to unreasonable delay in the prosecution of his portion of the litigation." Zakian v. Liljestrand, 438 Pa. 249 (1970). In addition, delay is not in and of itself a reason for denial of a late joinder. (Zakian, supra, p. 256).
Here, no reasonable averment of prejudice has been advanced by Wolf GmbH that has resulted from the late joinder. Indeed, it is apparent that both Wolf Instruments and Wolf GmbH, through counsel, were involved in pre-joinder discussions and were therefore aware of the potential of being joined as additional defendants--thus, negating any claim of prejudice to the preparation of their respective cases.
In Lamoree v. Penn Central Transportation Company, 238 Pa. Superior Ct. 380 (1976), leave to join an additional defendant was granted over eight (8) months after the expiration of the sixty (60) day period provided for in Rule 2253. The same complicated legal and factual issues that were present in Lamoree and the facts in the instant case require a finding of good cause shown as to the delay in joining the additional defendant. Accordingly, the Preliminary Objections in the nature of a Motion to Strike the Complaint filed on behalf of Richard Wolf GmH are dismissed.
In addition, Richard Wolf GmbH has raised a question of jurisdiction and has attached an affidavit of Herbert Schubert, the Chief Operating Officer of Richard Wolf GmbH, as to the manufacture of the hysteroscopic insufflator in question and as to the business contacts Wolf GmbH in Pennsylvania. Wolf GmbH denies having designed or manufactured the insufflator in question and avers that it has never done business in Pennsylvania.
Wolf Instruments avers through attached exhibits (Answers to Interrogatories) that Richard Wolf Instruments Corporation is one hundred percent owned by Richard Wolf GmbH, and that Herbert Schubert is an officer of Richard Wolf Medical Instruments Corporation. Answers to interrogatories indicate that Richard Wolf Medical Corporation marketed $281,950.00 of Wolf GmbH products in Pennsylvania during the years 1972 through 1975; that since 1973, Wolf GmbH has made all of its sales in the United States through Wolf Instruments; and that the insufflator involved in the instant case was sold by Wolf GmbH to Wolf Instruments, which regularly markets these products in Pennsylvania.
Thus, the Commonwealth of Pennsylvania has jurisdiction over Richard Wolf GmbH pursuant to its "long arm statute", 42 PS 8309, by virtue of Wolf GmbH's marketing its products in Pennsylvania through a wholly owned subsidiary.
Subsection (b) of 42 PS 8309 states:
"In addition to the provisions of Subsection (a) of this section, the jurisdiction and venue 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."
Pennsylvania Courts have clearly held that a foreign corporation cannot avoid jurisdiction of Pennsylvania Courts by conducting business in Pennsylvania through a subsidiary corporation, and have held that corporations operating via an exclusive sales agent are regularly conducting business in Pennsylvania, and service upon said corporations is proper. See. Benn v. Linden Crane Company, 370 F. Supp. 1269 (E.D. Pa. 1973); Keene v. Multicore Solders, Ltd., 379 F. Supp. 1279 (E.D. Pa. 1974); McCrory Corporation v. Girard Rubber Corp., 225 Pa. Super. 45 (1973).
Since exhibits and interrogatories advanced by Richard Wolf Medical Instruments Corporation have shown that Richard Wolf GmbH and WISAP GmbH have regularly marketed their products in Pennsylvania through Richard Wolf Medical Instruments Corporation, such indirect regular business activity in this Commonwealth makes both foreign corporations subject to jurisdiction of Pennsylvania Courts.Accordingly, the Preliminary Objection of Wolf GmbH as to lack of jurisdiction is dismissed, and the following Order of the Court stands:
AND NOW, this 18th day of April, 1978, upon consideration of the Preliminary Objections of Additions Defendant, Richard Wolf GmbH it is HEREBY ORDERED that the Preliminary Objections of Richard Wolf GmbH are dismissed with Leave to Answer within twenty (20) days of this Order.
BY THE COURT:
Opinion AND ORDER
TAKIFF, J., February 23, 1979
Presently before the court are the preliminary objections, as revised, of additional defendant WISAP GmbH to the Complaint of additional defendant Richard Wolf Medical Instruments Corporation.
The instant litigation arises by reason of injuries plaintiff allegedly suffered on February 12, 1973 during a surgical procedure at Pennsylvania Hospital. Plaintiff filed a Complaint against the hospital on January 2, 1974; the hospital in turn, on February 14, 1974, joined the physicians involved in the surgical procedure, Drs. Corson and Bolognese. The additional defendant doctors, on February 13, 1975, by writ then joined Richard Wolf Medical Instruments Corporation (hereinafter Wolf USA), the American distributors of a device known as a hysteroscopy (or hysteroscopic) insufflator, used during the procedure.
