Petition for Writ of Certiorari — Plum v. Tampax, Inc. (No. 177)

ADELA IK Y tito

SUPREME CouRT. Us Sire JUN 4 196]

WING Clerk

Supreme Court of the Unit

Term, 1961

my ke

DAGNY PLUM,

Petitioner

vs.

TAMPAX, INC.,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF PENNSYLVANIA

WALLACE D. NEWCOMB, ESQ.

1815 Land Title Building

Philadelphia 10, Penna.

Attorney for Petitioner

THE LEGAL INTELLIGENCER, 10 S. 37TH ST., PHILA. 4

INDEX

Page

Opinions Below 1

Jurisdiction 1

How Federal Question Is Presented 2

Question Presented 2

Constitutional Provision, Treaty and Statute Involved 3

Statement 3

Reasons for Granting the Writ

a]

Conclusion , | 9

Appendix ,“A” (Constitutional Provision, Treaty &

Statute) , 10

Appendix “B” (Opinions & Judgment Below) 14

TABLE OF CITATIONS

Cases: ~ _

Atkins v. Canadian SKF Co., 353 Pa. 312 (1946) 7n

Bacardi Corp. of Americz v. Domenech, 311 U.S. 150,

156 (1946) | 8

Chase v. Ninth Natl. Bank of New York, 56 Pa. 355

(1867) , 6n

Clark v. Allen, 331 U. 3. 503 (1947) 7 8

Douglas v. New York, New Haven and Hartford Rail-

road Co., 279 U.S. 377 (1929) 7

Fairchild E. & A. Corp. v. Bellanca Corp., 391 Pa.

177 (1960) ee Tn

Falk & Co. v. So. Texas Cotton Oil Co., 368 Pa. 199

(1951) ee ee ee ee ae ae Te

TABLE OF CITATIONS—Continued

Cases: Page

Long v. Girdwood, 150 Pa. 413 (1892) 6n

Milliken v. Aughinbaugh & Clippinger, 1 P& W 117

(1829) 6

Mindlin v. Sacony S. Co., 261 Pa. 354 (1918) 6n

Raymond vy. Leishman, 243 Pa. 64 (1914) 6n

Wiener v. American Ins. Co., 39 Pa. Super. Ct. 219

©1909) on

Constitution:

U.S.C.A. Const. Amend. XIV, $1 3.9

Treaty:

Treaty of Friendship, Commerce and Navigation be-

tween the United States of America and the King-

dom of Denmark, ‘executed on October 1, 1951

and ratified by the Senate of the United States of

America in its Second Session of the 82nd Con-

gress : 2, 3, 8

Statutes:

Penna. Rules of Civil Procedure, No. 1252 (12 PS.

Appendix) 3, 5

Act of June 12, 1863, P.L. 568, §44, as amended (12

P.S. 2891) | 3, 6n

il

IN THE

Supreme Court of the United States

Term, 1961

No.

DaGNY PLUM,

Petitioner

vs.

TAMPAX, INC.,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF PENNSYLVANIA.

DAGNY PLUM, Petitioner, prays that a Writ of Cer-

tiorari issue to review a decision of the Supreme Court of

Pennsylvania, entered in the abcve-entitled case on Janu-

ary 30, 1961.

CITATION TO OPINION BELOW

The opinion of the Court of Common Pleas of Phila-

delphia County is unreported. It is printed in the Record

(pp. 29-22) and in Appendix “B”, hereto, infra p. 14. The

cpinion of the Supreme Court of Pennsylvania, printed in

Appendix B hereto, infra p. 17; is reported in 402 Pa. 616

(1961'.

JURISDICTION

The decision of the Supreme Court of Pennsylvania

was entered on January 30, 1961 (R. 33). Rehearing

was denied on March 2§, 1961 (R. 34:. The jurisdiction of

1

2

this Court is invoked under 28 U.S.C. Section 1257 (3) ;

since a right is claimed under the Constitution of the United

States, and under a treaty of the United States.

