Appeal, No. 325, Oct. T., 1959, from order of Municipal Court of Philadelphia County, March T., 1959, No. 3611, in case of Martin Shulman v. Wynnewood Company. Order reversed.
Henry T. Reath, with him John M. Ross, and Duane, Morris & Heckscher, for appellant.
H. N. Fineman, with him Morris Passon, for appellee.
Before Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., and Hirt, J., absent).
[ 191 Pa. Super. Page 67]
This is an appeal by the plaintiff in an assumpsit action from the refusal of the Municipal Court of Philadelphia to remove a compulsory non-suit entered by the trial judge at the close of the plaintiff's case.
The action was brought by Martin Shulman against the Wynnewood Company for damages allegedly caused by the failure of the defendant to erect a private dwelling house in conformity with the expressed and implied warranties of an agreement of sale under which the plaintiff was the assignee. The damages were alleged to have been caused by water seepage into the cellar of the house due to defendant's failure to construct the foundation walls properly.
The defendant is a Pennsylvania corporation with its principal place of business in Montgomery County. The corporation does no business and has no office in Philadelphia. The premises over which the dispute arose are in Montgomery County. The plaintiff resided in Montgomery County. The action should not have been brought in Philadelphia.
Pennsylvania Rule of Civil Procedure 2179 provides, inter alia, as follows: "(a)... A personal action against a corporation or similar entity may be brought in and only in (1) the county where its registered office or principal place of business is located; (2) a county where it regularly conducts business; (3) the county where the cause of action arose; or (4) a county where a transaction or occurrence took place out of which the cause of action arose." (Emphasis supplied)
[ 191 Pa. Super. Page 68]
When the case was called for trial before a jury, the trial judge questioned the propriety of hearing it in the Municipal Court of Philadelphia, but counsel for both parties agreed to have the case heard there, and counsel for the defendant waived any right to object thereto. The trial judge was led to believe that the evidence would show a legal reason for bringing the action in Philadelphia, and when it did not, he entered a non-suit, which the court subsequently refused to remove. The court relied upon the above Procedural Rule, which has the force of a statute. Schofield Discipline Case, 362 Pa. 201, 209, 66 A.2d 675 (1949).
The Municipal Court of Philadelphia has jurisdiction over the subject-matter and the general class of cases to which this one belongs. See Act of July 12, 1913, P.L. 711, as amended, 17 PS § 693. In determining whether the court has jurisdiction over the subject-matter, the question is not whether the plaintiff may recover in the particular forum on the cause of action pleaded but whether the court is empowered to hear and determine a controversy of the character involved. Commonwealth ex rel. Shumaker v. N.Y. & Pa. Co., Inc., 367 Pa. 40, 46, 79 A.2d 439 (1951); Skelton v. Lower Merion Twp., 298 Pa. 471, 473, 148 A. 846 (1930). The question here does not relate to ...