Holt Hauling & Warehousing Systems, Inc. v. Aronow Roofing Co.

Superior Court of Pennsylvania

Holt Hauling & Warehousing Systems, Inc. v. Aronow Roofing Co.

454 A.2d 1131, 309 Pa. Super. 158, 1983 Pa. Super. LEXIS 2381

CourtSuperior Court of Pennsylvania

DecidedJanuary 14, 1983

Docket2082

StatusPublished

Cited by26 cases

This text of 454 A.2d 1131 (Holt Hauling & Warehousing Systems, Inc. v. Aronow Roofing Co.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Holt Hauling & Warehousing Systems, Inc. v. Aronow Roofing Co., 454 A.2d 1131, 309 Pa. Super. 158, 1983 Pa. Super. LEXIS 2381 (Pa. Ct. App. 1983).

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WIEAND, Judge:

Holt Hauling and Warehousing Systems, Inc. (Holt) has appealed from an order dismissing an action in assumpsit against Aronow Roofing Company (Aronow) on grounds that the court lacked “in personam jurisdiction over [Aro[160]*160now].” The action was commenced by the issuance of a summons served on Aronow by certified mail, return receipt requested, directed to Aronow’s office and principal place of business in Camden, New Jersey. Aronow is a New Jersey corporation. Holt is a Pennsylvania corporation with principal place of business in Gloucester, New Jersey. These facts are contained in a subsequently filed complaint which alleges .that Holt has been damaged by Aronow’s breach of a contract to place a new roof on Holt’s building in Gloucester, New Jersey.

Preliminary objections were filed by Aronow alleging, inter alia,¹ that the trial court lacked jurisdiction because the agreement had been executed in New Jersey, performance was to take place in New Jersey, and the places of business of both parties were located in New Jersey. Holt’s answer to Aronow’s preliminary objections admitted these facts but countered that Aronow regularly and systematically did business in Pennsylvania and, therefore, was properly subjected to suit in Pennsylvania. See: 42 Pa.C.S. § 5301(a)(2).² Aronow caused its preliminary objections to be listed for determination; and the trial court, [161]*161without receiving evidence, sustained Aronow’s objections to the court’s jurisdiction and dismissed the complaint. An opinion filed pursuant to Pa.R.A.P. 1925(a) suggests that Holt failed to “meet its burden and show” that Aronow regularly and systematically did business in Pennsylvania. Hence, the order dismissing the complaint. This was error.

Where a defendant wishes to challenge the court’s exercise of in personam jurisdiction, he may do so by filing preliminary objections. Lox, Stock & Bagels, Inc. v. Rotten Machine Co. of California, Inc., 261 Pa.Super. 84, 87, 395 A.2d 954, 955 (1978) citing Monaco v. Montgomery Cab Co., 417 Pa. 135, 140, 208 A.2d 252, 255 (1965); Pa.R.C.P. 1017(b)(1). If an issue of fact is raised by the preliminary objections, “the court shall take evidence by depositions or otherwise.” Pa.R.C.P. 1028(c). In such a situation the court may not reach a determination based upon its view of the controverted facts, but must “resolve the dispute by receiving evidence thereon through interrogatories, depositions or an evidentiary hearing.” Luitweiler v. Northchester Corporation, 456 Pa. 530, 535, 319 A.2d 899, 902 (1974). Accord: Telstar Corporation v. Berman, 281 Pa.Super. 443, 448, 422 A.2d 551, 554 (1980); Envirosystems Corporation v. Weinhardt, 271 Pa.Super. 66, 68, 412 A.2d 577, 578 (1979); Lox, Stock & Bagels, Inc. v. Rotten Machine Co. of California, Inc., supra 261 Pa.Super. at 88, 395 A.2d at 956; Laffey v. Lehigh Valley Dairy Cooperative, 257 Pa. Super. 45, 49, 390 A.2d 238, 240 (1978); Greene v. Liebergott, 235 Pa.Super. 475, 477, 344 A.2d 501, 502 (1975); Schaffer v. Batyko, 227 Pa.Super. 62, 65, 323 A.2d 62, 63-64 (1974); Luria v. Luria, 220 Pa.Super. 168, 171, 286 A.2d 922, 923 (1971). The failure of the parties to provide the evidence necessary for a proper determination of the issue does not excuse the court from further inquiry. Thus, it was incumbent on the court below to take evidence to resolve the dispute. See: Greene v. Liebergott, supra 235 Pa.Super. at 477, 344 A.2d at 502. Accord: Schaffer v. Batyko, supra 227 Pa.Super. at 65-66, 323 A.2d at 63-64. Luria v. Luria, supra 220 Pa.Super. at 170-171, 286 A.2d at 923-924. Moreover, it was not Holt but Aronow who, as [162]*162the moving party, bore the burden of supporting its objections to the court’s jurisdiction. Lox, Stock & Bagels, Inc. v. Kotten Machine Co. of California, Inc., supra 261 Pa.Super. at 88, 395 A.2d at 955; Liggitt v. Liggitt, 253 Pa.Super. 126, 131, 384 A.2d 1261, 1263-1264 (1978); Alumbaugh v. Wallace Business Forms, Inc., 226 Pa.Super. 511, 516-517, 313 A.2d 281, 284 (1973); Lewandowski v. General Telephone Company, 223 Pa.Super. 476, 480, 302 A.2d 478, 480 (1973).

