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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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)
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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.



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       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.



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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?


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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.



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      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

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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.



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