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MICHAEL G. BORTULIN AND CLARA ALLISON v. HARLEY-DAVIDSON MOTOR CO. (03/30/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 30, 1988.

MICHAEL G. BORTULIN AND CLARA ALLISON
v.
HARLEY-DAVIDSON MOTOR CO., INC. ET AL. MICHAEL G. BORTULIN, APPELLANT

Appeals from the Order of the Court of Common Pleas of Philadelphia County in the case of Michael G. Bortulin and Clara Allison v. Harley-Davidson Motor Co., Inc., et al., No. 967 July Term, 1986.

COUNSEL

Gordon W. Gerber, Dechert, Price & Rhoads, with him, Mark S. Pinnie, Lord & Mulligan, for appellants, Michael G. Bortulin and Clara Allison.

Barbara L. Hollenbach, with her, Robertson B. Taylor, Holland, Taylor and Sorrentino, for appellee, Harley-Davidson Motor Co., Inc.

Jessie L. Smith, Office of Attorney General, Torts Litigation Unit, for appellee, Department of Transportation.

James J. Donohue, White and Williams, for appellee, The Pennsylvania State University.

Albert E. Hart, Jr., LaBrum and Doak, for appellee, Franklin County.

Paul F. Lantieri, with him, Albert L. Bricklin, Bennett, Bricklin & Saltzburg, for appellee, Fawn Aileen Bumbaugh.

Judges Doyle and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 115 Pa. Commw. Page 44]

Michael G. Bortulin and Clara Allison (Appellants) appeal an order of the Court of Common Pleas of Philadelphia County (trial court) sustaining the preliminary objections of the Commonwealth of Pennsylvania, Department of Transportation (PennDOT). We affirm.

Appellants were involved in a motor vehicle accident on or about April 26, 1985 when the motorcycle upon which they were riding was struck by an automobile driven by Fawn Aileen Bumbaugh (Bumbaugh). The accident occurred in the Borough of Mont Alto, Franklin County as Bumbaugh was exiting the Mont Alto campus of the Pennsylvania State University by means of a bridge located on the campus and a road in Quincy Township.

Appellants filed a complaint in the trial court on July 10, 1986 against Harley-Davidson Motor Company, Inc.*fn1 (the manufacturer of the motorcycle upon which they were riding), PennDOT, the Pennsylvania State University, the Borough of Mont Alto, Quincy Township, Franklin County, and Bumbaugh. The complaint alleged negligence, strict liability, and warranty claims against the various defendants.

Bumbaugh and PennDOT filed preliminary objections to the complaint and asserted that venue in Philadelphia County was improper.*fn2 Bumbaugh argued that

[ 115 Pa. Commw. Page 45]

    venue was proper in Franklin County because the political subdivision defendants were located there and requested that the case be transferred to Franklin County. PennDOT contended that venue as to it was improper in Philadelphia County and requested the trial court to dismiss the complaint with prejudice or, in the alternative, to transfer the action to Franklin County.

Appellants opposed the preliminary objections and requested dismissal of the same or, in the alternative, dismissal of the action without prejudice. Appellants also filed a separate motion for permission to discontinue as to PennDOT only.

On January 9, 1987, the trial court sustained the preliminary objections of PennDOT and ordered the action transferred to Franklin County.*fn3 Appellants filed a petition for reconsideration and again requested permission to discontinue as to PennDOT. In the alternative, Appellants requested that the action be transferred to Dauphin County. The trial court denied the petition for reconsideration. By order dated June 11, 1987, this court permitted an appeal of the order sustaining the preliminary objections and transferring the action to Franklin County,*fn4 but quashed an appeal of the trial court's denial of the motion for permission to discontinue as to PennDOT.

Appellants now argue that the trial court erred in sustaining the preliminary objections and contend that venue as to PennDOT was proper in Philadelphia

[ 115 Pa. Commw. Page 46]

County. Appellants argue that even if venue as to PennDOT was improper in Philadelphia County, the trial court should have permitted a discontinuance as to PennDOT or transferred the action to Dauphin County.

We note that in reviewing a trial court's order sustaining preliminary objections, an appellate court must determine if any doubt exists as to whether or not the preliminary objections were properly sustained, resolving any existing doubt by overruling the objections. Hempfield Township Appeal, 102 Pa. Commonwealth Ct. 514, 518 A.2d 1314 (1986).

In this case, venue as to PennDOT is governed by Section 8523(a) of the Judicial Code, 42 Pa. C. S. § 8523(a). Section 8523(a) provides that actions for claims against a Commonwealth party may be brought in and only in a county where 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.*fn5 Although Section 8523(a) does not define "principal office" or "local office," the Attorney General has been authorized to promulgate rules and regulations not inconsistent with this act in order to implement its intent. Section 3(b) of the Act of September 28, 1978, P.L. 788. The subject of these rules and regulations may include the designation of principal and local offices for Commonwealth agencies. Id.

Pursuant to this authority, the Attorney General has promulgated regulations, effective April 26, 1986, which define "principal office" and "local office" for purposes of venue. 37 Pa. Code §§ 111.1, 111.4. PennDOT's "principal office" for venue purposes is located in Harrisburg, Dauphin County. Id. Section 111.4(c) provides

[ 115 Pa. Commw. Page 47]

    that the "local office" of the Commonwealth party shall be the local office located in that county where the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose. Under these provisions, then, venue as to PennDOT is proper in either Dauphin County, the location of its principal office, or in Franklin County, the cause of action county.

Appellants contend that these regulations are inapplicable to the instant case because they were promulgated after the date of the accident.*fn6 This contention is without merit. In determining whether a particular statute is to be given retroactive effect, the Pennsylvania Supreme Court has distinguished between statutes which impact upon procedural matters and those which affect a party's substantive rights. In Bell v. Koppers Co., Inc., 481 Pa. 454, 392 A.2d 1380 (1978), the Supreme Court concluded that when a party's substantive rights are involved, the law which was in effect at the time the cause of action arose must be applied. In contrast, procedural rules are applicable to actions instituted after the effective date of the rules. Id. The Supreme Court has also held that venue is essentially procedural in nature, rather than substantive. McGinley v. Scott, 401 Pa. 310, 164 A.2d 424 (1960). Thus, the Attorney General regulations pertaining to venue apply to this case because they were in effect prior to the commencement of Appellants' action.

We further recognize that venue as to the Borough of Mont Alto, Quincy Township, and Franklin County is

[ 115 Pa. Commw. Page 48]

    proper in Franklin County. Pa. R.C.P. No. 2103(b) provides that, except when the Commonwealth is the plaintiff or when otherwise provided by an Act of Assembly, an action against a political subdivision may be brought only in the county in which the political subdivision is located. See Pa. R.C.P. No. 1006(c).

Appellants contend that even if venue as to PennDOT is improper in Philadelphia County, the trial court should have transferred the case to Dauphin County, rather than to Franklin County. Assuming that venue would also be proper in Dauphin County, we nevertheless cannot conclude that the trial court abused its discretion in transferring the action to Franklin County when the political subdivisions were located in Franklin County and the cause of action arose there. See Pa. R.C.P. No. 1006(d).*fn7

Finally, Appellants assert that the trial court erred in denying permission to discontinue as to PennDOT. However, Appellants' appeal of the trial court's denial was quashed by this court. Thus, that issue is not properly before us and we will not consider it.

Accordingly, we affirm.

Order

And Now, March 30, 1988, the order of the Court of Common Pleas of Philadelphia County sustaining the preliminary objections of the Commonwealth of Pennsylvania, Department of Transportation in the above-captioned matter is affirmed.

Disposition

Affirmed.


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