Lox, Stock and Bagels, Inc. v. Kotten Mach. Co. of California, Inc.

• Decision Date: 14 December 1978
• Parties: LOX, STOCK AND BAGELS, INC. v. KOTTEN MACHINE CO. OF CALIFORNIA, INC., Appellant.
• Court: Pennsylvania Superior Court

395 A.2d 954

261 Pa.Super. 84

LOX, STOCK AND BAGELS, INC. v. KOTTEN MACHINE CO. OF CALIFORNIA, INC., Appellant.

Superior Court of Pennsylvania.

December 14, 1978

Submitted Sept. 15, 1978.

B. Jerome Shane, Philadelphia, for appellant.

Sandor Engel, Allentown, for appellee.

Before PRICE HESTER and HOFFMAN, JJ.

HOFFMAN Judge:

Appellant contends that the lower court erred in dismissing its preliminary objections challenging personal jurisdiction because it was immune from service of process. Because there is no evidence in the record to allow for the proper resolution of this issue, we vacate the lower court's order and remand for further proceedings.

On May 3 1977, appellant's general manager appeared before the Lehigh County Common Pleas Court to testify in a replevin action that appellant had instituted against appellee (hereinafter "Lox"). On that same day, Lox served appellant with a summons in assumpsit for the case at bar by having a deputy sheriff hand the writ to appellant's general manager in the Court House. To date, Lox has not filed a complaint in the instant assumpsit case.

On May 16, 1977, appellant filed preliminary objections to the service of the summons in assumpsit claiming that its general manager was immune from service of process because he was in the Court House on May 3, 1977 for the purpose of testifying in the replevin action against Lox. On October 21, 1977, Lox filed a verified answer to appellant's preliminary objections in which it alleged that appellant's replevin action "arose from the same transaction and set of facts as the instant (assumpsit) action." The record contains no sworn affidavits or testimony, either in court or by deposition, from either party. On January 23, 1978, after oral argument, the lower court dismissed appellant's preliminary objections. ^[1] This appeal followed.

Ordinarily, a non-resident defendant who is present in our jurisdiction only because he is a witness or party to litigation here is immune from service of process. See Crusco v. Strunk Steel Co., 365 Pa. 326, 74 A.2d 142 (1950). However "(w)here a nonresident commences an action within this Commonwealth our courts will not grant him immunity from service of process for a cause of action arising out of the same transaction." Eberlin v. Pennsylvania Railroad Co., 402 Pa. 520, 523, 167 A.2d 155, 157 (1961). See Fahy v. Abbattoir, 223 Pa.Super. 185, 299 A.2d 323 (1973). A party-defendant who wishes to challenge our courts' personal jurisdiction over him must do so by filing preliminary objections. Monaco v. Montgomery Cab Co., 417 Pa. 135, 140, 208 A.2d 252, 255 (1965); Pa.R.C.P. 1017(b)(1). As the moving party, he bears the burden of proving his objections. Alumbaugh v. Wallace Business Forms, Inc., 226 Pa.Super. 511, 313 A.2d 281 (1973). Although most party-defendants can be expected to wait until the plaintiff filed his complaint before making jurisdictional objections, nothing in the Rules prevents him from raising his objections before the complaint is filed. See Goodrich-Amram 2d § 1013(b):5. Pa.R.C.P. 1028(c) requires that "(t)he court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall take Evidence by depositions or otherwise." (emphasis added). "Doubtful cases should go to trial and not be disposed of on procedural grounds. This is particularly true if there are intricate factual relations and it is necessary to take evidence to substantiate or disprove the allegations." Goodrich-Amram 2d § 1028(c):3, cited with approval in Alumbaugh, supra. However, when the evidence in the record does not adequately support the lower court's disposition of the preliminary objections, we will remand for further proceedings. Lewandowski v. General Telephone Company, 223 Pa.Super. 476, 302 A.2d 478 (1973); Szekely v. Abilene Flour Mills Company, 211 Pa.Super. 442, 237...