No. 509 Philadelphia, 1983, Appeal from Judgment of the Court of Common Pleas, Civil Division, of Montgomery County, No. 81-17723.
Robert E. Slota, Bryn Mawr, for appellants.
Leslie A. Miller, Philadelphia, for appellee.
Wieand, Olszewski and Popovich, JJ.
[ 343 Pa. Super. Page 99]
Robert E. Slota and his wife, Deanna, together with their friends, Norman and Maryellen Shachoy, commenced an action against The Moorings, Ltd. to recover burglary losses sustained while they were guests at a hotel owned by the defendant, from whom they had also chartered a yacht, in St. Lucia, British West Indies. The Slotas are residents of Pennsylvania; and the Shachoys are residents of Massachusetts. The Moorings, Ltd. is a corporation organized under the laws of the British Virgin Islands; it has neither office nor place of business in Pennsylvania. The trial court sustained preliminary objections raising questions of jurisdiction; and the plaintiffs have appealed. We affirm.
Appellants argue first that the trial court acted prematurely and without an adequate record because depositions were not taken and submitted pursuant to Pa.R.C.P.
[ 343 Pa. Super. Page 100209]
.*fn1 This rule, however, applies to petitions and answers. It does not apply to preliminary objections. A preliminary objection is a pleading, not a petition. Preliminary objection procedure is governed by Pa.R.C.P. 1028, which provides, in subsection (c), that "[t]he court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall take evidence by depositions or otherwise."
In the past, both the Supreme Court and this Court have said that where facts are controverted, the trial court must "resolve the dispute by receiving evidence thereon through interrogatories, depositions or an evidentiary hearing." Holt Hauling and Warehousing Systems, Inc. v. Aronow Roofing Co., 309 Pa. Super. 158, 161, 454 A.2d 1131, 1133 (1983), quoting Luitweiler v. Northchester Corp., 456 Pa. 530, 535, 319 A.2d 899, 902 (1974). In the instant case, the evidence was submitted via affidavit. This is not a recommended procedure. It would have been preferable to proceed by depositions or written interrogatories. However, the facts attested to in the affidavit are clear and specific. The deposition of Robert Slota, on the other hand, discloses that the information to which he testified was nothing more than rumor, surmise and conjecture. He made no effort to substantiate any of his assertions with depositions, interrogatories, affidavits or documentary evidence. We conclude, therefore, that the trial court did not err in finding that the facts were as set forth in appellee's affidavits and that appellants had failed to show facts sufficient to allow the courts of Pennsylvania to exercise in personam jurisdiction in the Pennsylvania courts. There is no need to remand for the taking of
[ 343 Pa. Super. Page 101]
depositions or the filing of interrogatories. See: Buxbaum v. Peguero, 335 Pa. Super. 289, 294-295, 484 A.2d 137, 140-141 (1984); Bensalem Township v. Terry, 317 Pa. Super. 380, 464 A.2d 371 (1983). See also and compare: Szekely v. Abilene Flour Mills Co., 211 Pa. Super. 442, 237 A.2d 242 (1967) (where disputed facts not resolved by affidavits, case will be remanded "to present evidence by deposition, interrogatories, or otherwise"). Nor was it essential in this case that appellee's personnel come into Pennsylvania for an evidentiary hearing.
Appellants ask this Court to find jurisdiction in the courts of Pennsylvania (1) because the contract for lodging was entered and partially performed in Pennsylvania; and (2) because, in any event, The Moorings allegedly conducted business continuously and ...