The opinion of the court was delivered by: FOLLMER
The complaint in this action, which was filed November 7, 1951, alleges, inter alia:
1. That plaintiff is a citizen of the State of New York, and the defendant a citizen of the State of Pennsylvania.
2. That Joseph Alan Feely is presently residing in Philadelphia, Pennsylvania, and was President of the Keystone. Roofing Manufacturing Company and the owner of 95% of the stock of said corporation until July 3, 1951.
3. That by writing dated July 1, 1951, Joseph Alan Feely appointed plaintiff, Mildred F. Hart and the defendant, Stephen Alan Feely, his true and lawful attorneys in accord with Exhibit 'A' attached to the complaint, and which plaintiff alleged was a true and correct copy of the said Power of Attorney.
4. That on or about July 3, 1951, defendant, in violation of the authority contained in said Power of Attorney and in violation of plaintiff's rights, unlawfully transferred to himself all of the shares of stock of Keystone Roofing Manufacturing Company and appropriated to himself all of its assets, thereby defrauding plaintiff of her rights.
5. That plaintiff has demanded that defendant turn over to her the certificates of stock and defendant has refused to deliver same.
6. That defendant is mismanaging the affairs of the said Keystone Roofing Manufacturing Company and dissipating its assets, which will result in great financial loss.
Plaintiff prays that the transfer of said shares be decreed invalid; that all of said shares of stock be delivered to plaintiff individually or as Attorney for Joseph Alan Feely; that damages be awarded and an accounting had.
Defendant has filed a motion to dismiss the complaint for failure to state a claim and for lack of jurisdiction, assigning, inter alia, the following reasons:
1. Plaintiff is not a legal heir, guardian or creditor of Joseph Alan Feely; she alleges no claim in her own right; she bases her claim on her appointment as one of the attorneys to act on behalf of Joseph Alan Feely, an individual citizen of Pennsylvania; and that the owner of the property, Joseph Alan Feely, and the defendant, Stephen Alan Feely, both being citizens of Pennsylvania, this court is without jurisdiction.
2. That on September 17, 1951, fifty-one days before the date of the filing of the complaint in the instant case, to wit, November 7, 1951, the Court of Common Pleas of York County, Pennsylvania, upon petition presented by John F. Feely and Irene M. Wright, brother and sister of Joseph Alan Feely, adjudicated Joseph Alan Feely to be unable to take care of his property and in consequence thereof liable to dissipate or lose the same and to become a victim of designing persons, and appointed York Trust Company of York, Pennsylvania, his guardian.
3. That if plaintiff, Mildred F. Hart, had any interest or rights under said Power of Attorney, same were cancelled and terminated on September 17, 1951, the date of the appointment of the guardian.
4. That any action to be brought concerning the property of the ward must be brought in the name of and by the guardian, York Trust Company, whose legal residence is York, Pennsylvania.
5. That York Trust Company, as said guardian, is an indispensable party but is not joined and did ...