Appeal from order of Court of Common Pleas of Allegheny County, April T., 1963, No. 2968, in case of Central Contracting Company v. C. E. Youngdahl & Company, Inc., Crump, Incorporated, Psaty & Fuhrman, Inc. et al.
Bresci R. P. Leonard, with him Royston, Robb, Leonard, Edgecombe & Miller, for appellant.
John A. Metz, Jr., with him Harry Rubin, and Rubin & Balter, and Metz, Cook, Hanna & Kelly, for Crump, Incorporated, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen.
This is an appeal by plaintiff, in an assumpsit action, from an order of the lower court en banc sustaining
preliminary objections to foreign attachment*fn1 and to jurisdiction; the latter objection was apparently based upon certain arbitration clauses set forth in the contract.
In 1960, plaintiff-appellant, Central Contracting Company (Central) entered into an agreement with a party contracting under the name of "C. E. Youngdahl & Company, Inc. -- Crump, Incorporated -- Psaty & Fuhrman, Inc., A Joint Venture." The joint venture had a general contract with the Pittsburgh Housing Authority. Central agreed with the joint venture to do certain painting work generated by the general contract. Central brought suit against the joint venture, alleging that "defendants required plaintiff to perform extra and additional painting services" for which Central sought compensation, and against the Housing Authority as garnishee.
While the lower court did not dismiss the complaint or enter judgment against the plaintiff or order arbitration, its order so restricted Central's further action "as, virtually, to put . . . [it] out of court on the cause of action which . . . [it] seeks to litigate," Sullivan v. Philadelphia, 378 Pa. 648, 649, 107 A.2d 854, 855 (1954), and, therefore, the order below is appealable.
The lower court held that property in the hands of a Housing Authority, organized pursuant to the Housing Authorities Law of 1937, Act of May 28, 1937, P. L. 955, 35 P.S. § 1541, is, ipso facto, immune from an otherwise appropriate foreign attachment because the Authority could not be summoned as garnishee. This was error.
Appellee argues that as a "general rule . . . the United States, the states and their political subdivisions
and agencies . . . cannot be summoned as garnishees in any action, without statutory authorization or consent or waiver." 6 Am. Jur. 2d, Attachment and Garnishment § 78, p. 615. See also 17 McQuillin, Municipal Corporations, § 49.86 (1950 ed.). Pennsylvania courts have applied this so-called general rule to prohibit attachment of property in the hands of the Pennsylvania Turnpike Commission, Iron City Spring Co. v. Teer, 53 Dauph. 118 (1942), the Urban Redevelopment Authority of Pittsburgh and the Public Parking Authority of Pittsburgh, Richter v. George Doherty Lumber Co., 16 Pa. D. & C. 2d 181 (1958), and the City of Pittsburgh, Wood Refrigerating Co. v. Preston, 7 Pa. D. & C. 2d 648 (1956). The most recent case in which this Court discussed this rule was Haines v. Lone Star Shipbuilding Co., 268 Pa. 92, 110 Atl. 788 (1920). In Haines we did not apply the rule for reasons discussed below.
Appellee further contends that, because § 10 of the Housing Authorities Law provides that "[a]n authority shall constitute a public body, corporate and politic, exercising public powers of the Commonwealth as an agency thereof . . .,"*fn2 and because, in certain other contexts, we have recognized its public or governmental nature,*fn3 we should determine that, under the so-called general rule, it cannot be summoned as garnishee in foreign attachment proceedings. Granting, ...