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Gorso v. Bell Equipment Corp.

decided: March 2, 1973.

JAMES A. GORSO
v.
BELL EQUIPMENT CORPORATION, A CORPORATION V. THE MARLEY COMPANY, A CORPORATION AND SOCIETE DE CONSTRUCTION MECANIQUES DU BUGEY AND TICHAUER ET CIE, SOCIETE DE CONSTRUCTION MECANIQUES DU BUGEY AND TICHAUER ET CIE, APPELLANTS; JACK CHICONELLA V. BELL EQUIPMENT CORPORATION, A CORPORATION V. THE MARLEY COMPANY, A CORPORATION AND SOCIETE DE CONSTRUCTION MECANIQUES DU BUGEY AND TICHAUER ET CIE, SOCIETE DE CONSTRUCTION MECANIQUES DU BUGEY AND TICHAUER ET CIE, APPELLANTS; CLYDE A. TEVIS V. BELL EQUIPMENT CORPORATION, A CORPORATION V. THE MARLEY COMPANY, A CORPORATION AND SOCIETE DE CONSTRUCTION MECANIQUES DU BUGEY AND TICHAUER ET CIE, SOCIETE DE CONSTRUCTION MECANIQUES DU BUGEY AND TICHAUER ET CIE, APPELLANTS; HARRY J. PHILLIPS V. BELL EQUIPMENT CORPORATION, A CORPORATION V. THE MARLEY COMPANY, A CORPORATION AND SOCIETE DE CONSTRUCTION MECANIQUES DU BUGEY AND TICHAUER ET CIE, SOCIETE DE CONSTRUCTION MECANIQUES DU BUGEY AND TICHAUER ET CIE, APPELLANTS; AMEDIO VITALE V. BELL EQUIPMENT CORPORATION, A CORPORATION V. THE MARLEY COMPANY, A CORPORATION AND SOCIETE DE CONSTRUCTION MECANIQUES DU BUGEY AND TICHAUER ET CIE, SOCIETE DE CONSTRUCTION MECANIQUES DU BUGEY AND TICHAUER ET CIE, APPELLANTS



(D.C. Civil Action No. 68-1356). (D.C. Civil Action No. 69-20). (D.C. Civil Action No. 69-21). (D.C. Civil Action No. 69-23). (D.C. Civil Action No. 70-1177). APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.

Seitz, Chief Judge, Aldisert and Rosenn, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

SEITZ, Chief Judge.

This appeal arises out of the denial by the district court, 330 F. Supp. 834, of a motion to dismiss two impleaded defendants for lack of personal jurisdiction. The district court certified the question for interlocutory appeal pursuant to 28 U.S.C. ยง 1292(b), and this court accepted the appeal. Pennsylvania law applies since federal jurisdiction here is predicated upon diversity of citizenship.

Appellants are two French companies, Societe de Construction du Bugey and Tichauer et Cie. The former manufactures a tower crane used in the construction industry; the latter is its exclusive world sales agent. These two companies were impleaded by the original defendant and present appellee, Bell Equipment Corporation. Bell is a New York corporation which previously represented appellants in the United States as their national sales agent. Bell has maintained an office in Pennsylvania at all times relevant to this suit.

Through Bell, one of appellants' tower cranes was sold in December, 1965 to the Marley Company, a Kansas corporation engaged in construction.*fn1 It was delivered in February, 1966 to a Marley jobsite in Beverley, Ohio and was used on that site until its completion in early 1968. That February, it was moved to a new jobsite at Huff, Pennsylvania. Bell aided Marley in setting up the crane at both the Beverley and the Huff site. In October, 1968, while being used at Huff, the crane collapsed and injured several workers, plaintiffs herein.*fn2

The French companies are not registered to do business in the Commonwealth of Pennsylvania nor do they maintain an office in the state. At the time of the sale of the crane, they possessed a national sales agent, Bell; but apparently neither of the two cranes of appellant Societe's manufacture which Bell sold in the United States was sold or delivered in Pennsylvania. However, Bell maintained an office in Pennsylvania throughout this period.

By the summer of 1968, Bell had terminated its relationship with appellants. However, even though it had ceased to represent the two French firms, it continued to service in Pennsylvania the crane which it had sold to Marley.

While the crane was being used at Huff, individual delivery on six orders was made to the jobsite from the Societe factory in France by appellant Tichauer. Five of these orders had been placed by Marley on December 1, 1967, some three months prior to the removal of the crane to Pennsylvania; we believe these five orders constitute one transaction. A sixth order was also placed; however, on the record before us, it is impossible to determine when it was made. For purposes of our decision, we will assume it was made subsequent to the crane's removal to the Huff jobsite and represents a separate transaction. Marley was forced to order these parts directly from appellants in France because by that time, Bell had ceased to represent the two French firms. No solicitation by appellants was involved; rather, Bell had advised Marley to contact appellants directly since there was no domestic distributor of the parts. These parts were ordered from, and invoiced to, Marley's central office in Kansas City, Missouri. They were drop-shipped to the Pennsylvania construction site.

After a hearing, the district court concluded that sufficient contacts existed between Pennsylvania and appellants for personal jurisdiction to lie consistent with both constitutional and state statutory requirements.*fn3 In reviewing this determination, two questions are posed: (1) whether state statutory requirements in fact have been met; and (2) if so, whether personal service can be made upon appellants consistent with due process requirements of the Fourteenth Amendment.

I. THE EVOLUTION OF THE PENNSYLVANIA STATUTE.

In 1968, Pennsylvania amended the terms of its "long-arm" statute as applied to foreign corporations so as to extend its reach. It presently states:

For the purposes of determining jurisdictions of courts within this Commonwealth, the doing by any corporation within this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object, or doing a single act in this Commonwealth for such purpose, with the intention of thereby initiating a series of such acts, shall constitute "doing business." For the purposes of this subsection, the shipping of merchandise ...


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