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VANT v. GISH (10/11/63)

October 11, 1963

VANT
v.
GISH, APPELLANT.



Appeal, No. 131, March T., 1963, from order of Court of Common Pleas of Allegheny County, July T., 1962, No. 2252, in case of Walter J. Vant v. Starling Marshall Gish, Jr., Anna Roberta Gish, Pittsburgh National Bank et al. Order reversed; reargument refused November 4, 1963.

COUNSEL

Ella Graubart, with her Patterson, Crawford, Arensberg & Dunn, for appellants.

Paul Ginsburg, for appellee.

Before Bell, C.j., Musmanno, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Roberts

[ 412 Pa. Page 360]

OPINION BY MR. JUSTICE ROBERTS

In May, 1962, appellee Walter J. Vant instituted an action of trespass in the Court of Common Pleas of Allegheny County against appellants Starling M. Gish, Jr., and Anna R. Gish, residents of Illinois and minor children of his late wife by a prior marriage. Suit was begun pursuant to Pa. R.C.P. 1252 by writ of foreign attachment. The praecipe for the writ stated that appellee's claim was in the amount of $150,000. Assets worth approximately $575,000 were attached in the hands of two Pittsburgh banks, trustees of stocks and bonds allegedly belonging to appellants and in the process of distribution to them. A complaint in trespass was filed shortly thereafter.

The substance of appellee's allegations was that in 1946, he married Evelyn McKaig Gish Vant, mother of appellants; that his wife executed a will in 1947 in which he was named a major beneficiary; that he and his wife moved to California in 1949, but he returned alone to Pennsylvania in 1952; that his wife died in Los Angeles in 1957; that in 1959, he offered her 1947 will for probate in the Superior Court of California, County of Los Angeles; that appellants and their father filed objections to probate of the will; that appellants, their father and their attorneys conspired to defraud appellee of his rights under the will by introducing fraudulent and false testimony in the probate court; that on June 30, 1961, a decree was entered by

[ 412 Pa. Page 361]

    the California court denying probate; that as a result of that decree, appellee was deprived of his one-third interest in the estate of his wife and also of the entire estate of his wife's mother which his wife bequeathed to him by exercise of a power of appointment; that the will contest was false, fraudulent and maliciously designed to slander, defame and libel appellee and bring him into public hatred, ridicule and contempt; that the conduct engaged in by appellants in California constituted an abuse of civil process.*fn1

[ 412 Pa. Page 362]

To these allegations appellants filed preliminary objections consisting of a demurrer, a question of jurisdiction, a motion to strike off a pleading, an assertion of lack of capacity to sue, and assertions that the assets were exempt from attachment and that no property of appellants was in the hands of the garnishees at the time of service of the writ. Simultaneously with the filing of preliminary objections, appellants petitioned to limit the assets attached and to release part of the property on the ground that the value of the assets greatly exceeded appellee's claim. At the time of argument, appellants presented a written motion to dismiss on the ground that the court lacked jurisdiction under Rule 1252, since the alleged tort occurred in California.

Rule 1252 provides: "A foreign attachment may be issued to attach property of a defendant not exempt from execution upon any cause of action at law or in equity, other than an action ex delicto arising from acts committed outside the Commonwealth, in which the relief sought includes a judgment or decree for the payment of money ...." (Emphasis supplied.)

[ 412 Pa. Page 363]

As originally filed, appellee's allegations were of a conspiracy to obtain fraudulently a decree by the California court, a conspiracy which took place entirely in California, and of defamation in that state. Thus, the complaint on its face revealed a lack of jurisdiction in the court under Rule 1252, and appellants' preliminary objections were well taken. The court below, over appellants' objections, permitted appellee to amend his ...


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