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JAMES R. LAIRD v. VIOLET P. LAIRD (08/08/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: August 8, 1980.

JAMES R. LAIRD
v.
VIOLET P. LAIRD, APPELLANT

No. 327 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Butler County, Civil Action, Equity, No. 78-020, Bk. 22 Pg. 199.

COUNSEL

John B. McCue, Kittanning, for appellant.

No appearance entered nor briefs submitted on behalf of appellee.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Hoffman

[ 279 Pa. Super. Page 518]

Appellant contends that the lower court erred in dismissing her preliminary objections to the venue of this equity action. For the reasons which follow, we vacate the order of the court below and remand for further proceedings.

The parties, husband and wife, have been separated since 1976. Appellee-husband resides in Butler County, and appellant-wife resides in Armstrong County. The husband instituted this action in the Court of Common Pleas of Butler County and effected deputized service upon the wife in Armstrong County. The husband sought partition of personal property which he and his wife held as tenants by the entireties. The property consisted of a certificate of deposit purchased from an Armstrong County bank in 1970, checking and savings accounts opened at the same bank that year, and a savings account opened at a Butler County bank in 1974. The husband alleged in his complaint that the property should be partitioned because his wife had wrongfully appropriated the property to her own use and had excluded him from access thereto.

The wife filed preliminary objections, alleging, inter alia, that venue did not lie in Butler County. The lower court, concluding that the action was properly brought in Butler County, dismissed the preliminary objections. This appeal followed.*fn1

[ 279 Pa. Super. Page 519]

Rule 1503(a) of the Pennsylvania Rules of Civil Procedure provides, with certain exceptions not applicable here, that "an action may be brought only in a county in which (1) the defendant . . . may be served, or (2) the property or a part of the property which is the subject matter of the action is located . . . ." The wife argues, that, pursuant to Rule 1503(a)(2), venue cannot lie in Butler County because intangible personal property, such as a bank account, has no location.*fn2 We disagree.

In Selig v. Selig, 217 Pa. Super. 7, 268 A.2d 215 (1970), our Court stated: "The res here involved is a bank account in which defendant has an intangible interest. That interest being merely an intangible legal concept, incapable of an actual physical situs, its situs is the domicile of the person who has control over the fund." Id., 217 Pa. Super. at 10, 268 A.2d at 218. See also Gallagher v. Rogan, 322 Pa. 315, 318, 185 A. 707, 708-709 (1936) ("a bank account is a chose in action, and as such follows the domicile of the owner"). Our Supreme Court has described the nature of a tenancy by the entireties as follows:

An estate by the entirety is a form of co-ownership in real and personal property held by a husband and wife with right of survivorship. Its essential characteristic is that each spouse is seized . . . of the whole or the entirety and not of a share, moity, or divisible part.

It is well-established that an estate by the entirety may only be destroyed or terminated by the joint acts of husband or wife, and not by the act of one of them.

[ 279 Pa. Super. Page 520]

    whether the husband is a domiciliary of Butler County. If the Court concludes that the husband's domicile is in Butler County, it shall reinstate its order dismissing the wife's preliminary objections.

Order vacated and case remanded for proceeding in accordance with this opinion.


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