430 Pa. 583 | Pa. Super. Ct. | 1968
Lead Opinion
Opinion by
This appeal involves the propriety of the issuance by the court below of a writ of foreign attachment un
A question as to subject matter jurisdiction can be raised at any time; the residency requirement in Rule 1252(1), however, involves a question of personal not subject matter jurisdiction. In Jones Memorial Baptist Church v. Brackeen, 416 Pa. 599, 602, 207 A. 2d 861, 863 (1965) we succinctly stated those elements necessary to determine whether a matter was within the subject matter jurisdiction of a court: “The test of jurisdiction is the competency of the court to hear and determine controversies of the general class to which the case presented for consideration belongs. The question is whether the court has power to enter into the inquiry and not whether it is able to grant the
Furthermore, an examination of the purpose of a writ of foreign attachment clearly leads to the conclusion that the residency of appellants is a question of personal jurisdiction. Beginning with the Blackstonian era
Assuming arguendo that residency is a question of subject matter jurisdiction, and that the court below must resolve this issue regardless of when this defect is asserted, we believe that the decision of the court below should be affirmed.
Order affirmed.
Appellants’ preliminary objections asserted only several alleged defects in tbe sheriff’s service and return; in fact, appellants averred that they were nonresidents domiciled in New Jersey.
According to the record, appellants did not raise their alleged Pennsylvania residence in their preliminary objections. See footnote 1, supra.
See Goodrich-Amram, Standard Pennsylvania Practice §1251-2 (1967).
If appellants are Pennsylvania residents, they are subject to the court’s jurisdiction. If they are New Jersey residents, an action may be instituted by foreign attachment. Obviously, the appellants’ residence does not affect the court’s competency but
The decision below is appealable under the Act of April 26, 1917, P. Jj. 102, 12 P.S. §1108. See Badler v. L. Gillarde Sons Co., 387 Pa. 266, 127 A. 2d 680 (1956). Badler holds that “the record must plainly present a clear abuse of discretion, before a reversal can be had.” Id. at 269, 127 A. 2d at 682.
This is not the first proceeding in which appellants have asserted their New Jersey residency. Thus, in a prior action between appellee and a corporation wholly owned by appellants, appellants insisted both in preliminary objections to a replevin action and in preliminary objections to a writ of foreign attachment appended to the replevin action that they resided in New Jersey. An identical statement of residency was contained in appellants’ notice to take depositions. There is thus considerable merit in the following observation of the court below: “It is time the preliminary skirmishing is brought to an end. The plaintiff has been chasing an agile will-o-the-wisp for four years. Now we are asked to grant further delay and allow further roadblocks because one of the principals suddenly changes his mind as to where he has lived all along.”
See Giannone v. United States Steel Corp., 238 F.2d 544, 547 (3d Cir. 1956) (Goodrich, J., applying Pennsylvania law).
Pennsylvania has followed this rule since Wills v. Kane, 2 Grant 60, 63 (Pa. 1853), where it was insisted: “When a man al
The statements as to residency contained in pleadings of prior litigation were clearly admissible as an aid to resolution of this issue. See Lapayowker v. Lincoln College Preparatory School, 386 Pa. 167, 176, 125 A. 2d 451, 456 (1956) (and cases cited therein).
Reid v. Brodsky, 397 Pa. 463, 156 A. 2d 334 (1959); Teats v. Anderson, 358 Pa. 523, 58 A. 2d 31 (1948).
Van Products Co. v. General Welding & Fabricating Co., 419 Pa. 248, 257, 213 A. 2d 769, 774 (1965).
Concurrence Opinion
As I understand, this Court now holds that the question of residency of a defendant in an action of foreign attachment is one of personal and not subject matter jurisdiction, that appellants by their failure to assert this objection timely under Pa. R.C.P. 1032 have waived the question of personal jurisdiction and that, even if residency was a question of subject matter jurisdiction, this Court is bound by the finding of the court below that appellants were residents of New Jersey.
I disagree with the position taken in the majority opinion that the question of residency is one of personal and not subject matter jurisdiction. The non-residency of a defendant in the Commonwealth is such a prerequisite to the institution of an action of foreign attachment that it assumes the status of a subject matter jurisdictional requirement. Unless it be established that the defendant is a nonresident of the Commonwealth then a court does not have the competency to hear and determine the action. In the absence of the establishment of nonresidency of the instant appellants in the Commonwealth, it is my opinion that the court below would not have had the power to entertain this action.
