Diamond Power Specialty Co. v. Milne

Superior Court of Pennsylvania

Diamond Power Specialty Co. v. Milne

67 Pa. Super. 223, 1917 Pa. Super. LEXIS 375

CourtSuperior Court of Pennsylvania

DecidedJuly 13, 1917

DocketAppeal, No. 145

StatusPublished

Cited by2 cases

This text of 67 Pa. Super. 223 (Diamond Power Specialty Co. v. Milne) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Diamond Power Specialty Co. v. Milne, 67 Pa. Super. 223, 1917 Pa. Super. LEXIS 375 (Pa. Ct. App. 1917).

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Opinion

Opinion by

Portee, J.,

The plaintiff is a corporation of the State of Michigan. This being so it was required, by the Act of June 8, 1911, P. L. 710, as amended by the Act of April 22, 1915, P, L, [226]*226170, before engaging in business in Pennsylvania, to appoint, in writing, the secretary of the Commonwealth and his successors in office to be its true and lawful attorney and authorized agent, upon whom all lawful process in any action or proceeding against it may be served, and to file said power of attorney in the office of the secretary of the Commonwealth. The fourth section of the statute provides that no action shall be instituted, by such foreign corporation, in any of the courts of this Commonwealth, until such corporation complies with the provisions of this act.

The evidence disclosed that the plaintiff was a foreign corporation and that it had not complied with the provisions of the statutes above mentioned. The evidence would have warranted a finding that the plaintiff had established an office in the City of Philadelphia and there transacted business, that it employed an agent who was in charge of said office, who employed subagents to assist in the business, that business was transacted at said office and that the place was known as the Philadelphia office of the plaintiff corporation. Under this evidence the court ought to have submitted the question, whether the plaintiff was doing business in the State of Pennsylvania, to the jury, with proper instructions as to what constituted doing business, the evidence as to the facts; being conflicting: Commonwealth v. Nolde, 44 Pa. Superior Ct. 111. The learned judge of the court below fell into error when he gave binding instructions in favor of the plaintiff, and the first point submitted by the defendant ought to have been affirmed. The first and second specifications of error are sustained. If the defendants wished to make use of the letter of Frank H. Street, attached to a deposition which had been taken by the plaintiff, they should have offered the deposition, for the purpose of showing what the correspondence between Street and plaintiff corporation had been. The other assignments of error are overruled.

The judgment is reversed and a new yenire awarded.

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Opinion by

Portee, J.,

The plaintiff is a corporation of the State of Michigan. This being so it was required, by the Act of June 8, 1911, P. L. 710, as amended by the Act of April 22, 1915, P, L, [226]*226170, before engaging in business in Pennsylvania, to appoint, in writing, the secretary of the Commonwealth and his successors in office to be its true and lawful attorney and authorized agent, upon whom all lawful process in any action or proceeding against it may be served, and to file said power of attorney in the office of the secretary of the Commonwealth. The fourth section of the statute provides that no action shall be instituted, by such foreign corporation, in any of the courts of this Commonwealth, until such corporation complies with the provisions of this act.

The evidence disclosed that the plaintiff was a foreign corporation and that it had not complied with the provisions of the statutes above mentioned. The evidence would have warranted a finding that the plaintiff had established an office in the City of Philadelphia and there transacted business, that it employed an agent who was in charge of said office, who employed subagents to assist in the business, that business was transacted at said office and that the place was known as the Philadelphia office of the plaintiff corporation. Under this evidence the court ought to have submitted the question, whether the plaintiff was doing business in the State of Pennsylvania, to the jury, with proper instructions as to what constituted doing business, the evidence as to the facts; being conflicting: Commonwealth v. Nolde, 44 Pa. Superior Ct. 111. The learned judge of the court below fell into error when he gave binding instructions in favor of the plaintiff, and the first point submitted by the defendant ought to have been affirmed. The first and second specifications of error are sustained. If the defendants wished to make use of the letter of Frank H. Street, attached to a deposition which had been taken by the plaintiff, they should have offered the deposition, for the purpose of showing what the correspondence between Street and plaintiff corporation had been. The other assignments of error are overruled.

The judgment is reversed and a new yenire awarded.

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67 Pa. Super. 223, 1917 Pa. Super. LEXIS 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diamond-power-specialty-co-v-milne-pasuperct-1917.

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