Appeal from order of Court of Common Pleas of Montgomery County, No. 66-4106, in case of Tops Apparel Manufacturing Company, Inc. v. Sidney Rothman and Anna Onorato Rothman, his wife.
Philip R. Detwiler, with him Huganir, Butera and Detwiler, for appellants.
Richard M. Lovenwirth, with him Joseph W. Forbes, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Eagen joins in this dissenting opinion.
This appeal involves the propriety of the issuance by the court below of a writ of foreign attachment under
Pa. R.C.P. 1252(1). That rule provides in pertinent part: "A foreign attachment may be issued to attach property of a defendant . . . when (1) the defendant is an individual who is a nonresident of the Commonwealth, even though he is present in the Commonwealth; . . ." Appellants attack the issuance of this writ, contending that the court below lacked jurisdiction by virtue of the fact that appellants were Pennsylvania residents. However, since appellants did not raise the jurisdictional issue by either preliminary objections*fn1 or answer, Pa. R.C.P. 1032 mandates that they have waived any jurisdictional objection unless that objection can be properly classified as one involving "subject matter" jurisdiction. The question thus posed is whether appellants' now asserted*fn2 Pennsylvania residency vitiates the subject matter jurisdiction of the court below.
A question as to subject matter jurisdiction can be raised at any time; the residency requirement in Rule 1252(1), however, involves a question of personal not subject matter jurisdiction. In Jones Memorial Baptist Church v. Brackeen, 416 Pa. 599, 602, 207 A.2d 861, 863 (1965) we succinctly stated those elements necessary to determine whether a matter was within the subject matter jurisdiction of a court: "The test of jurisdiction is the competency of the court to hear and determine controversies of the general class to which the case presented for consideration belongs. The question is whether the court has power to enter into the inquiry and not whether it is able to grant the
relief sought in the particular case." It cannot be doubted that the Court of Common Pleas of Montgomery County is competent to entertain writs of foreign attachment, the general class of cases here involved. The question of appellants' residency, on the other hand, involves only whether the court below can grant the writ sought.
Furthermore, an examination of the purpose of a writ of foreign attachment clearly leads to the conclusion that the residency of appellants is a question of personal jurisdiction. Beginning with the Blackstonian era*fn3 and continuing to today a writ of foreign attachment is the equivalent of a summons for the commencement of a personal action and the means employed to compel an appearance by a nonresident. See Vant v. Gish, 412 Pa. 359, 371, 194 A.2d 522, 528 (1963); Nazareth Cement Co. v. Union Indemnity Co., 116 Pa. Superior Ct. 506, 510, 177 Atl. 64, 66 (1935); Amram & Flood, Pennsylvania Common Pleas Practice, ch. XIX, § 1 (6th ed. 1954); Restatement, Judgments, § 32 at 128-29 (1942). Given the fact that a writ of foreign attachment is merely a method for compelling an appearance when personal service cannot be obtained, to hold that appellants' residency is a question of subject matter jurisdiction is a clear contradiction in terms. Simply, had appellee brought its action in the Orphans' ...