No. 358 April Term, 1977, Appeal from the Order dated December 14, 1976, of the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division, at No. GD75-23756.
Robert E. Tucker, Pittsburgh, with him John B. Montgomery, Pittsburgh, for appellant.
Kenneth P. Simon, Pittsburgh, with him Allan A. Garfinkel, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 257 Pa. Super. Page 46]
This appeal arises from an order of the court below sustaining preliminary objections to service of process on the Baltimore Bank For Cooperatives (the Bank) and quashing the writ to join the Bank as a party. The question presented for our review is whether the Bank's activities rendered it subject to the in personam jurisdiction of the court below. However, for the reasons that follow, we cannot address the merits of this issue, and must remand the case for development of a record upon which the factual question of jurisdiction may be resolved.
Through its Trustee in Bankruptcy, Country Belle Cooperative Farmers (Country Belle) sued Lehigh Valley Dairy
[ 257 Pa. Super. Page 47]
Cooperative (Lehigh) in trespass and assumpsit for wrongful conversation of milk and breach of a management agreement. During discovery, the Trustee determined that the Bank, a lender to Country Belle and Lehigh, violated its fiduciary duty to Country Belle, and thereupon attempted to join the Bank as a party defendant.
The Bank, a non-registered foreign corporation, was served with process by registered mail through the Secretary of the Commonwealth pursuant to the long arm statute.*fn1 It then filed preliminary objections demurring to the complaint, challenging the subject matter jurisdiction of the court below, and contesting service of process on the basis that its activities are within the exception to the "doing business" requirement of the long arm statute.*fn2
Subsequently, the Trustee attempted to depose the president of the Bank to inquire into the factual questions raised by preliminary objections, but the court below issued a protective order suppressing taking of the deposition until resolution of the preliminary objections.*fn3 Shortly thereafter, the lower court held that the Bank's activities are within the exception to the long arm statute, and consequently sustained preliminary objections to service of process and quashed the writ joining the Bank as a party. This appeal followed.
[ 257 Pa. Super. Page 48]
Pa.R.C.P. 1028(c) provides in part that "[t]he court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall take evidence by depositions or otherwise." Examination of the pleadings in this case reveals the existence of a factual question raised by the Bank's preliminary objections, i. e., whether the Bank's activities in Pennsylvania were sufficient to subject it to the in ...