HOW FEDERAL QUESTION IS PRESENTED

The federal questions sought to be reviewed, pertain-

ing to the rights of a Danish citizen under the Equal Pro-

tection Clause of the XIVth Amendment to the Constitution

of the United States of America and under the “Treaty of

Friendship, Commerce and Navigation Between The

United States of America and the Kingdom of Denmark.”’

executed on October 1, 1951, and ratified by the Senate of

the United States of America (82nd Congress, 2nd Ses-

sion), were raised in petitioner’s “Answer to Defendant’s

Petition to Show Cause Why the Complaint Should Not Be

Dismissed in Accordance with the Doctrine of Forum Non

Conveniens” paragraphs l(a) (b) (e) (R20-22); and in

petitioner’s “Petition for Reargument” paragraphs 1(d),

4(a) (R 35-37). These pleadings by petitioner quoted the

treaty in question and averred that the petitioner had all

the rights and privileges of a resident under the said treaty.

The courts below-did not refer to these questions in arriving

at their decision.

QUESTION PRESENTED

Whether a state court can, under the doctrine of forum

non conveniens, dismiss an action commenced by a writ of

foreign attachment by a non-resident Danish citizen, where

that state has never dismissed similar actions by other

non-residents and where there is a treaty between the

United States of America and the Kingdom of Denmark

which provides, inter alia that Danish citizens are to be

“accorded national treatment and most favored-nation

treatment with respect to access to the courts of justice...

3

within the territories of the other party, in all degrees of

jurisdiction ...in pursuit... of their rights.”

CONSTITUTIONAL PROVISION, TREATY

AND STATUTE INVOLVED

The constitutional provision involved is the AIVth

Amendment to the Constitution of the United States of

America ‘Section 1) which states that “No state shall...

deny to any person within its jurisdiction the equal protec-

tion of the laws.” The Treaty involved is the Treaty of

Friendship, Commerce and Navigation Between The

United States of America and the Kingdom of Denmark.

The statutory provisions involved are the Pennsylvania

Act of June 13, 1863, P. L. 568 $44, as amended ‘12 P.S.

2891) and Rule 1252 of the Pennsylvania Rules of Civil

Procedure (12 P.S. Appendix'. The pertinent provisions

of the Constitution, treaty and statute are printed in Ap-

pendix A, infra, pp. 10-13.

STATEMENT

Petitioner is a citizen of Denmark and does not physic-

ally reside in Pennsylvania. She instituted this instant

action, a Complaint in Equity for an Accounting, by a Writ

of Foreign Attachment and attached Pennsylvania gar-

nishees possessing property of the respondent in the amount

of approximately $100,000.00. Respondent is a Delaware

corporation that solicits business and sends agents and

merchandise into Pennsvivania. Its principal place of busi-

ness is in New York and it is not registered to do business

in Pennsylvania.

The respondent is engaged in the business of manufac-

turing and distributing Tampax, a catamonial device used

for feminine hygenic purposes. As a result of petitioner’s

work, the sale of the said product became lawful in Den-

4

mark, Norway and Sweden, such sale having been unlawful

prior to March 1, 1955. In consideration of this accomplish-

ment and for other reasons not specified, the respondent by

written contract obligated itself to give petitioner 25‘:

of the net profits earned after the above date in the con-

duct of said business :in Scandinavia regardless of the form

of enterprise. However, in a calculated effort to render

hollow and of no value the petitioner’s participation in the

business and net profits earned in Scandinavia, the respon-

dent entered upon and continued a plan in violation of its

contractual duties, to wit, it set up inconsistent and arbi-

trary reserves so as to reduce net profits: incurred ab-

normally high advertising costs; caused its Scandinavian

corporations to pay its manufacturing subsidiary too high

a production price and in other ways failed to exercise a

high degree of care, prudence and fidelity required by its

fiduciary relationship with the petitioner under the terms -

of the written contract.

