trustees until a case has been proved against defendant Kriger the alleged alter ego of the grantor, Chestnut Corporation. However, there seems to be no reason why the suits against Kriger and the trustees cannot be tried at one time. This, however, will be largely a discretionary problem for the trial judge.
The trustees' final objection relates to the manner of service of the complaint which, as has been determined, states a cause of action under the Fraudulent Conveyance Act. Service of the complaint on the non-resident trustees, pursuant to an order of this court, was effected by sending a copy of the complaint and summons to the Secretary of the Commonwealth of Pennsylvania and a copy to the named trustees at their respective New York residences. Trustees argue that there is no authorization for such substituted service under any Pennsylvania statute.
I disagree. Pa.R.Civ.P. 1504(b), 12 P.S.Appendix provides for service on a party outside the state by mailing a copy of the complaint to him 'if the subject matter of the action is property within the jurisdiction of the court * * *.' The property involved in plaintiff's complaint under the Uniform Fraudulent Conveyance Act is real estate located in the City of Philadelphia.
The Pennsylvania courts which have construed and applied the predecessor of Rule 1504(b) have held that it is applicable to an action to set aside a fraudulent conveyance where the property is located within the state and the grantee of the property is found outside the state. American Trust Co. v. Kaufman, 287 Pa. 461, 135 A. 210 (1926). See Alpern v. Coe, 352 Pa. 208, 42 A.2d 542, 161 A.L.R. 1046 (1945).
Service of process utilized in this case was sufficient to bring the trustees into the action.
In summary, plaintiff's complaint fairly alleges a claim for relief against the trustees under the Uniform Fraudulent Conveyance Act, the action is not premature and the complaint has properly been served.
Motion of Trustees to Dismiss or Quash Service of Process of Defendant Greenfield's Cross-Claim
The trustees in this motion raise the same objections that they have raised in their motion to dismiss or quash the service of process of plaintiff's amended complaint. Since the trustees are properly before the court by virtue of plaintiff's complaint and service of process, defendant Greenfield was entitled to file his cross-claim against the trustees. Service of the cross-claim apparently was made on the trustees as parties pursuant to Fed.R.Civ. P. 5(b) which provides that '* * * whenever * * * service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney * * *.' However, the record before the court is bare of any evidence on this jurisdictional fact. Although the trustees in their motion to quash the service of process have not raised this point, the court is of the opinion that the particulars of the service of the cross-claim should be placed on the record before this action proceeds any further. Accordingly, the motion of the trustees to dismiss or quash the service of process of the cross-claim will be denied contingent on the filing with the court of adequate proof of service of the cross-claim by defendant Greenfield.
And now, this 1st day of April, 1964, the motion of Chestnut Corporation to dismiss the complaint of American Optical Company is granted; the motion of William Kriger to dismiss the complaint of American Optical Company against him or quash the service of process of said complaint is denied without prejudice; the motion of Leo Greenberg, I. Meyer Pincus and William Kriger, trustees for named beneficiaries, to dismiss the complaint of American Optical Company against them or quash the service of process of said complaint is denied, and the motion of Leo Greenberg, I. Meyer Pincus and William Kriger, trustees for named beneficiaries, to dismiss the cross-claim of Albert M. Greenfield & Co., Inc. against them or quash the service of process of said cross-claim is denied on the condition that Albert M. Greenfield & Co., Inc. file with the court within fifteen days an affidavit of service of its cross-claim.