Deutschbauer v. Barakat

• Decision Date: 20 December 2002
• Citation: 814 A.2d 246
• Parties: Paul DEUTSCHBAUER, Appellant, v. Fred BARAKAT, Esquire and Denise R. Bradley, Esquire, Appellees.
• Court: Pennsylvania Superior Court

814 A.2d 246

Paul DEUTSCHBAUER, Appellant, v. Fred BARAKAT, Esquire and Denise R. Bradley, Esquire, Appellees.

Superior Court of Pennsylvania.

Argued July 23, 2002.

Filed December 20, 2002.

Albert L. Deutsch, Philadelphia, for appellant.

Jonathan D. Herbst, Philadelphia, for appellee.

Before: STEVENS, KLEIN, and TAMILIA, JJ.

OPINION BY STEVENS, J.

¶ 1 Paul Deutschbauer appeals from the order entered in the Court of Common Pleas of Philadelphia County sustaining the preliminary objections of Appellees, Fred Barakat, Esquire, and Denise Bradley, Esquire, and transferring venue of the underlying legal malpractice action from Philadelphia County to Berks County. Herein, Mr. Deutschbauer contends that, pursuant to Pennsylvania Rule of Civil Procedure 1006(a) and (c), the court erred in transferring venue. We affirm.

¶ 2 In July of 1994, Mr. Deutschbauer, a resident of Philadelphia County, was involved in an automobile accident in Crawford County. Thereafter, he retained Appellees to represent him in a personal injury action that Appellees commenced on July 1, 1996, by filing a writ of summons in Berks County. Following the court's issuance of a Termination Notice on May 4, 1998, and October 25, 2000, the matter was terminated on December 26, 2000 pursuant to Berks County local rules.

¶ 3 On May 11, 2001, Mr. Deutschbauer filed a complaint in the Court of Common Pleas of Philadelphia County alleging that Appellees were negligent in their handling of his personal injury action thereby resulting in a termination of the action by the court. Deputized service of the complaint was attempted by Delaware County Deputy Sheriff Robert Sides; however, service was not effectuated. Consequently, on October 2, 2001, Mr. Deutschbauer filed a Motion for Alternate Service, to which the court, on October 4, 2001, issued an order granting Mr. Deutschbauer leave to serve Appellees by legal publication. On November 13, 2001, Appellees filed preliminary objections challenging Philadelphia County as Mr. Deutschbauer's choice of venue. By Order dated December 19, 2001, the court sustained Appellees' preliminary objections and transferred the matter to Berks County. The present appeal by Mr. Deutschbauer followed.¹ ¶ 4 Herein, Mr. Deutschbauer contends that the change of venue was improper in that Appellees concealed their whereabouts to the court. He argues that Appellee Bradley either resided in or had a place of business in Philadelphia County and, therefore, pursuant to Pa.R.C.P. 1006(c), both are subject to service there and, thus, venue properly lies in that county.

¶ 5 Initially, we note that, although an order transferring venue in a civil action is interlocutory in nature, such order is appealable as of right. See Pa. R.A.P. 311(c).² In addition, the proper method of challenging venue in a civil action is by way of preliminary objections. PECO Energy Co. v. Philadelphia Suburban Water Co., 802 A.2d 666 (Pa.Super.2002). Therefore, this case is properly before us.

A plaintiff's choice of forum is given great weight and a defendant has the burden in asserting a challenge to the plaintiff's choice of venue. However, the trial court is vested with discretion in determining whether or not to grant a petition to transfer venue. We will not overturn the trial court's decision absent an abuse of that discretion. If there exists any proper basis for the trial court's decision to grant the petition to transfer venue, the decision must stand.

Masel v. Glassman, 456 Pa.Super. 41, 689 A.2d 314, 316 (1997) (citations, quotation, and quotation marks omitted).

¶ 6 Pennsylvania Rule of Civil Procedure 1006 states, in relevant part that:

[A]n action against an individual may be brought in and only in a county in which the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any county authorized by law.

Pa.R.C.P. 1006(a). An individual may be served in any county where he is present and a copy of the original process is handed to him; at his residence by handing a copy to an adult member of the family or an adult in charge; or at any office/usual place of business by handing a copy to the individual's agent or the person in charge. See Pa.R.C.P. 402.

¶ 7 Furthermore, Pa.R.C.P. 1006(c), provides, in pertinent part, that:

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....

Pa.R.C.P. 1006(c).

¶ 8 Herein, the parties do not contest that the underlying personal injury action was commenced by Appellees in Berks County. As stated by the trial court, although Mr. Deutschbauer contends that this action was mistakenly brought in Berks County, this issue need not be addressed at this time, since the issue at this juncture "is whether Philadelphia County is a proper venue for the instant legal malpractice claim." Trial Court Opinion filed 3/13/02 at 7.

¶ 9 Mr. Deutschbauer states that, at the time the underlying personal injury action was initiated by Appellees, they were practicing law at the Chaddsford Professional Center in Delaware County. He adds, however, that at the time he ini...