Petitioner sought a decree against the respondent re-

quiring it inter alia, to make available at its New York

office the books and records of its Scandinavian companies

and other requisite agreements (all the records relating

thereto are in New York in dependent’s possession) ; to

submit an accounting of the profits earned by the Scandina-

vian companies; to supply petitioner certain balance sheets

ond profit and loss statements, and establish by appropriate

agreements and documents certain interests in the peti-

tioner.

Respondent filed preliminary objections contending

that all the relief sought by petitioner concerned the inter-

nal affairs of the defendant. The Common Pleas Court of

Philadelphia County sustained these preliminary objec-

tions. Upon appeal, the Supreme Court of Pennsylvania

reversed the Common Pleas Court but on its own motion

raised the question of whether the doctrine of forum non

conveniens was applicable and remanded the matter back

for proceedings in accordance with its opinion. Plum vs.

Tampax, Inc., 399 Pa. 552 (1960).

3D

Respondent then entered a general appearance and

filed its petition raising the issue of forum non conveniens.

Petitioner filed her answer allegin, inter alia the treaty in

question. The matter was heard on Petition and Answer.

The Court of Common Pleas dismissed the Complaint in

Equity by making absolute the Rule to Show Cause Why

the Cemplaint should not be dismissed in accordance with

the Doctrine of Forum. Non Conveniens. Petitioner then

appealed to the Supreme Court of Pennsylvania which on

January 30, 1961, affirmed the dismissal of tne Complaint.

On February 8, 1961, petitioner filed a Petition for Reargu-

ment. In her Petition for Reargument, petitioner again

raised the question of the above-mentioned treaty. On

March 28, 1961, the Supreme Court of Pennsylvania, in a

per curiam decision, denied the said petition for reargu-

ment.

REASONS FOR GRANTING THE WRIT

1. The Supreme Court of Pennsylvania in its decision

in the instant case has failed and refused to give effect to

the Treaty of Friendship, Commerce and Navigation be-

tween the United States of America and the Kingdom of

Denmark and has discriminated against the petitioner

because she is a “Danish subject and 2 non-resident of this

country” in violation of her rights under the aforemen-

tioned treaty and under the equal protection clause of the

14th Amendment to the United States Constitution.

Petitioner instituted her action by a Writ of Foreign

Attachment. The Pennsylvania Rules of Civil Procedure

(Pule 1252, 12 P.S. Appendix) provide inter alia that:

“A foreign attachment may be issued to attach

property of a defendant not exempt from execution

upon any action at law or in equity in which the re-

lief sought includes a judgment or decree for payment

of moz.ey when

* * * PP *

6

“(3) the defendant is a foreign corporation or

similar entity even though registered in the Common-

wealth.”

The Pennsylvania ccurts have held that all that is

required under the Rules of Civil Procedure and the rele-

vant legislative enactment! is that the defendant must be

(1)... a non-resident or foreign corporation; and (2)...

must have real or personal property within this Common-

wealth when the Writ of Foreign Attachment was served

on the Garnishee.” Falk & Co. vs. So. Texas Cotton Oil Co.,

368 Pa. 199, 205 (1951).

As early as 1829 in Milliken v. Aughinbaugh & Clip-

pinger, 1 P & W 117, 126, the court specifically permitted

a non-resident to avail himself of foreign attachment in

this State. In the unbroken line of cases, non-resident plain-

tiffs were permitted to use, without question, foreign at-

tachment against non-resident defendants: where both

parties were fro.1 New York;? the plaintiffs were citizens

of Missouri and New York with their business establish-

ments in Canada, where the parties lived at the time, and

the defendants were citizens of Scotland and the debt due

was contracted in Scotland;* where the plaintiff.a resident

of California, the defendant a Massachusetts corporation,

the garnishee a New Hampshire corporation and the con-

tract of insurance issued in California;* the plaintiff en-

gaged in business in New York, Paris and London, the

defendant United States Ambassador to Germany, and the

transaction sued upon occurred in London;’ the plaintiff

a New York firm and the defendant a North Carolina cor-

poration :* the plaintiff a New York City attorney and the

1 Act of June 13, 1863, P. L. 568, $44 as amended (12 P. S.

2891).

