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09/10/97 CRAIG SMITH v. STEPHEN AGENTIS T/A MR.

COMMONWEALTH COURT OF PENNSYLVANIA


September 10, 1997

CRAIG SMITH, APPELLANT
v.
STEPHEN AGENTIS T/A MR. ROOTER V. CITY OF ALLENTOWN

This Opinion Substituted on Grant of Reconsideration for Withdrawn Opinion of September 10, 1997, Previously

Before: Honorable James Gardner Colins, President Judge, Honorable Joseph T. Doyle, Judge, Honorable Charles A. Lord, Senior Judge. Opinion BY Judge Doyle.

The opinion of the court was delivered by: Doyle

OPINION BY JUDGE DOYLE

FILED: September 10, 1997

Craig Smith appeals an order of the Court of Common Pleas of Northampton County granting an additional defendant, the City of Allentown, a change of venue.

On April 3, 1995, Steven Agentis, trading as "Mr. Rooter," was performing sewer maintenance work in the 2400 block of Emmaus Avenue, in the City of Allentown. During the course of this maintenance, Agentis removed manhole covers and, when the maintenance was finished, he replaced the covers.

Later that day, Smith drove over one of the manhole covers that Agentis had allegedly replaced improperly. Smith lost control of hie car and collided with a curb, causing him personal injuries and property damage. Smith sued Agentis in Northampton County where Mr. Rooter does business. Agentis then joined the City of Allentown, which is in Lehigh County, as an additional defendant.

The City filed preliminary objections, objecting, inter alia, to venue in Northampton County and requesting a change of venue to Lehigh County, where Allentown is located. The City served its preliminary objections, not only on Agentis as defendant, but on Smith the plaintiff as well, but Smith did not respond or otherwise object. Common Pleas sustained the City's preliminary objection to venue and transferred the action to Lehigh County based on Section 333 of the JARA Continuation Act of 1980 (Continuation Act), *fn1 42 P.S. § 20043, which provides in pertinent part:

The act of November 26, 1978 (P.L. 1399, No. 330), known as the 'Political Subdivision Tort Claims Act,' is repealed. Actions under subchapter C of Chapter 85 (relating to actions against local parties) of Title 42 of the Pennsylvania Consolidated Statutes for claims against a local agency may be brought in and only in a county in which the local agency 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.

Plaintiff Smith now appeals the order granting the change of venue arguing that Common Pleas erred by transferring the case to Lehigh County because his lawsuit was not brought against the City of Allentown, a local agency, but was brought against Steven Agentis, a private person, and therefore, Section 333 of the Continuation Act does not apply. Smith's argument relies on Ribnicky v. City of Allentown, 673 A.2d 24 (Pa. Commw.), petition for allowance of appeal granted, 546 Pa. 659, 684 A.2d 559 (1996).

In Ribnicky, plaintiffs were struck by a car traveling the wrong way on a one way street in the City of Allentown. Plaintiffs sued several defendants in Philadelphia County, including the driver of the car, his employer, and the car leasing company. The original defendants then joined the City of Allentown as an additional defendant. The City filed a petition for a change of venue to Lehigh county which the Philadelphia County Court of Common Pleas granted. Plaintiffs then appealed to this Court.

We reversed the trial court and held that the statute does not require a change in venue when venue was proper where the plaintiff originally commenced the suit and the local agency was only added later by the original defendant. Section 333 of the Continuation Act only specifies where suits may be commenced and does not require a change of venue when a local agency from another county is joined as an additional defendant.

Ribnicky is almost identical to the case at bar. In both cases, the City of Allentown was joined as an additional defendant, sued, not by the plaintiff, but by the original defendant. As an additional defendant, the City may not take advantage of Section 333 of the Continuation Act to defeat plaintiff's choice of forum, to which considerable weight is given.

However, the City argues that Plaintiff Smith waived his right to object to the change in venue by failing to object to the City's preliminary objection before the Northampton County Court of Common Pleas. *fn2 Of course, it would have been prudent for Smith to place his objection on the record before the trial court, but this error is not fatal because Smith, as Plaintiff, was precluded from filing a preliminary objection, or any pleading, to the City's preliminary objection by Pa. R.C.P. No. 2255(b) which provides:

No pleadings shall be filed between the additional defendant and any party other than the one joining him except that the additional defendant may file a counterclaim against the plaintiff. (Emphasis added.)

The effect of Rule 2255(b) was noted on consideration of a similar matter in Knudsen v. Delaware County Regional Water quality Control Authority, 84 Pa. Commw. 36, 478 A.2d 533 (Pa. Commw. 1984). In that case, a schoolboy was hit by a truck while crossing the street in front of his school. The plaintiff parents sued the driver of the truck and his employer. The driver and employer then joined the school district as an additional defendant. The school district filed preliminary objections to which the plaintiffs filed a pleading denominated as a "response." The Common Pleas Court sustained the demurrer of the school district dismissing the suit on grounds of governmental immunity, which order was appealed, not by the original defendants, but by the plaintiffs. While we affirmed Common Pleas, this Court noted that the "response" of the plaintiffs to the additional defendant's preliminary objections was contrary to Rule 2255(b). Id. 478 A.2d at 535, n.2.

Similarly, in this case, Smith was precluded from objecting to the City's preliminary objections by the operation of Rule 2255(b). Therefore, he could not have waived his objection to a change of venue by failing to file a preliminary objection with the trial court *fn3

Accordingly, we reverse the Northampton County Court of Common Pleas and remand this case to the Court for further proceedings in Northampton County.

JOSEPH T. DOYLE, Judge

ORDER

AND NOW, September 10, 1997, the order of the Northampton County Court of Common Pleas transferring this matter to the Lehigh County Court of Common Pleas is REVERSED and this matter is remanded for further proceedings.

Jurisdiction Relinquished.


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