On July 7, 1975, Wolf USA filed a petition for leave to join WISAP GmbH (hereinafter WISAP) as an additional defendant. This petition was granted by the court, per Hirsh, J., on July 10, 1975, without prejudice to WISAP's right to timely object. A similar petition as to additional defendant Richard Wolf GmbH was filed on September 16, 1975, and was granted by the court the same day. Wolf GmbH subsequently filed preliminary objections to its joinder; an order by the court, per Blake, J., dismissing these objections was entered on April 18, 1978, and is presently on appeal to the Superior Court.
Now before us are WISAP's preliminary objections, predicated on two grounds: (1) that WISAP was not "doing business" in Pennsylvania and is therefore not subject to Pennsylvania jurisdiction, and (2) that WISAP's joinder was not timely under Pa. R.C.P. 2253 and Wolf USA has not shown good cause for seeking the late joinder of WISAP. We find both contentions to be without merit for the reasons stated below.
The following facts, averred by WISAP and admitted by Wolf USA, are relevant to the jurisdiction question:
(1) WISAP is incorporated in and has its principal place of business in Faistenhaar, Germany.
(2) WISAP has no mailing address, place of business, telephone listing, employees, representatives or agents (including an agent designated to accept service) in Pennsylvania.
(3) WISAP owns no real or personal property in Pennsylvania, and does not pay Pennsylvania taxes.
(4) WISAP has not applied to do business in Pennsylvania, and is not certified or licensed to do business in Pennsylvania.
(5) WISAP developed and clinically tested the hysteroscopy insufflator. Prior to plaintiff's alleged accident, WISAP produced a limited number of these devices which it delivered in Germany to Richard Wolf GmbH.
(6) Richard Wolf GmbH was exclusively in charge of distributing the hysteroscopy insufflators and it placed most or all of them in university hospitals.
(7) As of the date of the alleged accident, there were approximately six or seven hysteroscopy insufflators in use in the world, two of which (including the one involved in the present litigation) were in the United States.
Also pertinent to the present consideration is WISAP's statement in answers to interrogatories (filed February 26, 1976) that
"WISAP GmbH... knew that products manufactured by it were being sold by others somewhere in the United States but had no knowledge as to the states in which such sales were made. More specifically, WISAP had no knowledge as to whether such sales were being made in Pennsylvania. WISAP had no knowledge that the specific device in question would be sold in Pennsylvania."
WISAP asserts that it "is not 'doing business' in Pennsylvania and so it is not subject to service under the Pennsylvania Long Arm Statute, 42 Pa. C.S. § 8301 et. seq. (1978)."
The relevant portions of the "long-arm" statute*fn1 are §§ 8302(a) and 8309(a) (3):
"8302(a)... Any foreign corporation which shall have done business in this Commonwealth... shall be conclusively presumed to have designated the Department of State as its... attorney as authorized to accept, on its behalf, service of process in any action arising within this Commonwealth.
"8309(a)... Any of the following shall constitute 'doing business' for the purposes of this chapter: ... (3) The shipping of merchandise directly or indirectly into or through this Commonwealth".
Also apposite is § 8309(b), which provides that "... 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." The addition of this section to the "long-arm" statute in 1972 was intended to confer in personam jurisdiction to our courts to the full extent permissible under the Due Process Clause. Thus, under § 8309(b) those contacts made by foreign corporations which are sufficient to satisfy the constitutional requirements of due process also are sufficient to satisfy the "doing business" requirement of the "long-arm" statute. See, e.g., Garfield v. Homowack Lodge, Inc., Pa. Super. , 378 A.2d 351 (1977); Deere v. Zilber, 234 Pa. Super. 273, 338 A.2d 615 (1975); Proctor & Schwartz, Inc. v. Cleveland Lumber co., 228 Pa. Super. 12, 17, 323 A.2d 11 (1974).
The most recent Pennsylvania appellate opinion dealing with the "shipment" test for "doing business" and due process is Washington v. U.S. Suzuki Motor Corp., Pa. Super. , 390 A.2d 1339 (1978). The plaintiff there brought suit against the U.S. distributor and local dealer of a motorcycle which, due to an alleged defect, caused an accident in which he was injured. Suzuki, the distributor, then joined Mikuni Kogyo Co., Ltd., a Japanese corporation, as an additional defendant. Suzuki alleged that Mikuni had manufactured the motorcycle's carburetor, and that a defect in the carburetor had caused the accident. Apparently the carburetor, and the motorcycle incorporating it, were both wholly manufactured in Japan.
