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HOHLSTEIN v. HOHLSTEIN (11/16/72)

decided: November 16, 1972.

HOHLSTEIN, APPELLANT,
v.
HOHLSTEIN



Appeal from order of Court of Common Pleas of Dauphin County, Sept. T., 1971, No. 958, in case of Arlene L. Hohlstein v. Walter H. Hohlstein.

COUNSEL

Ronald M. Katzman, with him Goldberg, Evans and Katzman, for appellant.

No oral argument was made nor brief submitted for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman.

Author: Hoffman

[ 223 Pa. Super. Page 349]

This appeal raises the question of whether a trial judge may dismiss a divorce action on the basis of improper venue, where neither party has objected or raised the defense, and a Master's report has already been filed.

[ 223 Pa. Super. Page 350]

On November 16, 1971, plaintiff filed a Complaint in Divorce in Dauphin County against her husband alleging as a basis for recovery the ground of indignities. The Complaint stated that both parties were residents of Cumberland County. On November 17, 1971, defendant's attorney entered an appearance on behalf of the defendant. A Master was appointed, and, after proper notice, a hearing was held on January 13, 1972. The Master filed his report with the Court recommending that a Decree in Divorce be entered. No exceptions were taken by the defendant or his attorney with respect to the proceedings. On March 3, 1972, the Court upon its own motion ordered the case dismissed on the ground that venue was improperly laid in Dauphin County. This appeal followed.

The controversy in this case centers around the meaning and effect of Pa. R. C. P. § 1122 which provides that a "[divorce] action may be brought in and only in the county in which the plaintiff or the defendant resides." This Rule, although framed in obviously mandatory language, is by its very title a venue and not a jurisdictional provision.*fn1 The lower court read this Rule as mandatory, and dismissed the instant case for want of proper venue.

As our Court has held, the question of which county in the state may entertain the action is a "question . . . of venue and not jurisdiction and venue may always be waived. It is a matter of procedure and not substance." Blair v. Blair, 195 Pa. Superior Ct. 406, 407-8, 171 A.2d 854 (1961). See also, Tanis v. Tanis, 206 Pa. Superior Ct. 213,

[ 223 Pa. Super. Page 351213]

A.2d 103 (1965). The instant case, therefore, poses the questions: (1) absent an express waiver of venue, at what point does either the action or inaction of defendant result in waiver and of improper venue; and, (2) may the Court refuse to accept such waiver and dismiss a cause of action for reason of improper venue.*fn2

Appellant contends that a waiver took place in two ways. First, it is contended that by entering an appearance appellee waived all defenses and objections. While the filing a form denominated an "appearance" does give the other party notice of legal representation, it does not constitute, in and of itself, the kind of "general appearance" which is a waiver of the right to raise defenses or objections to a plaintiff's complaint.*fn3 Notwithstanding the promulgation of Pa. R. C. P. § 1012, a waiver will still be held to have occurred where the Court finds that a defendant has performed ...


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