J-A23002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROBERT W. MCGAFFIC, IN HIS OWN IN THE SUPERIOR COURT OF RIGHT AND AS EXECUTOR OF THE PENNSYLVANIA ESTATE OF ELEANOR L. MCGAFFIC, DECEASED
Appellant
v.
DOROTHY R. LOVE, EXECUTRIX OF THE ESTATE OF GEORGE G. LOVE, DECEASED
Appellee No. 1782 WDA 2015
Appeal from the Order Entered October 20, 2015 In the Court of Common Pleas of Lawrence County Orphans' Court at No(s): 40004 of 2002 C.A.
BEFORE: LAZARUS, J., STABILE, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED JULY 26, 2017
Robert W. McGaffic, in his own right and as Executor of the Will of
Eleanor L. McGaffic, Deceased (“McGaffic”), appeals from the order of the
Court of Common Pleas of Lawrence County, granting the preliminary
objections1 alleging lack of jurisdiction, filed by Dorothy R. Love, Executrix of ____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 The appealed-from “Memorandum, Opinion and Order” entered by the Honorable Francis J. Fornelli on October 20, 2015 does not explicitly dismiss McGaffic’s complaint. However, we find the order to be final as defined under Pa.R.A.P. 341 because, by finding that the court lacked jurisdiction to entertain McGaffic’s complaint, it disposed of all claims and all parties. See Pa.R.A.P. 341(b)(1). This case is sui generis in that there is no way McGaffic (Footnote Continued Next Page) J-A23002-16
the Will of George G. Love, Deceased, to the complaint filed by McGaffic
seeking an accounting and dissolution of an oral business partnership. Upon
thorough review, we affirm.
Eleanor L. McGaffic, Anita Love Miller, and George G. Love were
siblings who owned, as tenants in common, certain real estate in the City of
New Castle, Lawrence County, known as the Centennial Building. The
siblings entered into a partnership for the sole purpose of operating the
Centennial Building. Subsequent to the formation of the partnership, the
Centennial Building was condemned by the Redevelopment Authority of the
City of New Castle (“RANC”). RANC effected a de facto condemnation in
1973 and took physical possession of the building in 1994.
Anita died in 1973, and her one-third interest in the Centennial
Building was purchased by McGaffic from her estate in 1976. Eleanor died in
1975; her share remains in her estate, which has never been distributed or
closed. George died in 2001, a resident and domiciliary of Henderson
County, North Carolina. His share of the Centennial Building passed by will
to Love, the appellee herein, and also the executrix of George’s will.
_______________________ (Footnote Continued)
could amend his complaint to establish subject matter jurisdiction. Therefore, the trial court’s order is final.
-2- J-A23002-16
In 1998, the partnership filed suit against the City of New Castle 2 for
compensation in connection with the condemnation of the Centennial
Building. The suit was settled in March 2015 for $1.3 million.
Following George’s death in 2001, McGaffic submitted a letter entitled
“Notice of claim . . . against George G. Love, Deceased,” to Richard A.
Harper, Esquire, a Pennsylvania attorney who had represented George Love
in connection with the Centennial Building. In the letter, McGaffic requested
reimbursement for Love’s one-third share of costs and expenses incurred in
the litigation over the Centennial Building, as well as Love’s share of
maintenance and operations costs incurred prior to the building’s
condemnation. McGaffic asserted that these claims “are now claims against
[Love’s] estate and the responsibility of his executor.” McGaffic Letter,
6/30/01, at 2. McGaffic closed the letter by requesting that Attorney Harper
forward the letter “to Dorothy Love as Executrix of George G. Love’s estate.”
Id.
On July 23, 2001, E.K. Morely, Esquire, the North Carolina attorney for
Love’s estate, responded to McGaffic’s claim with a letter stating that the
“unquantified claim dated June 30, 2001 against the [Estate of George G.
Love, Deceased] is absolutely and unequivocally rejected.” Morely Letter,
7/23/01. On November 20, 2001, Dorothy Love, as executrix, filed her final
____________________________________________
2 By contract of indemnity, the City of New Castle had agreed to pay the liabilities of the RANC as a result of the latter’s insolvency.
