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ICE PROJECTS, INC. v. WORLD HOCKEY ASSN.

May 5, 1977

ICE PROJECTS, INC. and Bernard M. Parent
v.
WORLD HOCKEY ASSOCIATION et al. and Harold E. Kohn, Esq., Garnishee



The opinion of the court was delivered by: HIGGINBOTHAM

 HIGGINBOTHAM, District Judge.

 In October, 1976 Bernard M. Parent and Ice Projects, Inc., plaintiffs herein, brought a Foreign Debtors Attachment action [Pa. R.Civ.P. 1255 et seq. ] and a Fraudulent Debtors Attachment [Pa.R.Civ.P. 1287, et seq. ] *fn1" against defendants, the World Hockey Association (hereinafter WHA) and Harold E. Kohn (hereinafter Garnishee), garnishee of an escrow fund established pursuant to a Consent Decree in the Professional Hockey Anti-Trust Litigation, M.D.L. # 119 (February 19, 1974). *fn2" After posting a bond for $170,000 the plaintiffs attached the bank certificate of deposit in the principal amount of $1,000,000 held by the garnishee under para. 14 of the Indemnification agreement, Appendix D to the Consent Decree.

 The Garnishee filed a petition to remove the cause of action to the federal district court; this court granted the petition, finding jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1337 and under the doctrine of ancillary jurisdiction. *fn3" Further, by order of this Court, entered on November 4, 1976, the attachments were quashed as to that amount of the res which exceeded plaintiffs' claims of $85,000.00.

 Decision on the Garnishee's motions to quash service of the writs and to dissolve the attachments in toto was reserved pending the submission of additional memoranda of law and oral argument by counsel. The WHA, relying on the garnishee's petitions and briefs, subsequently filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), (2), (4) and (5). These are the motions presently before this Court. After consideration of all arguments made on behalf of the parties in this litigation, I find that, for the reasons stated herein, defendants' motions to quash and dissolve the attachments and to dismiss the complaint are GRANTED.

 I.

 This protracted litigation arises out of an alleged breach of contract. Plaintiffs have claimed that defendants failed to pay Bernard M. Parent $60,000.00 allegedly due for services rendered for the 1972-1973 ice hockey season. A check was issued to plaintiff dated May 31, 1973 by the WHA. When the check was presented for payment on June 2, 1973 payment was refused because payment on the check was stopped.

 Plaintiffs maintain that it was not until August, 1976 that it became known to them that the $60,000 was never paid to them by the WHA. It is further alleged that only in August, 1976 did plaintiffs discover that defendant Howard J. Casper, Mr. Parent's attorney and agent, was allegedly employed by the WHA and had received $25,000 from the Philadelphia Hockey Club for signing Mr. Parent [Complaint, pages 5-7]. Plaintiffs have demanded $85,000, plus costs, from defendants, jointly and severally.

 II.

 Civil Action No. 76-3261 was commenced by Complaint and Writ of Foreign Attachment under Pa.R.C.P. Nos. 1251-1279, 42 Pa.C.S.A. §§ 8301 et seq. However, the Court of Appeals for this Circuit specifically held in the recent case Jonnet v. Dollar Savings Bank of the City of New York, 530 F.2d 1123 (3d Cir. 1976), that the Pennsylvania foreign attachment procedures violated the Due Process Clause of the Constitution. After balancing the interests of all parties in a foreign debtor attachment action, the Court stated that:

 
We deem the Pennsylvania procedures to serve only the potential plaintiff's interests and to provide insubstantial protection to the prospective defendant against wrongful attachment. [ 530 F.2d at 1129]
 
. . . ex parte procedures which summarily deprive a party of an interest in property, even though temporarily, without notice, an opportunity for a prompt hearing, or other essential safeguards against wrongful seizure. 530 F.2d at 1130.

 Thus, plaintiff's attachment pursuant to the constitutionally defective Writ of Foreign ...


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