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CHARLES E. O'CONNOR (12/07/77)

decided: December 7, 1977.

CHARLES E. O'CONNOR, ESCHEATOR OF THE COMMONWEALTH OF PENNSYLVANIA. THE SPERRY AND HUTCHINSON COMPANY, APPELLANT


Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Charles E. O'Connor, Escheator of the Commonwealth of Pennsylvania v. The Sperry & Hutchinson Company, No. 2578 December Term, 1969.

COUNSEL

W. Charles Hogg, Jr., with him Stephen W. Miller, and Clark, Ladner, Fortenbaugh & Young, for appellant.

Lawrence Barth, Assistant Attorney General, with him Arthur M. Cooper, Deputy Attorney General, Michael von Moschzisker, Deputy Attorney General, and Robert P. Kane, Attorney General, appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers and Blatt. Opinion by Judge Wilkinson, Jr. Dissenting Opinion by Judge Rogers.

Author: Wilkinson

[ 32 Pa. Commw. Page 601]

This case arises from a petition in escheat filed against the appellant in the Court of Common Pleas of Philadelphia County. On July 15, 1976 the lower court issued an order denying appellant's preliminary objections to the petition and this appeal followed. We affirm.

Appellant, The Sperry & Hutchinson Company (S & H), a New Jersey Corporation authorized to do business in Pennsylvania, supplies retail merchants in Pennsylvania with what are commonly called "S & H Green Stamps" under an agreement whereby the merchants purchase pads of stamps for issue to their customers to induce sales. The customers in turn have books to be filled with these trading stamps which can then be presented for redemption by S & H for merchandise. Predictably, not all of the stamps that have been issued have been redeemed. According to the averments,*fn1 unredeemed trading stamps valued in excess of three million dollars were issued by retail merchants in Pennsylvania to their customers up to December 1, 1962. Pursuant to Section 3 of the Act of May 2, 1889, P.L. 66, as amended, added by Section 1 of the Act of July 29, 1953, P.L. 986, as amended, 27 P.S. § 333,*fn2 on December 11, 1969 the appellee, Escheator of the Commonwealth of Pennsylvania, filed

[ 32 Pa. Commw. Page 602]

    a petition to escheat this amount. Appellant filed preliminary objections contending, inter alia, that under the rule in Texas v. New Jersey, 379 U.S. 674 (1965) the lower court lacked jurisdiction over the subject matter of the petition in escheat. Subsequent to the filing of the preliminary objections and answer, the parties agreed to defer argument until after the Supreme Court of the United States decided Pennsylvania v. New York, 407 U.S. 206 (1972) involving conflicting claims of several states as to escheated property. Argument on the preliminary objections was heard on May 28, 1975. The objections were dismissed by an order of the court below on July 15, 1976. Appellant filed an appeal based on the Act of March 5, 1925 (Act), P.L. 23, as amended, 12 P.S. § 672.

Under Section 1 of the Act, 12 P.S. § 672, an appeal is allowed "[w]henever in any proceeding at law or in equity the question of jurisdiction over the defendant or of the cause of action for which suit is brought is raised in the court of first instance. . . ." The availability of the Act as a vehicle for appeal of an order that would otherwise be interlocutory and unappealable at this stage depends upon whether a true question of jurisdiction is raised. Studio Theaters, Inc. v. Washington, 418 Pa. 73, 209 A.2d 802 (1965). Thus, the first question for our consideration is appellee's contention that this appeal does not raise a true question of jurisdiction.

Since S & H does not challenge that it was amenable to process and duly served, the sole question is whether appellant's claims raise a question of jurisdiction over the cause of action. Jurisdiction over the cause of action, as used in the statute, relates "solely to the competency of the particular court to determine controversies of the general class to which the case then presented for its consideration belongs."

[ 32 Pa. Commw. Page 603]

    the Court further held that then the superior power to escheat would lie with the state of the domicile of the holder of ...


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