Appeal from decree of Court of Common Pleas of Lancaster County, Equity Docket No. 13, page 424, in case of Earl C. Potteiger v. Fidelity-Philadelphia Trust Company and Wesley H. Caldwell, trustees, LaRue S. Seidt et al.
Daniel H. Shertzer, with him Shertzer and Danforth, for appellant.
A. J. Drexel Paul, Jr., with him George Chimples, A. David M. Speers, and Stradley, Ronon, Stevens & Young, and Duane, Morris & Heckscher, and Hart, Childs, Hepburn, Ross & Putnam, for appellees.
F. Lyman Windolph, with him Windolph, Burkholder & Hartman, for appellees.
Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.
On June 3, 1964, Earl Potteiger, (Potteiger), a Lancaster County resident, executed a deed of trust in Philadelphia, transferring certain property to Fidelity-Philadelphia Trust Co., of Philadelphia, (Fidelity), and Wesley H. Caldwell,*fn1 a Philadelphia attorney, (Caldwell), as trustees. Under that trust deed, by its terms irrevocable, Potteiger was to receive the net income for life; upon his death, cash legacies totaling $41,000 were to be paid to twenty-two different named individuals (or the children of such individuals who may then be deceased) and the residue, after payment of a $2,000 legacy to a church, was to be paid to four designated charities.
Fourteen months after this trust deed was executed -- August 3, 1965 -- Potteiger instituted an equity action in the Court of Common Pleas of Lancaster County against Fidelity and Caldwell and all the beneficiaries named in the trust instrument, both individual and
charitable,*fn2 to set aside the trust.*fn3 Of the defendants named in this action only two were residents of Lancaster County,*fn4 one of whom was designated to receive a $5,000 legacy and the other a $1,000 legacy under the trust deed. The trustees are residents of Philadelphia County, the trust is being administered, the res of the trust and its situs are located in that County.
Fidelity and Caldwell filed preliminary objections raising questions of venue and jurisdiction :*fn5 (a) since Fidelity and Caldwell are the principal defendants and no principal defendant resides in Lancaster County, venue of the action was not in Lancaster County; (b) the Court of Common Pleas of Lancaster County lacked jurisdiction to determine the matter. Three of the charitable organizations named as residuary beneficiaries filed substantially similar preliminary objections. The court below sustained the preliminary objections
and dismissed the complaint without prejudice to Potteiger's right to bring suit in a county of proper venue and a court of proper jurisdiction. This appeal attacks that decree.
The record established that only two of the twenty-nine named defendants are residents of Lancaster County, that the two trustees are residents of Philadelphia County, that Caldwell, who, allegedly, misinformed and ill-advised Potteiger, is a resident of Philadelphia County and that the trust is being administered and its situs is in Philadelphia County. In this factual posture, was venue of this action properly in Lancaster County?
Initially, we consider the question of venue, although, in the case at bar, the questions of venue and jurisdiction are closely intertwined. Potteiger relies upon Pa. R.C.P. 1503 (a) (1), to sustain his position that venue lies in Lancaster County, and to sustain his position that the Court of Common Pleas of Lancaster County had jurisdiction over the subject matter of the action he relies upon the long recognized equitable jurisdiction and power vested in common pleas courts to set aside trusts.*fn6 The preliminary objectors claim that Pa. R.C.P. 1503 (a) (1), is inapposite and that § 15 of the Act of 1836 (Act of June 14, 1836, P.L. ...