No. 2082 Philadelphia, 1981, Appeal from Order of July 24, 1981 of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 4621 October Term, 1980
Arnold Levin, Philadelphia, for appellant.
Saul Doner, Philadelphia, for appellee.
Wieand, McEwen and Popovich, JJ. McEwen, J., files a dissenting opinion.
[ 309 Pa. Super. Page 159]
Holt Hauling and Warehousing Systems, Inc. (Holt) has appealed from an order dismissing an action in assumpsit against Aronow Roofing Company (Aronow) on grounds that the court lacked "in personam jurisdiction over [Aronow]."
[ 309 Pa. Super. Page 160]
The action was commenced by the issuance of a summons served on Aronow by certified mail, return receipt requested, directed to Aronow's office and principal place of business in Camden, New Jersey. Aronow is a New Jersey corporation. Holt is a Pennsylvania corporation with principal place of business in Gloucester, New Jersey. These facts are contained in a subsequently filed complaint which alleges that Holt has been damaged by Aronow's breach of a contract to place a new roof on Holt's building in Gloucester, New Jersey.
Preliminary objections were filed by Aronow alleging, inter alia,*fn1 that the trial court lacked jurisdiction because the agreement had been executed in New Jersey, performance was to take place in New Jersey, and the places of business of both parties were located in New Jersey. Holt's answer to Aronow's preliminary objections admitted these facts but countered that Aronow regularly and systematically did business in Pennsylvania and, therefore, was properly subjected to suit in Pennsylvania. See: 42 Pa.C.S. § 5301(a)(2).*fn2 Aronow caused its preliminary objections to be listed for determination; and the trial court,
[ 309 Pa. Super. Page 161]
without receiving evidence, sustained Aronow's objections to the court's jurisdiction and dismissed the complaint. An opinion filed pursuant to Pa.R.A.P. 1925(a) suggests that Holt failed to "meet its burden and show" that Aronow regularly and systematically did business in Pennsylvania. Hence, the order dismissing the complaint. This was error.
Where a defendant wishes to challenge the court's exercise of in personam jurisdiction, he may do so by filing preliminary objections. Lox, Stock & Bagels, Inc. v. Kotten Machine Co. of California, Inc., 261 Pa. Super. 84, 87, 395 A.2d 954, 955 (1978) citing Monaco v. Montgomery Cab Co., 417 Pa. 135, 140, 208 A.2d 252, 255 (1965); Pa.R.C.P. 1017(b)(1). If an issue of fact is raised by the preliminary objections, "the court shall take evidence by depositions or otherwise." Pa.R.C.P. 1028(c). In such a situation the court may not reach a determination based upon its view of the controverted facts, but must "resolve the dispute by receiving evidence thereon through interrogatories, depositions or an evidentiary hearing." Luitweiler v. Northchester Corporation, 456 Pa. 530, 535, 319 A.2d 899, 902 (1974). Accord: Telstar Corporation v. Berman, 281 Pa. Super. 443, 448, 422 A.2d 551, 554 (1980); Envirosystems Corporation v. Weinhardt, 271 Pa. Super. 66, 68, 412 A.2d 577, 578 (1979); Lox, Stock & Bagels, Inc. v. Kotten Machine Co. of California, Inc., supra 261 Pa. Super. at 88, 395 A.2d at 956; Laffey v. Lehigh Valley Dairy Cooperative, 257 Pa. Super. 45, 49, 390 A.2d 238, 240 (1978); Greene v. Liebergott, 235 Pa. Super. 475, 477, 344 A.2d 501, 502 (1975); Schaffer v. Batyko, 227 Pa. Super. 62, 65, 323 A.2d 62, 63-64 (1974); Luria v. Luria, 220 Pa. Super. 168, 171, 286 A.2d 922, 923 (1971). The failure of the parties to provide the evidence necessary for a proper determination of the issue does not ...