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KINGSLEY AND KEITH (CANADA) LIMITED AND KINGSLEY AND KEITH CHEMICAL CORPORATION. v. MERCER INTERNATIONAL CORPORATION AND INTERSTATE CHEMICAL CORPORATION AND H. M. TRIMBLE & SONS (06/26/81)

filed: June 26, 1981.

KINGSLEY AND KEITH (CANADA) LIMITED AND KINGSLEY AND KEITH CHEMICAL CORPORATION.
v.
MERCER INTERNATIONAL CORPORATION AND INTERSTATE CHEMICAL CORPORATION AND H. M. TRIMBLE & SONS, LIMITED. APPEAL OF H. M. TRIMBLE & SONS, LIMITED



No. 116 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Mercer County, Civil Division at No. 725 C.D. 1977.

COUNSEL

P. Raymond Bartholomew, Sharon, for appellant.

Thomas T. Frampton, Greenville, for Kingsley et al., appellees.

Milford L. McBride, Jr., Grove City, for Mercer et al., appellees.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Spaeth

[ 291 Pa. Super. Page 99]

This case, one of a trilogy of long-arm jurisdiction cases,*fn1 is an appeal from an order granting a petition by Kingsley and Keith (Canada), Limited, and Kingsley and Keith Chemical Corporation for leave to serve an amended complaint in assumpsit on H.M. Trimble and Sons, Limited, by registered mail to Trimble's headquarters in Canada.*fn2

-1-

For the purposes of our inquiry, we shall accept as true the well-pleaded facts in the amended complaint. Cf. Frisch v. Alexson Equip. Corp., 423 Pa. 247, 224 A.2d 183 (1966).*fn3 So regarded, the amended complaint may be summarized as follows.

In 1974, one Canadian corporation, Celanese (Canada), Limited, ordered approximately 80,000 lbs. of methylene chloride from another Canadian corporation, Kingsley and Keith (Canada), Limited. Kingsley and Keith (Canada) ordered the methylene chloride from Kingsley and Keith Chemical Corporation, a New Jersey corporation, which in

[ 291 Pa. Super. Page 100]

    turn ordered two tanks of methylene chloride (approximately 40,000 lbs. each) from Mercer International Corporation, a Pennsylvania corporation. Kingsley and Keith (Canada) then arranged with H.M. Trimble and Sons, Limited, a Canadian corporation, to have the tanks transported to Canada. In October 1974, Interstate Chemical Corporation, a Pennsylvania corporation and an affiliate of Mercer International Corporation, sent one tank truck of the methylene chloride to Indianapolis, for transferral there to a Trimble tank truck. In November 1974, Interstate sent another tank truck of the methylene chloride to Mercer, Mercer County, Pennsylvania, for transferral there to a Trimble tank truck. Trimble delivered both tank loads to Celanese (Canada), but Celanese rejected them because the methylene chloride was contaminated. Kingsley and Keith (Canada) and Kingsley and Keith (New Jersey) thereupon brought the present action in Mercer County against Mercer International, Interstate, and Trimble. Generally stated, the allegation is that Mercer International, Interstate, and Trimble were obliged to deliver good methylene chloride to the two Kingsley and Keiths, so that the two Kingsley and Keiths could deliver it to Celanese, but instead, delivered contaminated methylene chloride.

While all this seems complicated, it really is not. Plainly, both Mercer International and Interstate, as Pennsylvania corporations, may be sued in Pennsylvania, and no one contends otherwise; the issue is whether Trimble, a Canadian corporation, may be. This issue may be stated as follows: When a Canadian common carrier (Trimble) contracts with another Canadian corporation (Kingsley and Keith (Canada) to pick up one load of methylene chloride in Indiana and another load in Pennsylvania, and delivers both loads in Canada to a third Canadian corporation, does it acquire sufficient minimum contacts with Pennsylvania to render it amenable to suit in Pennsylvania in an action in which breach of the contract of carriage is alleged and in which the Pennsylvania sellers of both loads of methylene chloride are also defendants?

[ 291 Pa. Super. Page 101]

Answers to interrogatories revealed the following. Trimble did not receive a bill of lading from Mercer International, although it should have been the delivery carrier designated on the bill of lading. Trimble did not have authority either from the Pennsylvania Public Utility Commission or the Interstate Commerce Commission to pick up or deliver goods in Pennsylvania; the authority under which the methylene chloride was picked up in Pennsylvania was a "triplease" between Coastal Tanklines Limited and Trimble. Prior to the transactions involved here, Mercer International and Interstate had not requested or paid for Trimble's services, nor had they had any business relationship with Trimble.

-2-

Before a court in this state may exercise jurisdiction over Trimble, it must appear that Trimble's conduct was within the provisions of this state's long-arm statute, and that application of the statute to Trimble would not violate the due process clause of the Fourteenth Amendment of the United States Constitution. Monroeville Land Co., Inc. v. Sonnenblick-Goldman Corp. of Western Pa., 247 Pa. Super. 61, 371 A.2d 1326 (1977); Action Industries, Inc. v. Wiedeman, 236 Pa. Super. 447, 346 A.2d 798 (1975). The long-arm statute in effect at the time this action was instituted*fn4 provided in pertinent part:

Any foreign corporation which shall have done any business in this Commonwealth without procuring a certificate of authority to do so from the Department of State as required by statute, shall be conclusively presumed to

[ 291 Pa. Super. Page 102]

    have designated the Department of State as its true and lawful attorney authorized to accept, on its behalf, service of process in any action arising within this Commonwealth. Service of process shall be made in the manner provided by ...


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