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Servo Instruments v. Fenway Machine Co.

OPINION FILED DECEMBER 31, 1980.

SERVO INSTRUMENTS, INC., PLAINTIFF-APPELLANT,

v.

FENWAY MACHINE COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Bureau County; the Hon. C. HOWARD WAMPLER, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Plaintiff, hereinafter referred to as Servo, brings this appeal from an order of the Circuit Court of Bureau County which granted a motion of the defendant, hereinafter referred to as Fenway, to quash service of process for lack of personal jurisdiction. The order further dismissed Servo's cause of action which sought recovery of damages for an alleged breach of contract for the sale of electrical components.

Servo is an Illinois corporation engaged in the business of manufacturing and selling electrical equipment, having its plant and only place of business located in Spring Valley, Illinois. Fenway is a Pennsylvania corporation and has never been licensed to transact business in Illinois. Fenway does not have or maintain offices in Illinois, nor does it send agents, officers or other personnel into the State of Illinois to conduct its business.

Servo became aware of Fenway's possible need of electrical parts when Mr. Gran of Howard Industries, located at Milford, Illinois, told Robert Small, president of Servo, that Howard Industries was unable to fill an order for such material. Gran informed Small of Fenway's address, telephone number, and the name of its sales manager, to-wit, Mr. Yermish.

Mr. Small on behalf of Servo placed a call to Mr. Yermish in Philadelphia. This call resulted in Small going to Philadelphia for the purpose of conferring and negotiating with representatives of Fenway. Affidavits filed by plaintiff and defendant are in conflict as to whether an agreement was reached between the parties on June 21, 1977, or at a later date after further phone calls and negotiations. The affidavit filed on behalf of Fenway strongly indicates that an agreement was reached in Philadelphia on June 21, 1977, since an invoice (No. 1843) bearing that date requesting the shipment of a number of armatures and fields is attached to Fenway's affidavit. A supplemental affidavit filed by Fenway is supported by an Exhibit A, which is correspondence from Mr. Small of Servo to Mr. Yermish of Fenway and which in pertinent part reads as follows:

"July 5, 1977

Mr. Joseph Yermish Fenway Machine Company, Inc. 1910 N. Marshall Street Philadelphia, PA 19122

Dear Mr. Yermish,

Thank you for the courtesies extended to Al Boada and myself during our visit. I also want to thank you for your P.O. #1843 for:

Very truly yours,

Robert A. Small President."

Further orders for electrical equipment were placed by Fenway with Servo, however, on October 3, 1979, Servo filed a complaint against Fenway to collect the purchase price for such material. Fenway, after being served with summons in Philadelphia, filed a special appearance pursuant to section 20 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 20) and a motion to quash summons based on its assertion that the Illinois circuit court did not have in personam jurisdiction over the defendant. After considering affidavits filed by the respective parties and arguments of counsel, the trial court as previously stated granted Fenway's motion and this appeal ensued.

The sole issue presented is whether the Circuit Court of Bureau County had in personam jurisdiction over the defendant.

The determination of this issue requires an examination of what is commonly known as the "long-arm" statute (Ill. Rev. Stat. 1977, ch. 110, par. ...


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