Opinion
March 2, 1942.
April 15, 1942.
Practice — Actions — Process — Fraternal beneficial associations — Jurisdiction — County — Principal office of place of business — Deputized services — Transaction of business — Ownership of real estate mortgages — Subordinate lodges — Acts of July 9, 1901, P.L. 614, April 27, 1927, P.L. 398 and April 3, 1903, P.L. 139.
1. An action of assumpsit against a fraternal beneficial association by an officer for salary alleged to be due him may not be brought in a county other than the one where the society has its principal office or place of business and service may not be made upon the association by deputizing the sheriff of the county of the domicile or place of business of the association.
2. The fourth clause of heading or section 1 of the Act of July 9, 1901, P.L. 614, as amended by the Act of April 27, P.L. 398, is not applicable in such case.
3. The Act of 1901, relating to service of process did not change the jurisdiction of courts; it only regulated service of process.
4. The Act of April 3, 1903, P.L. 139, amending the second clause or heading of section 1 of the Act of 1901, is not applicable in such case where it appears that the cause of action did not arise in the county in which the action is brought.
5. The setting-up of local lodges within a county does not constitute the transaction of its business within that county so as to authorize the bringing of an action there.
6. The mere title and ownership of a tract of land in a county where a fraternal beneficial association does not have its principal office or place of business or transact business, which is used and operated, without financial return to it, by a separate corporation of the first-class, not for profit, as an orphans' home, and the ownership of certain mortgages on real estate located in the county, do not constitute "corporate property" within the definition set forth in the decisions of the Supreme Court, such as to authorize the commencement of suit and the service of process upon a fraternal beneficial association in that county; and still less, service of process by deputizing the sheriff of a county where it does transact its business.
Appeal, No. 16, Feb. T., 1942, from order of C.P. Lackawanna Co., March T., 1941, No. 540, in case of Andrew Kaschak v. Greek Catholic Union of U.S.A.
Before KELLER, P.J., BALDRIGE, STADTFELD, RHODES, HIRT and KENWORTHEY, JJ. Order affirmed.
Petition and rule to set aside service and writ of summons.
The facts are stated in the opinion of the Superior Court.
Rule made absolute, opinion by LEACH, P.J. Plaintiff appealed.
Error assigned was the action of the court below in making absolute the rule.
Irving L. Epstein, with him J. Julius Levy, for appellant.
John B. Szabo, for appellee.
Argued March 2, 1942.
The defendant is a fraternal beneficial association with a lodge system, incorporated under the Act of April 29, 1874, P.L. 73, sec. 2, clause 9. See Greek Catholic Union Charter Amendment Case, 332 Pa. 424, 3 A.2d 410. Its principal office and place of business is in Allegheny County, Pennsylvania.
The plaintiff brought this action of assumpsit in Lackawanna County and attempted to have the writ served in Allegheny County by deputizing the sheriff of that county.
A rule to set aside the service was made absolute. Plaintiff has appealed.
We are at a loss to know on what authority the plaintiff relies to justify such service by deputizing the sheriff of another county. The defendant is not an insurance company, and this action is not on any character of insurance policy or certificate — it is for salary alleged to be due plaintiff as President of the Supreme Tribunal of the association and for expenses incurred by him in attending the 23d annual convention at Harrisburg in June, 1940. Hence the fourth clause or heading of section 1 of the Act of July 9, 1901, P.L. 614, as amended by Act of April 27, 1927, P.L. 398, does not apply. Nor does the Act of April 3, 1903, P.L. 139, amending the second clause or heading of section 1 of the Act of 1901, supra, apply, for the plaintiff's statement shows that the cause of action did not arise in Lackawanna County. The Act of 1901, supra, did not change the jurisdiction of courts; it only regulated service of process: Park Bros. Co. v. Oil City Boiler Works, 204 Pa. 453, 54 A. 334; Mazurek v. Farmers Mut. Fire Ins. Co., 320 Pa. 33, 39-40, 181 A. 570.
Act of May 20, 1921, P.L. 916, secs. 1, 30; Com. v. Equitable Beneficial Assn., 137 Pa. 412, 419, 420, 18 A. 1112.
But apart from this, we are of opinion that the court below correctly ruled that under our decisions in Kolesar v. Slovak Evangelical Union, 122 Pa. Super. 318, 186 A. 302, and Topyrik v. Russian Brotherhood Organization of U.S.A., 135 Pa. Super. 334, 5 A.2d 640, the action had to be brought in Allegheny County. See also Cuberka v. Penna. Catholic Union, 126 Pa. Super. 605, 606-607, 193 A. 828.
The statement in the Topyrik opinion that, in the absence of enabling legislation, action against a domestic corporation must be brought in the county in which its principal place of business is located, or in a county in which it transacted business, or where its corporate property is located, was not contrary or opposed to our ruling in the Kolesar case. We were talking of domestic corporations generally, and limited the expression `transacts business' to its well established legal sense; and by the expression, its `corporate property', we were likewise using the term in the meaning given to it by the decisions of the Supreme Court and this court. These are summarized in the later cases of Walde v. Bowers Battery Mfg. Co., 337 Pa. 97, 10 A.2d 405, and Phila. Gear Works v. Read Machinery Co., 139 Pa. Super. 584, 12 A.2d 793. In the former case, Mr. Justice STERN, speaking for the Supreme Court said, in construing the Act of March 17, 1856, P.L. 388; "While the word `property' in the Act of 1856 should not be held to refer to property which is merely stored in a warehouse or otherwise passively located in another county than that where the principal place of business of the corporation is located, it certainly includes property which is actively used in the course of the business operations of the corporation, irrespective of whether such property consists of fixtures and machinery, or of a stock of merchandise the sale of which is the object of the corporate business. Indeed, when the word `property' is thus construed, there is, from a practical standpoint, no difference between a requirement that a corporation have such property in the county and a requirement that the corporation do business there, so that either of these circumstances becomes, as our cases hold, sufficient justification for the commencement of suit and service of process upon the corporation in such county." (Italics supplied).
It is established that the defendant did not transact its corporate business in Lackawanna County; the setting-up of local lodges within a county does not constitute the transaction of its business within that county: Kolesar v. Slovak Evangelical Union, supra. Nor does the mere title and ownership of a tract of land in Lackawanna County, which is used and operated, without financial return to it, by a separate corporation of the first class, not for profit, as an orphans' home, nor the ownership of certain mortgages on real estate located in Lackawanna County, constitute `corporate property' within the definition of the Supreme Court, supra, such as to authorize the commencement of suit and the service of process upon a corporation, of the class of this defendant, in that county; and still less, service of process by deputizing the sheriff of the county where it does transact its business.
See Gallagher v. Rogan, 322 Pa. 315, 185 A. 707; Eldredge v. Eldredge, 128 Pa. Super. 284, 194 A. 306.
The order of the court below is affirmed.