The record in this case does not contain evidence from which it can be determined that Aronow was not systematically doing business in Pennsylvania as Holt has alleged. Therefore, a remand is necessary to allow the parties a reasonable period of time within which to present evidence by deposition, interrogatories or otherwise which will allow a determination of the factual issues raised by Aronow’s preliminary objections and Holt’s answer thereto. Envirosystems Corporation v. Weinhardt, supra 271 Pa. Super, at 68, 412 A.2d at 578; Lox, Stock & Bagels, Inc. v. Kotten Machine Co. of California, Inc., supra 261 Pa.Super. at 88, 395 A.2d at 956; Laffey v. Lehigh Valley Dairy Cooperative, supra 257 Pa.Super. at 49-50, 390 A.2d at 240; Greene v. Liebergott, supra 235 Pa.Super. at 477, 344 A.2d at 502; Szekely v. Abilene Flour Mills Company, 211 Pa.Super. 442, 446, 237 A.2d 242, 244 (1967).

Order vacated and record remanded for proceedings consistent with this opinion.

Jurisdiction is relinquished.

McEWEN, J., files a dissenting opinion.

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WIEAND, Judge:

Holt Hauling and Warehousing Systems, Inc. (Holt) has appealed from an order dismissing an action in assumpsit against Aronow Roofing Company (Aronow) on grounds that the court lacked “in personam jurisdiction over [Aro[160]*160now].” The action was commenced by the issuance of a summons served on Aronow by certified mail, return receipt requested, directed to Aronow’s office and principal place of business in Camden, New Jersey. Aronow is a New Jersey corporation. Holt is a Pennsylvania corporation with principal place of business in Gloucester, New Jersey. These facts are contained in a subsequently filed complaint which alleges .that Holt has been damaged by Aronow’s breach of a contract to place a new roof on Holt’s building in Gloucester, New Jersey.

Preliminary objections were filed by Aronow alleging, inter alia,¹ that the trial court lacked jurisdiction because the agreement had been executed in New Jersey, performance was to take place in New Jersey, and the places of business of both parties were located in New Jersey. Holt’s answer to Aronow’s preliminary objections admitted these facts but countered that Aronow regularly and systematically did business in Pennsylvania and, therefore, was properly subjected to suit in Pennsylvania. See: 42 Pa.C.S. § 5301(a)(2).² Aronow caused its preliminary objections to be listed for determination; and the trial court, [161]*161without receiving evidence, sustained Aronow’s objections to the court’s jurisdiction and dismissed the complaint. An opinion filed pursuant to Pa.R.A.P. 1925(a) suggests that Holt failed to “meet its burden and show” that Aronow regularly and systematically did business in Pennsylvania. Hence, the order dismissing the complaint. This was error.

