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GRAHAM v. GRAHAM (05/23/73)

decided: May 23, 1973.

GRAHAM
v.
GRAHAM, APPELLANT



Appeal from order of Court of Common Pleas of Butler County, Dec. T., 1971, No. 5, in case of Eleanor Graham v. John Graham, II, executor of the estate of William J. Graham, deceased.

COUNSEL

John A. Metz, Jr., with him Saul J. Bernstein, Metz, Cook, Hanna & Kelly, and Bernstein & Campbell, for appellant.

David L. Cook, with him Louis C. Glasso, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 452 Pa. Page 405]

Appellee, Eleanor Graham, and William J. Graham were divorced by decree of the Circuit Court of Jackson County, Florida, on May 24, 1960. The property settlement agreement provided that appellee was entitled to $1,500 per month for a period beginning in 1960 and terminating five years after William Graham's death. Additionally, the husband promised to create a testamentary trust under which 400 acres in Butler County, Pennsylvania would be held for appellee's "use and benefit".

On August 10, 1971, William Graham died leaving a will which failed to incorporate either of these provisions of the property settlement agreement. Appellee instituted suit in Dade County, Florida, where the will

[ 452 Pa. Page 406]

    was duly probated. The Florida trial court held that appellee is entitled to payment of $1,500 per month, but stated that any "question as to real estate property rights of the property lying and being in Butler County, Pennsylvania, is not in the jurisdiction of this Court, any question or issues as to the property rights of the parties to this cause lies and is within the jurisdiction of the Courts of the Commonwealth of Pennsylvania."*fn1

Subsequently, appellee instituted the present equitable action in the Court of Common Pleas of Butler County seeking, inter alia, to impress a trust upon the property. Service of process was made on appellant -- executor of William Graham's estate and a Florida resident -- by sending a copy of the complaint by registered mail. Appellant interposed preliminary objections asserting that venue does not lie in Butler County under Pa. R. C. P. 1503(a)(2) and that service was invalid under Pa. R. C. P. 1504 (b)(2)(b). These objections were dismissed and this appeal followed. We affirm.

The Pennsylvania Rules of Civil Procedure provide, in pertinent part, that "an action may be brought in and only in a county in which . . . the property or a part of the property which is the subject matter of the action is located. . . ." Pa. R. C. P. 1503(a)(2). The Rules further state:

". . . if the subject matter of the action is properly within the jurisdiction of the court, the plaintiff shall have the ...


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