However, I agree with the view expressed in the majority opinion that we are bound by the finding of the court below that appellants were New Jersey residents and, therefore, would affirm the order of the court below.
Dissenting Opinion
Dissenting Opinion by
I cannot agree with the majority that the residency requirement under Pa. R.C.P. 1252(1) involves a question of personal and not subject matter jurisdiction.
Appellants challenge the issuance of the writ on the basis that they were residents of Pennsylvania at the
I am of the opinion, as was the lower court, that nonresidency of a defendant is at least a jurisdictional prerequisite to the issuance of a writ of foreign attachment. Pa. R.C.P. 1252 (1); Fairchild Engine & Airplane Corp. v. Bellanca Corp., 391 Pa. 177, 137 A. 2d 248 (1958). A dispute over the residency requirement goes to the very heart and existence of the court’s power and legislative authority to issue such a writ, and consequently, I cannot adhere to the majority’s position that the failure to raise the jurisdictional question by way of preliminary objections automatically under Pa. R.C.P. 1032 works a waiver of the opportunity to attack the lower court’s decision in issuing the writ on this ground. It is a fundamental principle of law that a litigant can challenge at any time a court’s lack of power or authority to act. Therefore, whenever and however the absence of a nonresident defendant is brought to the attention of the court, it is mandatory that the court dismiss the cause of action in foreign attachment. Dulles v. Dulles, 180 Pa. Superior Ct. 598, 119 A. 2d 577 (1956); Stark v. Meyer, 15 Pa. D. & C. 2d 707, 710 (1958). An action commenced by way of a writ of foreign attachment is a
The lower court, while recognizing the principle that a statutory jurisdictional prerequisite cannot be waived by the parties, still concluded and with the apparent approval of the majority of this Court, that appellants’ prior pleadings of residency were determinative of the issue. I disagree.
Whenever a court is confronted with a jurisdictional question of this nature, it must, in my view, make an independent factual determination of a defendant’s residency in order to satisfy itself with respect to its jurisdiction over a cause of action in foreign attachment. To accept a claim of residency as determinative, based on pleadings which subsequently are denied, is to permit the parties themselves to create jurisdiction where none exists and in effect is tantamount to a finding that a party may waive a jurisdictional prerequisite. The majority opinion, while recognizing that
It is inconceivable to me that the court below had all the necessary information at its disposal when it made this so-called finding of fact that appellants were nonresidents of this Commonwealth. In fact, all the court below had before it were the various pleadings which obviously cannot be sufficient to make a proper finding of fact with respect to appellants’ residency or nonresidency.
I dissent.
The record indicates that appellants alleged in their formal preliminary objections they were residents of the State of New Jersey.
See 3A Anderson, Pennsylvania Civil Practice §1251.2 (1963) wherein Anderson commenting on the nature of foreign attachment action states: “Under the Rules of Civil Procedure, a foreign attachment preserves its character as a separate form of action, although it is merely a special remedy to enforce a right which ordinarily would have been prosecuted in another form of action. Its character as an individual form of action is recognized by the rules in that the group of rules on foreign attachment is included in the sequence of ‘actions at law.’ Moreover, the form of writ refers to the commencement of a ‘foreign attachment,’ rather than the commencement of an assumpsit or an equity action by a writ of foreign attachment.”
In 10 Standard Pennsylvania Practice, Attachment, Oh. 42, §26 (1963), it is pointed out that “if the element of nonresidence is lacking this defect may he raised at any time and is not waived by any action of the defendant in defending on the merits. It is well settled that nonresidence of an individual defendant is a jurisdictional prerequisite to the issuance of foreign attachment against him.” (Emphasis supplied).
Proof of residency requires the court to consider a number of criteria, including the length of time the debtor remains with or without the state where the writ is issued, his intention with respect to permanent location, the purpose of Ms stay in a particular place, Ms business association, the location of his family, and the exercise of his right of suffrage. 6 Am. Jhr. 2d, Attachment and Garnishment §226 (1963). Needless to say, the court below and the majority opinion by relying entirely upon the pleadings never considered or evaluated all the necessary factors which must be used to reach a proper and just determination.
