Tops Apparel Manufacturing Co. v. Rothman ( 1968 )

Opinion by

Mr. Justice Roberts,

This appeal involves the propriety of the issuance by the court below of a writ of foreign attachment under Pa. R.C.P. 1252(1). That rule provides in pertinent part: “A foreign attachment may be issued to attach property of a defendant . . . when (1) the defendant is an individual who is a nonresident of the Commonwealth, even though he is present in the Commonwealth; . . .” Appellants attack the issuance of this writ, contending that the court below lacked jurisdiction by virtue of the fact that appellants were Pennsylvania residents. However, since appellants did not raise the jurisdictional issue by either preliminary objections¹ or answer, Pa. R.C.P. 1032 mandates that they have waived any jurisdictional objection unless that objection can be properly classified as one involving “subject matter” jurisdiction. The question thus posed is whether appellants’ now asserted² Pennsylvania residency vitiates the subject matter jurisdiction of the court below.

A question as to subject matter jurisdiction can be raised at any time; the residency requirement in Rule 1252(1), however, involves a question of personal not subject matter jurisdiction. In Jones Memorial Baptist Church v. Brackeen, 416 Pa. 599, 602, 207 A. 2d 861, 863 (1965) we succinctly stated those elements necessary to determine whether a matter was within the subject matter jurisdiction of a court: “The test of jurisdiction is the competency of the court to hear and determine controversies of the general class to which the case presented for consideration belongs. The question is whether the court has power to enter into the inquiry and not whether it is able to grant the relief sought in the particular case.” It cannot be doubted that the Court of Common Pleas of Montgomery County is competent to entertain writs of foreign attachment, the general class of eases here involved. The question of appellants’ residency, on the other hand, involves only whether the court below can grant the writ sought.

Furthermore, an examination of the purpose of a writ of foreign attachment clearly leads to the conclusion that the residency of appellants is a question of personal jurisdiction. Beginning with the Blackstonian era³ and continuing to today a writ of foreign attachment is the equivalent of a summons for the commencement of a personal action and the means employed to compel an appearance by a nonresident. See Vant v. Gish, 412 Pa. 359, 371, 194 A. 2d 522, 528 (1963); Nazareth Cement Co. v. Union Indemnity Co., 116 Pa. Superior Ct. 506, 510, 177 Atl. 64, 66 (1935); Amram & Flood, Pennsylvania Common Pleas Practice, ch. XIX, §1 (6th ed. 1954) ; Restatement, Judgments, §32 at 128-29 (1942). Given the fact that a writ of foreign attachment is merely a method for compelling an appearance when personal service cannot be obtained, to hold that appellants’ residency is a question of subject matter jurisdiction is a clear contradiction in terms. Simply, had appellee brought its action in the Orphans’ Court of Montgomery County, an objection to that court’s jurisdiction on the grounds of subject matter would have been well taken; but the common pleas courts do have subject matter jurisdiction to issue writs of foreign attachment.⁴ Therefore, since any objection based upon appellants’ residence is not one of subject matter, failure to assert this objection timely under Pa. R.C.P. 1032 works a waiver and appellants cannot attack the lower court’s decision to issue the writ on this ground.

Assuming arguendo that residency is a question of subject matter jurisdiction, and that the court below must resolve this issue regardless of when this defect is asserted, we believe that the decision of the court below should be affirmed.⁵ Appellants in their preliminary objections admitted that they were New Jersey residents.⁶ Admissions of this type, i.e., those contained in pleadings, stipulations, and the like, are usually termed “judicial admissions”⁷ and as such cannot later be contradicted by the party who has made them.⁸ See Wigmore, Evidence §1603(2) (3d ed. 1940). Accepting appellants’ contention that residency is a subject matter jurisdictional issue, we can agree that to give the pleadings conclusive effect would be to allow the parties to confer subject matter jurisdiction where none existed. Yet that does not mean that admissions in the pleadings have no evidentiary value and cannot be used as the basis for a finding that appellants have a New Jersey residency. An examination of the lower court opinion convinces us that the lower court concluded on the basis of this admission, combined with those made in prior pleadings in related litigation,⁹ see footnote 3, supra, that the assertion of Pennsylvania residency contained in one of the appellants’ depositions was not credible. The finding by the lower court that appellants were New Jersey residents, when approved by the court en banc, has the effect of a jury verdict¹⁰ and will not be disturbed upon appeal if there is adequate record evidence to support this finding.¹¹ Certainly, appellants’ consistent position prior to the deposition is such adequate record evidence and we therefore believe that the order of the court below must be affirmed.

Order affirmed.

1 Appellants’ preliminary objections asserted only several alleged defects in tbe sheriff’s service and return; in fact, appellants averred that they were nonresidents domiciled in New Jersey.

2 According to the record, appellants did not raise their alleged Pennsylvania residence in their preliminary objections. See footnote 1, supra.

3 See Goodrich-Amram, Standard Pennsylvania Practice §1251-2 (1967).

4 If appellants are Pennsylvania residents, they are subject to the court’s jurisdiction. If they are New Jersey residents, an action may be instituted by foreign attachment. Obviously, the appellants’ residence does not affect the court’s competency but merely involves a question of the proper procedure to institute suit.

5 The decision below is appealable under the Act of April 26, 1917, P. Jj. 102, 12 P.S. §1108. See Badler v. L. Gillarde Sons Co., 387 Pa. 266, 127 A. 2d 680 (1956). Badler holds that “the record must plainly present a clear abuse of discretion, before a reversal can be had.” Id. at 269, 127 A. 2d at 682.

6 This is not the first proceeding in which appellants have asserted their New Jersey residency. Thus, in a prior action between appellee and a corporation wholly owned by appellants, appellants insisted both in preliminary objections to a replevin action and in preliminary objections to a writ of foreign attachment appended to the replevin action that they resided in New Jersey. An identical statement of residency was contained in appellants’ notice to take depositions. There is thus considerable merit in the following observation of the court below: “It is time the preliminary skirmishing is brought to an end. The plaintiff has been chasing an agile will-o-the-wisp for four years. Now we are asked to grant further delay and allow further roadblocks because one of the principals suddenly changes his mind as to where he has lived all along.”

7 See Giannone v. United States Steel Corp., 238 F.2d 544, 547 (3d Cir. 1956) (Goodrich, J., applying Pennsylvania law).

8 Pennsylvania has followed this rule since Wills v. Kane, 2 Grant 60, 63 (Pa. 1853), where it was insisted: “When a man alleges a fact in a court of justice, for his advantage, lie shall not be allowed to contradict it afterwards. It is against good morals to permit such double dealing in the administration of justice.” Appellants here alleged that they resided in New Jersey in support of their preliminary objection that the writ should be dismissed on the ground of forum non conveniens, an allegation made for their advantage.

9 The statements as to residency contained in pleadings of prior litigation were clearly admissible as an aid to resolution of this issue. See Lapayowker v. Lincoln College Preparatory School, 386 Pa. 167, 176, 125 A. 2d 451, 456 (1956) (and cases cited therein).

10 Reid v. Brodsky, 397 Pa. 463, 156 A. 2d 334 (1959); Teats v. Anderson, 358 Pa. 523, 58 A. 2d 31 (1948).

11 Van Products Co. v. General Welding & Fabricating Co., 419 Pa. 248, 257, 213 A. 2d 769, 774 (1965).