-3- J-A23002-16
account in the Estate of George G. Love, Deceased. The account was
approved and Dorothy was discharged as executrix.
On January 4, 2002, McGaffic filed the instant “Complaint for
Dissolution of Partnership and Accounting” in the Court of Common Pleas of
Lawrence County, naming as defendant Dorothy Love, in her capacity as
executrix. Love filed preliminary objections to the complaint, in which she
alleged: (1) lack of in personam jurisdiction over the estate; (2) lack of
subject matter jurisdiction; (3) lack of specificity; (4) lack of equity
jurisdiction; (5) failure to state a cause of action; and (6) failure to exhaust
statutory remedy under North Carolina law. Following briefing and oral
argument by the parties, the court granted Love’s preliminary objections
alleging lack of in personam and subject matter jurisdiction.
This timely appeal follows, in which McGaffic raises the following issues
for our review:
1. Whether the court has subject matter jurisdiction?
A. Whether the trial court erred in ruling that the case is barred by the final accounting procedure filed in the decedent’s North Carolina estate?
B. Whether the trial court erred in ruling that the [c]omplaint was not timely filed within the limits of North Carolina estate procedure, since the [c]omplaint was timely filed under the applicable Pennsylvania limitation of actions?
2. Whether [Appellee] was properly served with a certified copy of the [c]omplaint filed in this case by certified mail, thus subjecting her to in personam jurisdiction of the Pennsylvania courts?
-4- J-A23002-16
Brief of Appellant, at 4.
We begin by noting that “our standard of review of an order of the trial
court overruling or granting preliminary objections is to determine whether
the trial court committed an error of law.” Feingold v. Hendrzak, 15 A.3d
937, 941 (Pa. Super. 2011), quoting Haun v. Community Health
Systems, Inc., 14 A.3d 120, 123 (Pa. Super. 2011). When considering the
appropriateness of a ruling on preliminary objections, the appellate court
must apply the same standard as the trial court. Id.
Here, McGaffic has asserted a claim against the Estate of George G.
Love. He first presented this claim by Notice of Claim dated June 30, 2001,
which he requested be directed to Dorothy Love, as executrix. By letter
dated July 23, 2001, counsel for the estate unequivocally denied the claim.
Pursuant to North Carolina Law:
If a claim is presented to and rejected by the personal representative or collector, . . . the claimant must, within three months, after due notice in writing of such rejection, commence an action for the recovery thereof, or in the case of a contingent or unliquidated claim, file a petition for an order from the clerk of superior court pursuant to G.S. 28A-19-5(b), or be forever barred from maintaining an action thereon.
N.C. Gen. Stat. Ann.
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J-A23002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROBERT W. MCGAFFIC, IN HIS OWN IN THE SUPERIOR COURT OF RIGHT AND AS EXECUTOR OF THE PENNSYLVANIA ESTATE OF ELEANOR L. MCGAFFIC, DECEASED
Appellant
v.
DOROTHY R. LOVE, EXECUTRIX OF THE ESTATE OF GEORGE G. LOVE, DECEASED
Appellee No. 1782 WDA 2015
Appeal from the Order Entered October 20, 2015 In the Court of Common Pleas of Lawrence County Orphans' Court at No(s): 40004 of 2002 C.A.
BEFORE: LAZARUS, J., STABILE, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED JULY 26, 2017
Robert W. McGaffic, in his own right and as Executor of the Will of
Eleanor L. McGaffic, Deceased (“McGaffic”), appeals from the order of the
Court of Common Pleas of Lawrence County, granting the preliminary
objections1 alleging lack of jurisdiction, filed by Dorothy R. Love, Executrix of ____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 The appealed-from “Memorandum, Opinion and Order” entered by the Honorable Francis J. Fornelli on October 20, 2015 does not explicitly dismiss McGaffic’s complaint. However, we find the order to be final as defined under Pa.R.A.P. 341 because, by finding that the court lacked jurisdiction to entertain McGaffic’s complaint, it disposed of all claims and all parties. See Pa.R.A.P. 341(b)(1). This case is sui generis in that there is no way McGaffic (Footnote Continued Next Page) J-A23002-16
the Will of George G. Love, Deceased, to the complaint filed by McGaffic
seeking an accounting and dissolution of an oral business partnership. Upon
thorough review, we affirm.
