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Robinson v. Shearer

decided: July 7, 1970.

WILLIAM A. ROBINSON, APPELLANT,
v.
O. F. SHEARER & SONS, INC. AND ROYAL GLOBE INSURANCE COMPANIES



Ganey, Seitz and Aldisert, Circuit Judges. Ganey, Circuit Judge (concurring in part and dissenting in part).

Author: Seitz

Opinion OF THE COURT

SEITZ, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the Western District of Pennsylvania dismissing plaintiff's complaint for lack of jurisdiction.

Plaintiff, a seaman, brought this action against the defendant O. F. Shearer & Sons, Inc. He alleged that he was injured while employed on defendant's barge near Lawrenceburg, Indiana. Plaintiff sought maintenance and cure payments, and Jones Act and unseaworthiness damages.

Plaintiff first contends that defendant was validly served pursuant to subsection 2011 subd. B of Pa.Stat.Ann. tit. 15.*fn1 That provision authorizes service on a foreign corporation by serving the Secretary of the Commonwealth when such corporation has done any business in the Commonwealth without procuring a certificate of authority to do so. Thus, the efficacy of service under this statute here turns on whether defendant, who admittedly had no certificate, was doing business in Pennsylvania.

An initial question arises as to whether, as plaintiff asserts, the district court erred in its ruling limiting plaintiff's interrogatories to inquiry of business transactions between defendant and other corporations within the Commonwealth. Plaintiff's interrogatories sought information concerning transactions between defendant and other entities even though they had no Pennsylvania connection. Since the information was sought to show the defendant was doing business in Pennsylvania for service of process purposes, we think the limitation imposed by the district court was proper.

Having concluded that the district court's ruling did not wrongfully limit plaintiff in making a record on this issue, we now turn to a consideration of the merits. It is undisputed that the defendant is a Delaware corporation with its principal offices outside of Pennsylvania.

Between December 1965 and December 1968 the defendant negotiated four contracts to have Hillman Barge and Construction Company of Brownsville, Pennsylvania build 33 barges having a value of about $1.4 million. The contracts were negotiated outside of Pennsylvania and provided that the barges were to be delivered to defendant on the Monongahela River at Brownsville, Pennsylvania. The defendants contracted with Point Towing Company of Port Pleasant, West Virginia, to tow the barges to points outside of Pennsylvania. This was done. So far as this record shows, the defendant had no other connection with Pennsylvania.

At the date the service by mail was completed pursuant to § 2011 subd. B of Title 15, about August 23, 1968, the applicable statute provided in pertinent part as follows:

"For the purpose of determining jurisdiction of courts within this commonwealth, * * * acquiring * * * personal property * * * by any foreign business corporation shall not constitute 'doing business.'" Pa.Stat.Ann. tit. 15 § 2011, subd. D.

We think defendant's purchase and receipt of the barges in Pennsylvania, without more, was within the quoted exception provided in the Pennsylvania statute. It follows that the district court properly decided that personal jurisdiction of defendant was not obtained by the service under the Pennsylvania statute.

Plaintiff next contends that there was a valid maritime attachment of defendant's assets by the garnishment of obligations of defendant's liability insurance carrier (Royal Globe Insurance Company) which it found in the jurisdiction. We understand plaintiff to be contending that an insurer's obligation to indemnify and duty to defend are attachable under Rule B(1) of the Supplemental Rules for Certain Admiralty and Maritime Cases, Federal Rules of Civil Procedure. That rule provides in pertinent part:

"With respect to any admiralty or maritime claim in personam a verified complaint may contain a prayer for process to attach the defendant's goods and chattels, or credits and effects in the hands of garnishees named in the complaint to the amount ...


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