filed: November 16, 1979.
WALTER SCHACHTEL, ROBERT B. EINHORN AND KIEFER N. GERSTLEY, INDIVIDUALLY AND T/A SCHACHTEL, EINHORN AND GERSTLEY, APPELLANTS,
R. JERE BLOCHE
No. 2128 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Montgomery County, Pennsylvania, Civil Division, at No. 76-17608
Michael J. Clement, Norristown, for appellants.
Charles K. Plotnick, King of Prussia, submitted a brief on behalf of appellee.
Cercone, President Judge, and Watkins and Hoffman, JJ.
[ 272 Pa. Super. Page 33]
The Judicial Code, 42 Pa.C.A. § 742 (effective June 27, 1978) provides, as did its predecessor,*fn1 in relevant part, "[t]he Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas . . . ." The question presented is whether a lower court order pursuant to Rule 1006(d) of the Pennsylvania Rules of Civil Procedure,*fn2 transferring an equity action from one county courthouse in the Commonwealth to another
[ 272 Pa. Super. Page 34]
county court of equal competence, is a "final order" within the meaning of Section 742, and thus immediately appealable. For the reasons which follow, we hold that where -- as in the present case -- both the transferor court and the transferee court, are of equal competence*fn3 to entertain an equity action, the order effecting this statutory transfer of venue is discretionary in character and not final for purposes of appellate review; accordingly, we quash the appeal.*fn4
In September of 1974, appellants formed a partnership in the practice of law with appellee, R. Jere Bloche. During the existence of this understanding, appellee allegedly provided legal services to the Estate of James Corse and its executors, James L. Corse, Jr. and Edward M. Corse. Subsequently, on March 31, 1976, appellee orally agreed to withdraw from the partnership and on April 6, 1976, a writing was executed which set forth a partial settlement of the affairs of the now non-existent partnership.
Apparently, this initial settlement failed to satisfactorily resolve the representation by the partnership of both the Corse Estate and the individual executors. On November 1,
[ 272 Pa. Super. Page 351976]
, in Montgomery County, appellants commenced this equity action. It sought to resolve the respective rights of the former partners to a legal fee which has accrued, or will accrue, from services provided to the above clients. Specifically, appellants prayed that Attorney Bloche be ordered to: produce for inspection and copying the entire file on the Corse Estate, make available any records of billing costs or costs advanced to the above clients, and; account for and transfer to appellants three-fourths of any fees earned during the existence of the partnership which had been paid or are to be paid by the above clients.
The troubles of the partners were increased when in October of 1977, in Delaware County, the executors of the Corse Estate, in their own right, filed a lawsuit against appellants. This action, which sounds in Assumpsit and Trespass, generally alleged that appellants engaged in certain unethical practices and maliciously interfered with the relationship between the executors and Attorney Bloche. Attorney Bloche was neither originally named a party defendant to this proceeding, nor did he actively participate in it on behalf of the executors.
In the original action commenced by appellants in Montgomery County, which is the subject matter of the present appeal, appellee filed preliminary objections raising numerous legal issues. In this posture, however, the lower court en banc found it necessary to rule on only one issue: Whether in accordance with Rule 1006(d) appellee was entitled to a statutory transfer of venue from Montgomery to Delaware County. The court concluded transfer was proper and this appeal, questioning only the soundness of the lower court's exercise of its discretion to transfer, ensued.
At the threshold of this appeal we are confronted with the question whether a lower court's discretionary order granting a statutory transfer of venue is appealable. Appellants, relying exclusively upon their novel interpretation of Norman v. Norfolk & Western Ry. Co., 228 Pa. Super. 319, 323 A.2d 850 (1974), maintain such an order is immediately
[ 272 Pa. Super. Page 36]
appealable. Appellee, however, reasons that the rule of Norman is not applicable. In support of its contention, appellee argues the order appealed from in Norman concerned a lower court application of the common law doctrine of forum non conveniens, and not a discretionary application of the statutory transfer rule embodied in Rule 1006(d).
We approach the merits of these competing contentions with two basic rules in mind: (1) The appellate jurisdiction of this court, where other grounds of statutory jurisdiction are absent, is limited to appeals from final orders of lower tribunals*fn5 and; (2) in the absence of certification*fn6 or other statutory authority providing for an immediate appeal, "[o]rders made on preliminary objections are interlocutory, and ordinarily not appealable." Ro-Med Constr. Co. v. Clyde M. Bailey Bldg. Co., 239 Pa. Super. 311, 313, 361 A.2d 808, 809 (1976). E. g., Wilcox v. Evans, 190 Pa. Super. 166, 168, 153 A.2d 817, 818 (1959); see generally, Montgomery, Interlocutory Appeals in Pennsylvania, 41 Pa.B.A.Q. 398 (1970). Pennsylvania law, therefore, evidences a firm policy against piecemeal review because of its crippling effect upon the effective and fair administration of justice.
