Vant v. Gish

• Decision Date: 11 October 1963
• Citation: 194 A.2d 522,412 Pa. 359
• Parties: Walter J. VANT v. Starling Marshall GISH, Jr., and Anna Roberta Gish, Defendants-appellants, and Pittsburgh National Bank a corporation, James C. McKay and John C. Crouch, Trustees of the Testamentary Trust of Robert J. McKay and of the Inter Vivos Trust of Robert J. McKay, Mellon National Bank and Trust Company, a corporation, and the McKay Company, a corporation, Garnishees.
• Court: Pennsylvania Supreme Court

Page 522

194 A.2d 522

412 Pa. 359

Walter J. VANT v. Starling Marshall GISH, Jr., and Anna Roberta Gish Defendants-appellants and Pittsburgh National Bank a corporation, James C. McKay and John C. Crouch, Trustees of the Testamentary Trust of Robert J. McKay and of the Inter Vivos Trust of Robert J. McKay Mellon National Bank and Trust Company, a corporation, and the McKay Company, a corporation, Garnishees.

Supreme Court of Pennsylvania.

Oct. 11, 1963.

Rehearing Denied Nov. 4, 1963.

Petition for Reconsideration of Rehearing Denied Nov. 19, 1963.

Ella Graubart, Patterson, Crawford, Arensberg & Dunn, Pittsburgh, for appellant.

Paul Ginsburg, Pittsburgh, for appellee.

Before BELL, C. J., and MUSMANNO, COHEN, EAGEN, O'BRIEN and ROBERTS, Jj.

ROBERTS, Justice.

In May, 1962, appellee Walter J. Vant instituted an action in trespass in the Court of Common Pleas of Allegheny County against appellants Starling M. Gish, Jr., and Anna R. Gish, residents of Illinois and minor children of his late wife by a prior marriage. Suit was begun pursuant to Pa.R.C.P. 1252, 12 P.S.Appendix by writ of foreign attachment. The praecipe for the writ stated that appellee's claim was in the amount of $150,000. Assets worth approximately $575,000 were attached in the hands of two Pittsburgh banks, trustees of stocks and bonds allegedly belonging to appellants and in the process of distribution to them. A complaint in trespass was filed shortly thereafter.

The substance of appellee's allegations was that in 1946, he married Evelyn McKaig Gish Vant, mother of appellants; that his wife executed a will in 1947 in which he was named a major beneficiary; that he and his wife moved to California in 1949, but he returned alone to Pennsylvania in 1952; that his wife died in Los Angeles in 1957; that in 1959, he offered her 1947 will for probate in the Superior Court of California, County of Los Angeles; that appellants and their father filed objections to probate of the will; that appellants, their father and their attorneys conspired to defraud appellee of his rights under the will be introducing fraudulent and false testimony in the probate court; that on June 30, 1961, a decree was entered by the California court denying probate; that as a result of that decree, appellee was deprived of his one-third interest in the estate of his wife and also of the entire estate of his wife's mother which his wife bequeathed to him by exercise of a power of appointment; that the will contest was false, fraudulent and maliciously designed to slander, defame and libel appellee and bring him into public hatred, ridicule and contempt; that the conduct engaged in by appellants in California constituted an abuse of civil process. ¹ To these allegations appellants filed preliminary objections consisting of a demurrer, a question of jurisdiction, a motion to strike off a pleading, an assertion of lack of capacity to use, and assertions that the assets were exempt from attachment and that no property of appellants was in the hands of the garnishees at the time of service of the writ. Simultaneously with the filing of preliminary objections, appellants petitioned to limit the assets attached and to release part of the property on the ground that the value of the assets greatly exceeded appellee's claim. At the time of argument, appellants presented a written motion to dismiss on the ground that the court lacked jurisdiction under Rule 1252, since the alleged tort occurred in California.

Rule 1252 provides:

'A foreign attachment may be issued to attach property of a defendant not exempt from execution upon any cause of action at law or in equity, other than an action ex delicto arising from acts committed outside the Commonwealth, in which the relief sought includes a judgment or decree for the payment of money * * *.' (Emphasis supplied).

As originally filed, appellee's allegations were of a conspiracy to obtain fraudulently a decree by the California court, a conspiracy which took place entirely in California, and of defamation in that state. Thus, the complaint on its face revealed a lack of jurisdiction in the court under Rule 1252, and appellants' preliminary objections were well taken. The court below, over appellants' objections, permitted appellee to amend his complaint so as to cure the jurisdictional defect and to allege conduct giving rise to jurisdiction in Pennsylvania.