2 Chase :. Ninth Natl. Bank of New York, 56 Pa. 355 (1867).

3 Long v. Girdwocd, 150 Pa. 413 (1892).

4 Wiener v. American Ins. Co., 39 Pa. Super. Ct. 219 (1909).

* Raymond v. Leishman, 243 Pa. 64 (1914).

® Mindlin v. Sacony S. Co., 261 Pa. 354 (1918).

7

defendant, as it appears, a Canadian corporation without

offices in Pennsylvania;’ and, where the plaintiff a Dela-

ware corporation with its principal place of business in

Delaware, the defendant a Maryland corporation with its

principal place of business in Maryland, and the contract

which was the basis of the suit written and executed in

Delaware to be performed there, and neither party reg-

istered to do business in Pennsylvania.‘

However, in the instant case, the Pennsylvania Su-

preme Court appeared to base its dismissal of the petition-

er’s Writ of Foreign Attachment on the fact that the plain-

tiff was a “Danish subject and a non-resident of this coun-

try.” The Pennsylvania Supreme Court, therefore, has at

all times in the past held that non-residents could invoke

the Writ of Foreign Attachment in Pennsylvania, but has

now held that a non-resident who is a Danish subject can-

not. This is an arbitrary discrimination among non-resi-

dents and as such is violative of the equal protection clause

of the 14th amendment. Douglas vs. New York, New Haven

and Hartford Railroad Ca., 279 U. S. 877 (1929).

The Pennsylvania Supreme Court appears to justify

this arbitrary classification among non-residents under the

doctrine of forum non ccnveniens. However, in the only

other case in which forum non conveniens was discussed by

the Supreme Court of Pennsylvania® the non-resident plain-

tiff commenced the action in assumpsit against a non-resi-

dent dependent by a writ of foreign attachment. All other

relevant factors were similar to the case sub judice. The

defendant raised the issue of forum non conveniens but the

court found the doctrine not applicable. The Court, how-

ever, has now arbitrarily differentiated between a non-

resident who is from Delaware and a non-resident who is

from Denmark, although it has refused to invoke forum

non conveniens against other non-resident plaintiffs.

7 Atkins v. Canadian SKF Co., 353 Pa. 312 (19465.

~ Fairchild E. & A. Corp. v. Bellanca Corp., 391 Pa. 177 (1960),

* Fairchild EF & A Corp. v. Bellanca Corp., supra.

8

2. In 1951 a treaty of Friendship, Commerce and

Navigation was entered into between the United States and

Denmark. That Treaty provides inter alia that nationals

of either party “shall be accorded national treatment and

most favored-nation treatment with respect to access to the

courts of justice . . . within the territories of the other

party, in all degrees of jurisdiction ... in pursuit. .-. of

their rights.” It defines the term “national treatment” as

“treatment accorded within the territories of a party upon

terms no less favorable than the treatment accorded there-

in, in like situation, to nationals . . . of such party.” The

Pennsylvania Supreme Court has ignored these treaty

provisions for it has not accorded your petitioner the same

treatment or access to the courts as it has all other non-

residents plaintiffs. At the very least, these treaty provi-

sions provide that Danish subjects shall be granted the

same rights in the courts cf Pennsylvania as other non-

residents who are citizens of the United States. It might

possible mean and we would strongly urge that it does that

the petitioner should be afforded the same rights in the

Pennsylvania courts as residents and citizens of Pennsy]l-

vania. Your Honorable Court has held that a treaty should

be liberally construed to give effect to its purpose and

“where a provision of a treaty fairly admits of two con-

structions” the more liberal interpretation is to be prefer-

red. Bacardi Corp. of America v. Domenech, 311 U. S. 150,

156 (1946). Your Honorable Court has also held that state

policy must give way to a conflicting treaty. Clark v. Allen,

331 U.S. 503 (1947).

3. Clearly the question presented is of importance both

domestically and internationally. If the Pennsylvania Su-

preme Court decision is permitted to stand in the instant

case, it will nullify the purpose and intent of the treaty

between the government of the United States of America

and the Kingdom of Denmark. It will permit the Pennsy]-

vania courts to disregard this treaty and discriminate

against citizens of Denmark or any other foreign non-resi-

9

dent national now protected by a similar treaty in actions

commenced by foreign attachment and in all other ques-

tions of access to our courts. It will become impossible for

a non-resident foreign national to bring an action by for-

eign attachment and escape the application of the doctrine

of forum non conveniens, in any state that considers that

doctrine.

