229 Pa. Super. 359 | Pa. Super. Ct. | 1974
Opinion by
This is an appeal from an order denying a motion to dismiss a counterclaim for lack of jurisdiction.
Appellants are trustees of the assets of the Penn Central Transportation Company, which is at present undergoing reorganization in the United States District Court for the Eastern District of Pennsylvania. Among the assets is the Hanlin Slag Dump located along the railroad right-of-way in Washington County, Pennsylvania. In 1972, appellants initiated an action in the Court of Common Pleas of Allegheny County charging, inter alia, that appellee, Ran-Per, Inc., had breached its license to remove slag from the Hanlin Dump.
It was appellants who invoked the jurisdiction of the courts of the Commonwealth of Pennsylvania. They admit they had the authority to do so.
For these reasons, we find that appellants have waived their right to assert that the general prohibition of paragraph 9 deprives the courts of the Commonwealth of Pennsylvania from having jurisdiction over appellee’s counterclaim. Appellants, however, are still free to petition the District Court to pass specifically on the question presented here, in which event we shall abide by the decision of the District Court.
The order of the lower court is affirmed.
The appeal is authorized by The Appellate Court Jurisdiction Act, July 31, 1970, P. L. 673, No. 223, art. V, §501, 17 P.S. §211.501 and Act of March 5, 1925, P. L. 23, §1, 12 P.S. §672. See McCrory Corp. v. Girard Rubber Gorp., 225 Pa. Superior Ct. 45, 47 n.1, 307 A. 2d 435, 436 n.1 (1973).
The history of this litigation is stated in Baker v. Rangos, 229 Pa. Superior Ct. 333, 324 A. 2d 498, also filed today.
Paragraph 5 of the District Court’s order of «Tune 21, 1970, states in part that “the Debtor is authorized and empowered to institute or prosecute in any court or before any tribunal of competent jurisdiction all such suits and proceedings as may be necessary in its judgment for the recovery or proper protection of its property or rights. . . .”
Paragraph 5 of the District Court’s order authorizes appellants “to defend and to liquidate, compromise, adjust or make settlement of any actions, proceedings or suits now pending against the Debtor or which may hereafter be asserted or be brought in any court ... to which the Debtor is or shall be a party. . . .”
Paragraph 5 of The District Court’s order states that “no payment shall, without further order of this Court, be made by the Debtor in respect of any such actions, proceedings or suits on claims accruing prior to the date of this order, except such claims as may be permitted to be paid by this order or by other general orders hereafter entered herein, . . . ; and no action taken by the Debtor in defense or settlement of such claims, actions, proceedings or suits shall have the effect of establishing any claim upon, or right in, the property or funds in the possession of the Debtor that otherwise would not exist.”
See Penn Central Transp. Co. v. March Warehouse Corp., 356 F. Supp. 567 (S.D. Ind. 1972). But see Baker v. Gold Seal Liquors, Inc., 484 F. 2d 950 (7th Cir. 1973), cert, granted, 414 U.S. 1156, 94 S. Ct. 913, 39 L. Ed. 2d 108 (1974).