Tarasi v. Settino

• Decision Date: 11 December 1972
• Citation: 298 A.2d 903,223 Pa.Super. 158
• Parties: Carmella J. TARASI v. Irene C. SETTINO and Michael William Twaroski. Appeal of Michael William TWAROSKI.
• Court: Pennsylvania Superior Court

298 A.2d 903

223 Pa.Super. 158

Carmella J. TARASI v. Irene C. SETTINO and Michael William Twaroski.

Appeal of Michael William TWAROSKI.

Superior Court of Pennsylvania.

December 11, 1972.

H. N. Rosenberg, Pittsburgh, for appellant.

Edward A. Mihalik, Louis M. Tarasi, Jr., David B. Fawcett, Jr. Pittsburgh, for appellees.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN SPAULDING and CERCONE, JJ.

PER CURIAM.

This is an appeal from an order of the Court of Common Pleas of Allegheny County denying defendant's petition for change of venue.

Carmella Tarasi, the plaintiff in this case, filed an action in trespass in Allegheny County against both defendants arising out of an automobile accident which occurred August 4, 1969 on U.S. Rt. 19, Perry Township, Mercer County, Pennsylvania. Plaintiff was a passenger in a vehicle being driven by one of the defendants, Irene C. Settino. The Settino vehicle collided with a vehicle driven by the other defendant Michael Twaroski. Twaroski is a resident of Erie Pennsylvania. Mrs. Settino and the plaintiff-appellee are both residents of Allegheny County.

Michael Twaroski, appellant herein, had been sued by Settino in Mercer County some 14 months prior to the commencement of this suit in Allegheny County brought by Tarasi. That suit in Mercer County was still pending when the present suit was brought in Allegheny County. Appellant Twaroski, presented with the difficulty of defending two suits in two different counties, both being based on the same accident, petitioned the Court of Common Pleas of Allegheny County for a change of venue so that he could defend both suits in Mercer County and hopefully, at the same time. Miss Tarasi objected to the petition and it was denied by the court. From that denial this appeal has followed.

Although we would otherwise quash this appeal as a non-appealable interlocutory order, we are not concerned with that question here since the lower court certified the issue of venue as a controlling question of law in compliance with 17 P.S. § 211.501(b) of the Appellate Court Jurisdiction Act of 1970.

Turning to the substantive issue, we are concerned with whether the trial judge abused his discretion in denying the defendant-appellant's petition for change of venue. Rule 1006(c) of the Pennsylvania Rules of Civil Procedure provides that: 'An action to enforce a joint or joint and several liability against two or more defendants, except actions in which the Commonwealth is the 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).' This rule has received specific review by our Supreme Court in Small v. Saturen et al., 434 Pa. 119, 252 A.2d 631 (1969) wherein the court stated, 'The 1967 amendments to the Rules, namely, 1006(c) and 1009(e), were adopted specifically to apply to the problem where, as here, two or more individual defendants residing in different counties are sued jointly and severally. Under the prior practice, separate actions had to be brought in each of the counties so that each individual defendant could be properly served. This requirement of multiple actions was cumbersome. Under the amendments to the Rules where defendants residing in separate counties jointly or jointly and severally incur an obligation or commit a tort, a single action can be brought against all defendants either in the county of the cause, or in a county in which one of the defendants may be served. Rule 1006(a). ^[5] Rule 1009(e)

makes further provision for any necessary deputized service. Thus, by a single action litigants are enabled to adjudicate the liability of all defendants who reside anywhere within the Commonwealth of Pennsylvania.' Therefore under the facts of this case, since, One of the defendants, Settino, resided in Allegheny County plaintiff properly brought her suit against Both defendants in Allegheny County.

We next turn to defendant's petition requesting a change of venue under Rule 1006(d) which provides in part: 'For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought . . .' The language of this rule clearly indicates that discretion is vested in the trial judge in...