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ALUMBAUGH v. WALLACE BUSINESS FORMS (12/11/73)

decided: December 11, 1973.

ALUMBAUGH
v.
WALLACE BUSINESS FORMS, INC. ET AL., APPELLANTS



Appeal from order of Court of Common Pleas of Delaware County, No. 10321 of 1971, in case of Denis L. Alumbaugh v. Wallace Business Forms, Inc., and Wallace Business Forms, Inc., Profit Sharing and Retirement Fund.

COUNSEL

K. Robert Conrad, with him Arthur L. Pressman, and Pepper, Hamilton & Scheetz, for appellants.

William D. March, for appellee.

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

Author: Hoffman

[ 226 Pa. Super. Page 512]

Appellants contend that the trial court erred in dismissing their preliminary objections, which alleged lack of personal jurisdiction over the parties.

[ 226 Pa. Super. Page 513]

The original action in assumpsit was brought by the appellee, a former employee of Wallace Business Forms, Inc., one of the appellants herein. In this action, the appellee sought the payments to him of his claimed vested interest in a profit-sharing and retirement fund. The fund is administered by the appellant, Wallace Business Forms, Inc., Profit-Sharing and Retirement Fund. The original Complaint was served by the Sheriff of Montgomery County at the office of the corporate employer upon the salesman in charge of the Montgomery County office.

Each appellant, represented by the same attorney, filed separate Preliminary Objections. The Fund claimed the Court lacked jurisdiction of the person for the reason that the salesman was not authorized to accept service of process on its behalf; that it was a trust domiciled in Illinois, carrying on no activities in the Commonwealth; and, that it was an entity separate and distinct from the corporate employer. The corporate employer also denied the jurisdiction of the Court, contending that the Fund was not properly served, and that since the Fund was an "indispensable party" to the case, no action could be maintained against the corporation alone. The appellee, on the other hand, argued that service of process upon Wallace Business Forms, Inc., was effective service upon the Fund.

A court en banc heard argument on appellants' objections. On December 14, 1972, the Court, through Judge C. Norwood Wherry, dismissed appellants' Preliminary Objections. The lower court arrived at its decision after hearing oral argument, accepting formal briefs on the issues presented, and examining the pleadings and deposition of Herbert L. Dean, who served as the trustee of the Fund and as Vice-President of the corporate employer. Following the order of the court en banc dismissing preliminary objections, appellants took the appeal to this Court.

[ 226 Pa. Super. Page 514]

The major portion of appellants' brief is addressed to the argument that the Fund lacks "sufficient contacts" to permit the courts of Pennsylvania to obtain personal jurisdiction. The appellee chooses only to rebut appellants' arguments. While, at some later point, evidence in support of or in opposition to the lower court's jurisdiction over the person of the Fund would be of material importance, we are in agreement with the court en banc that on the state of the record, the issue is not able to be resolved.

Pennsylvania Rule of Civil Procedure 1028(c) requires that "[t]he Court shall determine promptly all preliminary objections. If an issue of fact is raised, the Court shall take evidence by deposition or otherwise." The Comment to this Rule, appearing in Goodrich-Amram ยง 1028(c)-3, delineates the duty and discretion of the Court in the case of doubtful ...


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