Craig v. W. J. Thiele & Sons, Inc.

• Decision Date: 16 March 1959
• Citation: 395 Pa. 129,149 A.2d 35
• Parties: John CRAIG, trading as Craig Mack Truck Sales v. W. J. THIELE & SONS, INC., Appellant.
• Court: Pennsylvania Supreme Court

Page 35

149 A.2d 35

395 Pa. 129

John CRAIG, trading as Craig Mack Truck Sales v. W. J. THIELE & SONS, INC., Appellant.

Supreme Court of Pennsylvania.

March 16, 1959.

Samuel R. DiFrancesco, Johnstown, Conrad A. Falvello, Hazleton, for appellant.

Theodore R. Laputka, Laputka, Bayless, Ecker & Cohn, Hazleton, for appellee.

Before CHARLES ALVIN JONES, C. J., and McBRIDE, MUSMANNO, BENJAMIN R. JONES and COHEN, JJ.

McBRIDE, Justice.

The question presented is whether venue was properly laid in Luzerne County. The Complaint alleges that plaintiff, an individual residing in Hazleton, Luzerne County, and trading as Craig Mack Truck Sales, entered into a contract with defendant, a Pennsylvania corporation having its principal offices in Johnstown, Cambria County whereby defendant agreed to sell to plaintiff twelve truck bodies. These truck bodies were to be placed on trucks which were to be sent for that purpose by plaintiff to Johnstown. Plaintiff avers that the trucks were sent by him to defendant in accordance with the agreement, bodies were installed, and upon receipt by plaintiff he attempted to deliver them to a purchaser, Schuck, whose place of business was in Tamaqua, Schuylkill County, but the latter refused to accept them because of faulty construction.

Plaintiff seeks damages arising from the loss of profit of the sale, loss of sales value through regular business channels, expenses for repairing and rebuilding said equipment, and costs necessarily expended to convert all the defective parts of said equipment.

Defendant challenged venue by preliminary objections which the court below overruled, resulting in this appeal.

The case is governed by Pa.R.C.P. 2179, 12 P.S.Appendix, which provides as follows:

'Rule 2179. Venue.

'(a) Except as otherwise provided by an Act of Assembly or by Subdivision (b) of this rule, a personal action against a corporation or similar entity may be brought in and only in

'(1) the county where its registered office or principal place of business is located;

'(2) a county where it regularly conducts business;

'(3) the county where the cause of action arose; or

'(4) a county where a transaction or occurrence took place out of which the cause of action arose.'

It becomes clear at once that Paragraphs (a)(1) and (2) have no application since the Complaint does not aver that the defendant corporation maintains its registered office or principal place of business in Luzerne County or that it regularly conducts business there.

As noted above, the plaintiff alleges as the basis of his cause of action improper performance by defendant, but he does not say where this took place. Though plaintiff delivered the trucks to defendant at Johnstown and though he alleges that he received the trucks back from the defendant and that he attempted to deliver them to the purchaser, he does not say where this receipt by him took place. If it was at the premises of the defendant or of the purchaser, Schuck, or at any other point not in Luzerne County, then the cause of action did not arise in Luzerne County. Plaintiff had not brought the case within Paragraph (a)(3).

The fourth paragraph of the Complaint avers:

'4. That on or about November 7, 1956, the plaintiff at Hazleton, Luzerne County, Pennsylvania, placed an order with the defendant for the purchase of twelve truck bodies per sales Order No. 5658 and sales Order No. 5660, a copy of which is attached hereto and marked plaintiff's Exhibit 'A'.'

We must decide, therefore, whether this constitutes an averment under Paragraph (a)(4) that a transaction or occurrence took place in Luzerne County out of which the cause of action arose.

The making of a contract for whose breach action is brought would undoubtedly constitute a 'transaction' within the meaning of the paragraph, and had plaintiff averred the making of a contract in Luzerne County there would be no problem. However, all that plaintiff avers that might bring his Complaint within this provision is that he, at Hazleton, 'placed an order' with the defendant. This is not an averment that a contract was made there. Consistent with the Complaint the order may have been placed by telephone, letter, telegram or personal contact with an agent of the defendant. There is no mention of the time or place of acceptance. The place of making a contract is not where the offer is made but where it is accepted. Restatement: Contracts, § 74; Linn v. Employers Reinsurance Corporation, 1958, 392 Pa. 58, 139 A.2d 638. Is the place of performance of one of several steps taken in the formation of a contract sufficient to constitute a 'transaction or occurrence' upon which venue can be based?

Paragraphs (a)(3) and (4) of our Rule 2179, which became effective July 1, 1956, were drafted from the Illinois Code of Civil Practice ¹ and first appeared in this Commonwealth in our previous Rule 2130 applicable to partnerships. See County...