Fairchild Engine & Airplane Corp. v. Bellanca Corp.
| Decision Date | 08 January 1958 |
| Docket Number | 2767 |
| Citation | 391 Pa. 177,137 A.2d 248 |
| Parties | FAIRCHILD ENGINE & AIRPLANE CORPORATION, Plaintiff, v. BELLANCA CORPORATION, Defendant-Appellant, and Piasecki Aircraft Corporation, Garnishee. |
| Court | Pennsylvania Supreme Court |
Argued November 11, 1957
Appeal, No. 349, Jan. T., 1957, from order of Court of Common Pleas No. 4 of Philadelphia County, March T., 1957, No. 4248 in case of Fairchild Engine & Airplane Corporation v Bellanca Corporation and Piasecki Aircraft Corporation. Appeal dismissed.
Assumpsit commenced by foreign attachment.
Defendant's preliminary objections overruled and order entered, opinion by BROWN, P.J. Defendant appealed.
Appeal dismissed.
Melvin Lashner, with him Miller, Adelman & Lavine, for appellant.
John Norris, with him E. Brooks Keffer, Jr. and Norris, Lex, Hart & Ross, for appellee.
Before JONES, C.J., BELL, CHIDSEY, MUSMANNO, ARNOLD, JONES and COHEN, JJ.
Fairchild Engine & Airplane Corporation, organized under the laws of Maryland and having its principal place of business in Hagerstown, Maryland, brought suit in assumpsit in a court of common pleas of Philadelphia County against the Bellanca Corporation, which is organized under the laws of Delaware and has its principal place of business in New Castle, Delaware. The suit was for the recovery of damages for the defendant's alleged breach of a written contract executed in Delaware and to be performed there. Under the terms of the contract, Bellanca was to manufacture and deliver to Fairchild nose assemblies for military aircraft. After beginning performance of the contract, but before completion, Bellanca sold its plant and entire business in New Castle to Piasecki Aircraft Corporation which is organized under the laws of Pennsylvania and has its principal place of business at Island Road, International Airport, Philadelphia. Fair-child instituted its suit in Philadelphia County by a writ of foreign attachment summoning as garnishee, Piasecki, which has in its possession a valuable chose of Bellanca.
Bellanca filed preliminary objections to the complaint and moved for judgment in its favor, assigning as reason therefor that the court did not have jurisdiction of the parties plaintiff or defendant and should not take jurisdiction by way of foreign attachment as the controversy is between two foreign corporations not registered to do business in Pennsylvania and arose out of a contract which was made in Delaware for contemplated performance there. The court dismissed the preliminary objections and gave the defendant twenty days in which to answer over. Instead of so doing, however, the defendant took this appeal ostensibly under the Act of March 5, 1925, P.L. 23, 12 P.S. § 672, in the apparent belief that a jurisdictional question was involved. Such is plainly not the case.
The action being in assumpsit on a written contract is a subject matter whereof the common pleas court has undoubted jurisdiction. Witney v. Lebanon City, 369 Pa. 308 311, 85 A.2d 106; Strank v. Mercy Hospital of Johnstown, 376 Pa. 305, 309, 102 A.2d 170. As to the parties, the plaintiff is voluntarily in court by virtue of its own invocation of the court's jurisdiction. The suit having been instituted by writ of foreign attachment is a proceeding quasi in rem: Atkins v. Canadian SKF Company, 353 Pa. 312, 314, 45 A.2d 28. The garnishee, admittedly, has possession of property of the defendant, is a resident corporation amenable to the court's process and has been duly served with the writ. In Falk & Company v. South Texas Cotton Oil Company, 368 Pa. 199, 205, 82 A.2d 27, we said with respect to an action begun by writ of foreign attachment: "Two fundamental facts must coexist: (1) The defendant must be a nonresident or a foreign corporation; and (2) the defendant must have real or personal...
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