Giampalo v. Taylor

• Decision Date: 25 May 1939
• Docket Number: 328,329
• Citation: 335 Pa. 121,6 A.2d 499
• Parties: Giampalo et al. v. Taylor et al., Appellant
• Court: Pennsylvania Supreme Court

6 A.2d 499

335 Pa. 121

Giampalo et al. v. Taylor et al., Appellant

Nos. 328, 329

Supreme Court of Pennsylvania

May 25, 1939

Argued November 29, 1938.

Appeals, Nos. 328 and 329, Jan. T., 1938, from order of C.P No. 3, Phila. Co., June T., 1935, No. 968, in case of Constantino Giampalo, a minor, by his father and next friend Joseph Giampalo, and Joseph Giampalo and Vincenza Giampalo his parents, in their own right, v. Samuel W. Taylor and National Bank of Smyrna, executor. Order reversed.

Petition, and rule granted thereon, preliminarily raising question of jurisdiction of court.

The opinion of the Supreme Court states the facts.

Rule discharged, opinion per curiam. Defendant appealed.

Error assigned was order discharging rule.

The order of the court below is reversed, and the record is remitted with directions to set aside the service of the writ of scire facias.

John J. Gain, with him Francis Shunk Brown, for appellant.

Earl W. Thompson, with him Harry A. Demar, for appellees.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.

OPINION

MR. BARNES, JUSTICE.

The question is whether a nonresident executor of a decedent who resided outside of this Commonwealth may be made a party defendant in an action pending in a court of this state, by the service upon it of a writ of scire facias by publication, where such executor has qualified and is acting under the laws of another state.

The facts upon which the question arises are as follows: On September 30, 1934, the minor plaintiff was injured by an automobile operated by the defendant, Samuel W. Taylor, who was a resident of Kent County, Delaware. The accident occurred in Philadelphia, and the present action of trespass was instituted in the court below to recover damages for the injuries so sustained. The writ of summons was served upon defendant by deputizing the sheriff of Dauphin County to make service, in the manner provided by the Motor Vehicle Act of May 14, 1929, P.L. 1721, as amended. Shortly thereafter a general appearance was entered by attorneys on behalf of defendant.

While the suit was pending, defendant died on September 29, 1936, and subsequently the plaintiffs filed a suggestion of his death and of the appointment of the National Bank of Smyrna, Delaware, as his executor, letters testamentary having been granted by the Register of Wills of Kent County, Delaware, on November 5, 1936. Plaintiffs then caused a writ of scire facias to issue against the executor to show cause why it should not be made a party defendant in the present action, and by order of the court below, leave was given to make service of the writ by publication in a local newspaper in Smyrna, and by mailing a copy thereof to the executor by registered mail. The order was predicated upon the provisions of Section 35(h) of the Fiduciaries Act of 1917, P.L. 447, 505, (20 PS Sec. 778). Proof of publication and an affidavit of service of the copy of the writ by registered mail were duly filed.

The executor subsequently filed its petition under the Act of March 5, 1925, P.L. 23, raising preliminarily the question of jurisdiction of the court upon the ground that the provision in question of the Fiduciaries Act is in conflict with the due process clause of the Federal Constitution if it purports, in an action for a judgment in personam, to confer jurisdiction by publication upon a nonresident executor or administrator whose authority is derived from a state other than Pennsylvania, and whose decedent was a nonresident of this state. Plaintiffs in their answer admit the averments concerning the nonresidence of decedent and of his executor, and the latter's appointment as such in the State of Delaware. It is further admitted that plaintiffs seek to recover a judgment against the National Bank of Smyrna in its representative capacity as executor of the decedent.

The court below after argument sustained the jurisdiction and discharged the rule granted upon the petition. From the order accordingly entered the executor has taken this appeal.

