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CONTINENTAL BANK v. BRODSKY (11/16/73)

decided: November 16, 1973.

CONTINENTAL BANK, APPELLANT,
v.
BRODSKY



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1973, No. 5191, in case of Continental Bank v. Gerald Brodsky.

COUNSEL

Ronald H. Surkin, with him Blank, Rome, Klaus & Comisky, for appellant.

No oral argument was made nor brief submitted for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Jacobs, J.

Author: Jacobs

[ 225 Pa. Super. Page 427]

In this suit on a contract we are asked to determine whether in personam jurisdiction may be obtained by the Pennsylvania courts over a California resident who, in the contract, had agreed to such jurisdiction and to service of process on an agent in the event of suit.

On September 15, 1969, appellee, who gave his address as 2204 Walnut Street, Philadelphia, Pennsylvania, signed an agreement to become surety for certain loans made by appellant to Tobaccoland, Inc. Appellant was then and is now a Pennsylvania bank with its principal office in Norristown, Pennsylvania. The agreement provided, inter alia, as follows: "Undersigned and each of Undersigned consent to the exclusive

[ 225 Pa. Super. Page 428]

    jurisdiction of the Courts of the Commonwealth of Pennsylvania in any and all actions and proceedings whether arising hereunder or under any other agreement or undertaking and appoint in any and all such actions and proceedings any employee of Bank as agent for each of Undersigned for service of process, which appointment shall be irrevocable and shall not be terminated or affected in any manner whatsoever by any modification, extension, renewal or termination of this Agreement, conditioned that all papers served upon said Agent be forwarded to Undersigned."

Appellant filed a complaint in assumpsit against appellee in the Court of Common Pleas of Philadelphia, on February 1, 1973, alleging a default on the part of Tobaccoland and asking judgment against appellee, as surety, for the amount of the default, plus interest. The complaint also alleged that the transactions took place in Philadelphia and that appellee was now residing at 907 North Rexford Drive, Beverly Hills, California. A vice-president of appellant accepted service on behalf of appellee, on February 6, 1973, and immediately forwarded a copy of the complaint to appellee. Appellee filed preliminary objections to jurisdiction over his person, alleging that the only service on him was by registered mail.

The lower court dismissed the complaint for lack of jurisdiction on the basis that the Pennsylvania Rules of Civil Procedure make no provision for service on an individual by serving his appointed agent. The court found the issue to be whether the parties by contract could change the rules of jurisdiction governing the Pennsylvania courts. On authority of Central Contracting Co. v. C. E. Youngdahl & Co., 418 Pa. 122, 133, 209 A.2d 810, 816 (1965), in which it was said that "private parties cannot change by contract the rules of jurisdiction or venue embodied in the various laws

[ 225 Pa. Super. Page 429]

    of this Commonwealth," it answered the issue in the negative and held that, therefore, the parties cannot by contract change the ...


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