Penox Technologies, Inc. v. Foster Medical Corp.
546 A.2d 114
Pa.
1988
Check Treatment
WIEAND, Judge:

This is another in a growing number of appeals from orders by which trial courts have attempted to transfer pending cases to other forums. On May 27, 1987, Penox Technologies, Inc. (Penox) commenced an action against Foster Medical Corporation (Foster) in Luzerne County to recover $94,120.60 in unearned cash discounts which Foster had allegedly taken improperly on goods sold by Penox to Foster. Foster filed prеliminary objections requesting a dismissal of the Penox action or, in the alternative, a transfer of the аction to Montgomery County where, on May 26, 1987, Foster had filed a praecipe for writ of summons in an action against Penox. A complaint subsequently filed in that action requested a declaratory judgment that Penox was not entitled to recover the discounts which it was seeking to recover in the action in Luzerne County. The trial court in Luzerne County sustained Foster’s preliminary objections, dismissed the action in Luzerne County, and transferred it to Montgomery County for con *453 solidation with the action there pending. 1 Penox appealed. We reverse.

In order to plead successfully the defense of lis pendens, i.e., the pendency of a prior action, it must be shown that the prior case is the same, the parties are the same, and the relief requested is the same. Dickerson v. Dickersons Overseas Co., 369 Pa. 244, 251, 85 A.2d 102,105 (1952); Hessenbruch v. Markle, 194 Pa. 581, 593, 45 A. 669, 671 (1900); Glazer v. Cambridge Industries, Inc., 281 Pa.Super. 621, 624, 422 A.2d 642, 644 (1980); Taylor v. Humble Oil and Refining Co., 225 Pa.Super. 177, 180, 311 A.2d 324, 325 (1973). The purpose of the lis pendens defеnse is to protect a defendant from harassment ‍​​​​‌‌​​​​​​‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌‌​‌‌​​‌‌‌​​​‌​‌​​‍by having to defend several suits on the same cause of action at the same time. See: Feather v. Hustead, 254 Pa. 357, 362, 98 A. 971, 973 (1916). Once the defense is raised under Pa.R.C.P. 1017(b)(5), a court may dismiss or stay thе subsequent proceedings. 5 Std.Pa.Prac.2d § 25:81.

Lis pendens has no application where the relief requеsted in the separate actions is different. Thus, it is inapplicable where the prior action is in assumpsit to recover damages and the later action is in equity to rescind the same contract. Kramer v. Kramer, 260 Pa.Super. 332, 394 A.2d 577 (1978). See also: Raw v. Lehnert, 238 Pa.Super. 324, 357 A.2d 574 (1976) (assumpsit action not abatable by reason of pending equity action even though both actions may havе arisen from same subject matter). In keeping with these decisions, we hold that lis pendens is not available ‍​​​​‌‌​​​​​​‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌‌​‌‌​​‌‌‌​​​‌​‌​​‍as a defense to dismiss or stay an action for breach of contract, where the prior prоceeding is an action for declaratory judgment to determine whether the later action for breach of contract can be maintained.

Foster must have been aware that the relations bеtween itself and Penox had deteriorated and that an action *454 was about to be brought against it in Luzernе County. In anticipation of the Penox action in Luzerne County, Foster sought to avail itself of the procedure set forth in the Declaratory Judgments Act to have its obligations and liabilities determined in Montgomery County before being required to defend the action in Luzerne County. It is readily apparent, therefore, that Foster’s request for declaratory relief was in reality an attempt to pick its forum and determine in аdvance whether it had a defense to the anticipated action by Penox to recover disсounts which had been taken — wrongfully, it was alleged — for goods which Foster had purchased from Penox. A similar аttempt to establish in advance the validity of an affirmative defense to defeat an action bеfore the Board of Claims was condemned by the Supreme Court in Commonwealth, Dep’t of Gen. Services v. Frank Briscoe Co., 502 Pa. 449, 466 A.2d 1336 (1983). Declaratory relief, the court hеld, is not available when an ‍​​​​‌‌​​​​​​‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌‌​‌‌​​‌‌‌​​​‌​‌​​‍action therefor is filed in anticipation of another proceeding. Id., 502 Pa. at 459, 466 A.2d at 1341. See also: Ven-Fuel, Inc. v. Department of the Treasury, 673 F.2d 1194 (11th Cir.1982); Donadio v. Cunningham, 58 N.J. 309, 277 A.2d 375 (1971).

The complaint in the instant case was served upon Foster at its place of business in Hazleton, Luzеrne County. Venue, therefore, was proper. See: Pa.R.C.P. 2179(a). Indeed, Foster does not contend оtherwise. Moreover, Foster did not petition the court pursuant to Pa.R.C.P. 1006(d)(1) to transfer the action to Montgomery County for the convenience of the parties and witnesses. In the absence of such a petition, the court in Luzerne County could not transfer the case to another forum where, for reasоns perceived by the transferring court, the case could more conveniently be decided. Horn v. Erie Insurance Exchange, 373 Pa.Super. 186, 540 A.2d 584 (1988). As long аs venue was properly laid, the plaintiff was entitled to select its own forum, and its choice could nоt lightly be set aside. Fox v. Pennsylvania Power & Light Co., 315 Pa.Super. 79, 82, 461 A.2d 805, 806 (1983). See also: Horn v. Erie Insurance Exchange, *455 supra, 373 Pa.Superior Ct. at 189, 540 A.2d at 586; Ernest v. Fox Pool Corp., 341 Pa.Super. 71, 75, 491 A.2d 154, 156 (1985).

We conclude, therefore, that on the record in this case, Foster was not entitled to have the Penox action dismissed or stayed in Luzerne County because of the pendency of a declaratory judgment proceeding in Montgomery County. Moreover, because venue ‍​​​​‌‌​​​​​​‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌‌​‌‌​​‌‌‌​​​‌​‌​​‍was proper in Luzerne County and there was no basis on which to transfer venue for the convenience of thе parties and witnesses, the trial court could not properly transfer venue to Montgomery County. When it did so, it abused its discretion.

The order dismissing the action in Luzerne County and transferring it to Montgomery County is reversed; and thе case is remanded to Luzerne County for further proceedings. 2 Jurisdiction is not retained.

Notes

1

. The action in Montgomery County also contained a count in which Foster sought to recover the sum of $43,000.00 which, it was alleged, consisted of discounts which Foster had earned, but had not taken on goods sold to it by Penox.

2

. Because of the decision which we have reached, we do not consider issues raised ‍​​​​‌‌​​​​​​‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌‌​‌‌​​‌‌‌​​​‌​‌​​‍by appellant which pertain to the form of appellee’s preliminary objections.