Staley, Chief Judge, and Kalodner and Smith, Circuit Judges.
This is an appeal from an order of the District Court for the Eastern District of Pennsylvania, sitting as a bankruptcy court. By its order, the District Court reversed the referee who had held that the bankruptcy court had summary jurisdiction over this controversy, and dismissed the trustee's petition to enjoin prosecution of a state court assumpsit action against the bankrupt, Consolidated Container Carriers, Inc. In re Consolidated Container Carriers, Inc., 254 F. Supp. 605 (E.D.Pa. 1966).
Five months before bankruptcy, Acme Fast Freight, Inc., a creditor of the bankrupt, had commenced the assumpsit action by attaching a bank deposit of the bankrupt through a writ of foreign attachment issued out of the Court of Common Pleas of Philadelphia County. Because the attachment occurred more than four months prior to the institution of bankruptcy, the District Judge held that the lien created by the attachment remained immune to the jurisdiction of the bankruptcy court. He also stated:
"Since the bank is in the position of a debtor to the bankrupt, the money it is obligated to pay to the bankrupt is not subject to the summary jurisdiction of the bankruptcy court unless the bank consents to such jurisdiction. Here, Continental Bank and Trust Co. has contested jurisdiction." (Emphasis added.) In re Consolidated Container Carriers, Inc., 254 F. Supp. at 606, 608-609.
The difficulty we have with the District Judge's statement is that he does not indicate the nature of the contest by the bank; is or is not the bank claiming special rights in the fund on deposit with it? The bank is certainly entitled to be heard in support of any contested claim, but there is no pleading or other paper in the record to indicate the particulars. To further becloud the issue, the appellant trustee in his brief denies that there has been any contest on the part of the bank, and contends that the bank is merely a stakeholder. If this is so, summary jurisdiction could not be denied by the bank. Taubel-Scott-Kitzmiller Co. v. Fox, 264 U.S. 426, 44 S. Ct. 396, 68 L. Ed. 770 (1924); In re Matter of Quan Weing, 104 F.2d 112 (C.A.2, 1939); 2 Collier Bankr. Cas. (MB) para. 23.05.
With this uncertainty surrounding the bank's status we would be inclined to return the record to the District Court for a factual determination of the bank's position in the case. But there is a second, more encompassing question presented by this appeal. That question is whether service of the writ of foreign attachment, more than four months prior to the filing of the bankruptcy petition, deprived the bankruptcy court of summary jurisdiction over the attached asset? Our affirmative answer to this interrogatory renders it unnecessary for us to remand the case to the District Court.
Existence of the bankruptcy court's summary jurisdiction in this case depends upon whether the bankrupt had constructive possession of the fund at the time of bankruptcy. His constructive possession, in turn, depends upon whether the foreign attachment had the effect of transferring his possessory interest in the bank deposit to the custody of the state court pending the outcome of Acme's suit. Our study of Pennsylvania statutory and decisional law indicates that it did.
The Act of June 13, 1836, P.L. 568, § 50; 12 Purdon's Pa.Stat.Annot. § 2941 (1951), states that a foreign attachment of personal property "places it in the officer's power". In 1954 this statute, insofar as it applied to practice and procedure in foreign attachment, was suspended absolutely, as provided in Rule 1461(5), by Rules 1251-1279 of the Pennsylvania Rules of Civil Procedure, 12 P.S. Appendix. Since the Rules only suspended that part of the Act governing practice and procedure, they necessarily retained that portion controlling the substantive effect of the writ. See Alpers v. New Jersey Bell Tel. Co., 403 Pa. 626, 170 A.2d 360 (1961); 10 Standard Pa. Practice, Ch. 42, § 9 (Rev.ed. 1963).
In Pennsylvania, when the writ of foreign attachment is served on a garnishee it creates a security for the debt, places the attached property in the custody of the state court, and gives the attaching officer a special property interest in it. Pennsylvania R.R. v. Pennock, 51 Pa. 244 (1866); Fitzgerald v. Caldwell, 1 Yeates 274 (1793); Clement v. Courtright, 9 Pa.Super. 45 (1898); 10 Standard Pa. Practice, Ch. 42, § 301 at 375 (Rev.ed. 1963).
In Pennsylvania R.R. v. Pennock, supra, the Supreme Court of Pennsylvania noted that one of the principle functions of a foreign attachment is to take the attached goods from the possession or control of the defendant and to place them in the custody of the law so that they may, if necessary, be seized on execution. And in Munis v. Oliver, 24 Pa.Super. 64, 67 (1903), the Superior Court of Pennsylvania observed:
"In Jaffray and Co.'s Appeal, 101 Pa. 583, it was held that it was not necessary for the sheriff to take the goods into his custody to execute his [foreign] attachment so as to bind the goods, that the levying and attachment may be done without either handling the goods or taking them into possession, and the property fully ...