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 district. Defendant's motion to transfer for improper venue will be denied.
Hebrew National urged that this action should be stayed pending resolution of its request for a preliminary injunction in the antitrust action in the Eastern District of New York. Hebrew National relied particularly on the remarks of Chief Judge Weinstein which implied that he would not grant the requested relief without also requiring Hebrew National to pay Empire all amounts due -- the same moneys at issue in the instant action. On November 23, Chief Judge Weinstein denied Hebrew National's request for a preliminary injunction. There is, therefore, no longer any reason to stay this action and Hebrew National's motion to stay will be denied.
Although it can no longer rely on the imminent resolution of the payment issue in the New York action, Hebrew National continues to maintain that that action and the instant one are inextricably intertwined and this case should, therefore, be transferred to New York. It has expressed concern that Empire is losing money and may not be able to satisfy any judgment which might ultimately be awarded against it in the antitrust action. While such a factor is obviously of concern to Hebrew National, it is not a valid reason to hold up resolution of the claim for moneys due and owing. In Lewis v. Seanor Coal, 382 F.2d 437, 441 (3d Cir. 1967), cert. denied, 390 U.S. 947, 19 L. Ed. 2d 1137, 88 S. Ct. 1035 (1968), the court held that "to permit avoidance of payments required under the contract would go beyond the remedy prescribed by the antitrust statute . . . ." The court recognized one exception to this rule -- if the enforcement of the contract would condone the precise conduct made unlawful by the antitrust act, the contract should not be enforced. No such situation has been alleged here.
Hebrew National has not demonstrated that this action is intertwined with the one in the Eastern District of New York. The action here is a straightforward one for moneys due and owing. The case in New York is potentially complex and attenuated antitrust litigation.
Proof of the one claim is entirely independent of the other. I see no reason to transfer this case to New York.
Consideration of Empire's motion for summary judgment will be deferred until Hebrew National files its Answer based on my promise to that effect made during a telephone conference call on December 22. Had I not made such a promise, I would be strongly tempted to grant Empire's motion at this time. Hebrew National has filed the affidavit of its Vice President -- Finance which does not, even indirectly, address the basic issue in the summary judgment motion -- the amount due Empire. At most, this affidavit hints at a few possible, minor discrepancies from the amount claimed by Empire. Empire has, however, already provided a contingency to cover these minor amounts by moving alternatively for $260,170 or for $240,000 to accommodate amounts claimed by Hebrew National. I expect that, in the extra time provided, Hebrew National will determine the exact amounts that are in dispute and file an affidavit responsive to Empire's allegations.
This 28th day of January, 1983, upon consideration of defendant's Motion to Dismiss, Stay, or Transfer and plaintiff's Motion for Summary Judgment, it is ORDERED:
1. Defendant's Motion to Dismiss for lack of personal jurisdiction is DENIED;
2. Defendant's Motion to Transfer because of improper venue is DENIED;
3. Defendant's Motion to Stay is DENIED as moot;
4. Consideration of plaintiff's Motion for Summary Judgment is deferred pending the filing of defendant's Answer.