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COMMONWEALTH PENNSYLVANIA v. PAUL CHATZIDAKIS (05/02/85)

decided: May 2, 1985.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PETITIONER
v.
PAUL CHATZIDAKIS, RESPONDENT. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PETITIONER V. LAWRENCE S. BARKLEY, ET AL., RESPONDENTS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PETITIONER V. PATRICK S. BURRIS, RESPONDENT. HAROLD S. REIGLE AND MILDRED H. REIGLE, H/W V. COMMONWEALTH OF PENNSYLVANIA, ET AL. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT V. ELIZABETH ANN AGUSTA, APPELLEE



Appeals from the Orders of the Court of Common Pleas of Philadelphia County (and Allegheny County) in cases of Paul Chatzidakis v. Pennsylvania Department of Transportation, et al., No. 5706 October Term, 1983, dated January 12, 1984 and February 8, 1984; Lawrence S. Barkley and Falcha-Dean Barkley, his wife v. Commonwealth of Pennsylvania, Department of Transportation, No. GD 83-20157 (Allegheny County), dated February 10, 1984; Patrick S. Burris v. Commonwealth of Pennsylvania, Department of Transportation, No. 3039 December Term, 1983, dated February 8, 1984 and February 29, 1984; Harold S. Reigle and Mildred H. Reigle, h/w v. Commonwealth of Pennsylvania, Department of Transportation, No. 2284 December Term, 1983, dated March 22, 1984, and Elizabeth Ann Agusta v. Commonwealth of Pennsylvania, Department of Transportation, No. 815 February Term, 1984, dated April 3, 1984.

COUNSEL

William A. Slotter, Deputy Attorney General, with him, Claudia J. Martin and Rosanna Dengg Weissart, Deputy Attorneys General, Mark E. Garber, Chief, Tort Litigation Unit, and LeRoy S. Zimmerman, Attorney General, for petitioner/appellant, Commonwealth of Pennsylvania, Department of Transportation.

Daniel L. Thistle, Beasley, Hewson, Casey, Colleran, Erbstein & Thistle, for appellee, Paul Chatzidakis.

Richard R. Isaacson, Berlin, Boas and Isaacson, for appellees, Lawrence S. Barkley and Falcha-Dean Barkley, his wife.

Christine L. Donohue, Evans, Rosen & Quinn, for Amicus Curiae, The Pennsylvania Trial Lawyers Association.

James J. Black, III, with him, Raymond M. Victor and Charles J. Arena, Raymond M. Victor, P.C., for appellee, Patrick S. Burris.

Lawrence A. Katz, with him, William L. Keller, Coffey, Keller & Kaye, for appellees, Harold S. Reigle and Mildred Reigle, his wife.

Michael D. Becker, with him, Mark S. Fridkin, Marks, Feiner and Fridkin, P.C., for appellee, Elizabeth Ann Agusta.

President Judge Crumlish, Jr., and Judges Rogers, Craig, MacPhail, Doyle, Colins and Palladino. Opinion by Judge MacPhail. Judge Williams, Jr., did not participate in the decision in this case. Concurring Opinion by Judge Palladino. Judge Craig joins in this Concurring Opinion.

Author: Macphail

[ 89 Pa. Commw. Page 109]

In these consolidated appeals, the sole issue presented is where venue lies in trespass actions instituted against the Department of Transportation (DOT). In each case, preliminary objections were filed and an appropriate order entered by the trial court. Because the various orders involved controlling questions of law upon which there was substantial ground for difference of opinion, we elected to hear the appeals certified to us pursuant to the provisions of Section 702 of the Judicial Code (Code), as amended, 42 Pa. C.S. § 702.

Article I, Section 11 of the Constitution of Pennsylvania provides in pertinent part:

Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.

[ 89 Pa. Commw. Page 110]

Pursuant to that constitutional authority, the legislature has provided as follows:

(a) Venue. -- Actions for claims against a Commonwealth party may be brought in and only in a county in which the principal or local office of the Commonwealth party is located or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose. If venue is obtained in the Twelfth Judicial District (Dauphin County) solely because the principal office of the Commonwealth party is located within it, any judge of the Court of Common Pleas of Dauphin County shall have the power to transfer the action to any appropriate county where venue would otherwise lie.

(b) Process. -- Service of process in the case of an action against the Commonwealth shall be made at the principal or local office of the Commonwealth agency that is being sued and at the office of the Attorney General.

Section 8523 of the Code, 42 Pa. C.S. § 8523.

In Section 3(b) of the Act of September 28, 1978, P.L. 788 (Act), 42 Pa. C.S. App.: 11, it is stated that:

The Attorney General shall promulgate rules and regulations not inconsistent with this act in order to implement the intent of the act. The subject of the rules and regulations may include . . . the designation of local and principal offices for Commonwealth agencies. . . .

Pursuant to that authority, the Attorney General promulgated the following regulations: (1) 37 Pa. Code § 111.1, effective January 5, 1980, provided that service of process upon Commonwealth agencies should be made at the principal office or at one of the designated local offices of the agency being sued as

[ 89 Pa. Commw. Page 111]

    set forth in a separate sub-section. For DOT, the offices so designated were the Office of Chief Counsel in Harrisburg, Pittsburgh and Philadelphia; (2) 37 Pa. Code § 111.2, effective December 26, 1981, provided that venue in actions in trespass against the Commonwealth or Commonwealth parties would lie only in the cause of action county, the county where a transaction or occurrence took place out of which a cause of action arose or where an office of the Commonwealth party had been designated in 37 Pa. Code § 111.1. The instant regulation also amended Section 111.1, insofar as designated offices for the service of process on DOT was concerned, to specify that the sole location where process could be served was the Office of Chief Counsel in Harrisburg; and (3) Effective January 30, 1982, 37 Pa. Code § 111.2 was deleted and the Offices of Chief Counsel in Philadelphia and Pittsburgh were added to the designated offices where service of process could be had upon DOT.

Since all of the litigants agree, as they must, that venue in cases where DOT is sued will lie in the cause of action county or a county where a transaction or occurrence took place out of which the cause of action arose, our inquiry here is limited to an interpretation of the meaning of the words "county in which the principal or local office of the Commonwealth party is located." Section 8523(a) of the Code.

DOT, as we understand its argument, contends that since the Attorney General has deleted 37 Pa. Code § 111.2 relating to venue, "local office" must be interpreted as the DOT office responsible for supervising the highway maintenance in the county where the accident occurred or the District Engineering Office for the county in which the accident occurred. In any event, DOT vehemently denies that "local office" can be interpreted as the county highway maintenance

[ 89 Pa. Commw. Page 112]

    facility located in each of the 67 counties ...


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