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MARGARET MCLAIN v. ARNEYTOWN TRUCKING CO. (02/04/88)

filed: February 4, 1988.

MARGARET MCLAIN, AS EXECUTRIX OF THE ESTATE OF JOHN T. MCLAIN, DECEASED, AND MARGARET MCLAIN, INDIVIDUALLY, AND DOUGLAS MCLAIN, APPELLANTS,
v.
ARNEYTOWN TRUCKING CO., INC. AND ROBERT J. HOUGHTON AND CANNEL TRUCKING CO. AND GEORGE SHIFFLETT, APPELLEES



Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 3459 September Term, 1985.

COUNSEL

John Baldante, Philadelphia, for appellants.

Susan E. Satkowski, Philadelphia, for Arneytown, appellees.

Cirillo, President Judge, and Wieand and Olszewski, JJ.

Author: Wieand

[ 370 Pa. Super. Page 521]

The principal issue in this appeal is whether improper venue can be waived by one defendant in such a manner as to preclude a second defendant from interposing a successful objection to such venue. The trial court rejected such an argument, sustained preliminary objections to venue by one defendant, and transferred the action to the county in which the cause of action had arisen. We affirm.

[ 370 Pa. Super. Page 522]

On May 11, 1984, at or about 3:00 a.m., two tractor-trailer units collided on the Pennsylvania Turnpike in Lancaster County. Moments later, a vehicle driven by John McLain ran into one of the units involved in the prior collision. John McLain was killed and Douglas McLain, a passenger, was injured. Margaret McLain, the executrix of the estate of John McLain, deceased, and Douglas McLain filed a civil action in Philadelphia. Named as defendants were Arneytown Trucking, Inc. and Cannel Trucking Co., the owners of the units, and Robert J. Houghton and George Shifflett, the drivers of the units. The complaint alleged that Arneytown Trucking was a New Jersey corporation with offices in Trenton, New Jersey; Cannel Trucking Company was an Ohio corporation, located in Youngstown, Ohio; Houghton was a resident of Barrington, New Jersey; and Shifflett was a resident of Somerset County, Pennsylvania. The plaintiffs were residents of Ocean County, New Jersey.

Arneytown Trucking and Houghton filed preliminary objections challenging venue in Philadelphia. They also requested a transfer of venue to Lancaster County on grounds that it would be more convenient to parties and witnesses if the case were tried in Lancaster County. Cannel Trucking and Shifflett, however, filed an answer containing new matter; they did not file preliminary objections challenging venue.

Depositions thereafter were taken and disclosed that Arneytown Trucking did not maintain an office or telephone in Philadelphia, did not have employees in Philadelphia, did not advertise or have customers in Philadelphia, and did not contract with businesses in Philadelphia. Its trucks, however, passed through Philadelphia and sporadically made pickups in Philadelphia. Only one percent of its truck mileage involved travel through Philadelphia. Other depositions disclosed that Cannel Trucking also did not maintain offices and did not have employees, customers, accounts, or clients in Philadelphia. Based on the foregoing facts, the trial court sustained the preliminary objections filed by Arneytown Trucking and Houghton and transferred the matter to Lancaster County. Plaintiffs appealed.

[ 370 Pa. Super. Page 523]

With respect to an action against a corporation, Pa.R.C.P. 2179(a) permits the action to ...


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