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ANDERSON v. UVA ET AL. (09/23/74)

decided: September 23, 1974.

ANDERSON, APPELLANT,
v.
UVA ET AL.



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1972, No. 2703, in case of Thelma Anderson v. Nicholas and Patricia Uva.

COUNSEL

Richard J. Van Roden, with him Solo, Bergman & Padova, for appellant.

J. Lambert, with him James J. McCabe, and Duane, Morris & Heckscher, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 230 Pa. Super. Page 534]

The narrow issue involved in this case is whether a court after dismissing a complaint because of lack of personal jurisdiction must transfer the action under Pa. R.C.P. 1006(e)*fn1 to an appropriate county where jurisdiction can be obtained.

Briefly stated, the facts are as follows: Appellant, a resident of Philadelphia County, was allegedly injured when she fell on the premises of appellees, residents of Bucks County. On August 22, 1972, appellant filed a timely complaint in trespass in Philadelphia County. The complaint was then served on appellees in Bucks County by the Sheriff of Bucks County by way of deputized service. In their preliminary objections, appellees alleged that service was improper and asked that the service be stricken and the complaint dismissed. In her answer to appellees' preliminary objections, appellant admitted that the service was improper but further averred that she would file a petition to transfer the action to Bucks County. The petition to transfer the action under Pa. R.C.P. 1006(e) was filed on December 21, 1972. On March 27, 1973, the lower court sustained appellees' motion to strike the service, denied appellant's petition to transfer, but

[ 230 Pa. Super. Page 535]

    refused to dismiss the action. No appeal was taken from that order. On August 17, 1973, appellant reinstated her action and attempted service upon appellees in Philadelphia County. This service, however, was again improper and on December 3, 1973, the lower court sustained appellees' preliminary objections and, this time, dismissed the complaint. Appellant has appealed the lower court's order of December 3, 1973.

Appellant contends that under Pa. R.C.P. 1006(e) the court below was obligated to transfer the action to Bucks County*fn2 after dismissing the complaint because of lack of personal jurisdiction. On the other hand, appellees argue that their preliminary objections went to personal jurisdiction, not venue, and therefore, Rule 1006(e) is not applicable.

Our recent decision in Slezynger v. Bischak, 224 Pa. Superior Ct. 552, 307 A.2d 405 (1973), is determinative of the present case. In Slezynger, the defendant, a resident of Beaver County, objected to the jurisdiction of the Allegheny County Court because of deputized service in Beaver County. The Allegheny County Court dismissed the action for lack of personal jurisdiction but failed to transfer the action to Beaver County where service could properly be obtained. After finding that such an objection to service of process brings into question both personal jurisdiction and venue, our Court reversed and directed the Allegheny County Court to transfer the action to Beaver County in accordance with Rule 1006(e). See also Tyson v. Basehore, 22 Cumb. 53, aff'd per curiam, 222 Pa. Superior Ct. 572, 295 A.2d 189, allocatur refused, 222 Pa. Superior Ct. xxxii (1972).

[ 230 Pa. Super. Page 536]

In the present case, when appellees objected to the service of process, they in effect questioned the propriety of both jurisdiction over their persons and venue. After dismissing the complaint on the basis of either lack of personal jurisdiction or improper venue, the court below should ...


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