# Chemical Natural Resources, Inc. v. Republic of Venezuela > Supreme Court of Pennsylvania · January 4, 1966 · 420 Pa. 134 URL: https://www.frixlaw.com/law-library/cases/6258846 ## Case - **Full name:** Chemical Natural Resources, Inc. v. Republic of Venezuela, Appellant Republic of Venezuela v. Milner - **Court:** Supreme Court of Pennsylvania - **Decided:** January 4, 1966 - **Citations:** 420 Pa. 134; 215 A.2d 864; 25 A.L.R. 3d 283; 1966 Pa. LEXIS 750 - **Precedential status:** Published - **Opinion:** Concurring in part by Roberts - **Judges:** Bell, Brien, Cohen, Eagen, Jones, Musmanno, Roberts - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6258846 ## Opinion text Concurring and Dissenting Opinion by Mr. Justice Roberts : I am in agreement with the majority that the appeal should be quashed and concur in that conclusion. I reach this result, however, as I shall indicate, for reasons vastly different than those of the majority. Moreover, I dissent from the issuance of the writ of prohibition as well as from the majority’s direction to the court below to dismiss plaintiff’s complaint. I regard such action, at this stage of the proceedings and upon this record, as premature and unwise. I dissent, too, from the majority’s instruction to the court below to dissolve plaintiff’s writ of attachment. In my view, such an order is entirely unnecessary. As the majority recites and the record clearly establishes, on October 24, 1963, the attachment was dissolved by direction of plaintiff. I, therefore, fail to find any legal basis or need for today’s order to dissolve an attach *164 ment which has been dissolved and nonexistent for more than two years. The record discloses that plaintiff (appellee) commenced an action of assumpsit against defendant (appellant) by writ of foreign attachment in a court of common pleas of Philadelphia County. On the same day, plaintiff filed a complaint alleging the illegal expropriation by appellant of certain mineral rights owned by plaintiff and a breach of contract relating to the development and exploitation of those rights. Damages in excess of $116,000,000 were claimed. By virtue of the writ of attachment, the Sheriff of Philadelphia County seized the S.S. Ciudad De Valencia, a merchant ship registered in the name of a foreign corporation wholly owned by defendant, and served both the master and the Stockard Shipping and Terminal Corporation as garnishees. 1 Subsequently, some discussion between the parties having ensued, the attachment of the S.S. Ciudad De Valencia was dissolved “without prejudice” by direction of counsel for plaintiff. Thereupon, defendant, appearing through the Ambassador of the Republic of Venezuela, filed preliminary objections raising, inter alia, sovereign immunity and challenging the jurisdiction of the court to entertain the suit. Before any proceedings on the preliminary objections, however, a Suggestion of Immunity was filed in the court by the United States Attorney for the Eastern District of Pennsylvania at the direction of the Attorney General of the United States. The Suggestion informed the court that the Secretary of State had “recognized and allowed” defendant’s claim to immunity and included a prayer that the action be dismissed. *165 Thereupon, although the record does not indicate the manner by which the matter came before the court, argument as to defendant’s claim to immunity and the effect to be given to the Suggestion of Immunity was heard by the court below. 2 Defendant concedes that it was not the moving party in this proceeding, denominating it as one instituted by the United States Government. 3 At this hearing, representatives of the United States Government, which had not intervened and which was not a party to the action, appeared to urge that deference be accorded the Suggestion of Immunity and that the suit be dismissed. And it was in response to a motion, not by one of the parties to the suit, but by the United States Attorney that the court entered the order presently being appealed. 4 Moreover, the court below did not treat these proceedings as though *166 on defendant’s preliminary objections, which remain undisposed. 5 Such being the case, the order of the court below was without regularity and lacked sufficient legal significance at this stage of the decisional process to be reviewable on appeal. The United States Government had no standing to move the court and its action in doing so and the court’s response thereto in terms of this appeal were without decisional force or effect. Accordingly, in the eyes of the law, no interest of either of the parties to this suit has as yet been adversely ruled upon by the court below and the parties remain in precisely the same position that they were prior to this unusual proceeding. Therefore, since no action has occurred to date which is cognizable by this Court on appeal, defendant’s attempt to secure our review was properly quashed. With regard to defendant’s petition for a writ of prohibition, my disagreement with the majority extends beyond a difference in approach but reaches to the result as well. For while I view the circumstances previously noted as militating equally against the issuance of the writ, the majority proceeds to provide the extraordinary relief which defendant has sought. I am at a loss to understand the majority’s haste to act. To the date of the taking of defendant’s appeal, all that has occurred was the refusal of the hearing court to grant the motion to dismiss of a nonparty to the litigation. No determination has yet been made on the *167 regularly advanced claims of either plaintiff or defendant. Defendant’s preliminary objections remain pending in the court below. The net effect of these circumstances leads me to conclude that at this juncture we are confronted with a preliminary question of jurisdiction upon which the court below has not yet passed. The issue is obviously not ripe for appellate review. The record fails to disclose the existence of any prejudice or harm to the litigants which would justify or suggest either the need for or the desirability of immediate and extraordinary intervention on the part of this Court. In the absence of such circumstances, I find no basis for the present intrusion upon the regular process of adjudication which the majority presently undertakes. Aside from these considerations, a serious jurisdictional question is raised by plaintiff’s ex parte' dissolution of the attachment of the S.S. Ciudad De Valencia. Although defendant did not raise the matter of the dissolution of the attachment in its preliminary objections, it may and should be raised by this Court sua sponte. Sovereign immunity involves the exercise of restraint on the part of the court, in deference to the political arm