Peaceman v. Cades , 272 Pa. Super. 568 ( 1979 )

CERCONE, President Judge:

This appeal is from the order of the Court of Common Pleas of Philadelphia County, dismissing the preliminary objections of appellant, Lower Moreland Township, as to venue and deputized service. We affirm the decision of the lower court.

The instant case involves a survival action and wrongful death claim arising from a fatal accident which occurred when the car of defendant, Beth Cades, allegedly struck plaintiff’s decedent, Jack Peaceman, as he was walking along the road in Lower Moreland Township in Montgomery County. Sharon Peaceman brought this action against both the driver of the car and Lower Moreland Township in Philadelphia County, the county in which the driver, Beth Cades, resides. Lower Moreland Township was served in Montgomery County by deputized service. The township filed preliminary objections alleging that the complaint should be dismissed for improper venue and improper service.¹ The lower court dismissed those preliminary objections and the township appealed.

There are two issues preserved for our review. First whether exclusive venue lies only where a political subdivision is located, regardless of other defendants who are amenable to suit elsewhere; and second, whether deputized service of a political subdivision is authorized in an action at law.

In addressing the first issue, the township contends and Judge Hester’s dissent states that the venue of a political subdivision is exclusively controlled by Pa.R.C.P. 2103. This rule provides:

“(b) 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.”

This rule is explained on the theory that it is in the interest of the public welfare to have municipal officers remain at home to pursue their official duties instead of being called all over the Commonwealth to defend actions. Heckscher v. Philadelphia, 6 Sadler 346, 9 A. 281 (1887); Oil City v. McAboy, 74 Pa. 249 (1873); Danchison v. Ryon, 88 Pa.D. & C. 129 (1954); 6 Goodrich-Amram 2d § 2103(b) (1977); 56 Am.Jur.2d, Municipal Corporations, Counties, and Other Political Subdivisions § 855 et seq. (1971).

We are not convinced that this is a legitimate public interest. Municipal officers are no different from any other citizens who may be forced to travel in order to defend lawsuits in counties other than where they reside. Furthermore, Pa.R.C.P. 2103(b) does not provide for the situation where there are multiple defendants involved, some of whom may only be amenable to service in a county other than where a defendant-political subdivision is located. Mrs. Peaceman argues that this is when Pa.R.C.P. 1006(c) applies. This rule provides in part:

“(b) Actions against the following defendants, except as otherwise provided in Subdivision (c), may be brought in and only in the counties designated by the following rules: . . . political subdivisions, Rule 2103; . corporations and similar entities, Rule 2179.

(c) An action to enforce a joint or joint and several liability against two or more defendants, except actions in which the Commonwealth is a party defendant, may be brought against all defendants in any county in which the venue may be laid against any one of the defendants under the general rules of Subdivisions (a) or (b).” (Emphasis supplied.)

The recognized policy behind this rule is to avoid multiplicity of suits. 1 Goodrich-Amram 2d § 1006(c):l (1976).

The application of Rule 1006(c) to a situation such as the instant one raises the question of the meaning of the word “Commonwealth” within that rule. Mrs. Peaceman argues that the legislature recognizes the distinction between a political subdivision and the Commonwealth since various rules separately refer to either a political subdivision or the Commonwealth. Following this logic, if the legislature intended to include a political subdivision in the exception to the application of Rule 1006(c), it would have specifically done so. Instead, only the Commonwealth is excepted from the application of Rule 1006(c), and in the multiple defendant situation a political subdivision may be sued in a county other than where it is located. We find this interpretation persuasive in that it will effectuate the purpose behind Rule 1006 which is to “prevent the unnecessary splitting of causes of action because venue might otherwise be unobtainable in the county of a co-defendant.” Ro-Med Constr. Co., Inc. v. Clyde M. Bartley Co., Inc., 239 Pa.Super. 311, 315, 361 A.2d 808, 810 (1976).

The instant case is different from United States Cold Storage Corp. v. Philadelphia, 427 Pa. 624, 235 A.2d 422 (1967) , on appeal after remand, 431 Pa. 411, 246 A.2d 386 (1968) . In that case an action originally filed in Philadelphia, the defendants were the City of Philadelphia and the General State Authority. It was statutorily established² that the General State Authority is an “instrumentality of the state” and could only be sued in Dauphin County pursuant to Pa.R.C.P. 1503(c).³ However, under Pa.R.C.P. 2103(b), the City of Philadelphia could only be sued in Philadelphia County. The Supreme Court held that since the Commonwealth was a party to the suit through the General State Authority, the exception to Rule 1006(c) applied and suit was brought in Dauphin County to avoid two separate actions.

