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WILLIAM HAMRE AND JOHN J. REILLY TRADING AS R & H ASSOCIATES v. STANLEY RESNICK AND JEAN FARNAN AND FSI FINANCIAL GROUP (12/21/84)

filed: December 21, 1984.

WILLIAM HAMRE AND JOHN J. REILLY TRADING AS R & H ASSOCIATES, APPELLANTS,
v.
STANLEY RESNICK AND JEAN FARNAN AND FSI FINANCIAL GROUP, INC.



NO. 3204 Philadelphia, 1982, Appeal from the Order Entered October 29, 1982 in the Court of Common Pleas of Delaware County, Civil Division, No. 82-4131.

COUNSEL

Joseph C. Honer, Jr., Aston, for appellants.

Shelly G. Farber, Media, for appellees.

McEwen, Beck and Cercone, JJ. McEwen, J., filed a dissenting statement.

Author: Cercone

[ 337 Pa. Super. Page 120]

This is an appeal from the order of the lower court sustaining appellee Farnan's and FSI Financial Group's preliminary objections and dismissing appellants' complaint on the basis of lack of venue.*fn1 Our review of the record persuades us that it is deficient and compels us to remand for further proceedings on the authority of Pa.R.C.P. 1028(c).*fn2

This case was initiated by the filing of a complaint in assumpsit on April 2, 1982. Appellants alleged that FSI Financial Group, Inc., breached its obligation to pay a debt at maturity in the amount of $42,333.00 plus interest. Jean Farnan and Stanley Resnick were named as guarantors of that debt. Following preliminary objections of Jean Farnan and FSI Financial Group, Inc., appellants filed an amended complaint which altered the caption of the complaint in conformity with Pa.R.C.P. 2127(a).*fn3 The amended complaint was filed on August 13, 1982. Farnan and FSI again filed preliminary objections which alleged, in relevant part, that appellants' complaint should be dismissed for improper

[ 337 Pa. Super. Page 121]

    venue. They averred that appellants' exhibits were not signed in Pennsylvania, that neither of them transacted any business in Pennsylvania with plaintiffs, but, if they did, it was in Virginia, and that no actions involving Farnan and FSI occurred in Delaware County, Pennsylvania.

Appellants' amended complaint stated that on the 4th day of April 1979, in the County of Delaware, State of Pennsylvania, that FSI, the principal debtor, was indebted to appellants. In addition, appellants responded in their Answer to the Preliminary Objections that the exhibits appended to the amended complaint were indeed signed in Delaware County, and that all contract negotiations, the contract itself, offer, acceptance and executed signatures were all undertaken in Delaware County.

Nowhere in the record is it indicated that interrogatories were filed, depositions were taken, or a hearing was conducted on the issue of the locus of the significant events in this case. In its opinion, the court writes that it based its decision of improper venue on "the record in this case and the briefs submitted by respective counsel . . ." From our reading of the record, we conclude that the court relied only on the pleadings as the "record".

This procedure is correct in many cases. In Matter of D.L.S. and J.L.S., 278 Pa. Superior Ct. 446, 420 A.2d 625 (1980), this court affirmed the lower court's dismissal of the mother's preliminary objections challenging the jurisdiction of Pennsylvania courts over a custody action. In doing so, our court found that no factual issues were raised which necessitated the reception of evidence. It was uncontroverted from the record that the mother and two children had moved to Florida just three and one-half weeks prior to the institution of the action and that both parents and children retained a significant connection with Pennsylvania.

On the other hand, in Luria v. Luria, 220 Pa. Superior Ct. 168, 286 A.2d 922 (1971), this court remanded for further proceedings in a situation in which the preliminary objections ...


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