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SHARON PEACEMAN v. BERTHA CADES AND LOWER MORELAND TOWNSHIP. APPEAL LOWER MORELAND TOWNSHIP (12/14/79)

filed: December 14, 1979.

SHARON PEACEMAN, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF JACK L. PEACEMAN, DECEASED
v.
BERTHA CADES AND LOWER MORELAND TOWNSHIP. APPEAL OF LOWER MORELAND TOWNSHIP



No. 1773 October Term, 1978, Appeal from Order of the Court of Common Pleas of Philadelphia County, No. 1011, October Term, 1977, Civil Action - Law, Dated May 15, 1978.

COUNSEL

Andrew L. Braunfeld, Norristown, for appellant.

Phillip H. Baer, Philadelphia, submitted a brief on behalf of Sharon Peaceman, appellee.

Robert St. Leger Goggin, Philadelphia, submitted a brief on behalf of Bertha Cades, appellee.

Cercone, Hester and Hoffman, JJ. Hoffman, J., concurs in the result. Hester, J., files a dissenting opinion.

Author: Cercone

[ 272 Pa. Super. Page 570]

This appeal is from the order of the Court of Common Pleas of Philadelphia County, dismissing the preliminary objections of appellant, Lower Moreland Township, as to venue and deputized service. We affirm the decision of the lower court.

The instant case involves a survival action and wrongful death claim arising from a fatal accident which occurred when the car of defendant, Beth Cades, allegedly struck plaintiff's decedent, Jack Peaceman, as he was walking along the road in Lower Moreland Township in Montgomery County. Sharon Peaceman brought this action against both the driver of the car and Lower Moreland Township in Philadelphia County, the county in which the driver, Beth Cades, resides. Lower Moreland Township was served in Montgomery County by deputized service. The township filed preliminary objections alleging that the complaint should be dismissed for improper venue and improper service.*fn1 The lower court dismissed those preliminary objections and the township appealed.

There are two issues preserved for our review. First whether exclusive venue lies only where a political subdivision is located, regardless of other defendants who are amenable to suit elsewhere; and second, whether deputized service of a political subdivision is authorized in an action at law.

In addressing the first issue, the township contends and Judge Hester's dissent states that the venue of a political subdivision is exclusively controlled by Pa.R.C.P. 2103. This rule provides:

"(b) Except when the Commonwealth is the plaintiff or when otherwise provided by an Act of Assembly, an action against a political subdivision may be brought

[ 272 Pa. Super. Page 571]

    only in the county in which the political subdivision is located."

This rule is explained on the theory that it is in the interest of the public welfare to have municipal officers remain at home to pursue their official duties instead of being called all over the Commonwealth to defend actions. Heckscher v. Philadelphia, 6 Sadler 346, 9 A. 281 (1887); Oil City v. McAboy, 74 Pa. 249 (1873); Danchison v. Ryon, 88 Pa.D. & C. 129 (1954); 6 Goodrich-Amram 2d § 2103(b) (1977); 56 Am.Jur.2d, Municipal Corporations, Counties, and Other Political Subdivisions § 855 et seq. (1971).

We are not convinced that this is a legitimate public interest. Municipal officers are no different from any other citizens who may be forced to travel in order to defend lawsuits in counties other than where they reside. Furthermore, Pa.R.C.P. 2103(b) does not provide for the situation where there are multiple defendants involved, some of whom may only be amenable to service in a county other than where a defendant-political subdivision is located. Mrs. Peaceman argues that this is when Pa.R.C.P. 1006(c) applies. This rule provides in part:

"(b) Actions against the following defendants, except as otherwise provided in Subdivision (c), may be brought in and only in the counties designated by the following rules: . . . political subdivisions, Rule 2103; . . . corporations and similar entities, Rule 2179.

(c) An action to enforce a joint or joint and several liability against two or more defendants, except actions in which the Commonwealth is a party defendant, may be brought against all defendants in any county in which the venue may be laid against any one of the defendants under the general rules of Subdivisions (a) or (b)." (Emphasis supplied.)

The recognized policy behind this rule is to avoid multiplicity of suits. 1 Goodrich-Amram 2d § 1006(c):1 (1976).

The application of Rule 1006(c) to a situation such as the instant one raises the question of the meaning of the word "Commonwealth" within that rule. Mrs. Peaceman

[ 272 Pa. Super. Page 572]

    argues that the legislature recognizes the distinction between a political subdivision and the Commonwealth since various rules separately refer to either a political subdivision or the Commonwealth. Following this logic, if the legislature intended to include a political subdivision in the exception to the application of Rule 1006(c), it would have specifically done so. Instead, only the Commonwealth is excepted from the application of Rule 1006(c), and in the multiple defendant situation a political subdivision may be sued in a county other than where it is located. We find this interpretation persuasive in that it will effectuate the purpose behind Rule 1006 which is to "prevent the unnecessary splitting of causes of action because venue might otherwise be unobtainable in the county of a co-defendant." Ro-Med Constr. Co., Inc. v. Clyde M. Bartley Co., Inc., 239 Pa. Super. 311, 315, 361 A.2d 808, 810 (1976).

The instant case is different from United States Cold Storage Corp. v. Philadelphia, 427 Pa. 624, 235 A.2d 422 (1967), on appeal after remand, 431 Pa. 411, 246 A.2d 386 (1968). In that case an action originally filed in Philadelphia, the defendants were the City of Philadelphia and the General State Authority. It was statutorily established*fn2 that the General State Authority is an "instrumentality of the state" and could only be sued in Dauphin County pursuant to Pa.R.C.P. 1503(c).*fn3 However, under Pa.R.C.P. 2103(b), the City of Philadelphia could only be sued in Philadelphia County. The Supreme Court held that since the Commonwealth was a party to the suit through the General State Authority, the exception to Rule 1006(c) applied

[ 272 Pa. Super. Page 573]

    and suit was brought in Dauphin County to avoid ...


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