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 et al. v. City of Philadelphia, General State Authority, et al.
Marvin Comisky, with him Goncer M. Krestal, and Blank, Rudenko, Klaus & Rome, for appellant.
Franklin Poul, with him Wolf, Block, Schorr and Solis-Cohen, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell concurs in the result. Concurring Opinion by Mr. Justice Roberts.
One phase of the instant controversy was before us on a previous occasion. See: U. S. Cold Storage Corp. v. Philadelphia, 427 Pa. 624, 235 A.2d 422 (1967). We deem essential a recitation of the factual background of this matter as set forth in our prior decision.
"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 [General State] 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 . . . 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." (p. 625).
On the previous appeal, neither the City, Lavino nor Terminals were parties to or intervenors therein; the sole parties were the Storage Companies and the Authority which, by way of preliminary objections, questioned the venue of the action against it in Philadelphia County. We stated on that appeal: "The sole issue is whether exclusive venue in litigation wherein the Authority is being sued lies in Dauphin County" and a majority of this Court*fn1 held, on the authority of Pa. R. C. P. 1503(c), that the action in equity against the Authority could be instituted only in Dauphin County.
On that appeal, it was argued that, under Pa. R. C. P. 2103(b), the City could be sued only in Philadelphia County and, if the Authority could be sued only in Dauphin County, "then of necessity two separate actions involving identical issues would have to be instituted by the Storage Companies in two separate actions." We pointed out that, under Pa. R. C. P. 1006(c), both the Authority and the City could now be sued in Dauphin County.*fn2 Applying the amended Rule 1006(c), we stated that the "action can now be transferred by the court below from Philadelphia County to Dauphin County . . . and a multiplicity of suits can be thus avoided." (p. 628).
When the record was returned to the court below, that court entered an order transferring the case to Dauphin County and ...