OCTOBER TERM, 1978 NO. 2219, APPEAL FROM THE ORDER ENTERED JULY 26, 1978 BY THE COURT OF COMMON PLEAS, CIVIL TRIAL DIVISION-LAW, FOR THE COUNTY OF PHILADELPHIA, AT NO. 2726, NOVEMBER TERM, 1977, ASSUMPSIT
Paul Mark Perlstein, Philadelphia, for appellant.
Stephen Levin, Philadelphia, for appellee.
Wieand, Robinson and Louik, JJ.*fn* Wieand, J., concurs in the result. This decision was reached prior to the death of Robinson, J.
[ 272 Pa. Super. Page 593]
This is an appeal from the order of the court below sustaining preliminary objections to a complaint in assumpsit on the ground the court lacked jurisdiction over the person of defendant.
The defendant, Weil, appellee herein, a resident of Illinois prior to January of 1977, made a telephone call to plaintiff, Manchel, appellant herein, a resident of Pennsylvania, to his place of business in Philadelphia, Pennsylvania and consummated
[ 272 Pa. Super. Page 594]
an oral agreement for the rental of a villa which appellant owned in Acapulco, Mexico. Among the terms of the rental agreement, was the condition that appellant's telephone at the villa could be used by appellee only if all calls were charged to appellee. Appellee had on a prior occasion rented the villa by telephoning appellant in Philadelphia on the same condition that all telephone calls would be charged to appellee and the condition had been fully complied with on the prior occasion. While appellee occupied the villa during January, 1977, he made numerous long-distance calls which were charged to appellant in the amount of $1,380.00. This action was brought to recover the amount of the telephone charges so made.
Appellant first contends the lower court erred in ruling on the preliminary objections without first taking evidence on the issue of fact raised by his answer to the preliminary objections in accordance with Pa.R.C.P. 1028(c) which states in relevant part:
"The court shall determine promptly all Preliminary Objections. If an issue of fact is raised, the court shall take evidence by deposition or otherwise."
Paragraph six of the Preliminary Objections states, in conclusory fashion that defendant "has not . . . done in the Commonwealth of Pennsylvania, a series of similar acts for the purpose of thereby realizing pecuniary benefits or otherwise accomplishing an object . . .". Appellant in his answer thereto in like conclusory fashion avers that the "defendant has done in the Commonwealth of Pennsylvania an act or a series of similar acts for the purpose of thereby realizing for himself pecuniary benefits or otherwise accomplishing his objective and it is further averred that the defendant has done a single act in the Commonwealth of Pennsylvania for the purpose of thereby realizing for himself pecuniary benefits or otherwise accomplishing his intended object with the intention of initiating a series of such acts."
Subsequent to the filing of the preliminary objections, appellant filed a notice to take the ...