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PLUM v. TAMPAX (05/04/60)

May 4, 1960

PLUM, APPELLANT,
v.
TAMPAX, INC.



Appeal, No. 149, Jan. T., 1960, from order of Court of Common Pleas No. 1 of Philadelphia County, June T., 1959, No. 3291, in case of Dagny Plum v. Tampax, Inc. Order reversed.

COUNSEL

Michael H. Egnal, for appellant.

Henry W. Sawyer, III, with him John Markle, Jr., and Drinker, Biddle & Reath, for appellee.

Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Cohen

[ 399 Pa. Page 555]

OPINION BY MR. JUSTICE COHEN.

Plaintiff commenced this action by writ of foreign attachment, naming certain garnishees. She then filed a complaint in equity against the defendant for an accounting. By preliminary objections defendant challenged the jurisdiction of the court below to adjudicate the matter, asserting that all of the relief sought by the plaintiff involved the internal affairs of a foreign corporation. The lower court dismissed the complaint, and this appeal under the Act of March 5, 1925, P.L. 23, 12 PS ยง 672, followed.

At the outset we note that the question raised by the defendant on preliminary objections is not properly a question of whether the court has jurisdiction, but one of whether the court should exercise the jurisdiction it has. It is because courts voluntarily choose not to interfere in the internal affairs of a foreign corporation that they decline to hear such cases; it is not because they lack power to do so. Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). Accordingly, since the writ of attachment in the instant case was validly executed, there is no question of jurisdiction appealable under the Act of March 5, 1925. Fairchild Engine & Airplane Corporation v. Bellanca Corporation, 391 Pa. 177, 137 A.2d 248 (1958). The proper procedure for plaintiff would have been to take an appeal from the final order of the court below dismissing her complaint.

[ 399 Pa. Page 556]

Rather than dismiss this appeal, however, we shall treat the papers as an appeal from that order.

The following facts emerge from the pleadings: Plaintiff is a resident of Copenhagen, Denmark. The defendant, Tampax, Inc., is a Delaware Corporation with its principal place of business in New York City. The defendant manufactures and distributes Tampax, a catamenial device used for feminine hygienic purposes. On March 15, 1955, in consideration of plaintiff's work in having the sale of Tampax tampons made legal in Scandinavia and for other unspecified reasons, plaintiff and defendant entered into a written agreement which in substance provided that the defendant would transfer to plaintiff 25% of the capital stock of a corporation to be formed for the purpose of doing business in Denmark, Norway and Sweden or, in case the business should be organized in a form other than a corporation, a 25% share of the Scandinavian business formed. In addition plaintiff was to receive 25% of the net profits of the business in Scandinavia, regardless of the form of the enterprise, earned after March 1, 1955. The agreement concluded with the stipulation that any disagreement between the parties over the provisions of the agreement should be settled in accordance with the laws of Denmark and that certain courts in Copenhagen, Denmark, would be competent courts to adjudicate controversies between the parties relating to the agreement.

On or about March 15, 1955, defendant created a Danish corporation known as Tampax, Scandinavia A/S, for the purpose of selling its product in Denmark and Norway, and transferred to the plaintiff a certificate for 25% of the Danish company's outstanding and issued common stock. Later, the defendant restricted the Danish company to sales of its product in Denmark only and ...


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