This case is also of serious importance because it flies

in the face of the Equal protection Clause of the XIVth

Amendment. The Pennsy!vania Supreme Court’s ruling in

the instant case has set up distinctions between non-

residents of Pennsylvania permitting one group of non-

resident plaintiffs access to our courts and refusing access

to another group of non-resident plaintiffs who are, in the

eyes of the law, similarly situated. The instant decision in

the Supreme Court of Pennsylvania may become authority

in other jurisdictions as it is now authority in Pennsylva-

nia that the Equal Protection Clause of the XIVth Amend-

ment may be disregarded by the intervention of the doctrine

of forum non conveniens, thereby accomplishing what your

Honorable Court has said cannot be accomplished by legis-

lative enactment or jurisdiction decision.

CONCLUSION

For the foregoing reasons, this petition for Writ of

Certiorari should be granved.

Respectfully submitted

WALLACE D. NEWCOMB, ESQ.

Attorney for Petitioner

10

APPENDIX “A”

AMENDMENT XIV to the CONSTITUTION OF THE

UNITED STATES OF AMERICA USS.C.A. Const.

Amend. 14 §1.

“Section 1. All persons born or naturalized in-the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge

the privileges or immunity of citizens of the United States;

nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.”

TREATY OF FRIENDSHIP, COMMERCE AND NAVI-

GATION BETWEEN THE UNITED STATES OF

AMERICA AND THE KINGDOM OF DENMARK, EX-

ECUTED ON OCTOBER 1, 1951, AND RATIFIED BY

THE SENATE OF THE UNITED STATES OF

AMERICA IN ITS SECOND SESSION OF THE 82ND

CONGRESS.

The pertinent provisions of the said Treaty are as

follows:

“ARTICLE V.

“1. Nationals and companies of either Party shell

be accorded national treatment and most-favored-

nation treatment with respect to access to the courts

of justice and to administrative tribunals and agencies

within the territories of the other Party, in all degrees

of jurisdiction, both in pursuit and in defense of their

rights. It is understood that companies of either Party

not engaged in either business or nonprofit activities

11

within the territories of the other Party shall enjoy

such access therein without any requirement of regis-

tration or domestication.

“2. Contracts entered into between‘nationals and

companies of either Party and nationals and com-

panies of the other Party, that provide for the settle-

ment by arbitration of controversies, shall not be

deemed unenforceable within the territories of such

other Party merely on the grounds that the place desig-

nated for the arbitration proceedings is outside such

territories or that the nationality of one or more of

the arbitrators is not that of such other Party. No

award duly rendered pursuant to any such contract,

and final and enforceable under the laws of the place

where rendered, shall be deemed invalid or denied

effective means of enforcement within the territories

of either Party merely on the grounds that the place

where such award was rendered is outside such terri-

tories or that the nationality of one or more of the

arbitrators is not that of such Party.”

* * * * e

“ARTICLE XXII.

“1. The term ‘national treatment’ means treat-

ment accorded within the territories of a Party upon

terms no less favorable than the treatment accorded

therein, in like situations, to nationals, companies,

products, vessels or cther objects, as the case may be,

of such Party.

“2. The term ‘most-favored-nation treatment’

means treatment accorded within the territories of

a Party upon terms no less favorable than the treat-

ment accorded therein, in like situations, to nationals,

companies, products, vessels or other objects, as the

case may be, of any third country.”

