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RAYMOND RADAKOVICH AND ALAN FRANK v. LEONARD WEISMAN (06/28/76)

decided: June 28, 1976.

RAYMOND RADAKOVICH AND ALAN FRANK
v.
LEONARD WEISMAN, AN INDIVIDUAL AND WEISCORP, INC., A DELAWARE CORPORATION, APPELLANTS, V. J. J. GUMBERG COMPANY ET AL.



COUNSEL

Stanley M. Stein, Pittsburgh, for appellants.

Alan Frank, Frank & Radakovich, Pittsburgh, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Van der Voort, JJ.

Author: Hoffman

[ 241 Pa. Super. Page 37]

Appellants contend that the lower court erred in finding that the appellants submitted to the in personam jurisdiction of the court by filing "various pleadings that in no way address the question of jurisdiction."

The relevant portion of the tortious procedural history of the instant case may be summarized as follows: On May 23, 1974, appellees, Raymond Radakovich and Alan Frank, both attorneys, commenced an action in trespass against appellants, Leonard Weisman and Weiscorp, Inc.,*fn1 alleging that appellants tortiously interfered with a business relationship between appellees and others. Because appellant-Weisman was an individual residing in New York State, and appellant-Weiscorp, Inc. was a Delaware corporation having its principal place of business in New York State, appellees also filed a writ of foreign attachment naming Aaron Mandel and J. J. Gumberg Company as garnishees. On June 4, 1974, appellees moved to hold garnishee-Mandel in contempt for disposing of property allegedly belonging to appellants, in violation of the writ of foreign attachment. After garnishee reports were filed, a contempt hearing was scheduled for June 18, 1974. While appellant-Weisman was in Pittsburgh to testify at the June 18, 1974 hearing, he was served with a copy of the complaint in trespass.*fn2

[ 241 Pa. Super. Page 38]

On July 8, 1974, appellants filed preliminary objections which challenged both the manner of service of process and the lower court's venue. Thereafter, on both July 11, 1974, and July 16, 1974, the appellees filed amended complaints. Appellants, on July 30, 1974, refiled their preliminary objections, reiterating their challenges to venue and service of process. Prior to the lower court's ruling on the preliminary objections, appellants also took the following actions: obtained protective orders postponing appellees' attempts to depose appellant-Weisman until the lower court ruled on the preliminary objections, filed notices of depositions of appellees, Frank and Radakovich,*fn3 and answered appellees' motion to review the denial of their motion for a restraining order against garnishee-Mandel. After argument on the preliminary objections, the court en banc on March 10, 1975, per Zavarella, J.,*fn4 dismissed appellants' venue challenge, but sustained appellants' challenge to service of process. The lower court held, therefore, that it was without personal jurisdiction over the appellants. No appeal was taken from this order.

Despite the fact that appellants had never been properly served, the appellees continued to litigate. On May 23, 1975, appellees directed the prothonotary to enter a default judgment against the appellants. Appellants' motion to strike this judgment, filed May 30, 1975, was granted that same day. Appellees refiled notices to depose appellant-Weisman, and on June 27, 1975, also moved for sanctions against appellant-Weisman. Concerned over appellees' continued attempts to litigate the

[ 241 Pa. Super. Page 39]

    case, on July 11, 1975, appellants filed both a petition for declaratory judgment requesting that the lower court declare that the appellants "are not now subject to the general jurisdiction of the Court and that personal jurisdiction over them has not been obtained"*fn5 and a motion for a protective order staying depositions until the jurisdictional issue is resolved. For the first time on July 14, 1975, appellees, in both their renewed motion for sanctions and their answer to the petition for declaratory judgment alleged that the appellants submitted to the in personam jurisdiction of the court by filing various pleadings which in no way addressed the jurisdictional issue.

On July 24, 1975, the lower court, per McLean, J., ordered that the question of personal jurisdiction raised in the declaratory judgment be listed for argument and that appellant-Weisman appear for depositions. On August 8, 1975, appellants filed a petition for modification of this order, which was denied later that day. Finally, on October 15, 1975, the court en banc, per Flaherty, J.,*fn6 held that the appellants had submitted to the in personam jurisdiction of the court by "filing various pleadings that in no way address the question of jurisdiction." This appeal followed.

Appellants argue that the March 10, 1975 order sustaining their preliminary objections conclusively held that in personam jurisdiction over appellants did not exist, and further, that their actions subsequent to that order clearly demonstrated an intent not to submit to the court's jurisdiction. Thus, ...


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