Appellants' position is that since the initially alleged cause of action arose in California, the writ was fatally defective and the complaint could not be amended to validate the writ by advancing jurisdictional allegations not originally asserted. However, our determination here makes it unnecessary for us to pass upon this argument and upon the propriety of granting leave to amend.

It is quite evident from the complaint, as amended, that appellee again has failed to allege jurisdiction within Rule 1252. His amended pleading merely adds that appellants instituted civil proceedings in the Orphans' Court of Allegheny County (petition for grant of letters of administration) in 1957 (two years prior to the California will contest of 1959), ² and that appellee, in 1962, abandoned his appeal from the California adjudication of June, 1961, in reliance upon an apparently oral compromise communicated to his Pittsburgh attorney, with which appellants failed to comply after the appeal was withdrawn. ³ By these additional allegations, appellee sought to establish that appellants' conduct constituted an action of tort in Pennsylvania within Rule 1252.

It is evident from an examination of the amended pleading that the injury complained of remains the California decree which deprived appellee of the property in the estate there adjudicated. Only under the will denied probate in California could appellee obtain the amount of property to which he claims he is entitled.

Under the usual and prevailing doctrines of conflict of laws, the situs of a tort is the place of the injury. See Openbrier v. General Mills, Inc., 340 Pa. 167, 16 A.2d 379 (1940); Mike v. Lian, 322 Pa. 353, 185 A. 775 (1936); Restatement, Conflict of Laws § 377 (1934). In the language of the Restatement, § 377, 'The place of wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place.' ⁴ Since a conspiracy is actionable only when there is injury to the complainant, Helmig v. Rockwell Manufacturing Co., 389 Pa. 21, 35, 131 A.2d 622, 629 (1957); 7 P.L.E., Conspiracy § 1 (1958), under the principle of the Restatement, even if the alleged conduct in Pennsylvania could be considered part of the conspiracy, the situs of the tort is California where a court of competent jurisdiction rendered an adjudication denying to appellee property the value of which he here seeks to recover.

Although appellee labels his action as one for conspiracy to defraud, a careful reading of the pleadings indicates that he may also have alleged causes of action for malicious use or abuse of process. ⁵ However, so considering his amended complaint, we remain convinced that the allegations place the situs of the tort in California.

Further, we have indicated in Alpers v. New Jersey Bell Telephone Co., 403 Pa. 626, 170 A.2d 360 (1961), and by subsequent amendment of Rule 1252, that jurisdiction to issue writ of foreign attachment in tort cases is strictly limited to torts committed within this Commonwealth. See also Wolf, Foreign Attachment in Tort Cases, 32 Pa. B.A.Q. 217 (1961).

The Allegheny County Orphans' Court proceeding was commenced by appellants two years prior to the probate action instituted by appellee in California, as previously indicated. It is inconceivable that the mere commencement of a Pennsylvania proceeding (not pursued to adjudication at that time) could meaningfully affect or be a contributing influence or producing cause in the legal result of the probate proceeding instituted 2,500 miles away. Similarly, appellee's appeal from the adverse adjudication and his discontinuance of that appeal clearly and obviously involve California conduct. It is only the communication to appellee's Pittsburgh counsel of the alleged oral compromise that is placed in Pennsylvania. Neither one nor both of these allegations are of sufficient factual or legal significance or relationship to the injury complained of to constitute conduct in Pennsylvania of the nature essential to establish jurisdiction of appellee's cause of action under Rule 1252.

Therefore, in view of the record here presented, we find that, even on the amended complaint, the court below lacked jurisdiction to issue the writ of foreign attachment, and the attachment should have been dissolved.

There remains the additional question of whether or not appellants, by filing preliminary objections and a petition to release assets attached far in excess of the amount claimed, have engaged in conduct which amounts to a general appearance. If such conduct constitutes a general appearance, the proceeding below, after dissolution of the attachment, would continue as an ordinary in personam action in trespass.

As already noted, the preliminary objections consisted of a demurrer, a question of jurisdiction, a motion to strike, an allegation of lack of capacity to sue, an allegation that the assets were exempt from attachment, and an allegation that no property of appellants was in possession of the garnishees at the time of the attachment.

Ordinarily, any response by a defendant to the merits of a case will constitute a general appearance. See Yentzer v. Taylor Wine Co., 409 Pa. 338, 186 A.2d 396 (1962); Aquilina v. Doan, 374 Pa. 405, 97 A.2d 520 (1953); 1 Goodrich-Amram, Standard Penna. Practice § 1017(b)-7. Thus, preliminary objections, such as demurrer, which attack the substance and form of the complaint, will subject a defendant to the jurisdiction of the court. Yentzer v. Taylor Wine Co., supra. But Rules 1028(b) and 1032 re...