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MARY A. GULENTZ v. WAYNE A. FOSDICK (10/07/83)

filed: October 7, 1983.

MARY A. GULENTZ, ADMINISTRATRIX OF THE ESTATE OF JAMES P. GULENTZ, DECEASED, APPELLANT,
v.
WAYNE A. FOSDICK, B & C TRUCKING, INC., SCHANNO TRANSPORTATION, INC., AND TODD A. TRICE



No. 826 Pittsburgh, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Mercer County at No. 624 C.D. 1981.

COUNSEL

Cyril T. Garvey, Sharon, for appellant.

P. Christian Hague, Pittsburgh, for appellees.

Cavanaugh, Brosky and Montgomery, JJ. Brosky, J., filed a dissenting opinion.

Author: Cavanaugh

[ 320 Pa. Super. Page 40]

On June 5, 1980, James Gulentz was a passenger in a car which was proceeding on the Ohio Turnpike in Portage County, Ohio, near the Pennsylvania border. The vehicle in which Gulentz was a passenger was operated by Todd A.

[ 320 Pa. Super. Page 41]

Trice and allegedly collided with a tractor-trailer being operated by Wayne A. Fosdick. The tractor-trailer, immediately prior to the accident, had traversed Pennsylvania from Port Jervis, New York on Route 80 and had entered Ohio shortly before the accident. The tractor was owned by B & C Trucking, Inc. and the trailer by Schanno Transportation, Inc. Mr. Gulentz died as a result of the accident and the administratrix of his estate commenced wrongful death and survival actions in Mercer County, Pennsylvania, against Wayne A. Fosdick, B & C Trucking, Inc., Schanno Transportation, Inc. and Todd A. Trice. Schanno Transportation, Inc. maintains its principal office in Saint Paul, Minnesota. The defendants filed preliminary objections raising the question of jurisdiction which were sustained by the court below by order of Acker, J. The plaintiff below, the administratrix of the Estate of James P. Gulentz, deceased, appealed to this court.

At the outset, we note that the preliminary objections of all defendants were sustained by the court below but the appeal is only from that part of the order sustaining the preliminary objections of Schanno Transportation, Inc.*fn1 Since the accident occurred outside of Pennsylvania, the basis of in personam jurisdiction is Pennsylvania's Long Arm Statute, Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S.A. § 5301 which provides in pertinent part:

§ 5301. Persons

(a) General rule. -- The existence of any of the following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over such person, or his personal representative in the case of an individual, and to enable such tribunals to render personal orders against such person or representative:

[ 320 Pa. Super. Page 42]

(2) Corporations. --

(iii) The carrying on of a continuous and systematic part of its general business within this Commonwealth.

The appellant, in an effort to establish that Schanno Transportation was "carrying on a continuous and systematic part of its general business within this Commonwealth" filed several interrogatories to be answered by Schanno Transportation, Inc. In Interrogatory 11 appellant asked Schanno to list the names and addresses "of every place of business in Pennsylvania where Schanno picked up or delivered merchandise, commodities or freight in 1980 . . ." Schanno objected on the grounds that to answer this would be burdensome and require the company to go through thousands of invoices for the year 1980. The court below directed Schanno to answer the following interrogatory:

List the name and address of five places of business in Pennsylvania where Schanno picked up and delivered merchandise, commodities, or freight in 1980 indicating in each instance whether it is the place of pickup or place of delivery.

Schanno answered that it had pick ups in Harrisburg and Carlisle and deliveries in Norristown, Altoona and Monaca. In addition, Schanno's answer to interrogatories indicated that in 1980, $735,000 of its gross receipts were attributable to its trucking activities in Pennsylvania and that this represented 3.7% of its gross receipts. This indicates that Schanno's gross receipts for 1980 were approximately twenty million dollars on a nationwide basis. On the date of the accident Schanno was transporting shoe and boot factory supplies from Brockton, Maine to Chippewa Falls, Wisconsin. In 1980 the trucking company leased or owned one hundred and seventy-four tractors and leased or owned three hundred trailers. Further, in 1980 Schanno's tractors and trailers travelled about 2.6 million miles on Pennsylvania highways and Schanno purchased five hundred and fifty-six thousand gallons of fuel in Pennsylvania, on which it paid $63,238.00 in fuel taxes. The issue to be decided on this appeal is whether the activities of Schanno in Pennsylvania

[ 320 Pa. Super. Page 43]

    were sufficient to give our courts in personam jurisdiction over Schanno Transportation, Inc.

Pennsylvania has long evidenced an interest in extending in personam jurisdiction over foreign corporations doing business within its boundaries, for acts occurring outside the state. This interest must be balanced against a foreign corporation's constitutional right to due process. However, as noted in the landmark case of International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945):

     due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that maintenance of the suit does not offend 'traditional notions of fair play and substantial justice'.

Pennsylvania's long arm statutes go back to the Act of June 13, 1896, P.L. 568 but "[s]uccessive restrictive judicial construction of the long-arm statute by Pennsylvania courts led to legislative amendments broadening the scope of jurisdiction over foreign corporations." Garfield v. Homowack Lodge, Inc., 249 Pa. Super. 392, 396, 378 A.2d 351, 354 (1977). Today under the Pennsylvania Long Arm Statute in personam jurisdiction over a foreign corporation is co-extensive with the permissible limits of jurisdiction under the due process clause of the federal constitution. Crompton v. Park Ward Motors, Inc., 299 Pa. Super. 40, 445 A.2d 137 (1982).

The leading case of Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa. Super. 12, 323 A.2d 11 (1974) dealt with the 1972 amendment to the long arm statute and provided that in order for the minimum contacts to be present; (1) the defendant must have purposely availed itself of the privilege of acting within the forum state thus invoking the benefits and protections of its laws, (2) the cause of action ...


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