United States Cold Storage Corp. v. Philadelphia

Dissenting Opinion by

Me. Justice Robeets:

• The statute which created the General State Authority explicitly states that the Authority has the power “to sue and be sued, implead and be impleaded, complain and defend in all courtsP Act of March 31, *6291949, P. L. 372, §4, as amended, 71 P.S. §1707.4(b). (Emphasis supplied.) Despite the mandate of §51 of the Statutory Construction Act, Act of May 28, 1937, P. L. 1019, 46 P.S. §551 that every statute shall be construed to give effect to all of its provisions, the majority opinion gives no weight to the phrase “in all courts.” If §4 of the Act creating the Authority were intended merely to waive sovereign immunity, then this phrase would be surplusage; obviously, this additional phrase was employed by the Legislature to indicate that the usual venue rules governing suits against Commonwealth instrumentalities were not to be applied to the General State Authority.1 Given this legislative waiver of venue, Rule 1503(c) does not govern this case and suit can be brought in Philadelphia County.

Our decision in Merner v. Department of Highways, 375 Pa. 609, 101 A. 2d 759 (1954) does not require a contrary result. It is true that the State Public School Building Authority, a defendant in Merner, was created by a statute containing a provision equivalent to the one in controversy, and Merner can be read to imply that the School Authority was protected by Rule 1503(c) from Bucks County venue. The impact of the statutory provision permitting suit “in all courts” was not discussed, however, for the simple reason that it *630would have made no difference in the Merner decision. The Department of Highways, another defendant, also submitted preliminary objections based upon Rule 1503 and both the Authority and the Department were held to be indispensable parties. There is no comparable statute permitting the Department to be sued “in all courts.” Thus the argument that the statutory waiver of venue would permit suit against the School Authority was never pressed and was irrelevant to our disposition for the suit was improperly brought against the Highway Department, an indispensable party.2

Although the transfer provision of Rule 1006(e) does avoid the problem of multiple suits, that is no reason to deprive the appellee of its choice of permissible venues. Furthermore, the legislative waiver of venue as to the General State Authority was probably prompted by a recognition that the Authority’s widespread activities in many traditionally nongovernmental areas might result in litigation more conveniently conducted in local forums. For example, in the present litigation, of the six parties involved, only the Authority is not of primarily Philadelphia origin.

I cannot countenance the majority’s blithe refusal to give effect to the legislatively commanded waiver of venue, and therefore must dissent.

The federal courts have ruled upon the effect of similar language vis-a-vis corporate instrumentalities of the United States government. The Supreme Court has uniformly held that the words “to sue or be sued” must be taken in their usual and ordinary sense. Reconstruction Finance Corp. v. J. G. Menihan Corp., 312 U.S. 81, 61 S. Ct. 485 (1941); FHA v. Burr, 309 U.S. 242, 60 S. Ct. 488 (1940). Venue will therefore lie in any federal district where the corporate instrumentality Is engaged in business when the statutory language permits suit “ ‘in any court of competent jurisdiction, State or Federal.’ ” See Seven Oaks, Inc. v. FHA, 171 F. 2d 947, 948 (4th Cir. 1948). The Seven Oalcs court insisted that this language was without any ambiguity and could find “no reason” to give a restrictive reading to its clear intent.

Our Merner decision was based upon a premise that Rule 1503 reflected a jurisdictional requirement. In that context, any argument that . the phrase “in all courts” contained a waiver of the usual venue requirements would have been fruitless. However, the premise that venue should be equated with jurisdiction was expressly overruled in McGinley v. Scott, 401 Pa. 310, 315, 164 A. 2d 424, 427 (1960), an opinion written by the author of this majority opinion.