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CONLEY-IRWIN CORP. v. REITER (01/07/64)

January 7, 1964

CONLEY-IRWIN CORP.
v.
REITER, APPELLANT.



Appeal, No. 213, March T., 1963, from order of Court of Common Pleas of Allegheny County, April T., 1963, No. 1519, in case of Conley-Irwin Corp. v. Glenn C. Reiter and Edith P. Reiter, his wife. Order reversed.

COUNSEL

Louis Vaira, for appellants.

John B. Nicklas, Jr., with him McGrady and Nicklas, for appellee.

Before Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Cohen

[ 413 Pa. Page 214]

OPINION BY MR. JUSTICE COHEN

The parties to this appeal entered into a contract for the sale of land located in Allegheny County. Under the agreement, appellants would deliver a deed to appellee after appellee had made five periodic payments of $10,000 each and had executed a purchase money mortgage of $150,000. After $30,000 had been paid, appellee discovered that a projected motel could not be built on the land because of existing zoning restrictions. Alleging that appellants had fraudulently

[ 413 Pa. Page 215]

    misrepresented the zoning condition of the land, appellee brought this equity action in the Court of Common Pleas of Allegheny County to rescind the agreement and recover the $30,000 advanced. Deputized service was made upon appellants in Westmoreland County. In the court below, appellants by way of preliminary objections challenged the validity of this service. The lower court overruled appellants' objections holding that deputized service was authorized by Rule 1504(b) of the Pennsylvania Rules of Civil Procedure. This appeal followed.

Rule 1503(a) of our procedural rules states that, except as otherwise provided, a complaint in equity may be brought in the county where the defendant may be served or where the property which is the subject matter of the action is located. The rule specifically states that no judgment or decree shall bind a defendant personally unless he is served within the county of suit or within the Commonwealth in conformity with Rule 1504(b). The latter provision states that where "the subject matter of the action is property within the jurisdiction of the court", the plaintiff shall have the right of deputized service in the county in which the defendant may be found. The issue before us, therefore, is whether the subject matter of this action is property located in Allegheny County so as to support the deputized service upon appellants in Westmoreland County.

In attempting to sustain the deputized service under Rule 1504(b), appellee argues that the property located in Allegheny County is the subject matter of this action since the relief prayed for is the rescission of potential contractual liability of $170,000 under an agreement for the purchase of that land. Appellee explains the $30,000 personal judgment sought against appellants as incidental to the grant of complete equitable relief. The property is not the subject matter of

[ 413 Pa. Page 216]

    the action and thus Rule 1504(b) is inapplicable and the court below improperly overruled ...


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