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COMMONWEALTH PENNSYLVANIA DEPARTMENT TRANSPORTATION v. PAUL CHATZIDAKIS (05/05/85)

May 5, 1985

COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, PETITIONER
v.
PAUL CHATZIDAKIS, RESPONDENT, NO. 84 MISC. DOCKET NO. 4; LAWRENCE S. BARKLEY ET AL., RESPONDENTS, NO. 85 MISC. DOCKET NO. 4; PATRICK S. BURRIS, RESPONDENT, NO. 87 MISC. DOCKET NO. 4; HAROLD S. REIGLE AND MILDRED H. REIGLE, H/W V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION ET AL. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT, NO. 89 MISC. DOCKET NO. 4; COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT V. ELIZABETH ANN AGUSTA, APPELLEE, NO. 116 MISC. DOCKET NO. 4



PETITION FOR PERMISSION TO APPEAL INTERLOCUTORY ORDER

COUNSEL

FOR PETITIONER: Claudia J. Martin, Esq., Deputy Attorney General, Tort Litigation Unit, 206 State Office Bldg., Philadelphia, PA 19130 and William A. Slotter, Esq. Daniel L. Thistle, Esq., 5th Floor - 21 S. 12th St., Philadelphia, PA 19107. Albert J. Schell, Jr., Esq., 210 W. Washington Square, 12th Floor, Philadelphia, PA 19106, , Raymond M. Victor, Esq., 1314 Chestnut Street, 15th Floor, Philadelphia, PA 19107. Rosanna Dengg Weissert, Esq., Deputy Attorney General, Tort Litigation Unit, 4th Floor Manor Bldg., 564 Forbes Ave., Pittsburgh PA 15219. Richard R. Isaacson, Esq., Berlin, Boas & Isaacson, 1906 Law & Finance Bldg, Pittsburgh, PA 15219.

FOR PENNSYLVANIA TRIAL LAWYERS ASSOCIATION: Christine L. Donohue, Esq., 816 5th Ave., 400 Mutual Bldg., Pittsburgh, PA 15219 (AMICUS CURIAE).

FOR APPELLANT: Claudia J. Martin, Esq., Deputy Attorney General, 206 State Office Bldg., Philadelphia, PA 19130 and William A. Slotter, Esq., Deputy Attorney General, Room 206 State Office Building, Philadelphia, PA 19130. William Keller, Esq. 835 Land Title Bldg., Philadelphia, PA 19110. Daniel L. Leeds, Esq. Suite 1000 - Three Penn Center Plaza, Philadelphia, PA 19102. Joseph Heincer, Esq., 9th Floor - PNB Plaza Bldg., Philadelphia, PA 19106 (CHANGE OF ADDRESS FOLLOWS) Joseph X. Heincer, Esq., Law Offices, 508 One Bala Cynwyd Plaza, 231 St. Asaphs Road, Bala Cynwyd, PA 19004. Lawrence A. Katz, Esq., Coffey, Keller & Kaye, 835 Land Title Building, 100 S. Broad Street, Philadelphia, PA 19110. Dennis J. O'Leary, Esq., White and Williams, 17th Floor, 1234 Market St., Philadelphia, PA 19107.

FOR APPELLEE: Mark S. Friedkin, Esq., 804 Stephen Girard Building, 21 S. 12th Street, Philadelphia, PA 19107 and Michael D. Becker, Esq.

FOR RESPONDENT: Raymond Victor, Esq., 15th Floor, 1314 Chestnut St., Philadelphia, PA 19107 and Charles J. Arena, Esq., and James J. Black, III. Albert J. Schell, Jr. Esq., Post & Schell, 12th Floor, 210 Washington Square, Philadelphia, PA 19106. Daniel L. Thistle, Esq., Beasley. Hewson, Casey, Collerman, Eerbstein & Thistle, 21 South 12th Street, 5th Floor, Philadelphia, PA 19107.

James Crumlish, Jr., P.j., Theodore O. Rogers, David W. Craig, John A. MacPHAIL, Joseph T. Doyle, James Gardner Colins, Madaline Palladino, Judges. Judge Williams, Jr. did not participate in the decision in this case. Concurring Opinion by Judge Palladino, and Judge Craig joins in this concurring opinion.

Author: Macphail

Opinion BY JUDGE MacPHAIL

In these consolidated appeals, the sole issue presented in 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.

Pursuant to that constitutional authority the legislature has provided as follows: (a) Venue. - Actions for claims against Commonwealth party may be brought in and in 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 ofthe 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 th e principal office or at one of th e designated local offices of the agency being sued as 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, 19891, 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 ...


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