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SLEZYNGER v. BISCHAK (06/14/73)

decided: June 14, 1973.

SLEZYNGER, APPELLANT,
v.
BISCHAK



Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1971, No. 2069, in case of Edward Slezynger v. Louise Bischak.

COUNSEL

August C. Damian, with him Damian & Damian, for appellant.

Gilbert S. Solomon, with him Rosenberg, Kirshner & Solomon, for appellee.

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

Author: Hoffman

[ 224 Pa. Super. Page 553]

In this appeal we must decide whether the lower court erred in dismissing a cause of action on the basis of lack of jurisdiction over the person of the defendant.

This action stems from a motor vehicle accident which occurred on May 8, 1969 in Beaver County. At the time of the accident, appellant, the plaintiff below, was a resident of Allegheny County, while the defendant-appellee was a resident of Beaver County. Suit was instituted in the Court of Common Pleas of Allegheny County. Appellee was purportedly served with the Complaint through deputized service. Appellee entered an appearance and filed a Motion to Dismiss on the ground of lack of jurisdiction of the person and lack of venue in the Allegheny County court. The lower court granted appellee's motion dismissing the case. This appeal followed.

Before a court may determine a legal action, it must possess both subject-matter jurisdiction and jurisdiction of the person. As tort actions are transitory, all courts of common pleas have subject-matter jurisdiction to try an action arising out of a tort committed within the Commonwealth. See, Gossard v. Gossard, 319 Pa. 129, 178 A. 837 (1935); 17 P.S. ยง 251. Jurisdiction of the person may only be obtained, however, through consent, waiver or proper service of process.

Absent specific statutory authority, a defendant may be served in only one of two ways: (1) by service of process within the territorial limits of the issuing authority (i.e., within Allegheny county), or (2) by extracounty

[ 224 Pa. Super. Page 554]

    service by deputization where suit is originally brought in the county where the cause of action accrued. Pa. R. C. P. 1009(e). Neither of those situations exists in the instant case. As such, the extracounty service of process was improper.

The question then becomes whether the lower court properly dismissed the instant suit for lack of jurisdiction of the person. Appellant argues that such dismissal was improper, and that the court should have transferred the matter to Beaver County where service of process could properly be obtained. This, appellant argues, is provided for and mandated by the venue provisions of the Pennsylvania Rules of Civil Procedure. We agree.

Rule 1006(a) of the Rules of Civil Procedure provides: "Except as otherwise provided . . ., an action against an individual may be brought in and only in a county in which he may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law." See also, Pa. R. C. P. 1042. This venue provision indicates that venue is proper when service of process is proper. As such, at the moment service is improperly made, venue becomes ...


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