12

Attached and made part of the said Treaty was the

following Protocol:

“Protocol

“At the time of signing the Treaty of Friend-

ship, Commerce and Navigation between the United

States of America and the Kingdom of Denmark the

undersigned Plenipotentiaries, duly authorized by

their respective governments, have further agreed on

the following provisions, which shall be considered

integral parts of the aforesaid Treaty:

“1. The term ‘access’ as used in Article V. para-

graph 1, comprehends, among other things access to

free legal aid and right to exemption from providing

security for costs and judgment.”

12 PURDON’S PENNSYLVANIA STATUTES ANNO-

TATED 2891

“A writ of foreign attachment, in the form aforesaid,

may be issued in all actions ex contractu, and in actions ex

delicto for a tort committed within this Commonwealth,

against the real or personal estate of: (a! any person not

residing within this Commonwealth, whether or not such

person is in the Commonwealth at the time of the issuing

thereof, or (b) any corporation incorporated under the

laws of any other State or Nation, or (c) any person who

being a resident of this Commonwealth shall have removed

therefrom after having become liable in an action ex delicto.

But in such cases the person having such right of action

ex delicto, or some one in his behalf, must, upon oath or

affirmation, certify to the truth of the claim and of the facts

upon which such attachment is founded, as well as that he

verily believes such person has removed to escape service of

process to answer for such alleged tort. 1863, June 13,

P.L. 568. $44: 1905, March 30, P.L. 76, $1; 1911, June 21,

P.L. 1097, $1; 1931, Apri! 24, P.L. 44, No. 36, $1.”

13

THE ABOVE SECTION, INSOFAR AS IT APPLIES TO

THE PRACTICE AND PROCEDURE IN FOREIGN

ATTACHMENT IS SUSPENDED ABSOLUTELY BY

THE FOLLOWING RULE OF CIVIL PROCEDURE.

RULE 1252: 12 PURDON’S PENNSYLVANIA STAT-

UTES, ANNOTATED, APPENDIX.

“A foreign attachment may be issued to attach prop-

erty of a defendant not exempt from execution, upon any

cause of action at law or in equity in which the relief

sought includes a judgment or decree for the payment of

money when

(1) the defendant is an individual] who is a non-resi-

dent of the Commonwealth, even though he is present in the

Commonwealth;

(2) the defendant is a partnership or an unincorpor-

ated association witnout a regular place of business in the

Commonwealth and the action is against the defendant in

its firm or association name, even though one or more

members of the partnership or association are present in

cr are residents of the Commonwealth;

(3) the defendant is a foreign corporation or similar

entity even though registered in the Commonwealth. Adop-

ted April 12, 1954. Eff. Oct. 1, 1954.”

APPENDIX “B”

UNREPORTED OPINION BY COURT OF COMMON

PLEAS NO. 1 OF PHILADELPHIA COUNTY

December 15th. 1960

Plaintiff commenced this action by a writ of foreign

attachment and thereafter filed a complaint in equity —

against the defendant for an accounting. Defendant filed

preliminary objections in the nature of a petition raising

a question of jurisdiction. These preliminary objections

were sustained by the court en banc and plaintiff’s com-

plaint dismissed. Plaintiff then appealed to your Honorable

Court which, on May 4, 1960, in an opinion written by Mr.

Justice Cohen, remanded the case to us to proceed in accord-

ance with that opinion. Plum, Appellant, v. Tampax, Inc.,

399 Pa. 553 (1960).

The facts of the case are succinctly set forth in your

opinion on pages 556, 557 and 558, and we deem it un-

necessary to again recite them here.

In remanding this case to us your Honorable Court,

after discussing the doctrine of Forum Non Conveniens,

instructed us to determine its applicability to the instant

case and. on page 563 of your opinion, stated as follows:

“While, on the face of the record, it would appear

that either New York or Denmark might provide an

appropriate forum, there is the possibility of a statute

of limitations problem and also a question of whether

the courts of New York State or Denmark would be

willing to hear this case. Proper application of the

doctrine of Forum Non Conveniens necessitates that

the court below make a finding as to the availability

of other forums and then exercise its discretion after

considering all the factors.”

