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CADDIE HOMES v. FALIC (ET AL. (11/16/67)

decided: November 16, 1967.

CADDIE HOMES, INC.
v.
FALIC (ET AL., APPELLANT)



Appeal from judgment of Court of Common Pleas No. 4 of Philadelphia County, June T., 1965, No. 2372, in case of Caddie Homes, Inc. et al. v. Fima Falic et al.

COUNSEL

Harry A. Short, Jr., with him Liebert, Harvey, Bechtle, Herting & Short, for appellant.

Ragan A. Henry, with him Gerald Gornish, and Goodis, Greenfield, Narin & Mann, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 211 Pa. Super. Page 334]

Caddie Homes Ellicott, Inc. a wholly-owned Maryland subsidiary of Caddie Homes, Inc., a Pennsylvania corporation (both of which are appellees herein and referred to collectively as "Caddie Homes"), had employed defendant Fima Falic ("Falic"), as a commission salesman. Falic, a resident of Maryland, was employed by Caddie Homes in that State. Between November 1, 1962 and June 12, 1964, Caddie Homes advanced $10,085.29 to Falic. Part of this money had been advanced to assist Falic after he had been injured in an automobile accident. Falic agreed in writing in

[ 211 Pa. Super. Page 3351963]

and 1964 to repay the loans when certain sums became payable to him by insurance companies because of the accident.

On June 19, 1965, the Maryland Workmen's Compensation Commission awarded Falic a sum not in excess of $10,000.00. Falic was to receive an initial sum of $2,000.00 and the balance in weekly installments. Payments were to be made by Caddie Homes' insurance carrier, Employers Group of Insurance Companies (Employers). Although Caddie Homes demanded payment, Falic refused to return the money advanced to him. Consequently, on July 8, 1965, Caddie Homes instituted this action in foreign attachment in Pennsylvania, summoning Employers as garnishee. The writ of foreign attachment purported to attach: "All insurance benefits, obligations, sums, payments, amounts due or to become due to and all other property real or personal of defendant."

Despite the attachment, however, Employers continued to pay Falic a series of weekly payments until December 1965, when it paid a final large sum in full settlement of Falic's claim. This final payment was made pursuant to an order of the Maryland Workmen's Compensation Commission, upon the petition of Falic to convert the weekly award into a lump sum payment. At no time did Employers advise the Maryland Workmen's Compensation Commission of the attachment. Moreover, it did not advise Caddie Homes that it was continuing to make payments after the attachment was served.

The only action taken by Employers was to file preliminary objections alleging that our courts are without jurisdiction, because the money paid was exempt from attachment and because there was no "property" or "debt" within the meaning of the Pennsylvania Rules of Civil Procedure. After argument, the lower court dismissed the preliminary objections.

[ 211 Pa. Super. Page 336]

In analyzing this case, the basic rules and statutes to which the parties refer must be set out. Pa. R. C. P. No. 1252, provides in pertinent part:

"A foreign attachment may be issued to attach property of a defendant not exempt from execution. . . when

(1) the defendant is an individual who is a nonresident of the Commonwealth . . ." [Emphasis added]

Pa. R. C. P. No. 1253 provides in pertinent part:

"Any person may be made a garnishee and shall be deemed to have possession of property ...


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