Eleanor L. McGaffic, Anita Love Miller, and George G. Love were
siblings who owned, as tenants in common, certain real estate in the City of
New Castle, Lawrence County, known as the Centennial Building. The
siblings entered into a partnership for the sole purpose of operating the
Centennial Building. Subsequent to the formation of the partnership, the
Centennial Building was condemned by the Redevelopment Authority of the
City of New Castle (“RANC”). RANC effected a de facto condemnation in
1973 and took physical possession of the building in 1994.
Anita died in 1973, and her one-third interest in the Centennial
Building was purchased by McGaffic from her estate in 1976. Eleanor died in
1975; her share remains in her estate, which has never been distributed or
closed. George died in 2001, a resident and domiciliary of Henderson
County, North Carolina. His share of the Centennial Building passed by will
to Love, the appellee herein, and also the executrix of George’s will.
_______________________ (Footnote Continued)
could amend his complaint to establish subject matter jurisdiction. Therefore, the trial court’s order is final.
-2- J-A23002-16
In 1998, the partnership filed suit against the City of New Castle 2 for
compensation in connection with the condemnation of the Centennial
Building. The suit was settled in March 2015 for $1.3 million.
Following George’s death in 2001, McGaffic submitted a letter entitled
“Notice of claim . . . against George G. Love, Deceased,” to Richard A.
Harper, Esquire, a Pennsylvania attorney who had represented George Love
in connection with the Centennial Building. In the letter, McGaffic requested
reimbursement for Love’s one-third share of costs and expenses incurred in
the litigation over the Centennial Building, as well as Love’s share of
maintenance and operations costs incurred prior to the building’s
condemnation. McGaffic asserted that these claims “are now claims against
[Love’s] estate and the responsibility of his executor.” McGaffic Letter,
6/30/01, at 2. McGaffic closed the letter by requesting that Attorney Harper
forward the letter “to Dorothy Love as Executrix of George G. Love’s estate.”
Id.
On July 23, 2001, E.K. Morely, Esquire, the North Carolina attorney for
Love’s estate, responded to McGaffic’s claim with a letter stating that the
“unquantified claim dated June 30, 2001 against the [Estate of George G.
Love, Deceased] is absolutely and unequivocally rejected.” Morely Letter,
7/23/01. On November 20, 2001, Dorothy Love, as executrix, filed her final
____________________________________________
2 By contract of indemnity, the City of New Castle had agreed to pay the liabilities of the RANC as a result of the latter’s insolvency.
-3- J-A23002-16
account in the Estate of George G. Love, Deceased. The account was
approved and Dorothy was discharged as executrix.
On January 4, 2002, McGaffic filed the instant “Complaint for
Dissolution of Partnership and Accounting” in the Court of Common Pleas of
Lawrence County, naming as defendant Dorothy Love, in her capacity as
executrix. Love filed preliminary objections to the complaint, in which she
alleged: (1) lack of in personam jurisdiction over the estate; (2) lack of
subject matter jurisdiction; (3) lack of specificity; (4) lack of equity
jurisdiction; (5) failure to state a cause of action; and (6) failure to exhaust
statutory remedy under North Carolina law. Following briefing and oral
argument by the parties, the court granted Love’s preliminary objections
alleging lack of in personam and subject matter jurisdiction.
This timely appeal follows, in which McGaffic raises the following issues
for our review:
1. Whether the court has subject matter jurisdiction?
A. Whether the trial court erred in ruling that the case is barred by the final accounting procedure filed in the decedent’s North Carolina estate?