Mikuni argued in preliminary objections that it was not subject to Pennsylvania jurisdiction because it had never done business in the Commonwealth.Rejecting this contention, the court found that because Mikuni "could reasonably foresee" that its product would be sold in Pennsylvania, Mikuni was within the jurisdictional reach of our courts.
The holding in Washington is determinative of the matter sub judice. WISAP could "reasonably foresee" that hysteroscopy insufflators which it designed and manufactured would be sold in Pennsylvania. In answers to interrogatories WISAP admitted it expected Wolf USA to sell WISAP products "somewhere in the United States."*fn2 It is therefore reasonable to assume that WISAP could foresee Pennsylvania sales.*fn3 See McCrory Corp. v. Girard Rubber Corp., 225 Pa. Super. 45, 52, 307 A.2d 435, aff'd on other grounds, 459 Pa. 57, 327 A.2d 8 (1974); Benn v. Linden Crane Co., 326 F. Supp. 995, 997 (E.D. Pa. 1971) (both McCrory and Benn decided under 15 P.S. § 2011C [Supp. 1971] the predecessor of 42 Pa. C.S.A. § 8309(a) (3)). WISAP is therefore within Pennsylvania jurisdiction.
The Washington opinion seemingly embodies the assumption that when a manufacturer can reasonably foresee sales in the Commonwealth, there exists no due process bar to the assertion of Pennsylvania's "long-arm" over him. Previous cases applying the "long-arm" statute have gone into a more extensive analysis of the constitutional issues involved in subjecting a foreign corporation to our jurisdiction. These earlier cases proceed from the premise previously noted that the reach of the "long-arm" statute is coextensive with the limits of due process.*fn4
"(Due) process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that 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 (1945). The determination of whether these "minimum contacts" are present involves issues of fact which must be resolved on an ad hoc, case-by-case basis. Kulko v. California Superior Court, U.S. , 98 S.Ct. , 56 L.Ed. 2d 132 (1978); Myers v. Mooney Aircraft, Inc., 429 Pa. 177, 185, 240 A.2d 505 (1967). To assist in this analysis a three-part test has been formulated:
(1) Has the defendant purposefully availed itself of the privilege of acting within the forum state, thus invoking the benefit and protection of its laws?
(2) Did the cause of action arise from defendant's activities within the forum state?
(3) Do the defendant's acts have a substantial enough connection with the forum state to make jurisdiction over it reasonable?
Hicks v. Kawasaki Heavy Industries, Inc., 452 F. Supp. 130 (M.D. Pa. 1978); Garfield v. Homowack Lodge, supra ; Hart v. McCollum, Pa. Super. , 376 A.2d 644 (1977); Kitzinger v. Gimbel Brothers, Inc., 240 Pa. Super. 345, 368 A.2d 333 (1976); Proctor & Schwartz, Inc. v. Cleveland Lumber Co., supra.
We find this three-pronged test satisfied in the instant case. WISAP purposely availed itself of the privilege of acting within the Commonwealth by designing and manufacturing a product which it could reasonably foresee would enter Pennsylvania among other states of the United States.See Hicks v. Kawasaki Heavy Industries, Inc., supra ; Benn v. Linden Crane Co., supra; but c f. Phillips v. Anchor Hocking Glass Corporation, 100 Ariz. 251, 413 P.2d 732, 19 ALR 3d 1 (1966). The second prong of the test is satisfied by the allegation that it was WISAP's allegedly defective product which caused injury within Pennsylvania to a resident of the Commonwealth. See Hicks v. Kawasaki Heavy Industries, Inc., supra ; c f. Gorso v. Bell Equipment Corporation, 376 F. Supp. 1027 (W.D. Pa. 1974).
The final element of the test, that of "reasonableness", is also fulfilled by the standards of our most recent appellate decisions. A non-resident manufacturer should be prepared to answer in our courts when it places a defective product into the "stream of commerce" and the product causes an injury in Pennsylvania. "The Long-Arm Statute was passed after the adoption of the Restatement of Torts (Second) 402A (1965), and, therefore, further substantiates the inference that the legislature intended to make amenable to Pennsylvania jurisdiction those foreign corporations whose products cause damage or injury in Pennsylvania, however circuitous their distributive chain may be." Deere v. Zilber, supra, 234 Pa. Super. at 278; Benn v. Linden Crane Co., supra, 326 F. Supp. at 998. "The forum state has a substantial interest in taking jurisdiction over a non-domiciliary which is responsible for the shipment into the state of a defective or negligently manufactured product." Cecere v. Ohringer Home Furniture Co., 208 Pa. Super. 138, 148, 220 A.2d 350 (1966); See Duple Motor Bodies, Ltd. v. Hollingsworth, 417 F.2d 231, 235 (9th Cir. 1969). This interest, and the financial benefit which WISAP has enjoyed from Pennsylvania sales ($46,400.00 during the period 1972-1975) make it reasonable to require WISAP to account in Pennsylvania for its allegedly defective product. Cf. Ajax Realty Corporation v. J.F. Zook, Inc., 493 F.2d 818, 822 (4th Cir. 1972); Kitzinger v. Gimbel Brothers, Inc., supra.
