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PLUM v. TAMPAX (01/30/61)

January 30, 1961

PLUM, APPELLANT,
v.
TAMPAX, INC.



Appeal, No. 166, Jan. T., 1961, 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 affirmed; reargument refused March 28, 1961.

COUNSEL

Michael H. Egnal, with him Yale B. Bernstein, for appellant.

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

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.0

Author: Cohen

[ 402 Pa. Page 617]

OPINION BY MR. JUSTICE COHEN.

This is an appeal from an order of the Court of Common Pleas No. 1 of Philadelphia County which dismissed a complaint in equity by invoking the doctrine of forum non conveniens.

Plaintiff instituted this action by a writ of foreign attachment served upon garnishees possessing property of defendant, a Delaware corporation. Thereupon, defendant filed preliminary objections contending that all of the relief sought related to internal affairs of the defendant corporation. The court below sustained the preliminary objections. On appeal this court reversed the court below but questioned whether the doctrine of forum non conveniens was applicable. We remanded the matter for proceedings in accordance with

[ 402 Pa. Page 618]

    our opinion. Plum v. Tampax, Inc., 399 Pa. 553, 160 A.2d 549 (1960). Defendant then entered a general appearance and filed a petition and rule upon plaintiff to show cause why the complaint should not be dismissed in accordance with the doctrine of forum non conveniens. Plaintiff filed an answer to this petition and after argument the rule was made absolute and the complaint dismissed. This appeal followed.

While the plaintiff ordinarily controls choice of the forum, a court does not exercise its jurisdiction if the selected forum is a manifestly inappropriate one and if an alternative appropriate forum is available to the plaintiff. Restatement (2d), Conflict of Laws, ยง 117e (Tentative Draft No. 4, April 5, 1957). Whether a suit should be dismissed under the doctrine of forum non conveniens depends largely upon the particular facts and upon the discretion of the trial court. Such exercise of discretion will be overruled on appeal only when abused: Plum v. Tampax, Inc., supra.

The court below, in the proper exercise of its discretion, relied, inter alia, on the following facts as the basis for its decision to refuse jurisdiction.

Plaintiff is a Danish subject and a nonresident of this Country and the defendant is a nonresident foreign corporation, not registered to do business in Pennsylvania and not maintaining any office listings or employees or agents in Pennsylvania. The contract underlying this suit was entered into in Copenhagen, Denmark, and is to be performed entirely within the State of New York. No element of the performance of the contract has taken place, nor is to take place, in the Commonwealth of Pennsylvania. The contract provides that any disagreement between the parties as to its provisions shall be settled in accordance ...


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