B. Whether the trial court erred in ruling that the [c]omplaint was not timely filed within the limits of North Carolina estate procedure, since the [c]omplaint was timely filed under the applicable Pennsylvania limitation of actions?
2. Whether [Appellee] was properly served with a certified copy of the [c]omplaint filed in this case by certified mail, thus subjecting her to in personam jurisdiction of the Pennsylvania courts?
-4- J-A23002-16
Brief of Appellant, at 4.
We begin by noting that “our standard of review of an order of the trial
court overruling or granting preliminary objections is to determine whether
the trial court committed an error of law.” Feingold v. Hendrzak, 15 A.3d
937, 941 (Pa. Super. 2011), quoting Haun v. Community Health
Systems, Inc., 14 A.3d 120, 123 (Pa. Super. 2011). When considering the
appropriateness of a ruling on preliminary objections, the appellate court
must apply the same standard as the trial court. Id.
Here, McGaffic has asserted a claim against the Estate of George G.
Love. He first presented this claim by Notice of Claim dated June 30, 2001,
which he requested be directed to Dorothy Love, as executrix. By letter
dated July 23, 2001, counsel for the estate unequivocally denied the claim.
Pursuant to North Carolina Law:
If a claim is presented to and rejected by the personal representative or collector, . . . the claimant must, within three months, after due notice in writing of such rejection, commence an action for the recovery thereof, or in the case of a contingent or unliquidated claim, file a petition for an order from the clerk of superior court pursuant to G.S. 28A-19-5(b), or be forever barred from maintaining an action thereon.
N.C. Gen. Stat. Ann. § 28A-19-16. Accordingly, McGaffic had 90 days from
July 23, 2001, or until October 22, 2001,3 to take further action pursuant to
North Carolina law. McGaffic failed to do so.
3 The ninetieth day, October 21, 2001, fell on a Sunday.
-5- J-A23002-16
McGaffic subsequently attempted to revive the claim, this time in an
action against the executrix, as legal representative of George Love’s estate,
in Pennsylvania state court. However, the Love Estate no longer exists as a
legal entity, as the executrix has been discharged by the court in North
Carolina.
The administration of an estate constitutes a proceeding in rem. In re
Craig’s Estate, 109 A.2d 190, 198 (Pa. 1954). In such cases,
the rule is that the court which first acquires jurisdiction of specific property by the possession thereof . . . thereby withdraws it from the jurisdiction of every other court so far as is necessary to accomplish the purpose of the suit, and the court is entitled to retain such control as is requisite to effectuate its final judgment or decree free from the interference of every other tribunal. That res is as much withdrawn from the judicial power of the other court as if it had been carried physically into a different territorial sovereignty.
Thompson v. Fitzgerald, 198 A. 58, 63 (Pa. 1938), aff’d sub nom.
Princess Lida of Thurn & Taxis v. Thompson, 305 U.S. 456 (1939).
“The possession of the res vests the court which has first acquired
jurisdiction with the power to hear and determine all controversies relating
thereto, and for the time being disables other courts of co-ordinate
jurisdiction from exercising a like power.” Id., quoting Merritt v. American
Steel-Barge Co., 79 F. 228, 231 (8th Cir. 1897).
Accordingly, here, the North Carolina court possessed exclusive
jurisdiction over all matters pertaining to the administration and distribution
of the decedent’s estate, including the adjudication of claims brought against
the estate for debts allegedly owed by the decedent. McGaffic, his claim
-6- J-A23002-16
having been denied by the executrix, failed to pursue his remedies in the
North Carolina probate court. In due course, the executrix concluded the
administration of the estate, filed her account, and was discharged by the
court. Under the rule enunciated in Thompson, supra, McGaffic is now
foreclosed from resurrecting his claim in the courts of this Commonwealth.
Order affirmed.4
Judge Stabile joins the Memorandum.
Judge Strassburger files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/26/2017
4 Because we conclude that the Pennsylvania court lacked jurisdiction to consider McGaffic’s claim, we need not address the issue of whether his complaint was properly served upon the executrix.
-7-