Appeal from order of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1966, No. 4567, in case of Donald T. Lapinsohn et ux. v. Lewis Charles, Inc. et al.
Yale B. Bernstein, with him Brickley, Cummins, Torpey & Bernstein, for appellants.
C. Clark Hodgson, Jr., with him Stradley, Ronon, Stevens & Young, for appellee.
Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., and Wright, J., absent). Opinion by Hoffman, J. Watkins and Montgomery, JJ., dissent.
[ 212 Pa. Super. Page 186]
Lewis Charles, Inc. [Charles] entered into an agreement in Philadelphia on October 20, 1965, wherein it agreed to construct a house in Cherry Hill, New Jersey for Donald T. Lapinsohn and Carol Lapinsohn, appellants. On April 27, 1966, appellants and Charles entered a supplemental agreement, in Philadelphia, containing certain warranties and guarantees concerning the construction of this new home. In reliance on these agreements, settlement was made in Philadelphia at that time.
Soon thereafter, appellants noted evidence of improper construction. To secure relief, appellants instituted suit by foreign attachment seeking to attach Charles' assets in the hands of the First Camden National Bank and Trust Company [Bank], appellee. This Bank is a federally-chartered bank with its principal office in Camden, New Jersey. The Bank also operates a branch bank at 223-225 Market Street, Philadelphia, Pennsylvania. The writ was served on the Bank at its Philadelphia office on November 25, 1966.
The Bank filed preliminary objections on December 5, 1966, alleging that it was immune from suit in Pennsylvania under 12 U.S.C. § 94, a federal venue statute which limits actions against national banks.
On December 16, 1966, appellants filed an Answer and New Matter to the Bank's preliminary objections,
[ 212 Pa. Super. Page 187]
alleging, inter alia, that the Bank, by its conduct, had waived its right to object to such attachment.
On March 21, 1967, depositions were taken of a vice-president of the Bank, and an assistant vice-president who was the manager of the Philadelphia office.
The matter was then heard before the lower court on these preliminary objections and depositions. The court entered an order on May 29, 1967, sustaining the Bank's objections and dismissing appellant's complaint in assumpsit on the basis that the Bank could not be made a garnishee in Pennsylvania. This appeal followed.
The sole question raised by this appeal is whether the assets of a depositor in this Bank, which operates a branch bank and office in Philadelphia, may be garnisheed in Philadelphia when the Bank's principal ...