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FAIRCHILD ENGINE & AIRPLANE CORPORATION v. BELLANCA CORPORATION (01/08/58)

January 8, 1958

FAIRCHILD ENGINE & AIRPLANE CORPORATION
v.
BELLANCA CORPORATION, APPELLANT.



Appeal, No. 349, Jan. T., 1957, from order of Court of Common Pleas No. 4 of Philadelphia County, March T., 1957, No. 4248, in case of Fairchild Engine & Airplane Corporation v. Bellanca Corporation and Piasecki Aircraft Corporation. Appeal dismissed.

COUNSEL

Melvin Lashner, with him Miller, Adelman & Lavine, for appellant.

John Norris, with him E. Brooks Keffer, Jr. and Norris, Lex, Hart & Ross, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Jones

[ 391 Pa. Page 178]

OPINION BY MR. CHIEF JUSTICE JONES

Fairchild Engine & Airplane Corporation, organized under the laws of Maryland and having its principal place of business in Hagerstown, Maryland, brought suit in assumpsit in a court of common pleas of Philadelphia County against the Bellanca Corporation, which is organized under the laws of Delaware and has its principal place of business in New Castle, Delaware. The suit was for the recovery of damages for the defendant's alleged breach of a written contract executed in Delaware and to be performed there. Under the terms of the contract, Bellanca was to manufacture

[ 391 Pa. Page 179]

    and deliver to Fairchild nose assemblies for military aircraft. After beginning performance of the contract, but before completion, Bellanca sold its plant and entire business in New Castle to Piasecki Aircraft Corporation which is organized under the laws of Pennsylvania and has its principal place of business at Island Road, International Airport, Philadelphia. Fair-child instituted its suit in Philadelphia County by a writ of foreign attachment summoning as garnishee, Piasecki, which has in its possession a valuable chose of Bellanca.

Bellanca filed preliminary objections to the complaint and moved for judgment in its favor, assigning as reason therefor that the court did not have jurisdiction of the parties plaintiff or defendant and should not take jurisdiction by way of foreign attachment as the controversy is between two foreign corporations not registered to do business in Pennsylvania and arose out of a contract which was made in Delaware for contemplated performance there. The court dismissed the preliminary objections and gave the defendant twenty days in which to answer over. Instead of so doing, however, the defendant took this appeal ostensibly under the Act of March 5, 1925, P.L. 23, 12 P.S. ยง 672, in the apparent belief that a jurisdictional question was involved. Such is plainly not the case.

The action being in assumpsit on a written contract is a subject matter whereof the common pleas court has undoubted jurisdiction. Witney v. Lebanon City, 369 Pa. 308, 311, 85 A.2d 106; Strank v. Mercy Hospital of Johnstown, 376 Pa. 305, 309, 102 A.2d 170. As to the parties, the plaintiff is voluntarily in court by virtue of its own invocation of the court's jurisdiction. The suit having been instituted by writ of foreign attachment is a proceeding quasi in rem: Atkins v. Canadian SKF Company, 353 Pa. 312, 314, 45 A.2d

[ 391 Pa. Page 18028]

. The garnishee, admittedly, has possession of property of the defendant, is a resident corporation amenable to the court's process and has been duly served with the writ. In Falk & Company v. South Texas Cotton Oil Company, 368 Pa. 199, 205, 82 A.2d 27, we said with respect to an action begun by writ of foreign attachment: "Two fundamental facts must coexist: (1) The defendant must be a nonresident or a foreign corporation; and (2) the defendant must have real or personal property within this Commonwealth when the writ of foreign attachment was served on the garnishee." See, also, David E. Kennedy, Inc. v. Schleindl, 290 Pa. 38, 41, 137 A. 815. Both of those requirements are present here. An appearance by the defendant corporation is not necessary to the court's jurisdiction of the parties. The defendant may, of course, appear and defend on the merits if it so chooses. The purpose of a writ of foreign attachment is to compel an appearance by a defendant who is a resident of a foreign state: Raymond v. Leishman, 243 Pa. 64, 69, 89 A. 791. There is, therefore, no question here of ...


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