Klein v. Gaston De Paris, Inc. ( 1930 )

Argued November 11, 1930. The plaintiff in his cause of action averred that the defendant, a foreign corporation, "has property and choses in action located in the State of Pennsylvania."

We regard the averment as fatally defective, not, however, for the failure to aver that the defendant had no agent within the Commonwealth upon whom process could be served, which was the view taken by the learned court below. A resident of another state who has an agent or clerk in his place of business in this Commonwealth is not exempt from process of foreign attachment (Chase v. The Ninth National Bank of New York, 56 Pa. 355); therefore, it is not a jurisdictional fact which must be alleged. But the plaintiff must aver the presence of the defendant's property, real or personal, within the county at the time of the issuance of the writ, or if it is intangible property, that there is money, choses in action, etc., of the defendant in the possession of, or due or owing to it by, someone capable of being summoned as garnishee within the county. The omission to set forth these indispensable facts is fatal to the proceeding.

See opinion filed this day in the case of Morinelli v. H.P. Garin Company and Market Street National Bank, garnishee.

Order affirmed.