24 Conn. Supp. 290 | Pennsylvania Court of Common Pleas | 1963
The subject of controversy raised by this plea in abatement is the application to the in
The following facts are found. The defendant is a New Jersey corporation engaged in the manufacture and sale of specification material products. It buys its raw materials from suppliers such as The Bethlehem Steel Company and The Republic Steel Company and serves customers constituting a worldwide trade. One of its employees, one Lehmacker, is assigned to the six New England states, in which he visits potential customers. He lives in the state of Connecticut, although not required to do so in the course of his employment by the company. The latter has seven different “Enterprise” telephone numbers, each in a different city in this state. It advertises in the yellow pages of the telephone directories in the cities where the “Enterprise” numbers are listed. The defendant prepares and distributes to potential customers a stock list which advises them of the products it is prepared to sell and is intended for use by them in ordering. It accepts orders at Linden, New Jersey, and ships the goods to its customers. It has been selling its products in Connecticut for about fourteen years. Its customers are worldwide, and it has about one hundred of them in this state, examples being Pratt and Whitney Aircraft, Hamilton Standard Propeller, United Aircraft and Sikorsky Aircraft. Its
Lehmacker’s function is that only of a salesman. He makes business calls on various companies and takes their appropriate officers to golf, luncheons, and dinners in connection with the company’s business. He has a car which he uses in the pursuit of his employment, and the company reimburses him for travel expenses at the rate of $.08 a mile. He occasionally calls in orders directly to the company, although they are usually transmitted by purchase orders directly to the defendant by the customer. His job is to improve customer relations, and in addition to visiting and entertaining customers he discusses complaints with them. Other customers of the defendant in this state include the National Aeronautic Company, which has done business with the defendant for about twelve years. It has been called on by Lehmaeker, who has invited its purchasing agent out socially, which is a recognized form of solicitation. The defendant’s agent, Lehmacker, has continually solicited this company as well as others in Connecticut. The Fenn Manufacturing Company receives visitations from Lehmacker about every eight or nine weeks. He solicits it for orders and entertains its officers at lunch and golf. Complaints of the company are discussed with him. These patterns of conduct by the defendant are the same as those on the part of other industries similar to the defendant.
The plaintiff is a Connecticut corporation with its principal place of business in this state. It is a small company whose gross annual sales are about $150,000 to $200,000. There are quite a few groups of this size in Connecticut engaged in making aircraft and missile parts. The purchases made from
The defendant’s initial point involves a technical matter, namely, that jurisdiction over it can be asserted only under subsection (c) of § 33-411 and that therefore subsection (d) of the same section applies. “In any action brought under subsection (b) or (c) of this section or under subsection (e) of section 33-371, the secretary of the state shall be deemed the agent and attorney of the corporation in this state and service of process on such corporation shall be made as provided in subsection (a) of this section, except that the secretary of the state shall address the copy thereof to the corporation at its office as shown in the official registry of the state of its incorporation, which address shall be set forth in the writ or other process.” $ 33-411 (d). The address is not set forth in the writ as required, although a purported amendment was filed after the original service was made. Defendant asserts that this is a jurisdictional defect and hence not curable by amendment. Its citations do not support its contention. In both Hyde v. Richard, 145 Conn. 24 (1958), and FitzSimmons v. International Assn. of Machinists, 125 Conn. 490 (1939), service was made upon the wrong person, i.e., one other than the person specified by the stat
We hold that the failure to include the address in the writ is embraced within the intendment of § 52-123, “Circumstantial defects not to abate pleadings”: “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.” This statute applies to circumstantial defects attacked by pleas in abatement. New Haven Loan Co. v. Afinito, 122 Conn. 151 (1936); Schroeder v. Tomlinson, 70 Conn. 348 (1898); Draper v. Moriarty, 45 Conn. 476 (1878); Wilcox v. Chambers, 34 Conn. 179 (1867). The defect complained of does not prevent this cause from being “rightly understood and intended by the court.” Furthermore, no injustice to the defendant is apparent, since it obviously received notice of the inception of the action.
