Tops Apparel Manufacturing Co. v. Rothman ( 1968 )

Concurring Opinion by

Mr. Justice Jones:

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.