In Norman v. Norfolk & Western Ry. Co., 228 Pa. Super. 319, 323 A.2d 850 (1974), the defendant-appellant appealed from the lower court's refusal to grant preliminary objections raising a question of venue. The appellant, relying upon the common law doctrine of forum non conveniens, had requested that the proceedings in Pennsylvania be dismissed in order that suit could be brought either in West Virginia or Kentucky. Our court initially determined Rule 1006(d) was not applicable as the Rule does not give Pennsylvania courts the power to transfer cases to other states. Id., 228
[ 272 Pa. Super. Page 37]
Pa. Super. at 321 n. 2, 323 A.2d at 851 n. 2. Before we reached the merits of appellant's arguments, in Norman, supra, however, we noted that jurisdiction was present because:
"[O]rders involving the application of the doctrine of forum non conveniens are considered final in nature. Caplan v. Keystone Weaving Mills, Inc., 431 Pa. 407, 410, 246 A.2d 384, 386 (1968). This being so, the present appeal to our court is authorized by the Act of July 31, 1970. P.L. 673, No. 223 Article III, § 302, 17 P.S. § 211.302. Further, we have jurisdiction over matters of venue since they are treated as jurisdictional in nature: Gaetano v. Sharon Harold Co., 426 Pa. 179, 231 A.2d 753 (1967); and by virtue of the Act of March 5, 1925, P.L. 23, § 1, 12 P.S. § 672. In addition, the lower court certified this matter to us in accordance with provisions of the Appellate Court Jurisdiction Act of 1970, July 31, 1970. P.L. 673, No. 223, Article V, § 501, 17 P.S. § 211.501.
Id., 228 Pa. Super. at 322 n. 3, 323 A.2d at 851 n. 3.
As appellant presently challenges only the lower court's decision to transfer this equity action to a court of equal competence in Delaware County, the jurisdictional issue presented narrows to this -- does a discretionary order granting a statutory change of venue, and not mandating dismissal, fall within any of the jurisdictional bases present in Norman.
The initial rule relied upon in Norman, i. e., that orders dismissing a litigant's preliminary objections predicated upon common law forum non conveniens are final and appealable, is not applicable to the present appeal.*fn7 For purposes of determining "finality," there is a clear distinction between Rule 1006(d) transfer and the common law doctrine of forum non conveniens. Thus, while 1006(d) basically derives from the common law doctrine, it provides for transfer of a cause from one appropriate county to another, where as application of the common law doctrine
[ 272 Pa. Super. Page 38]
dictates that only one result is permissible -- dismissal. Viewed in this light, the practical effect of a transfer order, as in this case, is not to put appellants out of court, but rather to continue to guarantee that their cause will still be tried in a courtroom in Pennsylvania; therefore, for purposes of ascertaining finality, the rationale for holding orders involving common law forum non conveniens final and appealable does not support a judgment that a statutory transfer order should be immediately appealable. Cf. Caplan, 431 Pa. at 410, 246 A.2d at 386.
The second rule relied upon in Norman, supra, is also not applicable. That rule originated in Gaetano v. Sharon Herald, 426 Pa. 179, 231 A.2d 753 (1967). Sharon involved an appeal of a lower court order denying defendant's preliminary objections as to the propriety of venue. Specifically, it was contended that venue was not proper in the county where the suit was filed, and thus, the suit was being maintained in a court not statutorily empowered to entertain it. Our Supreme Court held that jurisdiction over the appeal was present in that preliminary objections raising questions of improper venue are "[f]or procedural purposes . . . treated as raising a question of jurisdiction."*fn8 Id., 426 Pa. at 181 n. 1, 231 A.2d at 755 n. 1. E. g., Estate of Smith, 442 Pa. 249, 253-4, 275 A.2d 323, 325 (1971) (venue determination is appealable if propriety of venue is challenged, but mere refusal to transfer venue is not jurisdictional
[ 272 Pa. Super. Page 39]
and, therefore, not appealable); Ro-Med Constr. Co. v. Clyde M. Bailey Bldg. Co., 239 Pa. Super. 311, 313, 361 A.2d 808, 809 (1976); Bloom v. Bloom, 238 Pa. Super. 246, 250 n. 3, 362 A.2d 1024, 1026 n. 3 (1976) (lower court denials of preliminary objections challenging improper venue or jurisdictional matters are appealable). In the instant appeal, appellants did not, nor could they successfully, assert that venue was improper where the suit was originally filed, nor do they seriously argue that Delaware County is not a county "where the action could originally have been brought." See Pa.R.Civ.P. 1006(d).*fn9
Accordingly, since nothing in Norman, supra, mandates the immediate appealability of an order of transfer where the only ground upon which it is attacked is that the lower court abused its discretion, and no other statutory grounds which support jurisdiction are advanced by appellants, we hold that this order transferring venue pursuant to Rule 1006(d) is interlocutory, and not final for purposes of 42 Pa.C.S. § 742 (effective June 27, 1978). Cf. Caplan, 431 Pa. at 410, 246 A.2d at 386; Anderson v. Uva, 230 Pa. Super. 533, 536, 326 A.2d 430, 431-32 (1974) (grant or denial of petitions to transfer are interlocutory and not appealable as jurisdictional questions under 12 P.S. § 672 (1925)); see, Ventura v. Skylark Motel, Inc., 431 Pa. 459, 463, 246 A.2d 353, 355 (1968); McConnell v. Schmidt, 234 Pa. Super. 400, 403, 339 A.2d 578, 581 (1975). See also, 1 Goodrich Amram 2d., Standard Pennsylvania Practice, § 1006(d), 458-59 (2d ed. 1976); see generally, ABA Standards on Appellant Courts, § 3.12, Comment (1977).*fn10 To conclude, it would indeed be
[ 272 Pa. Super. Page 40]
anomalous to hold otherwise. A contrary result would cripple the procedural innovations intended by Rule 1006(d) by subjecting the litigants to two suits. The first suit would concern itself only with where the actions should be instituted, while the second would finally focus on the merits of the litigation. See, All States Freight, Inc. v. Modarelli, 196 F.2d 1010, 1011-12 (3d Cir. 1952).