Dissenting Opinion by
Mr. Justice Cohen:In Commonwealth v. Dauphin County, 354 Pa. 556, 562, 47 A. 2d 807 (1946), Justice Linn, in commenting upon the institution of an action by a petition for a rule to show cause, said: “. . . we must call attention to the fact that there is no statutory authority to begin this suit by a petition for a rule to show cause. No suit was pending when the rule to show cause was allowed by the court; its jurisdiction had not attached to anyone; there was no proceeding to which the motion for the rule could be auxiliary. If any proposed respondent had disregarded the motion and rule, the court could not have proceeded as for default because the court had never obtained jurisdiction over the person by summons or similar process authorized to confer jurisdiction over the person. Short v. School District of Upper Moreland Township, 108 Pa. Superior Ct. 503, 505, 165 A. 669, was a suit begun by petition for a rule to show cause why federal employes should not be exempt from certain taxes. Judge Parker said: *361‘The rule should not have been granted, and it was properly discharged.’ In other words, a rule is not properly original process in any case, but is auxiliary, and for the facilitating of jurisdiction already acquired : Mitchell, Motions and Rules, p. 3. . . .”
The majority recognizes that the institution of this proceeding by petition and rule is improper but proceeds to an adjudication because the parties treated this action as one in equity. I would not permit the parties to create their own jurisdiction and would vacate the order of the lower court and dismiss the petition, and require the institution of a proper action.
I dissent.
Mr. Chief Justice Bell joins in this dissenting opinion.