WISAP's status as a West German, rather than United States, corporation does not affect our determination that it is reasonable for WISAP to defend a Pennsylvania lawsuit. "International trade is as commonplace as interstate trade in many products and the jet engine allows a German manufacturer to come here about as easily as one from California." Saccamani v. Robert Reiser & Company, Inc., 348 F. Supp. 514, 517 (W.D. Pa. 1972); See Gorso v. Bell Equipment Corporation, supra.
We reject the invitation to lighten the court's burden by the argument that we should be less compelled to extend Pennsylvania jurisdiction to WISAP because the party seeking WISAP's joinder, Wolf USA, is itself a non-resident corporation. One of the purposes of the "long-arm" statute is to bring within the reach of our jurisdiction those foreign corporations manufacturing goods which ultimately cause harm to Pennsylvania residents. See Wenzel v. Morris Distributing Co., Inc., 439 Pa. 364, 371, 266 A.2d 662 (1970); Deere v. Zilber, supra. However, this intention is not incongruous with the joinder of a non-resident by a non-resident defendant, as the resident plaintiff may eventually actually recover from the additional defendant in the event such additional defendant is held to be a tortfeasor. See Kitzinger v. Gimbel Brothers, Inc., supra. Even if we assume for the purpose of argument that plaintiff has no interest in WISAP as a defendant, the "long-arm" statute itself is not restricted in application to suits brought, or joinders attempted, by Pennsylvania residents. "(Since) the legislature has seen fit to open the courts of the Commonwealth to non-resident corporations in the first instance, we see no reason to accord non-resident litigants narrower rights than resident litigants have." Washington v. U.S. Suzuki Motor Corp., supra at 1341 (footnote omitted).
B. Timeliness of WISAP's Joinder by Wolf USA
Pa. R.C.P. 2253 provides that the joinder of an additional defendant shall not be made later than sixty days after "the service upon the original defendant of the initial pleading of the plaintiff... unless such filing is allowed by the court upon cause shown." WISAP contends that Wolf USA has failed to show good cause for the joinder of WISAP after the expiration of the sixty day period and therefore that the joinder should be rescinded. We disagree.
The allowance of a late joinder of an additional defendant is within the sound discretion of the trial judge. In general, joinder should be liberally permitted, as it obviates the necessity for a separate trial, with attendant economies of time and expense and the prevention of inconsistent verdicts. Lamoree v. Penn Central Transportation Co., 238 Pa. Super. 380, 357 A.2d 597 (1976). "(The) time period for the joinder... should be extended if there is alleged: (1) some reasonable justification or excuse for the delay; (2) facts showing the liability of the proposed additional defendant; (and) (3) that the extension will not cause any undue hardship on the additional defendant." Rizzo v. City of Philadelphia, 67 D. & C.2d 666, 668 (C.P. Phila. 1974). Furthermore, the extension should be declined if joinder would subject the plaintiff to unreasonable delay in the prosecution of his portion of the litigation. See Zakian v. Liljestrand, 438 Pa. 249, 256, 264 A.2d 638, 641 (1970).
Wolf USA presently asserts that the delay in effecting WISAP's joinder was due to the necessity of looking into the facts of the underlying action and the difficulty of tracing WISAP's activities in the Commonwealth. Wolf further argues that their delay in joining WISAP was minimal, as the "ten-day letter" accompanying the first petition to join WISAP was sent only forty-eight days after Wolf itself was served with the Complaint of Drs. Corson and Bolognese.
Wolf has demonstrated sufficient reasonable justification for their relatively short delay in joining WISAP, the designer and manufacturer of the device alleged to have caused plaintiff's injury. Neither WISAP nor plaintiff has asserted any claim of prejudice due to the joinder of WISAP. The interests of fair and economical disposition of litigation would be best served by litigation of all claims in one jurisdiction. Hence, the joinder will be allowed.
Accordingly, we enter the following
AND NOW, this 23th day of February, 1979, upon consideration of the Preliminary Objections of WISAP GmbH, the replies of Richard Wolf Medical Instruments Corporation and Richard Wolf GmbH, and oral argument held, we hereby ORDER and DECREE that said Preliminary Objections are OVERRULED.
BY THE COURT:
*fn* Honorable Vincent A. Cirillo of the Court of Common Pleas, Montgomery County, Pennsylvania is sitting by designation.