The next point to be discussed is whether the defendant was amenable to service under § 33-411 (b), which reads: “Every foreign corporation which transacts business in this state in violation of section 33-395 or 33-396 shall be subject to suit in this state upon any cause of action arising out of such business.” Section 33-395 is not applicable, since the defendant is not one of the types of corporations therein listed. Section 33-396, however, is another matter. It reads, in part: “No foreign corporation except an insurance or surety or indemnity company shall transact business in this state until it
Examination of the recent statutory trend on the subject reveals it to be in the direction of expanding jurisdiction over foreign corporations. McGee v. International Life Ins. Co., 355 U.S. 220 (1957); 18 Fletcher, Corporations § 8711. This is certainly true in Connecticut. “There are no Connecticut cases which construe the clause ‘which transacts business in this state’ in § 52-59a, the Connecticut statute . . . [on service of process on nonresidents doing business in Connecticut], but the apparent purpose of this legislation was to provide a method for obtaining jurisdiction over foreign corporations and others which had not formally designated the
In the 1961 session of the General Assembly, § 92 of Public Act No. 327, “An Act concerning Technical Amendments to the Stock Corporation Act,” deleted
The recital of facts above is conclusive that the defendant “transacts business in this state”; § 33-411 (b); and it is so found. As the plea in abatement admits, it is not qualified to do business in Connecticut. It is therefore clearly “in violation of section . . . 33-396” and hence “subject to suit in this state” upon this cause of action, which arises out of such business. § 33-411 (b).
Such a construction does not bring the application of § 33-411 to the facts in this case under that unconstitutionality which the defendant urges upon us. It violates neither the fourteenth amendment to the constitution of the United States nor § 12 of article first of the constitution of Connecticut. “Since Pennoyer v. Neff, 95 U.S. 714, this Court has held that the Due Process Clause of the Fourteenth Amendment places some limit on the power of state
It is a sufficient comment on the doctrines of such previous cases in this state construing the phrase “transacting business” as Alfred M. Best Co. v.
There has been some discussion in recent federal cases concerning the Connecticut statutes referred to above. “There is no doubt that Connecticut might have extended its power over foreign corporations further than it has chosen to under § 33-411. The test of jurisdiction is no longer based on a fictional ‘presence’ arising from ‘transacting’ or ‘doing business,’ McGee v. International Life Insurance Co., 355 U.S. 220 . . . (1957), but is realistically based upon a balancing of interests to test whether the exercise of jurisdiction offends ‘traditional notions of fair play and substantial justice.’ International Shoe Co. v. State of Washington, 326 U.S. 310 . . . (1945); and see: L. D. Reeder Contractors of Arizona v. Higgins Industries, Inc., 9 Cir., 1959, 265 F.2d 768, 773-774, fn. 12; Erlanger Mills, Inc. v. Cohoes Fibre Mills, Inc., 4 Cir., 1956, 239 F.2d 502, 507-508.” Southern New England Distributing Corporation v. Berkeley Finance Corporation, 30 F.R.D. 43, 48 (1962). This case is not pertinent here, however, on the facts.
The following passages from Winchester Electronics Corporation v. General Products Corporation, 198 F. Sup. 355, 356-58 (1961), are significant. “The defendant’s business in Connecticut is not incidental or casual. Its purchases in Connecticut between April 12, 1960 and May 25, 1961 totaled $350,000 and its sales in the State of Connecticut for the year ending May 1, 1961 totaled $39,005. . . . With regard to due process, it is apparent that the activities of the defendant were systematic
This view of the case renders academic the defendant’s other attacks upon this service. However, in the interest of avoiding the possible necessity of further litigation, we refer to them. Together, they are based on the contention that subsection (c) of § 33-411 cannot be applied here. It reads: “Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows: (1) Out of any contract made in this state or to be performed in this state; or (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the state; or (3) out of the production, manufacture or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers; or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of mis
“It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. The test is not merely, as has sometimes been suggested, whether the activity, which the corporation has seen fit to procure through its agents in another state, is a little more or a little less. St. Louis S.W.R. Co. v. Alexander . . . [227 U.S. 218, 228]; International Harvester Co. v. Kentucky . . . [234 U.S. 579, 587]. Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations. Cf. Pen
The plea in abatement is dismissed.