Before considering the provision of the Fiduciaries Act which is here challenged, it is apparent from the decisions of appellate courts in other jurisdictions that the general rule uniformly followed is that no action to recover a judgment in personam can be maintained against an executor or administrator in his representative capacity outside the state of his appointment upon a claim against the estate of a decedent. ^[1] These cases proceed upon the theory that an executor owes his legal existence to the act of the sovereign state under the laws of which he was appointed, and his powers do not extend beyond the limits of that state, which reserves to itself at all times the full and exclusive authority over all the assets of the decedent within its jurisdiction. In the Restatement, Conflict of Laws, Section 512, the reason for the rule is thus stated in Comment (a): "The administrator ^[2] holds the assets of the decedent which come into his possession subject to the directions of the court which appointed him, and is responsible only to that court. For a court in another state to order payment from assets of the decedent in the hands of the foreign administrator would be an improper interference with the administration by the court of the first state."

A practical basis for the rule is found in the difficulty of enforcing a judgment rendered against an executor in a foreign state. Such judgment cannot be collected in the state in which it was obtained because of the absence of an estate therein out of which the judgment is to be paid; it cannot be collected in the state wherein the executor was appointed, for there no recognition or effect will be accorded the judgment because of lack of jurisdiction over the executor.

It is generally held as a logical extension of the rule, that an action pending against a nonresident defendant at the time of his death cannot be revived against a foreign executor or administrator of such decedent. ^[3]

In this state the general rule has not been accepted in its entirety ^[4] and it must be conceded that it is in conflict with the decisions of this Court in Swearingen v. Pendleton, 4 S. & R. 389, and in Evans v. Tatem, Admx., 9 S. & R. 252. These decisions were criticized in Magraw v. Irwin, 87 Pa. 139. However, in Laughlin & McManus v. Solomon, 180 Pa. 177, the earlier cases were approved. There suit was instituted against a foreign executor of a nonresident decedent, and service was made in this state upon the executor. In an opinion by Mr. Justice MITCHELL we sustained the jurisdiction of the court, and said (p. 179): "The general rule as stated in the text books is that an executor can only sue or be sued in his own forum: . . . But in Pennsylvania the rule cannot be stated so broadly . . . as an executor or administrator's right to act for his decedent depends on his representative character conferred by letters testamentary, these latter cannot of course give authority beyond the jurisdiction of the officer granting them. Hence the deduction is plain that a foreign executor cannot sue in another tribunal by virtue of his foreign letters alone. But it is quite another step to say that he cannot be sued there"; and (p. 183): ". . . it must be taken as the rule in Pennsylvania that a foreign executor within the jurisdiction of our courts is liable to suit by a resident creditor of his decedent, and such suit will be sustained unless it trenches unduly on the jurisdiction of another court already attached, or would expose parties subject to such jurisdiction to inequitable burdens."

We have also held, apparently contrary to the weight of authority, that the voluntary appearance in a court of this state by a foreign executor or administrator in a suit brought against him in his representative capacity will confer jurisdiction: Evans v. Tatem, supra. ^[5]

In the present case, however, the foreign executor was not served within the Commonwealth as in Laughlin & McManus v. Solomon, supra; nor was a voluntary appearance entered as in Evans v. Tatem, supra. Here the appearance of the executor is de bene esse in order to raise the question of jurisdiction. In consequence it must first be determined whether the provision of the Fiduciaries Act here assailed does in fact attempt to authorize service by publication upon a foreign executor who resides outside of the Commonwealth.

The subsection in question ^[6] reads as follows: "Whenever the executor or administrator of a deceased plaintiff, petitioner, defendant, or respondent in any action or legal or equitable proceeding pending in any court of this Commonwealth, resides without the jurisdiction of the said court, the writ of scire facias provided by the preceding clauses of this section may be served on such executor or administrator by the sheriff of the county where he is resident, if, in the opinion of the proper court, such service may be reasonably practicable; but, if otherwise, and also where the said executor or administrator resides in some other state of the United States, ^[7] such service may be made by publication in one or more public newspapers as, in the opinion of the court, will be most likely to give notice to the said executors or administrators."

There is nothing in the language of this subsection which in express terms refers to foreign executors or administrators. Section 35 of the Act deals with the survival of actions pending at the time of the decease of a party litigant, and confers upon the court the power to require by writ of scire facias the executor or administrator of such deceased litigant to become a party to such proceeding if the cause of action shall not have abated by reason of death. Subse...