Dozor Agency, Inc. v. Rosenberg

• Decision Date: 17 April 1961
• Citation: 169 A.2d 771,403 Pa. 237
• Parties: DOZOR AGENCY, INC. v. Carl ROSENBERG and World Mutual Health and Accident Insurance Co. of Pa. (two cases). Appeal of WORLD MUTUAL HEALTH AND ACCIDENT INSURANCE CO. OF PA.
• Court: Pennsylvania Supreme Court

169 A.2d 771

403 Pa. 237

DOZOR AGENCY, INC. v. Carl ROSENBERG and World Mutual Health and Accident

Insurance Co. of Pa. (two cases). Appeal of WORLD MUTUAL HEALTH AND ACCIDENT INSURANCE CO. OF PA.

Supreme Court of Pennsylvania.

April 17, 1961.

James E. Meneses, King of Prussia, F. D. Hennessy, Jr. Media, for appellant World Mut. Health & Accident Ins. Co. of Pa.

David Kanner, Philadelphia, Paul R. Sand, Media, for appellant Carl Rosenberg.

Jack Brian, Robert L. Wilson, Berman, Richard & Brian, Upper Darby, appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R JONES, COHEN, BOK and EAGEN, JJ.

BELL Justice.

Each defendant appealed from the order of the lower Court which dismissed their respective preliminary objections. The lower Court, after hearing, entered a preliminary injunction, but strange to say the appeals were taken only from the orders which overruled the preliminary objections. The appeals raised a narrow question of jurisdiction--(1) did the lower Court lack jurisdiction because of want of an indispensable party, and (2) because Equity had no jurisdiction of the complaint since jurisdiction lay by statute solely and exclusively in the Insurance Commissioner of Pennsylvania.

Plaintiff which is a Pennsylvania corporation engaged in selling insurance, filed a complaint in equity against Rosenberg and World Mutual Health & Accident Insurance Co. of Pa., hereinafter referred to as 'World'. Plaintiff's material averments may be thus summarized:

Rosenberg was employed by plaintiff as a sub-agent in 1951; he was thereafter promoted to sales manager and later to president of the company. In these capacities he occupied a position of trust and confidence and had access to all the records of plaintiff. When Rosenberg resigned from the plaintiff company in May 1960, he secretly took from the files and possession of the plaintiff certain of its confidential records and data, including names, premium dates and amounts, and pertinent information concerning the active policyholders to whom plaintiff had sold insurance. These constituted a very valuable asset of plaintiff.

Plaintiff also averred that these records and information were taken not only for Rosenberg's own benefit, but also for the benefit of the other defendant, World; that Rosenberg's conduct was made known to World, but that World acquiesced in and encouraged Rosenberg's course of conduct and knowingly received, accepted and made use of the confidential information, property and records of plaintiff for its own benefit and to the detriment of plaintiff. These averments were sufficient to justify a preliminary injunction against both Rosenberg and World, although the injunction was issued only against Rosenberg. Robinson Electronic Supervisory Co. v. Johnson et al., 397 Pa. 268, 154 A.2d 494; Morgan's Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838; Macbeth-Evans Glass Co. v. Schnelbach, 239 Pa. 76, 86 A. 688; Restatement, Torts, Sec. 757, Comment b.; Restatement, Agency, Second § 396(b).

The list of policyholders and premium notices contained the names of customers who were also policyholders of the Fidelity Interstate Life Insurance Company, for whom plaintiff was a general agent. Fidelity was not, but defendants contend should have been joined as a party plaintiff. Plaintiff contends on the other hand that any damage which would result to Fidelity would be separate and distinct from the fraudulent appropriation and misuse of its property as well as the damage to plaintiff's property rights.

No question of defendants' right to appeal was raised by the parties, but 'It is never too late to question a court's jurisdiction of the subject matter. Fowler v. Eddy, 110 Pa. 117, 1 A. 789, * * *'. Bell Appeal, 396 Pa. 592, 597, 152 A.2d 731, 734. The grant or refusal of a preliminary injunction is appealable. Slott v. Plastic Fabricators, Inc., 402 Pa. 433, 167 A.2d 306; Lindenfelser v. Lindenfelser, 385 Pa. 342, 123 A.2d 626. However, generally speaking, an order overruling preliminary objections is interlocutory and not appealable. Grosso v. Englert, 381 Pa. 351, 113 A.2d 250. That general rule is, however, subject to the exception that if a question of jurisdiction is involved that question is appealable under the Act of March 5, 1925; ^[1] Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491; Powell v. Shepard, 381 Pa. 405, 113 A.2d 261.

In Gardner v. Allegheny County, the Court said (382 Pa. at pages 95-96, 114 A.2d at page 495):

'The question of indispensable parties raises a jurisdictional question and consequently may be considered under the Act of 1925: [citing cases]. In Fineman v. Cutler, 273 Pa. , at page 193, 116 A. , at page 820, supra, the Court said: "One must be joined who otherwise, not being bound by the decree, might assert a demand * * * which would be inequitable after the [principal defendants'] performance of a decree in favor of the plaintiff', * * *'.'

In Powell v. Shepard, 381 Pa. at page 412, 113 A.2d at page 264, supra, the Court said:

'* * * The absence of indispensable parties 'goes absolutely to the jurisdiction, and without their presence the court can grant no relief.' Hartley v. Langkamp and Elder, 243 Pa. 550, 556, 90 A. 402, 404. * * * And, a party is indispensable where his rights are so connected with the claims of the litigants that no decree can be made between them without impairing such rights. Hartley v. Langkamp and Elder, supra.'

For the reasons hereinabove set forth, we find no merit in defendants' contention that Fidelity Interstate Life Insurance Company was an indispensable party.

The principal contention made by defendants is that plaintiff's sole and exclusive jurisdiction for the unlawful or injurious conduct alleged in the complaint is in the Insurance Commissioner of Pennsylvania, under the Unfair Practices Act of June 5, 1947. ^[2] The Court further said in Gardner v. Allegheny County [382 P.2d 95, 114 A.2d 495]: "* * * 'The procedure prescribed by the Act of 1925 for testing jurisdiction 'in the court of first instance' applies to questions of jurisdiction either of the defendant or of the subjectmatter: Welser v. Ealer, 317 Pa. 182, 184, 176 A. 429. * * *' * * *'.

'In Welser v. Ealer, 317 Pa. at pages 183-184, 176 A. at page 429, supra, this Court said: 'This case is before us by virtue of the provisions of the Act of 1925, P.L. 23 authorizing an appeal from the preliminary determination of the lower court's ...