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UNITED STATES COLD STORAGE CORPORATION v. PHILADELPHIA (ET AL. (11/14/67)

decided: November 14, 1967.

UNITED STATES COLD STORAGE CORPORATION
v.
PHILADELPHIA (ET AL., APPELLANT)



Appeal from order of Court of Common Pleas No. 2 of Philadelphia County, March T., 1966, No. 6423, in case of United States Cold Storage Corporation and Philadelphia Warehousing and Cold Storage Company v. City of Philadelphia, General State Authority, Lavino Shipping Company et al.

COUNSEL

William J. O'Brien, with him Michael A. Madar, for appellant.

Franklin Poul, with him Daniel Promislo, and Wolf, Block, Schorr and Solis-Cohen, for appellees.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Cohen took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Roberts.

Author: Jones

[ 427 Pa. Page 625]

The General State Authority (General), on this appeal questions the propriety of an order of the Court of Common Pleas No. 2 of Philadelphia County dismissing the Authority's preliminary objections in an equity action. The sole issue is whether exclusive venue in litigation wherein the Authority is being sued lies in Dauphin County.

The United States Cold Storage Corporation and Philadelphia Warehousing and Cold Storage Company (Storage Companies), instituted this equity action in Philadelphia County against the City of Philadelphia (City), the Authority, Lavino Shipping Company (Lavino), and Pennsylvania Refrigerated Terminals, Inc. (Terminals), to restrain the construction of a cold storage warehouse as part of a port complex known as the Packer Avenue Marine Terminal. The Storage Companies operate cold storage and refrigerated facilities in the same area wherein this marine terminal is to be constructed with joint financing by the City and the Authority and the marine terminal will be leased to Lavino and the cold storage warehouse unit to be located therein will be leased to Terminals. The gravamen of the Storage Companies' complaint is that, insofar as the Authority is concerned, the proposed construction offends the General State Authority Act (Act of March 31, 1949, P. L. 372, § 4, as amended, 71 P.S. § 1707.4) which proscribes the exercise of the Authority's power to construct any project which, "in whole or in part, shall duplicate or compete with existing enterprises serving substantially the same purposes" and the contemplated project will duplicate and compete with the Storage Companies' present cold storage and refrigerated facilities.

On the authority of Pa. R. C. P. 1503(c), the Authority urges that Dauphin County alone has venue in any action against it. That Rule provides: "Venue . . .

[ 427 Pa. Page 626]

(c) An action against the head of an executive or administrative department, a departmental administrative board or commission or an independent administrative board or commission, or an officer or instrumentality of the Commonwealth may be brought in and only in Dauphin County." (Emphasis added.)

The Authority has the right and power "to sue and be sued, implead and be impleaded, complain and defend" (§ 4 of the General State Authority Act, 71 P.S. § 1707.4(b)) and the legislative language further expressly provides such right to sue and the power to be sued exists "in all courts". Appellees contend the language of that statute is in conflict with Rule 1503(c).

That the Authority is an "instrumentality of the Commonwealth" is well settled (Act of March 31, 1949, P. L. 372, § 3, as amended, 71 P.S. § 1707.3; Marianelli v. General State Authority, 354 Pa. 515, 516, 47 A.2d 657 (1946)) and, certainly, clearly within the language of Rule 1503(c).

It is argued that the practicalities of the situation require the application of the General State Authority Act and permit suit against the Authority and the City in Philadelphia County. Pa. R. C. P. 2103(b) provides: "Except when the Commonwealth is the plaintiff or when otherwise provided by an Act of Assembly, an action against a political subdivision may be brought in and only in the county in which the political subdivision is located." Under that Rule, it is argued that the City cannot be sued in any county other than Philadelphia County and, if the Authority cannot be sued other than in Dauphin ...


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