The distinguishing fact in the case before us shows that the Commonwealth is not a party to the suit, but the political subdivision of Lower Moreland Township is. Although there is no appellate authority that directly addresses our factual situation, there is some guidance in one lower court case in Pennsylvania which has directly addressed the issue before us. In Ward v. Tinicum Twp., 2 Pa.D. & C.3d 790 (1977), a Philadelphia resident was injured while playing on the grounds of a school building located in the Interboro School District in Tinicum Township, Delaware County. Suit was filed in Philadelphia County where a corporate defendant was doing business.⁴ Both the Delaware County school district and the Township objected to venue. The court stressed that:

“[A] plaintiff’s right to choose his own forum will only be disturbed for weighty reasons: Walker v. Ohio River Co., 416 Pa. 149, 205 A.2d 43 (1964); Tarasi v. Settino, 223 Pa.Super. 158, 298 A.2d 903 (1972); and as pointed out by the United States Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 505 [67 S.Ct. 839, 91 L.Ed. 1055] (1947), ‘plaintiff’s choice of a forum cannot be defeated.’ ” 2 Pa.D. & C.3d at 793.

The court reasoned that in order to read any meaning into Rule 1006(b) and (c), it must conclude that Rule 2103(b) governs the venue of a political subdivision unless venue in another county is authorized by Rule 1006(c). The only exception to Rule 1006(c) is when the Commonwealth itself is a party. Political subdivisions are not specifically excepted as they are under other rules of procedure. Venue was then proper since the corporate defendant was amenable to venue in Philadelphia County under Rule 1006(c).

We find the reasoning in the above cases applicable to the case at bar. Venue was proper in Philadelphia County as to the driver of the vehicle, Beth Cades, pursuant to Pa.R.C.P. 1042. Although Rule 2013 would usually apply to the proper venue when suing a political subdivision, Rule 1006(c) allows the suit against Lower Moreland Township to be brought in Philadelphia County. This holding as a matter of law does not defeat the public policy behind Rule 2103(b), since the Township can still petition the court for a transfer of the case if it is truly an inconvenience for the political subdivision to defend elsewhere. Pa.R.C.P. 1006(d). The decision to transfer on the basis of forum non-conveniens would then be within the discretionary powers of the lower court judge. There are situations where it may actually be more convenient for a political subdivision to defend in a county other than where it is located, especially if the political subdivision is closer to the county seat of an adjoining county.

This resolution of the first issue logically answers the second question concerning deputized service. The township argues that Rule 2104(c)⁵ governs the exclusive method of service of process upon a political subdivision. Under this rule, deputized service upon a political subdivision is not specifically authorized. Such deputized service is only authorized in an action in equity under Rule 1504(b)(1), but not in an action at law. Alan Wood Steel Co. v. Philadelphia School Disk, 425 Pa. 455, 229 A.2d 881 (1967); Taxpayer's Ass’n. of North Schuykill School Dist. v. North Schuykill School Dist., 52 Pa.D. & C.2d 128 (1970); Danchison v. Ryon, supra. However, we believe that Rule 1006(c) governs the instant case. Deputized service is specifically provided for under Rule 1009(e) which provides:

“When an action ... is brought against two or more defendants under Rule 1006(c), the plaintiff shall have the right of service in any other county by having the sheriff of the county in which the action was commenced deputize the sheriff of the other county where service may be had.”

As the lower court opinion stated, “To hold that the action against a political subdivision in a county other than the county of its situs is permissible but that deputized service on a political subdivision is impermissible would fly in the face of the requirement that ‘[i]n ascertaining the intention of the Supreme Court in the promulgation of a rule, the courts may be guided by the following presumption . (a) The Supreme Court does not intend a result that is absurd, impossible of execution, or unreasonable . Pa.R.C.P. 128.’ ” We hold that in this case, the deputized service upon Lower Moreland Township was proper under Pa.R.C.P. 1009(e).

Order of the lower court affirmed.

HOFFMAN, J., concurs in the result. HESTER, J., files a dissenting opinion.

1 . The township’s preliminary objections also asserted a demurrer not the subject of this appeal. The demurrer was dismissed by the lower court.

2 . Act of March 31, 1949, P.L. 372, § 3, as amended; 71 P.S. § 1707.3. See also Marianelli v. General State Authority, 354 Pa. 515, 47 A.2d 657 (1946).

3 . At the time the Cold Storage cases were decided, Pa.R.C.P. 1503(c) read; “An action against the head of an executive or administrative department, a departmental administrative board or commission or an independent administrative board or commission, or an officer or instrumentality of the Commonwealth may be brought only in Dauphin County.” The last phrase has now been amended to read “brought only in the county in which the cause of action arose.”

4 . It has been held that an area joint school system is not a “political subdivision” within the meaning of Pa.R.C.P. 2103(b). Ritter v. Boyertown Area Joint School System, 30 Pa.D. & C.2d 166, 81 Montg.Co.Rep. 195 (1962).

5 . Pa.R.C.P. 2104(c) reads: “Service shall be made upon a political subdivision by handing a copy of the writ or the complaint, if the action is commenced by complaint, to an agent duly authorized by the political subdivision to receive service of process, or to the mayor, to the burgess, or to the president, chairman, secretary or clerk of the tax levying body thereof, and in counties where there is no tax levying body, to the chairman or clerk of the board of county commissioners.”