15

Pursuant to your instructions we directed defendant

to file a petition with rule raising this issue. Defendant

filed an answer to the petition. In addition the parties filed

of record a stipulation to the effect that the Courts of the

State of New York are available to the plaintiff and the bar

of the statute of limitations will not take effect until March

15, 1961. The matter was heard before the undersigned and

from the enumerated pleadings he determined the follow-

ing to be the facts anent the applicability of the doctrine of

Forum Non Conveniens:

(a) Plaintiff is a Danish subject, and non-resi-

dent of this Country.

(b) Defendant is a non-resident foreign corpora-

tion, not registered to do business in Pennsylvania, nor

does it maintain any office listings or employees or

agents in Pennsylvania.

‘c) The contract underlying this suit was enter-

ed into in Copenhagen, Denmark, and is to be per-

formed entirely within the State of New York.

(d) No element of the performance of the con-

tract has taken place, nor is to take place in the

Commonwealth of Pennsylvania.

‘e) The contract provides that any disagree-

ment between the parties as to its provisions shall

be settled in accordance with the laws of Denmark.

(f) The contract provides that the parties agree

that certain Danish courts as enumerated therein

shall be fully competent to pass a judgment on any

action relating to the agreement. |

(g) All of defendant’s witnesses would be re-

quired to come from jurisdictions other than Penn-

svlvania.!

1 Plaintiff avers on information and helief, that all of defendant's

witnesses are residents of New York, New York.

16

(h) Defendant’s books and records sought to

be examined by the plaintiff are physically outside

Pennsylvania.?.

(i) Plaintiff seeks Pennsylvania process and the

equity power of the courts of Pennsylvania to be ex-

tended to require certain acts to be done (as more

specifically enumerated in said Complaint) outside

Pennsylvania.

(j) The plaintiff has the following alternative

forums available:

‘1) The courts of New York State which

are available to foreign non-resident plaintiffs in

actions against corporations doing business in

New York State with their principal offices there-

in.

(2) The courts of Denmark which are avail-

able to a Danish subject in an action against the

foreign parent corporation of a Danish corpora-

tion which has agreed to submit to the jurisdic-

tion of certain Danish courts.

(ki The statute of limitations in New York

State on actions on contract has not run against the

plaintiff.

(1) The statute of limitations on actions on con-

tract in the courts of Denmark has not run against the

plaintiff.

* This point, alieged in paragraph 8 of defendant's petition, is

seemingly denied by plaintiff in her answer thereto, but is actually

admitted in that she avers on information and belief that copies of

the books and records may be in Philadelphia. In addition, she pre-

viously admitted that defendant does not maintain an office in Penn-

sylvania.

N.B. The foregoing seems in error. The lower Court has con-

fused financial statements distributed in Pennsylvania by appellee

as a public company with the books and records to be examined in

this case which are in New York City (9B, 10A—25a).

17

(m) The Courts of Pennsylvania would be re-

quired to apply and resolve questions of either New

York or Danish law or both.

In light ui these facts it is seen that practically no

aspect of this case is in any way concer..ed with this Com-

monwealth or with its residents, other than that some of

them hold certain monies of defendant. Furthermore, as

above noted from the facts, the more convenient courts uf

New York State are available to the plaintiff, and the

statute of limitations of that forum has not run against

the plaintiff. Therefore, we can do little more than echo the

words of your Honorable Court found on page 562 of your

opinion:

“It appears to us that a Pennsylvania Court

would provide a most inappropriate trial forum.”

Having found the doctrine of Forum Non Conveniens

to be applicable in the instant case, we made defendant’s

rule absolute and dismissed the complaint.

By the Court:

‘ss’ GRIFFITHS, J.

IN THE SUPREME COURT OF PENNSYLVANIA

Eastern District

No. 166 January Term, 1961

DAGNY PLUM, Appellant,

v,

TAMPAX, INC.

Appeal from the Order of the Court of Common Pleas No.

