230 Pa. Super. 533 | Pa. Super. Ct. | 1974
Opinion by
The narrow issue involved in this ease is whether a court after dismissing a complaint because of lack of personal jurisdiction must transfer the action under Pa. R.C.P. 1006(e)
Briefly stated, the facts are as follows: Appellant, a resident of Philadelphia County, was allegedly injured when she fell on the premises of appellees, residents of Bucks County. On August 22, 1972, appellant filed a timely complaint in trespass in Philadelphia County. The complaint was then served on appellees in Bucks County by the Sheriff of Bucks County by way of deputized service. In their preliminary objections, appellees alleged that service was improper and asked that the service be stricken and the complaint dismissed. In her answer to appellees’ preliminary objections, appellant admitted that the service was improper but further averred that she would file a petition to transfer the action to Bucks County. The petition to transfer the action under Pa. R.C.P. 1006(e) was filed on December 21, 1972. On March 27, 1973, the lower court sustained appellees’ motion to strike the service, denied appellant’s petition to transfer, but
Appellant contends that under Pa. R.C.P. 1006(e) the court below was obligated to transfer the action to Bucks County
Our recent decision in Slezynger v. Bischak, 224 Pa. Superior Ct. 552, 307 A.2d 405 (1973), is determinative of the present case. In Slezynger, the defendant, a resident of Beaver County, objected to the jurisdiction of the Allegheny County Court because of deputized service in Beaver County. The Allegheny County Court dismissed the action for lack of personal jurisdiction but failed to transfer the action to Beaver County where service could properly be obtained. After finding that such an objection to service of process brings into question both personal jurisdiction and venue, our Court reversed and directed the Allegheny County Court to transfer the action to Beaver County in accordance with Rule 1006(e). See also Tyson v. Basehore, 22 Cumb. 53, aff'd per curiam, 222 Pa. Superior Ct. 572, 295 A.2d 189, allocatur refused, 222 Pa. Superior Ct. xxxii (1972).
Appellees also argue that by failing to appeal the lower court’s order of March 27, 1973, in which the lower court denied appellant’s petition to transfer, appellant is precluded from attacking the failure to transfer on this appeal. Appellees further contend that the lower court should not sua sponte transfer the case upon dismissing the action.
First, we find that appellant by failing to appeal the March 27 order denying the transfer did not waive her right to question it on this appeal. The granting or denying of petitions to transfer a case to another county are interlocutory orders and not appealable as jurisdictional questions under the Act of March 5, 1925, P.L. 23, §1, 12 P.S. §672. See Smith Estate, 442 Pa. 249, 275 A.2d 323 (1971) (lower court’s denial of petition for a change of venue held not appealable under the Act of 1925). Caplan v. Keystone Weaving Mills, Inc., 431 Pa. 407, 246 A.2d 384 (1968) (court’s order transferring case to another county held not appealable under the Act of 1925). Hence, appellant had no right to appeal the order denying her petition to transfer prior to the order dismissing her complaint.
Second, although our discussion regarding the right of appellant to raise the issue of the denial of her petition to transfer disposes of any need to determine whether the court was required to transfer the case sua sponte, we have come to the conclusion that the lower court instead of dismissing the case should have transferred it under Rule 1006(e) on its own motion since it found that venue was improper. In Helsel
The Order of the lower court dismissing appellant’s complaint is reversed, and the court is directed to transfer the case to Bucks County.
Rule 1006(e) of the Pennsylvania Rules of Civil Procedure states: “Improper venue shall be raised by preliminary objection and if not so raised shall be waived. If a preliminary objection to venue is sustained and there is a county of proper venue within the State the action shall not be dismissed but shall be transferred to the appropriate court of that county. The costs and fees for transfer and removal of the record shall be paid by the plaintiff.”
Bucks County would clearly be a county of proper venue where personal Jurisdiction over appellees could be obtained because the cause of action arose there and appellees are residents of that county. See Pa. R.C.P. 1006(a).