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Challenge to Improper Venue May Only be Made in Preliminary Objections

The Pennsylvania Supreme Court ruled improper venue must be raised by preliminary objection and if not so raised shall be waived. Zappala v. Brandolini Property Management, Inc. (Pa. November 27, 2006).

This personal injury case was filed against various individual and corporate defendants relative to a slip and fall that occurred in Chester County. Suit was filed in Philadelphia County against various defendants, some of which were located in Chester County and some of which were located in Philadelphia County. Shortly before trial, the Philadelphia County defendants were dismissed from the case. The Chester County defendants then moved to transfer the case to Chester County and the motion was granted. Plaintiff appealed to the Superior Court which reversed the trial court's ruling finding that the transfer was improper since a challenge to improper venue was not brought by the Chester County defendants in preliminary objections (which are required to be filed within twenty days after a complaint is filed). The Superior Court rejected Plaintiff's argument that a challenge to venue could not be made at the time of preliminary objections and had to wait until the last Philadelphia County defendant was dismissed from the case.

The Supreme Court upheld the decision of the Superior Court and stated that the language of Pa.R.C.P. 1006(e) explicitly states that a challenge to improper venue must be made in preliminary objections or else the challenge is waived. It rejected the trial court's reasoning that improper venue can be raised "at the first reasonable opportunity" which in this case would have been when the Philadelphia County defendants were dismissed from the case shortly before trial. It also found, however, that a petition to transfer venue on the basis of forum non conveniens, can be made at any time in the litigation and remanded the case to allow the Chester County defendants to seek a challenge to venue on that basis.

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