1 of the County of Philadelphia, at No. 3291, June

Term, 1959.

18

OPINION OF THE COURT

COHEN, J. FILED: Januezy 30, 1991.

This is an appeal from an order of the Court of Com-

mon Pleas of Philadelphia County which dismissed a com-

plaint in equity by invoking the doctrine of forum non

conveniens.

Plaintiff instituted this action by a writ of foreign

attachment served upon garnishees possessing property of

defendant, a Delaware corporation. Thereupon, defendant

filed preliminary objections contending that all of the

relief sought related to internal affairs of the defendant

corporation. The court below sustained the preliminary

objections. On appeal this court reversed the court below

but questioned whether the doctrine of forum non conveni-

ens was applicable. We remanded the matter for proceed-

ings in accordance with our opinion. Plum v. Tampax, Ince.

399 Pa. 553, 160 A. 2d 549 (1960). Defendant then entered

a general appearance and filed a petition and rule upon

plaintiff to show cause why the complaint should not be

dismissed in accordance with the doctrine of forum non

conveniens. Plaintiff filed an answer to this petition and

after arrument the rule was made absolute and the com-

plaint dismissed. This appeal followed.

While the plaintiff ordinarily controls choice of the

forum, a court does not exercise its jurisdiction if the selec-

ted foram is a manifestly inappropriate one and if an

aiternative appropriate forum is available to the plaintiff.

Restatement, Conflict of Laws, $117e ‘Tentative Draft

No. 4, April 5, 1957). Whether a suit should be dismissed

under the doctrine of forum non conveniens depends largely

upon the particular facts and upon the discretion of the

trial court. Such exercise of discretion will be overruled on

appeal only when abused: Plum v. Tampax, Inc., supra.

The court below, in the proper exercise of its disr>-

tion, relied, inter alia, on the following facts as the basis

for its decision to refuse jurisdiction.

19

Plaintiff is a Danish subject and a nonresident of this

Country and the defendant is a nonresident foreign cor-

poration, not registered to do business in Pennsylvania and

not maintaining any office listings or employees or agents

in Pennsylvania. The contract underlying this suit was

entered into in Copenhagyn, Denmark, and is to be per-

formed entirely within the State of New York. No element

of the performance of the contract has taken place, nor is

to take place, in the Commonwealth of Pennsy!vania. The

contract provides that any disagreement between the par-

ties as to its provisions shall be settled in accordance with

the laws of Denmark. It also provides that certain Danish

courts, enumerated therein, shall be fully competent to pass

a judgment on any action relating to the agreement. All of

defendant’s witnesses would be required to come from

jurisdictions other than Pennsylvania. Its books and ree-

ords sought to be examined by plaintiff are physically out-

side Pennsylvania.

The following alternative forums are available to the

plaintiff: (a) The courts of New York State which are

available to foreign nonresident plaintiffs in actions

against corporations doing business in New York State

with their principal offices therein, or (b) The courts of

Denmark which are available to a Danish subject in an

action against the foreign parent corporation of a Danish

corporation which has agreed to submit to the jurisdiction

of certain Danish courts. The statute of limitations in New

York State on actions on contract has not run against the

plaintiff. In addition, and of great weight, plaintiff seeks

to invoke the equity power of the courts of Pennsylvania in

order to require certain acts to be done by the defendant

outside of Pennsylvania. In light of all of these facts we

cannot say that the trial court abused its discretion.

Plaintiff has also contended that the doctrine of forum

non conveniens should not be applied in actions instituted

by writ of foreign attachment since to do so would destroy

the efficacy of that remedy. This contention is unfounded.

20

A writ of foreign attachment is nothing more than “the

equivalent of a summons for the commencement of a per-

sonal action.” Raymond v. Leishman, 243 Pa. 64, 89 Atl.

791 (1914). Upon obtaining jurisdiction over the person

Gf appellee, as occurred in this case, the question of whether

the doctrine of forum non conveniens should be applied is

the same as inany other case instituted by summons or by

com plait,

« Order affirmed.