Appeal from an Order of the Court of Common Pleas of Montgomery County, Civil-Assumpsit, No. 78-8474. Appeal from an Order of the Court of Common Pleas of Philadelphia County, Civil Trespass, No. 1846, May Term, 1978.
Kenneth S. Siegal, Philadelphia, for appellant.
Richard B. Malis, Philadelphia, for appellant.
Hester, Montgomery and Cirillo, JJ.*fn*
[ 281 Pa. Super. Page 446]
In these consolidated appeals, the parties have asked us to determine the proper venue of two lawsuits in separate counties involving the same sales contract. Because we find that both lower courts erred in resolving the venue issue, we must remand for further proceedings.
These cases had their genesis on May 9, 1978, when appellant Charles Berman, t/a Charles Berman Tire Company, filed in the Court of Common Pleas, Philadelphia County, a complaint in trespass and assumssit against appellee Telstar Corporation, t/a Telstar Tyre and Rubber Company. The complaint alleged that sometime in April, 1975 the parties entered into an oral requirements contract whereby Telstar was to sell tires to Berman at Telstar's cost. The complaint further alleged that Telstar knowingly, willfully, and intentionally exaggerated its cost of the tires and overcharged Berman, beginning with the initial sale up to the final sale in 1977. Berman demanded judgment for the total overcharges in the sum of $179,667.35. The complaint also averred that Berman's principal place of business is in Philadelphia County, while Telstar's is in Montgomery County.
Appellee Telstar filed preliminary objections contesting venue and requesting either that the suit be dismissed or that the action be transferred to Montgomery County, citing Pa.R.Civ.P. 2179, the corporate venue provision. Berman then filed his amended complaint setting forth essentially the same factual scenario in more detail and adding that the contract was formed at Berman's place of business in Philadelphia. Another set of preliminary objections by Telstar followed in which Telstar again challenged venue and averred that the contract and other business contacts between the parties all occurred in Montgomery, not Philadelphia County, and that the suit should either be dismissed or
[ 281 Pa. Super. Page 447]
transferred. Pa.R.C.P. 1006(e). In addition, Telstar alleged that it had instituted its own suit against Berman for breach of the same requirements contract in the Court of Common Pleas, Montgomery County, and that venue in Philadelphia was improper, citing Rule 1017(b)(5). By order dated March 8, 1979, the lower court (Meade, J.) determined without taking evidence that venue was proper only in Montgomery County and transferred the case thereto. Berman then brought this appeal to our Court at No. 554, October Term, 1979.
Meanwhile, on May 23, 1978, the day after being served with Berman's original complaint in the Philadelphia action, Telstar filed its complaint in assumpsit against Berman in Montgomery County. The complaint alleged that the requirements contract was formed in Montgomery County; that Berman was in arrears in his payments thereunder; and that the total amount of Berman's indebtedness was $90,645.80. Berman's preliminary objections averred the pendency of the prior Philadelphia action, Rule 1017(b)(5), and again alleged that the business contacts and contract formation took place in Philadelphia, not Montgomery County, and that venue was proper only in Philadelphia. Telstar filed an answer, insisting that venue lay only in Montgomery County. The lower court (Avrigian, J.), without taking evidence, sustained venue in Montgomery County and Berman thereafter brought this appeal at No. 387, October Term, 1979, where it was consolidated with No. 554.
Preliminarily, we note that both appeals are interlocutory, but are nonetheless properly before us. Appeals from the dismissal of preliminary objections which raise questions of venue are appealable orders. Bloom v. Bloom, 238 Pa. Super. 246, n.3, 362 A.2d 1024, n.3 (1976); Calvin v. Somat Corp., 230 Pa. Super. 118, 326 A.2d 590 (1974); Norman v. Norfolk and Western Railway Co., 228 Pa. Super. 319, 323 A.2d 850 (1974). See also, Gaetano v. Sharon Herald Co., ...