Gottlieb v. Smith

29 Pa. D. & C.4th 36, 1995 Pa. Dist. & Cnty. Dec. LEXIS 32
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedNovember 16, 1995
Docketno. 3107 of 1995
StatusPublished

This text of 29 Pa. D. & C.4th 36 (Gottlieb v. Smith) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gottlieb v. Smith, 29 Pa. D. & C.4th 36, 1995 Pa. Dist. & Cnty. Dec. LEXIS 32 (Pa. Super. Ct. 1995).

Opinion

WETTICK, J.,

Defendants have filed an appeal from my August 9, 1995 order of court discharging a writ of certiorari and reinstating judgments of District Justice Conroy. This opinion setting forth my reasons for ruling in this fashion is filed pursuant to Pa.R.A.P. 1925.

On February 8, 1995, Richard Gottlieb, D.M.D., instituted this action before District Justice Eileen M. Conroy by filing a civil complaint naming David E. Smith and Norma R. Smith as defendants. The complaint sought a judgment in the amount of $705.66. The complaint described plaintiff’s claim as follows:

“Balance due for services rendered.”

District Justice Conroy’s magisterial district covers the Oakland section of the City of Pittsburgh. Defendants’ address listed in the complaint is located outside of this magisterial district.

[38]*38The complaint was filed by Ira R. Mazer, Esquire, who is identified as plaintiff’s attorney with an address at Suite 209 Alstan Mall, Monroeville, PA 15146. The plaintiff’s address listed in the complaint is c/o Abrams & Mazer, Esquires, Suite 209 Alstan Mall, Monroeville, PA 15146. This address is outside of the magisterial district of District Justice Conroy.

Defendants received copies of the complaint by certified mail on February 9, 1995. On February 15, 1995, Maurice A. Nemberg, Esquire, sent a letter to District Justice Conroy enclosing notices of intention to defend for both defendants. This letter advised District Justice Conroy that (1) Attorney Nemberg’s office represents both defendants; (2) they intend to appear and defend; and (3) the action was initiated by a plaintiff who is located in Monroeville against defendants who are located in Squirrel Hill. The letter stated that:

“As I read Rule 302, your district does not cover Squirrel Hill. I believe that the appropriate office before whom this matter should have been brought is 05-2-29 or 05-2-35.

“I will appreciate your earliest response.”

Apparently, District Justice Conroy never responded.

Neither defendants nor their counsel appeared at the hearing, and District Justice Conroy entered judgments against both defendants in the amount of $755.66. Defendants timely filed a praecipe for a writ of certiorari in which they raised the claim of improper venue. In their specification of errors, defendants allege that the district justice allowed the plaintiff to file a complaint in which no address or situs was referenced within the district justice’s magisterial district, that objections to venue were raised by the February 15, 1995 letter from defendants’ counsel, that District Justice Conroy failed to transfer the action to an appropriate district [39]*39or to dismiss the action for lack of venue, and that she entered a judgment against defendants who did not reside in or have contact with her district for a cause of action that did not arise within her district.

By a court order dated July 14, 1995, I ordered the parties to file affidavits in support of and in opposition to venue within 20 days. Plaintiff filed an affidavit in support of venue in which he stated that his business professional practice is located at 3347 Forbes Avenue, Pittsburgh, PA 15213 (an Oakland address within District Justice Conroy’s magisterial district), and that on May 12, 1994, he provided professional services to David E. Smith at his 3347 Forbes Avenue address.

Defendants filed affidavits of Maurice A. Nemberg, Esquire, and Norma R. Smith. The affidavit of Mr. Nemberg averred that he had sent the Febmary 15, 1995 letter which I previously described to District Justice Conroy, she never responded, he advised defendants that there was no need to attend the hearing, and he advised defendants that they would challenge any judgment rendered due to improper venue. The affidavit of Ms. Smith avers that at the time she received the complaint her husband was out of town, she knew nothing about the complaint except that it incorrectly stated that plaintiff had rendered services on her behalf, she forwarded the complaint to Mr. Nemberg, and he advised her that there was no need to attend the hearing because the complaint had been filed in the wrong location.

On August 9, 1995, I entered the following order of court:

“It appearing that the address on the complaint was identified as being the address of plaintiff’s counsel and it appearing that defendants’ counsel did not attempt to determine the location of plaintiff’s office through [40]*40the telephone directory or by contacting plaintiff’s counsel, it is hereby ordered that the writ of certiorari is discharged and that the judgment of District Justice Conroy is reinstated.”

I entered the above order of court because under Pa.R.C.P.D.J. 302A an action against an individual may be brought in a magisterial district where the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose. The transaction or occurrence out of which the cause of action arose took place in District Justice Conroy’s magisterial district because this is where the dental services were performed. Also, the cause of action arose in that magisterial district because the payment would have been due at plaintiff’s place of business.

Defendant-wife cannot successfully challenge venue on the ground that she does not owe the money. In Lucas Enterprises Inc. v. Paul C. Harman Company Inc., 273 Pa. Super. 422, 417 A.2d 720 (1980), the court held that Allegheny was the county in which the cause of action arose on the basis of the plaintiff’s allegations that it was entitled to a finder’s fee. The allegation of the failure to pay created venue at the place of business where the payment would have been due, i.e., the place of business of the party claiming the breach. Consequently, plaintiff’s claim against defendants for a balance due for services rendered creates venue in the magisterial district where the payment was due; venue is not defeated by a claim of either defendant that the money is not owed.

Defendants’ concise statement of matters complained of on appeal raises two matters on behalf of both defendants and one matter solely on behalf of Norma R. Smith. The following is the first matter raised on behalf of both defendants:

[41]*41“The complaint disclosed the plaintiff’s address as ‘Suite 209 Alstan Mall, Monroeville, PA 15146’ and the defendant’s address as ‘6526 Hamilton Avenue, Pittsburgh, PA 15206.’ The action was filed in a magisterial district outside of both of those areas and there was no allegation contained in the complaint otherwise establishing venue. As the venue issue was raised before the district magistrate, who did not rule upon it, and, by certiorari, the court should not have allowed extrinsic evidence to support plaintiff’s claim that venue was based on facts not of record.”

Defendants appear to contend that the district justice’s judgment is invalid because of the district justice’s failure to rule on the venue issue. However, there is no provision within the Rules of Civil Procedure governing actions and proceedings before district justices allowing venue to be raised by a letter mailed to the district justice.1 The rules governing district justice proceedings do not have any procedures for pre-hearing determinations.

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Related

Liggitt v. Liggitt
384 A.2d 1261 (Superior Court of Pennsylvania, 1978)
Lucas Enterprises, Inc. v. Paul C. Harman Co.
417 A.2d 720 (Superior Court of Pennsylvania, 1980)
Hamre v. Resnick
486 A.2d 510 (Supreme Court of Pennsylvania, 1984)
Encelewski v. Associated-East Mortgage Co.
396 A.2d 717 (Superior Court of Pennsylvania, 1978)
Kovatis v. Harrington
375 A.2d 391 (Superior Court of Pennsylvania, 1977)
Misher v. Bo's Auto Parts, Inc.
557 A.2d 410 (Superior Court of Pennsylvania, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
29 Pa. D. & C.4th 36, 1995 Pa. Dist. & Cnty. Dec. LEXIS 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gottlieb-v-smith-pactcomplallegh-1995.