Appeal, No. 35, March T., 1958, from order of Court of Common Pleas of Allegheny County, July T., 1957, No. 28, in case of Elkay Steel Co. v. M. Dennis Collins et ux. Order affirmed.
Leonard M. Mendelson, with him David Silverblatt, and Charles D. Coll, for appellant.
John A. Metz, Jr., with him Guy L. Warman, and Metz, Cook Hanna & Kelly, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This appeal presents two questions: (1) is the writ of ne exeat*fn1 available in Pennsylvania, and (2), if it is, do the instant facts warrant its issuance and continuance? The use of the writ of ne exeat is one of first impression in an appellate court in this Commonwealth.
Elkay Steel Co., appellee, instituted an equity action against M. Dennis Collins, appellant, and Rena R. Collins, his wife, wherein it was alleged that the Collins, by false and fraudulent representations and by forgeries, had secured from Elkay $91,015, a part of which - approximately $30,850 - the Collins had returned, but the balance of which - approximately $60,165 and the profits realized therefrom - the Collins still retained. Elkay sought the aid of the equity court for an accounting and payment over to it of the balance of the money by the Collins. That action is still pending.
Coincident with the institution of this equity action,*fn2 Elkay petitioned for the issuance of a writ of ne exeat alleging: (1) that the Collins' activities had been and were such that upon service upon them of the complaint in the equity action the Collins would leave Pennsylvania and the jurisdiction of its courts to avoid compliance with any decree rendered in the equity action; (2) that unless the Collins were required to post a bond conditioned on their continued presence in Pennsylvania, any decree which might be rendered in the equity action would be rendered non-effective by
their departure from the Commonwealth; (3) that unless prevented by the issuance of the writ, the Collins' misappropriation of Elkay's money would be finally consummated. The Court below, ex parte, directed the issuance of a writ of ne exeat.*fn3
The Collins filed preliminary objections to the equity complaint and an answer to the ne exeat petition. They then filed petitions to quash the writ. After hearing, the court below refused to quash the writ. Appellant then withdrew his preliminary objections and consented in writing to the entry of a default decree against him in the equity action. Elkay, however, did not enter a default decree. Appellant then presented another petition to quash the writ of ne exeat which the court below refused. Appellant then took this appeal.
The writ of ne exeat originated in England and, as appellant well states, applied "only to ecclesiastics, whose intercourse with the papacy it was designed to impede"; it was employed by the Crown to restrain and prevent the departure from the realm of such persons, whether subjects or ...