The opinion of the court was delivered by: LUONGO
On October 1, 1982, Empire Kosher Poultry, Inc. (Empire) filed a complaint in this court seeking to recover the purchase price of poultry and other food products delivered to defendant, Hebrew National Kosher Foods, Inc. (Hebrew National).
Empire, a Pennsylvania corporation with its principal place of business in Mifflintown, which is located in the Middle District of Pennsylvania, processes and sells poultry and other food products. Hebrew National, a New York corporation with its principal place of business in Maspeth, within the Eastern District of New York, distributes beef and poultry products to retailers. For some time, Hebrew National distributed Empire's products along with its own products.
On September 30, Empire terminated Hebrew National as a distributor
and Hebrew National rescinded a previously arranged wire transfer of $115,000 which was to be paid on a bill of $117,826.28. Empire filed suit on October 1. Hebrew National, alleging that Empire's action in terminating it as a distributor was part of a conspiracy to fix prices in violation of the antitrust laws
and, assertedly unaware of the existence of the instant action until October 12, filed an action on October 5 in the Eastern District of New York seeking damages, declaratory relief and an injunction barring Empire from terminating the distributorship. On October 22, Chief Judge Weinstein of the Eastern District of New York took the motion for a preliminary injunction under advisement, after considering the testimony of ten witnesses who had been deposed. On November 23, Chief Judge Weinstein denied Hebrew National's motion.
On November 12, Empire filed a motion for partial summary judgment, later amended to a motion for full summary judgment claiming $260,170 or alternatively $240,000, contending that Hebrew National had agreed to the amount due and owing Empire.
I must first address the issue of this court's power to entertain the instant action. Hebrew National maintains that this court lacks personal jurisdiction over it because the cause of action does not arise from its shipment into and sale of merchandise in this forum. Hebrew National's sales of its products in Pennsylvania amounted to about $3,000,000 in 1981 accounting for approximately 3% of its gross sales. It ships merchandise to stores in the Philadelphia area on a regular basis and has a representative who services Philadelphia retailers on a weekly or monthly basis. It contends that these contacts are too minimal to comport with the due process requirements for general jurisdiction as set forth in International Shoe Co. v. State of Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945), and its progeny.
The issue as it has been defined in Pennsylvania is whether the defendant's business activities are "so continuous and substantial as to make it reasonable for the state to exercise such jurisdiction." Bork v. Mills, 458 Pa. 228, 231-2, 329 A.2d 247 (1974). In my view the weekly shipment of merchandise into the Philadelphia area, plus the regular servicing of Philadelphia clients, and a total volume of sales in Pennsylvania exceeding $3,000,000 constitute sufficiently continuous and substantial activities to support jurisdiction.
The motion to dismiss for lack of jurisdiction will be denied.
Hebrew National also argues that venue is inappropriate in the Eastern District of Pennsylvania, pointing out that a higher level of contacts with the forum is necessary to support venue than is required for jurisdiction. Empire argues that venue is appropriate under 28 U.S.C. § 1391(c)
since Hebrew National both is doing business and is licensed to do business in this judicial district.
Empire has submitted a certification
from the Pennsylvania Department of State that a Certificate of Authority was issued to Hebrew National on May 1, 1970 and that certificate has not been withdrawn. Empire contends that the certificate is dispositive of the "licensed-to-do-business" issue and, therefore, of the venue issue. DiCiano v. Western Contracting Corp., 224 F. Supp. 803 (E.D. Pa. 1963). Hebrew National, on the other hand, points out that the document bears on its face the notation "OUT OF EXISTENCE WITH THE DEPARTMENT OF REVENUE ON JANUARY 31, 1980," and contends that this means that Hebrew National is no longer licensed to do business in Pennsylvania. That is not so. The procedure for withdrawal from certification with the Department of State, 15 Pa. Cons. Stat. Ann. § 2015 (Purdon), is separate and distinct from the one for withdrawal from the Department of Revenue, 61 Pa. Code § 151.11. Empire has submitted an affidavit from the Director of the Bureau of Corporations, Department of State, stating that Hebrew National has not complied with the withdrawal procedure and is, therefore, currently licensed to do business in Pennsylvania with its registered office in Philadelphia. That affidavit has not been controverted by Hebrew National and is dispositive of this issue.
The same issue was recently considered in this district, Fischman v. Fischman, 470 F. Supp. 980 (E.D. Pa. 1979), and, while there was an additional basis supporting jurisdiction in Fischman, the court held that a corporation's withdrawal from the Department of Revenue did not comply with the withdrawal requirements of § 2015 and the court still had jurisdiction over the corporation.
Hebrew National is licensed to do business in Pennsylvania. Because that licensing satisfies the venue requirement under 28 U.S.C. § 1391(c), I will not consider Empire's other contention that venue is also appropriate based on the volume and quality of defendant's contacts with this ...