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ACTION INDUSTRIES v. WIEDEMAN (09/22/75)

decided: September 22, 1975.

ACTION INDUSTRIES, INC.
v.
WIEDEMAN, APPELLANT



Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1974, No. 1699, in case of Action Industries, Inc. v. Walter J. Wiedeman, a/k/a Walt Wiedeman.

COUNSEL

Clifford L. Tuttle, Jr., with him J. Jerome Mansmann, Carol Los Mansmann, and Mansmann & Mansmann, for appellant.

John M. Crimmins, with him Paul H. Titus, Sholom D. Comay, and Kaufman & Harris, for appellee.

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

Author: Spaeth

[ 236 Pa. Super. Page 449]

This is an appeal from an order dismissing preliminary objections to jurisdiction and venue.*fn1 Appellant contends that the court did not have in personam jurisdiction over him because he is a nonresident not within

[ 236 Pa. Super. Page 450]

    the reach of Pennsylvania's "long-arm" statute, Act of Nov. 15, 1972, P.L. 271, § 8301 et seq., eff. Feb. 13, 1973, 42 Pa. S. § 8301 et seq. (Supp. 1973-74), and that the substituted service used to obtain jurisdiction over him was invalid because the suit was not filed in the county where the action arose as required by Pa. R. C. P. 2077-2079.

On November 9, 1973, appellee filed a complaint in trespass alleging breach of employment duties and conversion by appellant. Since appellant is a resident of Ohio, service was made upon the Department of State. On January 24, 1974, appellant filed preliminary objections to the complaint. Although the objections were properly endorsed with a Notice to Plead within twenty days, appellee did not file a responsive pleading. The court below dismissed the preliminary objections without opinion, and this appeal followed.

Appellant initially asserts that because of appellee's failure to respond to the preliminary objections, the allegations of fact made by the objections must be taken as true, and the objections sustained on that basis. It is true that failure to answer preliminary objections endorsed with a notice to plead constitutes an admission. Goodrich-Amram § 1028(c)-2 (Supp. 1974). Pa. R. C. P. 1029 (b) provides: "(b) Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. . . ." It does not follow, however, that the preliminary objections must be sustained; that depends upon the facts that have been admitted. Furthermore, there is no admission of conclusions of law as distinct from allegations of fact. Goodrich-Amram § 1028(c)-2. Cf. Philadelphia & Reading Coal & Iron Co. v. Tamaqua Borough Sch. Dist., 304 Pa. 489, 495, 156 A. 75, 76 (1931); Klerlein v. Fred Werner Co., Inc., 98 Pa. Superior Ct. 440, 446 (1930). Accepting as true the uncontradicted factual allegations of appellee's complaint and the additional factual allegations of appellant's preliminary objections, 2 Anderson

[ 236 Pa. Super. Page 451]

Pennsylvania Civil Practice § 1017.19, the case may be stated as follows.

Appellee is a Pennsylvania corporation with its principal office in Allegheny County. Appellant is a resident of Ohio. On December 17, 1968, appellant and appellee executed an employment contract, effective January 1, 1969, under which appellant was to perform substantial services for appellee in Pennsylvania, specifically in Allegheny County. From January 1, 1969, to July 7, 1971 appellant performed under that contract.

On July 7, 1971, appellant assumed employment duties for appellee in the Plasta-Craft, Inc., plant at 330 Grandview Ave., Wadsworth, Ohio.*fn2 These duties arose in conjunction with an agreement entered into by appellee and Plasta-Craft on July 19, 1969. Under that agreement appellee delivered raw materials to Plasta-Craft, which Plasta-Craft used in the manufacture of plastic household goods for appellee. Appellee retained a purchase money security interest under the Uniform Commercial Code, § 9-101 et seq., in the raw materials and in the goods produced from those materials. At the time of the agreement, appellant was president of Plasta-Craft, as well as an employee of appellee. To protect appellee's security interest, appellant, as an employee of appellee, was charged with the duty of making periodic telephone reports from the Plasta-Craft ...


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