of the government, with respect to jurisdiction which has once attached. If, because of some irregularity in the manner by which plaintiff has proceeded, neither defendant nor its property is properly before the court, then the question of sovereign immunity need not and should not be reached. I see no justification for proceeding to a consideration of a question which, in my view, is not properly before us. The matter of defendant’s claim to immunity should not be considered by this Court until the court below enters an order which is in legal effect-adverse to and appealable by one of the parties. The issue which the majority prematurely reaches on the merits might well be obviated by a favorable ruling in *168 the court below on defendant’s jurisdictional objections or a finding that the ex parte dissolution of the attachment by plaintiff deprived the court of jurisdiction. I am even more opposed to such premature action when such is done through the medium of prohibition. Appellant, in order to avoid the thrust of these arguments, urges that extraordinary intervention is required to prevent delay in the disposition of what it characterizes as “a public question of overriding importance.” It contends that the delay attendant to the determination of its preliminary objections in the regular course of the proceedings is potentially injurious to the relations between our governments. It also seeks to concede that the dissolution of the attachment in no way affected any jurisdiction which may have been initially acquired thereby. I am not convinced that defendant’s arguments should carry the day. Defendant’s view as to the effect of plaintiff’s dissolution of the attachment is not dispositive. Foreign attachment is a matter governed by statute and the Rules of Civil Procedure. See Act of June 13, 1836, P. L. 568, §43, 12 P.S. §2861 et seq.; Pa. R. C. P. 1251-79. The parties may well not be empowered to depart from these provisions. Plaintiff, in urging that jurisdiction was not lost by reason of its dissolution of the attachment, asserts that its action was pursuant to an understanding of the parties that the ship would be viewed as though remaining within the control of the attachment process and cites a-number of cases in support of the proposition that such an agreement will suffice to support jurisdiction. 6 However, the cases upon which plaintiff relies are not dispositive in that they arise under fed *169 eral admiralty practice, not under our attachment procedure. Moreover, all appear to involve written stipulations between the parties that any final judgment would be respected by the “claimant.” The effect of such stipulations is the creation of a contractual undertaking in lieu of bond. In the instant case, there is nothing of record to disclose any such undertaking between the parties. Therefore, a question is presented as to whether the court below retained a sufficient nexus with defendant or its property to ground jurisdiction. A determination as to the understanding of the parties, if such was the case, and its legal effect would appear required before this Court proceeds to hold that jurisdiction was not affected by the dissolution. I venture no view on the merits but believe the matter to be one requiring a determination by the court below in the first instance. Any possible contention which might arise by reason of the restraint of defendant’s property has been obviated by plaintiff’s dissolution, without bond, of the S.S. Ciudad De Valencia. Defendant is as free to pursue its engagements, and has been so free for over two years, as it was prior to the commencement of this litigation. No affront should arise merely because defendant is required to seek relief in accordance with the demands of an orderly judicial system. In light of these considerations, the circumstances do not warrant the intrusion the majority makes today. In my view, the only appropriate disposition is to remand the matter to the court below so that it may pass upon the effect of the dissolution of the attachment and, if necessary, defendant’s preliminary objections. Finally, were the case appropriate for treatment on the merits of the sovereign immunity issue, I would be in agreement with the majority that federal decisional law requires that we deem the Suggestion of Immunity *170 in the instant case as conclusive. See Mexico v. Hoffman, 324 U.S. 30 , 65 S. Ct. 530 (1945); Ex Parte Peru, 318 U.S. 578 , 63 S. Ct. 793 (1943); Rich v. Naviera Vacuba, S.A., 295 F. 2d 24 (4th Cir. 1961). Plaintiff also served the master of the S.S. Ciudad De Valencia with the complaint and asserts that personal jurisdiction over defendant was thereby obtained. Defendant contests this assertion. Argument was originally heard by Judge Milner, President Judge of the Court of Common Pleas No. 3 of Philadelphia County. However, prior to the entry of his order, a petition for reargument before the court en bane was filed by appellee, which petition was granted, and the matter reargued before Judge Milner and Judge ÜLLMAN. See Defendant’s Petition for Writ of Mandamus or Prohibition, or both, para. 16. Although the court below denominated its order as though in response to a motion by defendant, such characterization is inaccurate. “There had been no ‘motion of defendant to dismiss’; the argument had been solely ‘in re Suggestion of Immunity’ which was filed by the United States Attorney.” Ibid. The order entered denied the motion to dismiss on the ground, as stated in the opinion subsequently filed by the court, that “judicial abdication” to the Suggestion of Immunity was not required and that a ruling in favor of defendant’s claim to immunity was premature on the record before the court. The order, therefore, was based upon the court’s view that absolute deference to the executive branch on the matter of immunity was not required, that the so-called “restrictive theory” of immunity was the prevailing rule, and that the defendant had not yet established its right to immunity within the ambit of that theory. “The only issue presented in argument . . . has been that of defendant’s claim of immunity from suit. The validity and regularity of the attachment, and the significance and effect of its dissolution ‘without prejudice,’ have not been argued or determined.” Chemical Natural Resources, Inc. v. Republic of Venezuela, 38 Pa. D. & C. 2d 47 (1965). See Respondent’s Memorandum, Republic of Venezuela v. The Honorable Byron A. Milner and The Honorable David L. Ullman, p. 2. Continental Grain Co. v. Barge FBL, 268 F. 2d 240 (5th Cir. 1959), aff’d 364 U.S. 19 , 80 S. Ct. 1470 (1960); Reed v. Steamship Yaka, 307 F. 2d 203 (3d. Cir. 1962). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6258846. Public record. Not legal advice.