Popovitch v. Kasperlik, 3605.

• Decision Date: 11 April 1945
• Docket Number: No. 3605.,3605.
• Citation: Popovitch v. Kasperlik, 59 F.Supp. 993 (W.D. Pa. 1945)
• Parties: POPOVITCH v. KASPERLIK.
• Court: U.S. District Court — Western District of Pennsylvania

59 F. Supp. 993

POPOVITCH v.KASPERLIK.

No. 3605.

District Court, W. D. Pennsylvania.

April 11, 1945.

Martin E. Cusick, George Mashank, Samuel Chiccarino, and Service, McNeal, Cusick & Isenberg, all of Sharon, Pa., for plaintiff.

Stranahan & Sampson, of Mercer, Pa., Williams, Stanley & Andrews, of Youngstown, Ohio, and Duff, Scott & Smith, of Pittsburgh, Pa., for defendant.

SCHOONMAKER, District Judge.

This case was removed to this court on petition of defendant, a citizen and resident of the State of Ohio.

The plaintiff has moved to remand the case to the State court on the following grounds:

(1) Said action is an action in rem relating to real property situate in the City of Sharon, Mercer County, Pennsylvania.

(2) Service of process was made upon the defendant pursuant to the Act of April 6, 1859, P.L. 387, 12 P.S. § 1254, which was authorized by special motion of the plaintiff because it related to an action in equity concerning lands situate or being within the jurisdiction of the Court of Common Pleas of Mercer County, Pennsylvania.

(3) Where a State court and a Federal court have concurrent jurisdiction of a cause of action, the first court assuming jurisdiction of the cause of action has exclusive jurisdiction of the same.

The complaint alleges that plaintiff is seventy-seven years old, and is unable to read or write.

The complaint further alleges that plaintiff was fraudulently induced by defendant, his daughter, on September 18, 1941, to execute and deliver to her a deed of all the real estate — being LotNo. 33 in the Lally and Irvine Addition in the City of Sharon, Mercer County, Pennsylvania — on her false representation that the paper he executed was a will, and that if he did not execute such will, the State would take all his property and put him on the street.This deed reserved in plaintiff a life estate in this property, which life estate was cancelled by agreement made in September 1941, but was restored by a later agreement of June 5, 1942.

The complaint further alleges that it was not until after June 5, 1942, the plaintiff discovered that defendant had a full and complete fee-simple title to his property subject to a life estate in himself; that since such discovery plaintiff has endeavored to resume control of his estate, and has demanded of defendant that she reconvey the property.Defendant has refused so to do.

The complaint asks that the alleged deed of September 18, 1941, and the subsequent agreements of September 1941, and June 5, 1942, be...