Where a defendant wishes to challenge the court’s exercise of in personam jurisdiction, he may do so by filing preliminary objections. Lox, Stock & Bagels, Inc. v. Rotten Machine Co. of California, Inc., 261 Pa.Super. 84, 87, 395 A.2d 954, 955 (1978) citing Monaco v. Montgomery Cab Co., 417 Pa. 135, 140, 208 A.2d 252, 255 (1965); Pa.R.C.P. 1017(b)(1). If an issue of fact is raised by the preliminary objections, “the court shall take evidence by depositions or otherwise.” Pa.R.C.P. 1028(c). In such a situation the court may not reach a determination based upon its view of the controverted facts, but must “resolve the dispute by receiving evidence thereon through interrogatories, depositions or an evidentiary hearing.” Luitweiler v. Northchester Corporation, 456 Pa. 530, 535, 319 A.2d 899, 902 (1974). Accord: Telstar Corporation v. Berman, 281 Pa.Super. 443, 448, 422 A.2d 551, 554 (1980); Envirosystems Corporation v. Weinhardt, 271 Pa.Super. 66, 68, 412 A.2d 577, 578 (1979); Lox, Stock & Bagels, Inc. v. Rotten Machine Co. of California, Inc., supra 261 Pa.Super. at 88, 395 A.2d at 956; Laffey v. Lehigh Valley Dairy Cooperative, 257 Pa. Super. 45, 49, 390 A.2d 238, 240 (1978); Greene v. Liebergott, 235 Pa.Super. 475, 477, 344 A.2d 501, 502 (1975); Schaffer v. Batyko, 227 Pa.Super. 62, 65, 323 A.2d 62, 63-64 (1974); Luria v. Luria, 220 Pa.Super. 168, 171, 286 A.2d 922, 923 (1971). The failure of the parties to provide the evidence necessary for a proper determination of the issue does not excuse the court from further inquiry. Thus, it was incumbent on the court below to take evidence to resolve the dispute. See: Greene v. Liebergott, supra 235 Pa.Super. at 477, 344 A.2d at 502. Accord: Schaffer v. Batyko, supra 227 Pa.Super. at 65-66, 323 A.2d at 63-64. Luria v. Luria, supra 220 Pa.Super. at 170-171, 286 A.2d at 923-924. Moreover, it was not Holt but Aronow who, as [162]*162the moving party, bore the burden of supporting its objections to the court’s jurisdiction. Lox, Stock & Bagels, Inc. v. Kotten Machine Co. of California, Inc., supra 261 Pa.Super. at 88, 395 A.2d at 955; Liggitt v. Liggitt, 253 Pa.Super. 126, 131, 384 A.2d 1261, 1263-1264 (1978); Alumbaugh v. Wallace Business Forms, Inc., 226 Pa.Super. 511, 516-517, 313 A.2d 281, 284 (1973); Lewandowski v. General Telephone Company, 223 Pa.Super. 476, 480, 302 A.2d 478, 480 (1973).

The record in this case does not contain evidence from which it can be determined that Aronow was not systematically doing business in Pennsylvania as Holt has alleged. Therefore, a remand is necessary to allow the parties a reasonable period of time within which to present evidence by deposition, interrogatories or otherwise which will allow a determination of the factual issues raised by Aronow’s preliminary objections and Holt’s answer thereto. Envirosystems Corporation v. Weinhardt, supra 271 Pa. Super, at 68, 412 A.2d at 578; Lox, Stock & Bagels, Inc. v. Kotten Machine Co. of California, Inc., supra 261 Pa.Super. at 88, 395 A.2d at 956; Laffey v. Lehigh Valley Dairy Cooperative, supra 257 Pa.Super. at 49-50, 390 A.2d at 240; Greene v. Liebergott, supra 235 Pa.Super. at 477, 344 A.2d at 502; Szekely v. Abilene Flour Mills Company, 211 Pa.Super. 442, 446, 237 A.2d 242, 244 (1967).

Order vacated and record remanded for proceedings consistent with this opinion.

Jurisdiction is relinquished.

McEWEN, J., files a dissenting opinion.

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454 A.2d 1131, 309 Pa. Super. 158, 1983 Pa. Super. LEXIS 2381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holt-hauling-warehousing-systems-inc-v-aronow-roofing-co-pasuperct-1983.

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