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ALPERS v. NEW JERSEY BELL TELEPHONE COMPANY. (05/02/61)

May 2, 1961

ALPERS, APPELLANT,
v.
NEW JERSEY BELL TELEPHONE COMPANY.



Appeal, No. 105, Jan. T., 1961, from judgment of Court of Common Pleas No. 5 of Philadelphia County, June T., 1960, No. 778, in case of Harold Alpers v. New Jersey Bell Telephone Company et al. Judgment affirmed.

COUNSEL

S. Laurence Shaiman, with him Joseph D. Shein, and Shein and Berlant, for appellant.

John B. Hannum, 3rd, with him E. Everett Mather, Jr., for appellees.

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

Author: Jones

[ 403 Pa. Page 627]

OPINION BY MR. JUSTICE BENJAMIN R. JONES.

May foreign attachment issue in Pennsylvania against a foreign corporation upon a cause of action arising out of a tort which occurred outside Pennsylvania?

On June 30, 1959, Harold Alpers (Alpers), a Pennsylvania resident, was a passenger in a motor vehicle in New Jersey which became involved in an accident with another motor vehicle owned and controlled by the New Jersey Bell Telephone Company (New Jersey Bell), a foreign corporation. Alpers allegedly sustained personal injuries in that accident.

A year later, Alpers caused a writ of foreign attachment to be issued in the Court of Common Pleas No. 5 of Philadelphia County against New Jersey Bell as defendant and the Bell Telephone Company of Pennsylvania (Pennsylvania Bell) as garnishee. At the same time Alpers filed a complaint*fn1 and New Jersey Bell and Pennsylvania Bell moved to strike off the complaint and for judgment of non pros. The court below, taking the position that foreign attachment would not lie for a tort which occurred outside Pennsylvania, granted the motion for judgment of non pros. From that action this appeal was taken.

In considering this appeal, certain facts, as alleged, may be taken as established: (1) New Jersey Bell, the alleged tortfeasor, is a foreign corporation; (2) Pennsylvania Bell, a domestic corporation and garnishee, when the writ was issued had in its possession certain property of New Jersey Bell; (3) the cause of action is a tort which occurred in New Jersey.

[ 403 Pa. Page 628]

In Commonwealth to use v. A. B. Baxter and Company, Inc., 235 Pa. 179, 190, 191, 84 A. 136, we said: "The action of foreign attachment in Pennsylvania is based upon one of the customs of London: Laws and Privileges of London, 113-140; Brandon on Foreign Attachment. The purpose of the custom was to compel the appearance of the defendant and this is also true in our state: [citing cases]. Both by the custom and by our statutes the writ lay against a foreign corporation:". In Falk & Company v. South Texas Cotton Oil Company, 368 Pa. 199, 205, 82 A.2d 27, we said in respect to an action begun by a writ of foreign attachment: "Two fundamental facts must coexist: (1) The defendant must be a non-resident 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 garnishee.". See also: Fairchild Engine & Airplane Corporation v. Bellanca Corporation, 391 Pa. 177, 180, 137 A.2d 248. Alpers, relying on Pa. R.C.P. Rule 1252, urges that these cases set forth all the jurisdictional facts presently necessary to the issuance of foreign attachment. New Jersey Bell and Pennsylvania Bell contend that, if the cause of action for which the attachment is sought is a tort committed outside Pennsylvania, foreign attachment will not lie.

Foreign attachment - an extraordinary remedy - is a creature of statute and the statutory provisions which are subject to strict construction, furnish the sole source for the authority of a court to issue the writ. See: Kohl ...


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