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COIL CO. v. WEATHER-TWIN CORP.

May 19, 1982

COIL COMPANY, INC., Plaintiff,
v.
WEATHER-TWIN CORPORATION, Defendant



The opinion of the court was delivered by: POLLACK

Defendant Weather-Twin Corp. has moved pursuant to Fed.R.Civ.P. 60(b)(4) to vacate the registration in this Court on February 8, 1982 of a default judgment entered against it on October 23, 1981 in the United States District Court for the Eastern District of Pennsylvania, on the grounds that the defendant was not amenable to the jurisdiction of the judgment court which could not exercise personal jurisdiction over it and moreover that defendant was not duly served with process under the requirements of the foreign state.

For the following reasons, the motion will be granted and the judgment vacated.

 Facts

 Weather-Twin is a corporation organized under the laws of the State of New York, with its principal place of business in Manhattan, and is in the business of constructing and installing heating and cooling systems. Coil Co. is a Pennsylvania corporation, located in Colwyn, Pennsylvania, which arranges to supply coils for industrial and commercial applications.

 The present dispute arises out of the following transactions between the parties.

 On July 14, 1980, Weather-Twin mailed a purchase order to Coil Co. for one sample "water coil", a component in heating and cooling systems, which Coil Co. arranged to be delivered. On September 5, 1980, Weather-Twin mailed another purchase order to Coil Co. for 675 coils. Five days later, Weather- Twin wrote Coil Co. and added 65 coils to its September 5 purchase order. On October 3 and October 20, 1980, all coils relating to the September orders were shipped to Weather-Twin from Coil Co."s supplier in Longview, Texas via common carrier.

 On October 21, 1980, Weather-Twin wrote to Coil Co., claiming that the coils that had been delivered were unacceptable because they were the wrong diameter. In response, Coil Co."s employee, Thomas Jacobs, went to New York, retrieved the coils and Coil Co. modified their diameter by attaching connections of the correct diameter to them. On November 3 and December 22, 1980, Weather-Twin paid for the modified coils.

 Between January 15 and March 12, 1981, Weather-Twin ordered another 1,445 coils, by mail, forwarding three purchase orders and a letter to Coil Co. Between March 20 and March 26, 1981, these coils were shipped from Coil Co."s supplier in Texas to New York City.

 On April 14, 1981, Weather-Twin notified Coil Co. by phone and by mail that the modified coils shipped in the fall of 1980 were defective; they had leaked after installation in a high-rise building, causing extensive damage. As a consequence, Weather-Twin withheld payment for the second shipment of coils that it had received in March 1981.

 After settlement discussions proved to be unsuccessful, on September 24, 1981, Coil Co. filed suit against Weather-Twin in the Eastern District of Pennsylvania for the money owed for the second shipment of coils. Coil Co. v. Weather-Twin Corp., Civ. No. 81-3878 (E.D.Pa. filed, Sept. 24, 1981).

 The plaintiff undertook to subject the defendant to the jurisdiction of the Pennsylvania Court by mail service of process. Plaintiff mailed a copy of the summons and complaint to defendant's New York attorneys, by certified mail and allegedly mailed a second copy of the papers to defendant's New York address, also by certified mail, albeit no evidence of such mailing nor a receipt therefor could be produced by plaintiff.

 On October 23, 1981, a default judgment was entered against Weather-Twin in the amount of $ 19,284.35. The only evidence that process had been duly served and that a default had occurred was a conclusory and insufficient statement by plaintiff's attorney reciting:

 
that he is the attorney for Plaintiff in the above entitled action; that the amount due Plaintiff from Defendant is $ 19,284.35; that the Defendant is not an infant or an incompentent (sic) person; that the default of the Defendant has been entered for failure to appear in the action; that the amount shown by the statement is justly due and owing and that no part thereof has been paid; that the disbursements sought to be taxed have been made in this action or will necessarily be made or incurred therein.

 On February 23, 1981, the default judgment was registered in this Court. Weather-Twin moved in this Court promptly to vacate the registered judgment on the ground that the Pennsylvania Court lacked personal jurisdiction over it and that the default judgment had been irregularly entered on the Pennsylvania proceedings.

 Discussion

 This Court has the undoubted power to vacate a default judgment registered in this jurisdiction if it finds that the rendering court did not have personal jurisdiction over the defendant. Covington Industries, ...


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