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UNION NATIONAL BANK PITTSBURGH v. L. D. PANKEY INSTITUTE AND HUGH R. GILMORE (10/24/80)

filed: October 24, 1980.

THE UNION NATIONAL BANK OF PITTSBURGH, EXECUTOR OF THE ESTATE OF FREDERIC S. KINSEL, APPELLANT (AT NO. 467),
v.
L. D. PANKEY INSTITUTE AND HUGH R. GILMORE, III, M.D., APPEAL OF L. D. PANKEY INSTITUTE (AT NO. 432)



No. 432 April Term 1979, No. 467 April Term 1979, Appeals from the Order of the Court of Common Pleas of Allegheny County, Civil Division at No. G.D. 78-1119.

COUNSEL

Michael W. Burns, Pittsburgh, for L. D. Pankey Institute, appellant, (at No. 432) and for appellee, (at No. 467).

Dennis A. Watson, Pittsburgh, for appellee, (at No. 432).

Michael Kearney, Jr., Pittsburgh, for Union Nat., appellant, (at No. 467).

Spaeth, Hoffman and Van der Voort, JJ.

Author: Spaeth

[ 284 Pa. Super. Page 539]

This case is the second of three long-arm jurisdiction cases that we decide today.*fn1 It comprises two appeals,*fn2 one by one of the two defendants below, the other by the plaintiff below. The plaintiff is the Union National Bank of Pittsburgh. As executor of the estate of Frederic Kinsel, it sued L. D. Pankey Dental Institute, Inc.,*fn3 and Hugh R. Gilmore, III, M.D. In response to preliminary objections raising a question of jurisdiction, the lower court held that the Dental Institute was subject to its jurisdiction, but that Dr. Gilmore was not. Appeal No. 432 is Dental Institute's appeal from the order holding it in; Appeal No. 467 is Union National's appeal from the order letting Dr. Gilmore out.

[ 284 Pa. Super. Page 540]

Accepting as true, for the purposes of this inquiry, all well-pleaded facts, Frisch v. Alexson Equip. Corp., 423 Pa. 247, 224 A.2d 183 (1966), Union National's complaint may be summarized as follows. Union National is the executor of the estate of Frederic S. Kinsel. The Dental Institute is a corporation with its principal place of business in Miami, Florida. Dr. Gilmore is a physician licensed to practice medicine in Florida, and his office is in Miami. On or about January 19, 1977, Frederic S. Kinsel, a dentist, at the direction of the Dental Institute went to Dr. Gilmore for a physical examination and treadmill test. After completing the physical examination and treadmill test, Dr. Kinsel suffered a cardiac arrest and died. Stated generally, the allegation is that Dr. Kinsel's death was caused by the Dental Institute's and Dr. Gilmore's negligence, and both survival and wrongful death damages are sought. There is also an allegation that the Dental Institute violated "implied warranties and/or contractual obligations."

The Dental Institute's preliminary objections alleged as follows: it is a non-profit corporation organized under the laws of Florida; its only business is advanced dental education; it is not qualified to do business in Pennsylvania; has not incurred or paid taxes in this state; has not appointed an agent for service of process in this state; is not listed in any telephone directories in this state; has not filed any reports with any governmental agency in this state; has no assets, offices or any place of business in this state; has no officers, agents, employees, salesmen, representatives, teachers or professors in this state; and does not ship any goods into or through this state. Dr. Gilmore's preliminary objections were substantially to the same effect, alleging as follows: he lives in Miami and practices medicine only in Florida; he is not licensed to practice medicine in Pennsylvania; he has not incurred or paid any taxes in this state; has not appointed an agent for service of process in this state; is not listed in any telephone directory in this state; has not filed any reports with any governmental agency in this state; has no assets or office or place of business or

[ 284 Pa. Super. Page 541]

    representative in this state; and has shipped no merchandise into or through, or solicited any business in, this state.

It does not appear that any of the foregoing allegations is controverted, for Union National did not file answers to the preliminary objections; it did file interrogatories. The Dental Institute's answers to the interrogatories revealed that the institute has had some contacts with Pennsylvania. From 1974 to 1978, 125 dentists from Pennsylvania, including Dr. Kinsel, enrolled in the institute's advanced dental education programs. These dentists paid over $100,000 in tuition to the institute. They were not solicited by the institute at their homes or offices in Pennsylvania; rather, they called or wrote the institute's registrar for information. In response, the registrar sent information packets regarding the classes, and on the basis of this, the dentists selected dates convenient to them and sent their enrollment fees. Since 1974, the registrar has sent between 165 and 250 answers to such requests for information from Pennsylvania dentists. One faculty member of the institute's faculty lived in Pennsylvania, but the institute did not recruit him here; he applied on his own initiative. Between 1974 and 1977, the institute purchased slightly over $200 worth of goods from companies located in Pennsylvania. Dr. Gilmore's answers to the interrogatories revealed that his only contacts with ...


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