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FAHY v. LEBLANC (12/11/72)


decided: December 11, 1972.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1970, No. 2100, in case of Agnes Fahy v. Simon LeBlanc.


James J. McCabe, with him Richard A. Kraemer, and Duane, Morris & Heckscher, for appellant.

Peter P. Liebert, 3rd, with him Richard A. Devlin, and Liebert, Short, Fitzpatrick & Lavin, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Packel, J.

Author: PACKEL

[ 223 Pa. Super. Page 186]

Ancient roots support the rule that judicial jurisdiction will normally not be asserted as to nonresidents who are present locally only because they are witnesses or parties to litigation in the jurisdiction.*fn1 This immunity from legal process "is not a privilege of the individual, however, but of the court itself and exists that the business of the courts might be expedited and justice duly administered by insuring immunity to those who might not otherwise appear and whose attendance is necessary to the proper trial of a case:

[ 223 Pa. Super. Page 187]

[Citations]." Crusco v. Strunk Steel Co., 365 Pa. 326, 328, 74 A.2d 142, 143 (1950).*fn2

The appellant and the appellee were the operators of motor vehicles which collided in Canada. A passenger in appellant's vehicle brought one action against the appellee in Canada and another action against the appellant in Philadelphia. Shortly after the Canadian action was dismissed, the appellee testified in the Philadelphia action. On his way home, while still in Philadelphia, he was served with process in an action brought by the appellant against him. The appellant contends that the immunity rule should not be applied in this case, particularly because the appellee had appeared in Philadelphia as a part of a deal to relieve him from liability in Canada. The appellee denies the existence of any deal and contends that the immunity rule was properly applied by the court below in sustaining preliminary objections to jurisdiction.

The last word of the Supreme Court on the immunity issue is Eberlin v. Pennsylvania R.R. Co., 402 Pa. 520, 167 A.2d 155 (1961). It was there held that a nonresident who chooses to assert a cause of action in this jurisdiction as to a transaction is not immune from the service of process for a cause of action asserted against him, arising out of the same transaction. The underlying reason for this conclusion was stated as follows (402 Pa. at 522, 167 A.2d at 156-157): "The privilege is only extended as judicial necessities require and should be denied if the court feels that under the circumstances the judicial necessity is not great enough

[ 223 Pa. Super. Page 188]

    to require it. See Long v. Ansell, 293 U.S. 76, 83 (1934)."

The basis for the decision not to protect a nonresident litigant in that type of case is that the reason for granting immunity is outweighed by the importance of justly resolving the full dispute between the parties.*fn3 An additional factor is that the nonresident's presence in the jurisdiction is for his own benefit.*fn4 At issue in this case is whether such reasoning does not apply to preclude the granting of immunity to the appellee, a nonresident witness testifying as to fault for a motor vehicle collision in which he and the appellant were the operators.

Aside from any question of a deal as claimed by appellant, it can hardly be disputed that the voluntary appearance of the appellee to testify in this jurisdiction was to serve his own interest. By helping the appellant's passenger to recover full damages in a suit against the appellant, the appellee is decreasing the likelihood of having to defend a claim against himself. Clearly justice would not be served by postponing a determination of the appellee's fault in the collision. For these reasons, the appellee should not be granted immunity in this case.

[ 223 Pa. Super. Page 189]

In view of the ease of modern transportation and communication,*fn5 in view of new procedural methods for obtaining trial evidence from witnesses who are out of the jurisdiction,*fn6 and in view of expanding concepts for the exercise of jurisdiction,*fn7 perhaps the time has come for the total elimination of the immunity rule, but that issue need not be decided at this time.

The order of the court below is reversed.


Order reversed.

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