Appeal from decree of Court of Common Pleas of Lackawanna County, May T., 1972, No. 6, in case of Robert E. Tigue, Jr., and Mildred Basalyga Walsh v. Gene Basalyga and Marie Asch.
Gene Basalyga, in propria persona.
Robert H. Sayers, for appellees.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Manderino.
This action in equity was instituted to set aside a deed conveying title to real estate allegedly obtained through fraudulent means. One of the defendants appearing pro se filed preliminary objections to the court's jurisdiction over the cause. These objections were overruled by the trial court, and from that order this appeal was filed pursuant to the provisions of the Act of March 5, 1925, P. L. 23, § 1, 12 P.S. § 672.
In ruling it had jurisdiction of the cause, the trial court limited its consideration to the specific objections
asserted by the appellant-defendants as to why such jurisdiction did not exist. These objections were devoid of merit and the trial court correctly so held. However, the record discloses that a necessary and indispensable party to the action was not included as a party-defendant. It has long been established that unless all necessary and indispensable parties are parties to the action, a court is powerless to grant relief. Reifsnyder v. Pittsburgh Outdoor Advertising Company, 396 Pa. 320, 152 A.2d 894 (1959), and Powell v. Shepard, 381 Pa. 405, 113 A.2d 261 (1955). While this particular objection to the court's jurisdiction was not raised in the trial court or on appeal, the absence of an indispensable party goes absolutely to the court's jurisdiction and the issue should be raised sua sponte. Cf. Eberhardt v. Ovens, 436 Pa. 320, 259 A.2d 683 (1969); and Balazick v. Dunkard-Bobtown Municipal Authority, 414 Pa. 182, 199 A.2d 430 (1964).
According to the complaint, the fraud was perpetrated in the deed by the grantee, who subsequently died intestate on September 1, 1970, without reconveying title to the land. This action was instituted after the grantee's death, and the two named defendants are described as his "children and surviving heirs."*fn1 Under the circumstances, the decedent's personal representative is a necessary and indispensable party to the action.
Article I, Section 104 of the Fiduciaries Act of 1949, Act of April 18, 1949, P. L. 512, 20 P.S. § 320.104, provides: "Legal title to all real estate of a decedent
shall pass at his death to his heirs or devisees, subject, however, to all the powers granted to the personal representative by the act and lawfully by the will ...