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HOSIERY CORPORATION AMERICA INC. v. JEROME RICH A/K/A JERRY RICH (05/18/84)

filed: May 18, 1984.

HOSIERY CORPORATION OF AMERICA INC., SUCCESSOR TO SLEEK FIT HOSIERY CORPORATION, APPELLANT,
v.
JEROME RICH A/K/A JERRY RICH



No. 2180 Philadelphia, 1982, Appeal from the Order entered June 24, 1982, Court of Common Pleas, Bucks County, Civil Division at No. 81-06753-15-1.

COUNSEL

John Curtis Van Sciver, Bensalem, for appellant.

Arnold Dranoff, Philadelphia, for appellee.

Rowley, Montemuro and Johnson, JJ.

Author: Johnson

[ 327 Pa. Super. Page 473]

Plaintiff appeals from an order transferring its complaint in assumpsit/trespass from Bucks County to Philadelphia County on the basis of forum non conveniens. The appeal from an interlocutory order has been properly taken as of right, Pa.R.A.P. 311(c). Because the order has been entered based solely on preliminary objections and the answer thereto, we reverse and remand for further proceedings.

The preliminary objections filed by defendant raised (a) the pendency of a prior action, (b) a question of venue, (c) a demurrer raising the bar of an allegedly non-waivable statute of limitations, and (d) a motion for a more specific pleading. The trial court made no determination as to (a), (c) or (d), above, but entered an order directing the Bucks County Prothonotary to certify and transmit the file to the Philadelphia County Court of Common Pleas, based on a finding of forum non conveniens. This was error.

The trial court stated in its opinion accompanying the order of transfer that "[t]here is no doubt that venue is legally proper." We agree, inasmuch as the within action was brought in the county in which the defendant had been properly served. Pa.R.Civ.P. 1006(a). Since the venue was indeed proper, defendant was precluded from utilizing the

[ 327 Pa. Super. Page 474]

    device of preliminary objections to secure a transfer. Rule 1006(e) provides, in pertinent part:

(e) Improper venue shall be raised by preliminary objection and if not so raised shall be waived.

(emphasis added).

Although plaintiff properly argued this point to the trial court in its Memorandum Contra Defendant's Preliminary Objections, the issue was inexplicably not urged on appeal. Nevertheless, we conclude that where all parties agree that venue is proper, the device of ...


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