Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

BEVERLY MISHER v. BO'S AUTO PARTS (04/18/89)

filed: April 18, 1989.

BEVERLY MISHER, ADMINISTRATRIX OF THE ESTATE OF MARTIN MISHER, DECEASED,
v.
BO'S AUTO PARTS, INC. AND CHARLES HICKEY AND HARLEYSVILLE INSURANCE COMPANY. APPEAL OF HARLEYSVILLE INSURANCE COMPANY



Appeal from Order of the Court of Common Pleas, Civil Division, of Montgomery County, No. 87-17008.

COUNSEL

Joseph H. Foster, Philadelphia, for appellant.

Ronald L. Wolf, Philadelphia, for Misher, appellee.

Wieand, Montemuro and Hoffman, JJ.

Author: Wieand

[ 383 Pa. Super. Page 594]

This appeal requires that we construe Pa.R.C.P. 3141(b) and determine when and under what circumstances a garnishee may exercise its option to proceed in the county to which a writ of attachment has been directed.

Martin Misher was killed on September 15, 1983 when the vehicle which he was operating was in an accident involving a vehicle owned by Bo's Auto Parts and driven by Charles Hickey, one of its employees in Lower Merion Township, Montgomery County. In a subsequent death action by the administratrix of Misher's estate, liability was admitted, and a jury awarded damages of $3,087,002.72. A remittitur was subsequently granted by the trial court; and after delay damages had been granted and adjustments made, judgment was entered in the amount of $2,303,982.80. The vehicle owned by Bo's Auto Parts was insured by Harleysville Insurance Company (Harleysville) under a policy having a liability limit of three hundred thousand ($300,000.00) dollars. This amount was paid on account of the judgment.

On November 20, 1987, an attachment execution was issued in Philadelphia County against Harleysville to recover the balance of the judgment because of Harleysville's alleged bad faith refusal to settle prior to trial. A writ of attachment was issued and was forwarded, together with a set of interrogatories, to the Sheriff of Montgomery County for service on Harleysville at its "home office" in Montgomery County. On January 4, 1988, Harleysville filed answers to the interrogatories in Philadelphia, the county from which the writ had been issued. Later, on January 21, 1988, Harleysville filed identical answers in Montgomery County, together with an election of optional venue in Montgomery County. Copies were forwarded to the court in Philadelphia County. On motion of the plaintiff-estate,

[ 383 Pa. Super. Page 595]

    however, the court in Montgomery County struck Harleysville's election. The court held that an election had previously been made when Harleysville filed answers to interrogatories in Philadelphia County, from which the writ had issued. Having made that election, the court held, Harleysville could not subsequently change it. From the order striking its election of venue and returning the case to Philadelphia, Harleysville appealed.

"Venue" is the right of a party sued to have the action brought and heard in a particular judicial district. Potteiger v. Fidelity-Philadelphia Trust Co., 424 Pa. 418, 421 n. 5, 227 A.2d 864, 868 n. 4 (1967); Simpson v. Simpson, 404 Pa. 247, 251, 172 A.2d 168, 171 (1961). Although a plaintiff, as a general rule, may choose the forum in which to institute suit, that right is not absolute. See: Vogel v. National R.R. Passenger Corp., 370 Pa. Super. 315, 320, 536 A.2d 422, 425 (1988); McReynolds v. Benner Twp., 118 Pa. Commw. 215, 301, 544 A.2d 566, 567 (1988). In garnishment proceedings, the rule permits a garnishee in all cases to require attachment proceedings to be heard in the county to which the writ has been directed. Pa.R.C.P. 3141(b) provides as follows:

(b) When the writ is issued to another county, preliminary objections, proceedings for stay, or release of property from attachment, answers to interrogatories, or other matters relating to the attachment, may at the option of the garnishee be filed or taken by him in the county to which the writ is directed or from which it issued. If filed or taken in the county to which the writ is directed, copies thereof and any order of the court thereon shall also be forwarded to the prothonotary of the county in which the writ issued, and to the plaintiff and the defendant or their attorneys, and shall contain or have attached ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.