60 A.2d 24 | Pa. | 1948
Plaintiff, Mine Inspector of the 21st Anthracite District of Pennsylvania sought an injunction against defendants prohibiting them from unlawfully and wrongfully operating and mining a barrier pillar separating the Brookside Mine and Williamstown Mine in Porter Township, Schuylkill Co., Pennsylvania, contrary to the Mine Laws of the Commonwealth (Articles IV and XII, Act of June 2, 1891, P. L. 176, 52 PS 281 et seq., as amended). Article XV, section 1, of the Act provides that any violation can be prohibited by a Court or Courts of the County wherein the mine proceeded against is situated but "this section shall be without prejudice to any other remedy, permitted by law for enforcing the provisions of this Act. . . ." (52 PS 501). The Act also states that the Mine Inspector may apply for an injunction against mines employing ten or more persons.
The bill avers (fourth averment) that defendants are neither lessees nor owners of the premises, nor do *429 they have any right, title or interest therein. There is no allegation to the effect that ten or more persons are being employed.
Because defendants were residents of Dauphin County, plaintiff applied to the court for an order authorizing extraterritorial service as provided by the Act of April 6, 1859, P. L. 387, as amended, 12 PS 1254. The order was granted and service made accordingly. Two of the defendants named were served personally while service upon the remaining defendants was made by serving adult members of their family. Defendants entered an appearance de bene esse for the purpose of challenging the jurisdiction of the court and the validity of the extraterritorial service. In their petition raising jurisdictional questions, defendants also averred that the bill alleges only the five named defendants as being employed in the mine while the Act limits the right of the Plaintiff Mine Inspector to apply for an injunction to mines employing ten or more persons.
In dissolving the preliminary injunction which was granted and in dismissing plaintiff's bill, the court said inter alia: "This averment [plaintiff's fourth averment] indicates clearly that the nature of the equitable relief in this case is 'in personam' and not 'in rein.' The defendants have no right, title or interest whatsoever in the property upon which they are conducting mining operations, they being mere trespassers in relation to this property. . . ."
The court also cited the following from our opinion inAtlantic Seaboard Natural Gas Company v. Whitten,
The distinction between actions in rem and actions in personam is set forth in Pennoyer v. Neff,
The Court said with respect to actions in personam: "But where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a non-resident is ineffectual for any purpose."
In Atl. Seaboard N. Gas Co. v. Whitten, supra, this Court said: "Decrees against persons directing them to take certain action in respect to property are generally regarded as decrees in personam." (Citing cases).
Because of the fact that a decree for an injunction acts upon the person of the defendant, proceedings for injunctions have been regarded as in personam, and the jurisdiction of the court over a non resident, not served personally in the state but by publication or out of the state, has been denied on constitutional grounds, or on the hypothesis that from the very nature of the case, a court sitting in one state would be powerless to enforce its mandate over a person residing in another jurisdiction, unless such person chose to submit his person to the process of such court. The Supreme Court of Oklahoma in Howard v. Berryman,
In McCormick v. Blaine,
The decree prayed for in the instant case if granted would not operate exclusively against the property but would operate against the individual defendants. Plaintiff seeks to interfere with defendants' acts on the property in question and not with the property itself. Plaintiff by injunction wishes to compel defendants to cease their mining operations until the substandard safety conditions are improved and the standards prescribed by the Anthracite Act are complied with. The decree required therefore is one in personam. *432
In Vandersloot v. Pa. W. P. Co.,
In Lunine v. Pa. Alcohol Permit Bd. et al.,
The following statement appears in Freeman v. Alderson,
The action now being reviewed is neither an action in rem nor an action quasi in rem. It is, as the court below held, an action in personam, in which the restraint of an injunction was sought to be imposed on certain individuals who, so it was alleged, were mining a barrier pillar, an act prohibited by law, and menacing the safety of workmen. The command in such a case is directed to individuals and it is in effect: Do not mine that barrier pillar of coal. See "the barrier pillar case", Commonwealth v. Plymouth Coal Co.,
Plaintiff's bill is also defective on its face since it does not aver that "more than ten persons" are employed by defendants. The Act specifically provides that it is enforceable against mines employing ten or more persons. InMahon et al. v. Penna. Coal Co.,
The decree of the court below is affirmed; costs to be paid by the appellant.