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ANTHONY A. BARBER v. PITTSBURGH CORNING CORPORATION (07/01/83)

filed: July 1, 1983.

ANTHONY A. BARBER, ET AL.,
v.
PITTSBURGH CORNING CORPORATION, ET AL., V. COMMONWEALTH OF PENNSYLVANIA AND AMERICAN FLINT GLASS WORKERS UNION, AFL-CIO. APPEAL OF CHARTER CONSOLIDATED LTD., CENTRAL MINING FINANCE, LTD., AND CHARTER CONSOLIDATED INVESTMENTS LTD.



No. 139 Pittsburgh, 1982, Appeal from the Order of the Court of Common Pleas, Civil Division-Law, of Allegheny County, at No. G.D. 79-21544

COUNSEL

Werner Polak, Pittsburgh, for appellants and William M. Wycoff, Pittsburgh, submitted a brief, for appellants.

Stanley W. Greenfield, Pittsburgh, submitted a brief, and George Cohen, Pittsburgh, for Barber et al., appellees.

George Edward McGrann, Pittsburgh, for PPG, appellee.

Popovich, Montgomery and Van der Voort, JJ.

Author: Montgomery

[ 317 Pa. Super. Page 288]

The instant appeal arises from the lower court's denial of preliminary objections which challenged the in personam jurisdiction of the Pennsylvania courts over a foreign corporation named as a defendant in the action. After denying the preliminary objections, the trial court certified, pursuant to Rule 311(b)(2) of the Pennsylvania Rules of Appellate Procedure, that a substantial issue of jurisdiction was presented, and the matter is therefore properly before us for resolution at this time. The issues involved have been the subject of thorough briefs, and oral argument was expertly presented before us by counsel for the respective parties.

The instant case was commenced in August, 1979, by the filing of a Complaint in trespass and assumpsit in the Court

[ 317 Pa. Super. Page 289]

    of Common Pleas of Allegheny County. The plaintiffs comprise current and former employees of the Pittsburgh Corning Corporation (hereinafter "Pittsburgh Corning") and spouses of such employees. The spouses' claims are for loss of consortion. The substance of the plaintiffs' action is a claim that the plaintiff employees contracted asbestosis, a serious respiratory disease, as a result of their exposure to asbestos dust and fibers in the course of their employment at Pittsburgh Corning's Port Allegheny Pennsylvania plant. The plaintiffs sought recovery from two general classes of defendants. The first class includes Pittsburgh Corning, Pittsburgh Plate Glass (hereinafter "PPG") and Corning Glass Works, Inc. (hereinafter "CG"), the latter two defendants being joint owners of Pittsburgh Corning. It was generally alleged by plaintiffs that this first class of defendants was either directly or indirectly responsible for the conditions of the employment in which the employee plaintiffs suffered their alleged exposures to asbestos. The second broad class of defendants included Charter Consolidated, Ltd. (hereinafter "Charter"), the Appellant on this appeal,*fn1 and various corporate entities which the parties referred to as the Cape Industries Group or Cape Industries, Ltd. We shall hereinafter refer to these defendants collectively as "Cape", unless a more specific designation of a particular Cape constituent party becomes particularly relevant and requires separate identification. This second general group of defendants was alleged to have been directly or indirectly involved in the mining and sale of asbestos to Pittsburgh Corning. The members of the first class of defendants have each appeared in the lawsuit to defend against the merits of the claims asserted

[ 317 Pa. Super. Page 290]

    by plaintiffs. As to the second class of defendants, the record shows no appearance in the case by Cape. Charter entered an appearance in the case and then filed its preliminary objections to the Complaint, seeking to have the action dismissed for lack of in personam jurisdiction as to Charter.

The lower court postponed a decision on Charter's preliminary objections and allowed the parties discovery with respect to the jurisdictional question presented. Following the termination of discovery, the lower court held a hearing and accepted briefs from the parties. Finally, the lower court overruled Charter's preliminary objections, and the instant appeal was filed. The basic question presented by this appeal is whether Charter, a foreign corporation, is subject to in personam jurisdiction in the courts of our Commonwealth.

In our analysis of this appeal, we will of course be concerned with the factual basis underlying the lower court's assertion of jurisdiction over Charter in this case. However, it is initially appropriate that we review the law which governs the questions of in personam jurisdiction over a foreign corporation which are presented by this appeal.

[ 317 Pa. Super. Page 291]

The first reference to authority requires that attention be directed to the statutory provisions which provide for the jurisdiction of the Pennsylvania Courts over a foreign corporation. The so-called "long-arm" jurisdictional statutes were amended by our legislature in 1972, and such amendments were clearly intended to liberalize a somewhat restrictive Pennsylvania jurisdictional view which existed prior to that time. Garfield v. Homowack Lodge, Inc., 249 Pa. Super. 392, 378 A.2d 351 (1977). In reviewing the history of Pennsylvania practice under long-arm rules in 1974, our Court recognized that the 1972 amendments to the long-arm statute were designed to ". . . remove all Pennsylvania statutory and, therefore, decisional impediments to the exercise of in personam jurisdiction over foreign corporations." See Proctor & Schwartz, Inc. v. Cleveland Lumber Page 291} Company, 228 Pa. Super. 12, 17, 323 A.2d 11, 14 (1974). The Court, in the same case, noted that: "The statute reinforced through express language the judicially stated public policy of Pennsylvania to extend in personam jurisdiction 'to the full measure consistent with due process standards'." (citations omitted) 228 Pa. Super. at 17, 323 A.2d at 14.

The Act of November 15, 1972, as amended, is now set forth, in parts pertinent to the issues presented in this appeal, in 42 Pa.C.S.A. ยงยง 5301 and 5322. These provisions establish jurisdiction over foreign corporations along two separate approaches. Section 5301 provides for jurisdiction over such an entity that conducts "a continuous and systematic part of its general business within [the] Commonwealth", whether or not the particular cause of action asserted arises "from [the] acts" on which jurisdiction is based.*fn2 Section 5322, especially in subsection (b), establishes jurisdiction over foreign corporations based upon acts from which the ...


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