# Petition for Writ of Certiorari — Plum v. Tampax, Inc. (No. 177) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_1071%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1961 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_1071%3A2. Public record. Not legal advice.