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WILK v. ENSIGN-BICKFORD CO. (04/19/66)

decided: April 19, 1966.

WILK, APPELLANT,
v.
ENSIGN-BICKFORD CO.



Appeal from order of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1963, No. 4239, in case of Clara Wilk, administratrix of estate of Florian Wilk, deceased v. Ensign-Bickford Co., Darworth, Inc. and E. I. Dupont de Nemours & Co., Inc.

COUNSEL

Tom P. Monteverde, with him Schnader, Harrison, Segal & Lewis, for appellant.

Arthur R. Littleton, with him Morgan, Lewis & Bockius, for appellees.

Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Jones and Mr. Justice Eagen dissent.

Author: Roberts

[ 421 Pa. Page 162]

The issue presented on this appeal is whether Rule 1252 of the Pennsylvania Rules of Civil Procedure authorizes the issuance of a writ of foreign attachment in an action brought in trespass to recover for injuries sustained in Pennsylvania where the negligent acts or omissions upon which the suit is predicated occurred without the State.

Plaintiff [appellant] instituted wrongful death*fn1 and survival*fn2 actions against defendant foreign corporations. Recovery was sought for injuries sustained by reason of the death of plaintiff's decedent in an industrial accident in Pennsylvania alleged to have been caused by the negligence of defendants in the manufacture in Connecticut of a product used by the decedent in the course of his employment.

Suit was begun pursuant to Rule 1252 by the issuance of a writ of foreign attachment and the filing of

[ 421 Pa. Page 163]

    a complaint in trespass. Assets of defendants located in Pennsylvania were attached.

Defendants entered appearances to challenge the attachment*fn3 and filed preliminary objections seeking to have the action dismissed on the ground that foreign attachment did not lie under the facts of the case. The preliminary objections were sustained and an order entered dissolving the attachment. This appeal followed.

Rule 1252 of the Pa. R. C. P. 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 when . . . (3) the defendant is a foreign corporation . . . ." (Emphasis supplied.)*fn4

The court below concluded that Rule 1252 could not be employed in this context by reason of the exception therein respecting actions ex delicto "arising from acts committed outside the Commonwealth." Since the alleged negligent acts of defendants in the manufacture of the instrumentality took place in Connecticut, the court held that the instant attachment was precluded, irrespective of the fact that the accident and injury which gave rise to the cause of action ...


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