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PETRA ANN CORTESE AND PETER P. CORTESE AND FLORENCE CORTESE v. COMMONWEALTH PENNSYLVANIA (08/19/83)

decided: August 19, 1983.

PETRA ANN CORTESE AND PETER P. CORTESE AND FLORENCE CORTESE, HIS WIFE, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of the 11th Judicial District, Luzerne County, in the case of Petra Ann Cortese and Peter P. Cortese and Florence Cortese, his wife v. Commonwealth of Pennsylvania, Department of Transportation, and George Abbey, Sr., Administrator of the Estate of George J. Abbey, Jr., No. 240-C of 1982.

COUNSEL

Pasco L. Schiavo, for appellants.

Herbert L. Olivieri, Chief, Torts Litigation Unit, with him Randall G. Gale, Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for appellees.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 76 Pa. Commw. Page 463]

Appellants,*fn1 who are residents of Wyoming County, brought this suit in trespass for injuries allegedly sustained by Petra Cortese*fn2 in a one car accident which occurred February 1, 1980 in Wyoming County. Petra was a passenger in an automobile operated by one George A. Abbey, Jr. who was killed in the accident. The personal representative of Mr. Abbey's estate, a resident of Luzerne County, is also a defendant in this action.

Appellants appeal from an order of the Court of Common Pleas of Luzerne County which sustained the preliminary objection of the Department of Transportation (DOT) raising the question of venue. The trial court's order transferred the case to Wyoming County where the cause of action arose.

Article I, Section 11 of the Constitution of the Commonwealth of Pennsylvania provides that "Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct". (Emphasis added.) Acting pursuant to that constitutional authority, the legislature in Section 8523 of the Judicial Code (Code), 42 Pa. C.S. § 8523 provided that actions for claims against a Commonwealth party shall be brought in and only in the county where the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in a county "in which the principal or local office of the Commonwealth party is located". The Legislature further provided in Section 3(b) of the Act of September 28, 1978, P.L. 788,

[ 76 Pa. Commw. Page 46442]

Pa. C.S. App.:11 that the Attorney General should promulgate rules and regulations not inconsistent with the provisions of the Code to implement the intent thereof.

Pursuant to that authority, the Attorney General has adopted regulations found, or formerly found, at 37 Pa. Code §§ 111.1-111.3. With respect to these regulations, the critical question is which regulations were in effect when the instant suit was commenced?

The action was commenced in Luzerne County on January 20, 1982 by a writ of summons which was personally served upon the decedent's personal representative and upon the County Maintenance Manager of DOT at the maintenance shed located at Bear Creek Township, Luzerne County.

On January 4, 1980, the Attorney General adopted regulations effective January 5, 1980, 37 Pa. Code § 111.1 which provided that service of process upon Commonwealth agencies should be made at the "principal office or one of the local offices of the defendant agency" as set forth in a separate sub-section of Section 111.1. For DOT, the location of such ...


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