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FOSSLEITNER APPEAL. HUCK APPEAL (06/27/69)

decided: June 27, 1969.

FOSSLEITNER APPEAL. HUCK APPEAL


Appeal from decree of Orphans' Court of Allegheny County, No. 2673 of 1963, in re appointment of guardian for persons of Rudolf Harry Huck and Mary Jane Huck, minors.

COUNSEL

William M. Hoffman, with him Campbell, Thomas & Burke, for appellants.

Alfred C. Maiello, with him John B. Nicklas, Jr., and McCrady & Nicklas, for appellee.

Bell, C. J., Jones, Cohen, Eagen, Roberts and Pomeroy, JJ. Opinion by Mr. Chief justice Bell. Mr. Justice Cohen concurs in the result. Mr. Justice O'Brien took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Eagen. Mr. Justice Jones joins in this opinion. Concurring Opinion by Mr. Justice Pomeroy. Mr. Justice Jones joins in this opinion. Dissenting Opinion by Mr. Justice Roberts.

Author: Bell

[ 435 Pa. Page 329]

The facts in this case are both unusual and complicated. The maternal grandmother of two minor children, Rudolf Harry Huck, now eleven years old, and his sister, Mary Jane Huck, age nine, took this appeal from the final decree of the Orphans' Court of Allegheny County dated October 14, 1968. In and by that decree, the Orphans' Court appointed Harry W. Huck, who is the paternal uncle of the minor children (and the appellee in this case), guardian of the persons of the minors, thereby taking the children from their grandmother with whom they had been living in Austria

[ 435 Pa. Page 330]

    almost since birth and gave them to a total stranger to live in a (to them) foreign Country and in a State other than Pennsylvania.

The father of the children, Herbert E. Huck, was born in Pittsburgh on November 23, 1927. He remained a resident of Allegheny County until July 2, 1945, when he enlisted in the United States Army. At the termination of his service, he returned to Pittsburgh and lived in that City as a lodger with a married couple until March 29, 1952, when he re-enlisted in the Army. So far as the record shows, he had never resided in Pittsburgh after that date. On January 31, 1957, he married Maria Anna Fossleitner at Weyer, Austria. Mrs. Huck became a naturalized citizen of the United States on February 12, 1960.

On or about June 29, 1962, Herbert E. Huck, while in the military service and stationed at Nuremberg, Germany, killed his wife with a knife. Thereafter, the United States military authorities took the minor children into custody, contacted Berta Fossleitner, their maternal grandmother, at her home in Austria, and had her come to West Germany where the Army delivered into her custody the Hucks' two minor children. Ever since that time, the children have resided with their grandmother in Austria. Their father, Herbert E. Huck, is mentally ill and incompetent, and since June 29, 1962, has been in the custody of the United States military authorities. He is presently institutionalized in a United States Government Hospital, St. Elizabeth's Hospital, in Washington, D. C.

In October of 1962 -- three months after the murder -- the present appellee, who resided then and still resides at 4508 Woodlark Place, Rockville, Maryland, began proceedings in the District Court of Steyr, Austria, to obtain, with the consent of his brother,*fn* custody of

[ 435 Pa. Page 331]

    these children. Shortly thereafter, Berta Fossleitner, the maternal grandmother of the children, filed an action in the County Court of Weyer, Austria, seeking the permanent custody of the children. That Court entered an interlocutory order granting custody of the children to their grandmother, subject to a determination of the American law of the domicile of the children, with the further provision that if the Court of the domicile of the children failed to assume jurisdiction of the children and of their custody, the Court would enter a permanent order granting custody to the children's grandmother.

On June 12, 1963, appellee presented and filed a petition in the Orphans' Court of Allegheny County, Pennsylvania, praying that he be appointed guardian of the persons of the minors, Rudolf Harry Huck and Mary Jane Huck. On the same date, the Orphans' Court entered an order granting the prayer of appellee's petition. Neither the children nor their grandmother, Berta Fossleitner, were made parties to this proceeding, nor does it appear that any notice whatsoever was given to them concerning the matter. The Orphans' Court apparently entered said order without even holding a hearing.

Upon this appellee's presentation to the Circuit Court at Steyr, Austria, of the order of the Allegheny County Court appointing him guardian of the persons of the children, that Court awarded custody of the children to the appellee. This order or judgment was reversed on appeal by the Supreme Court of Vienna, which held that the aforesaid order of the Orphans' Court of Allegheny County, Pennsylvania, dated June 12, 1963, did not bind Berta Fossleitner, since she was not a party to the proceeding, and had no notice of the proceeding and no chance to raise her objections to a change of custody.

[ 435 Pa. Page 332]

On July 5, 1967, appellee filed in the Orphans' Court of Allegheny County a new petition for the custody of these minors. On the same day, the Orphans' Court entered an order directing that a citation issue, directed to Berta Fossleitner, to show cause why appellee should not be appointed guardian of the persons of said minor children. The order fixed the time and place for a hearing on the petition, and also provided that at least ten days' written notice of the hearing should be given to Berta Fossleitner by serving her personally at Hollensteiner Str. 217, Weyer, Austria, by handing to her the citation and a copy of the petition and order of the Court dated July 5, 1967. A copy of the citation together with a copy of the petition and the aforesaid order of the Court were served personally upon Berta Fossleitner on July 26, 1967, in Weyer, Austria, by Dr. Friedrich Grohs, the Austrian attorney who represented appellee in the proceedings before the Austrian Courts.

Appellee admitted in his petition that both of the children involved in the present custody proceedings are nonresidents of the Commonwealth of Pennsylvania, that they reside at the home of their maternal grandmother in Weyer, Austria, and that they have resided there (almost) since the murder of their mother in 1962. However, appellee alleged in his petition that the Orphans' Court of Allegheny County, Pennsylvania, had jurisdiction because the children are technically domiciled in Allegheny County, Pennsylvania. This averment of jurisdiction was based on the presumption that minor children have the domicile of their father, which was alleged to be Allegheny County because the father was a lodger therein prior to his last enlistment in the military service in 1952.

Berta Fossleitner, the maternal grandmother of the minors, filed preliminary objections to the jurisdiction

[ 435 Pa. Page 333]

    of the Allegheny County Orphans' Court. The preliminary objections were dismissed and Berta Fossleitner was directed to answer within fifteen days. She did not file an answer. Nevertheless, the case was heard in the Allegheny County Orphans' Court on September 16, 1968. Thereafter, that Court entered a decree appointing Harry W. Huck guardian of the persons of his nephew and niece, Rudolf Harry Huck and Mary Jane Huck. After the dismissal of exceptions and the entry of a final decree, the grandmother appealed to this Court.

The question of whether a legal and realistic domicile or a bona fide residence (not attained temporarily or by arbitrarily keeping or abducting a child) is the paramount consideration in the determination of jurisdiction, and the law on this point is not well settled. Moreover, the question and application of comity in the determination of jurisdiction is often a "ticklish" one.

In order for the lower Court to exercise jurisdiction, there must be a legally recognized relationship between the State and the persons over whom the State seeks to exercise jurisdiction. A State has power to exercise judicial jurisdiction over an individual who is either a resident or a domiciliary of the State. Restatement 2d, Conflict of Laws, Proposed Official Draft § 27. In this case, we must determine whether the minor children have the kind of relationship with the State of Pennsylvania and the County of Allegheny which is legally sufficient to make the exercise of jurisdiction in the Allegheny County Orphans' Court both proper and reasonable. Restatement 2d, Conflict of Laws, Proposed Official Draft § 24. It is a general rule that a minor cannot ...


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