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RO-MED CONSTRUCTION CO. v. CLYDE M. BARTLEY CO. (03/29/76)

decided: March 29, 1976.

RO-MED CONSTRUCTION CO., INC.
v.
CLYDE M. BARTLEY CO., INC., APPELLANT, ET AL.



Appeal from order of Court of Common Pleas of Lawrence County, No. 176 of 1973, in case of Ro-Med Construction Co., Inc. v. Clyde M. Bartley Co., Inc., and Clyde M. Bartley, individually.

COUNSEL

George H. Hancher, for appellant.

No appearance entered nor brief submitted for appellee.

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

Author: Van Der Voort

[ 239 Pa. Super. Page 312]

Appeal is taken from an Order of the lower court dismissing preliminary objections of appellant. Appellant's objection as to proper venue is the only issue before us.

The record shows that appellee filed a complaint in assumpsit as above-captioned, averring that the corporate defendant had an office in Lawrence County and

[ 239 Pa. Super. Page 313]

    that the individual defendant resided in Lawrence County. Appellant objected preliminarily that venue was improperly laid as to it, alleging that its registered place of business was Beaver County and that the performance of the contract involved was in Mercer County. The preliminary objections were endorsed with the standard notice to plead within twenty days. Appellee filed no answer to these objections. The lower court dismissed the objections, saying in its opinion that, first, appellant had failed to raise the issue of venue, and secondly, it failed to support its assertions. With this first conclusion we must disagree. Appellant's preliminary objections*fn1 contained a "petition as to venue" and in its petition appellant asked for transfer of venue because of improper "venue and jurisdiction". With the second however we must agree for reasons stated herein below.

"Orders made on preliminary objections are interlocutory, and ordinarily not appealable" in the absence of a statute providing for appeal. Wilcox v. Evans, 190 Pa. Superior Ct. 166, 168, 153 A.2d 817, 818 (1959). Also Pincus v. Mutual Assurance Co., 457 Pa. 94, 321 A.2d 906 (1974). However, the Act of March 5, 1925, P.L. 23, 12 P.S. ยง 672, provides as follows: "Wherever in any proceeding at law or in equity the question of jurisdiction over the defendant or of the cause of action for which suit is brought is raised in the court of first instance, it shall be preliminarily determined by the court upon the pleadings or with depositions, as the case may require; and the decision may be appealed to the Supreme Court or the Superior Court, as in cases of final judgment." While the distinction in terminology between "jurisdiction" and "venue" has unfortunately been obliterated to a great degree, our Supreme Court has spoken with authority that objections as to venue do raise questions of jurisdiction. Caplan v. Keystone Weaving Mills, Inc., 431 Pa. 407, 246 A.2d 384 (1968). As to the propriety of the

[ 239 Pa. Super. Page 314]

    venue chosen by a plaintiff, no procedural difference shall be noted between that and a strictly jurisdictional question of selecting a court possessing competence to entertain the case. Thus, it appears that improper venue is raised by preliminary objections. Pa. R.C.P. 1006(e) and Hohlstein v. Hohlstein, 223 Pa. Superior Ct. 348, 296 A.2d 886 (1972). Based upon the foregoing, we hold that this case is properly appealed, and we shall, pursuant to our jurisdictional duty,*fn2 and the right given for appeal by the Act of 1925, supra, consider appellant's question. See Commonwealth ex rel. Levinson v. Levinson, 193 Pa. Superior Ct. 434, 165 A.2d 429 (1960).

Pennsylvania Rule of Civil Procedure No. 2179(a) mandates that "a personal action against a corporation or similar ...


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