No. 02889 PHILADELPHIA, 1982, No. 02897 PHILADELPHIA, 1982, Appeal from an Order in the Court of Common Pleas, Civil Division, of Lackawanna County, No. 6 March Term, 1965.
Robert J. Borthwick, Scranton, for appellant (at No. 2889) and for appellee (at No. 2897).
John R. O'Brien, Scranton, for appellant (at No. 2897) and for appellee (at No. 2889).
Montemuro, Cercone and Hester, JJ. Montemuro, J., concurs in the result.
[ 330 Pa. Super. Page 516]
This case in equity involves an appeal and a cross-appeal, both parties assigning error to the determination of the court below dismissing the action. For the reasons that follow, we reverse and remand for trial.
Appellee-cross-appellant (hereinafter appellee) Dolores Biglan, Executrix of the Estate of Albert Biglan, deceased, filed this action on March 30, 1965, seeking to enforce an alleged assignment of certain stocks by appellant-cross-appellee (hereinafter appellant) to his brother, Albert M. Biglan. Appellant filed a counterclaim for damages due to his inability to sell or otherwise transfer the stock since the institution of the suit, and for the return of certain shares of stock which he had transferred to Albert.
On the day of trial, September 10, 1981, appellant filed a motion to dismiss appellee's action for failure to comply with 20 Pa.C.S.A. § 4101(2). The chancellor granted appellant's motion, holding that appellee, by failing to provide an affidavit required by the above statute, lacked capacity to sue as a foreign fiduciary. Appellee's oral motion to amend her complaint to comply with § 4101(2) was denied as
[ 330 Pa. Super. Page 517]
untimely. However, appellee's motion to dismiss appellant's counterclaim was granted. From these dismissals, the parties have appealed.
The first issue we will address is whether the lower court erred in dismissing appellee's complaint. Albert Biglan died a resident of New York; as executrix of his estate, appellee is a foreign fiduciary for purposes of filing an action in the Commonwealth. A foreign fiduciary may institute legal proceedings in the Commonwealth subject to the conditions and limitations imposed by 20 Pa.C.S.A. § 4101. That statute requires the foreign fiduciary to provide the following documents:
(1) Copy of appointment. The foreign fiduciary shall file with the register of the county where the power is to be exercised, or the proceeding is instituted, or the property concerning which the power is to be exercised is located, an exemplified copy of his appointment or other qualification in the foreign jurisdiction, together with an exemplified copy of the will or other instrument, if any, in pursuance of which he has been appointed or qualified . . . .
(2) Affidavit. The foreign fiduciary shall execute and file an affidavit with the register of the county where the power is to be exercised or the proceeding is instituted or the property concerning which the power is to be exercised is located, stating that after diligent search and inquiry, the estate of which he is fiduciary is not, to his knowledge or so far as he has been able to discover, indebted to any person in the Commonwealth, and that he will not exercise any power which he would ...