United States Cold Storage Corp. v. Philadelphia

Opinion by Me. Justice Jones, The General State Authority (General), on this appeal questions the propriety of an order of the Court of Common Pleas No. 2 of Philadelphia County dismissing the Authority’s preliminary objections in an equity action. The sole issue is whether exclusive venue in litigation wherein the Authority is being sued lies in Dauphin County. The United States Cold Storage Corporation and Philadelphia Warehousing and Cold Storage Company (Storage Companies), instituted this equity action in Philadelphia County against the City of Philadelphia (City), the Authority, Lavino Shipping Company (La-vino), and Pennsylvania Refrigerated Terminals, Inc. (Terminals), to restrain the construction of a cold storage warehouse as part of a port complex known as the Packer Avenue Marine Terminal. The Storage Companies operate cold storage and refrigerated facilities in the same area wherein this marine terminal is to be constructed with joint financing by the City and the Authority and the marine terminal will be leased to Lavino and the cold storage warehouse unit to be located therein will be leased to Terminals. The gravamen of the Storage Companies’ complaint is that, insofar as the Authority is concerned, the proposed construction offends the General State Authority Act (Act of March 31, 1949, P. L. 372, §4, as amended, 71 P.S. §1707.4) which proscribes the exercise of the Authority’s power to construct any project which, “in whole or in part, shall duplicate or compete with existing enterprises serving substantially the same purposes” and the contemplated project will duplicate and compete with the Storage Companies’ present cold storage and refrigerated facilities. On the authority of Pa. R. C. P. 1503(c), the Authority urges that Dauphin County alone has venue in any action against it. That Rule provides: “Venue . . . [626] (c) 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 in and only in Dauphin County.” (Emphasis added.) The Authority has the right and power “to sue and be sued, implead and be impleaded, complain and defend” (§4 of the General State Authority Act, 71 P.S. §1707.4(b)) and the legislative language further expressly provides such right to sue and the power to be sued exists “in all courts”. Appellees contend the language of that statute is in conflict with Rule 1508(c). That the Authority is an “instrumentality of the Commonwealth” is well settled (Act of March 31, 1949, P. L. 372, §3, as amended, 71 P.S. §1707.3; Marianelli v. General State Authority, 354 Pa. 515, 516, 47 A. 2d 657 (1946)) and, certainly, clearly within the language of Rule 1503(c). It is argued that the practicalities of the situation require the application of the General State Authority Act and permit suit against the Authority and the City in Philadelphia County. Pa. R. C. P. 2103(b) provides: “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 in and only in the county in which the political subdivision is located.” Under that Rule, it is argued that the City cannot be sued in any county other than Philadelphia County and, if the Authority cannot be sued other than in Dauphin County, then of necessity, two separate actions involving identical issues would have to be instituted by the Storage Companies in two separate counties. The Authority relies on Merner v. Department of Highways, 375 Pa. 609, 101 A. 2d 759 (1954). In Merner, an equity action was instituted against the Depart [627] ment of Highways, the State Public School Building Authority, Doylestown Borough and Central Bucks Joint School Board in Bucks County. The lower court in Memer sustained preliminary objections and this Court affirmed on the ground that venue as to the Department of Highways and the School Authority1 lay exclusively in Dauphin County under Buie 1503(c). Appellees suggest Memer is inapposite: first, because the Department of Highways was the dispensable party and Merner could have obtained complete satisfaction in Dauphin County; second, any possible conflict between the venue provisions and the Authority statute was not considered by our Court. The court below distinguished Memer on the ground that therein “the head of an executive department of the Commonwealth” and “an instrumentality of the Commonwealth” were involved whereas in the case at bar “an instrumentality of the Commonwealth” and “a political subdivision of the Commonwealth” are involved as to which the Buies of Civil Procedure provide for specific venues. Our reading of Memer indicates that it controls the instant situation under the Buies of Civil Procedure in effect when this litigation was instituted. As an instrumentality of the Commonwealth, under Buie 1503(c), the Authority cannot be sued other than in Dauphin County. The problem presented in the case at bar of having to institute two separate actions involving identical issues in two separate counties has now been solved by the adoption of Buie 1006(c) which became effective September 1, 1967. That Bule pro [628] vides: “Rule 1066. Venue. Change of Venue. . . . (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)”.2 The Rule now will permit suit by the Storage Companies in Dauphin County against both the Authority and the City. This Rulé, being procedural and not substantive in nature, is applicable to the pending action3 and such action can now be transferred by the court below from Philadelphia County to Dauphin County under Rule 1006(e), as.now amended and a multiplicity of suits can be thus avoided. Order reversed. Appellees pay costs. Mr. Justice Cohen took no part in the consideration or decision of this case. Footnotes [1] The act which created the School Authority (Act of July 5, 1947, P. L. 1217, as amended, 24 P.S. §791.1 et seq.), in language identical with the language in the General State Authority Act, supra, empowers the School Authority “to sue and be sued” in “all courts”. See also: Act of June 21, 1937, P. L. 1982, No. 392, §1, 17 P.S. §61, as amended, suspending procedural statutes inconsistent with Rules of Civil Procedure. [2] This Rule was not in effect when the court below made its order and was not called to the court’s attention. • • [3] King v. Security Co. of Pottstown, 241 Pa. 547, 551, 552, 88 A. 789 (1913); Kilian v. Allegheny County Distributors, 409 Pa. 344, 350, 185 A. 2d 517 (1962); Flaherty v. United Engineers & Constructors, Inc., 191 F. Supp. 661, 662, 663 (1961).