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HomeMy WebLinkAbout03-1522PAULINE E. KECK, Plaintiff Vo RONALD L. KECK, EXECUTOR OF THE ESTATE OF ARTHUR S. KECK, DECEASED, AND RONALD L. KECK, INDIVIDUALLY, Defendants · NO. 03- · CIVIL ACTION · IN EQUITY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE· IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 Date: MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff F:~ILES~DATAFILE~zSTATES\10604-3.cotr~plaint. 2 Created: 3/25/03 9:2:16 AM Revise: 3/26/03 10:42:45 AM PAULINE E. KECK, Plaintiff RONALD L. KECK, EXECUTOR OF THE ESTATE OF ARTHUR S. KECK, DECEASED, AND RONALD L. KECK, INDIVIDUALLY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION IN EQUITY COMPLAINT AND NOW, comes the Plaintiff, Pauline E. Keck, by and through her attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and files this Complaint against the Defendants upon the following: 1. Plaintiff Pauline E. Keck resides at 45 Bobcat Road, Carlisle, Cumberland County, Pennsylvania, and is the widow of Arthur S. Keck (herein, "Decedent"), who died on December 20, 2002. 2. Defendant Ronald L. Keck is an adult individual who resides at 205 Race Street, Boiling Springs, Cumberland County, Pennsylvania, and is the duly appointed Executor of Decedent's Estate by virtue of Letters Testamentary granted to him by the Register of Wills of Cumberland County on January 7, 2003 at Estate No. 2003-011. 3. Defendant Ronald L. Keck is one of three surviving sons of the Decedent, and is the residuary legatee of Decedent's entire estate under Decedent's Will dulyprobated in Book 17-113-1, a copy of which is attached as Exhibit "A". 4. Plaintiff and the Decedent were married on October 23, 1933, in Carlisle, Pennsylvania. 5. Plaintiff and the Decedent resided together as husband and wife at all times from the date of their marriage through the Decedent's death on December 20, 2002. 6. During the marriage, and continuing through Decedent's death, Plaintiff nurtured and cared for the Decedent, remained a dutiful and faithful wife, performed the duties of housewife, assisted in the raising of the parties' children and, upon Decedent's insistence, regularly worked in his shoe repair shop without compensation. 7. During the marriage and through the time of his death, Decedent mentally abused the Plaintiff, threatened her with physical harm from time to time, and caused her to become psychologically and economically dependent, incapable of exerting her own will, as follows: a. On several occasions, and during the two years prior to his death, the Decedent threatened Plaintiff with physical harm, pushed her around, threatened to kill her, and told her to "pack her bags and get out;" b. Despite her oft repeated requests, Decedent refused to allow Plaintiff to become employed, notwithstanding his insistence that she work for him in his shoe repair shop without pay, and continuously berated her for expressing a desire to become gainfully employed; c. Decedent intentionally refused to allow Plaintiff to become gainfully employed so as to cause her to become totally and permanently, psychologically and economically dependent upon him for her every basic need, thus making her a hostage in the home; d. Throughout the marriage Decedent refused to give Plaintiff any money, even to the extent of providing insufficient funds to purchase basic necessities; e. During the marriage Decedent secreted and isolated all of the parties assets into his separate ownership, titling all liquid assets and the parties' marital residence at 45 Bobcat Road, Carlisle, Pennsylvania, in his sole name; and f. Approximately 20 - 30 years ago, Decedent forged Plaintiff's signature to various deeds for certain jointly owned properties conveyed by the Decedent without her joinder; thereafter, Decedent deliberately caused all assets acquired by the parties to be titled separately in his name. 8. Throughout the marriage, Plaintiff dutifully performed parenting and housekeeping, devoted substantial assistance to him in his business and made substantial contribution to the acquisition of all marital assets. Plaintiff provided substantial physical labor in the construction of the marital residence. 10. Decedent engaged in a deliberate pattern of excluding Plaintiff from ownership of assets acquired during the marriage, all in furtherance of his scheme to gain total economic domination of Plaintiff. 11. Decedent engaged in the systematic and continuous infliction of mental and emotional abuse upon Plaintiff and so psychologically and emotionally abused her that she became an economic and emotional dependent of the Decedent, subject to his total and complete domination and control, leaving her without the ability and will to resist his control or to seek her independence through separation, divorce or other means. 12. Decedent's total psychological domination of Plaintiff caused her to live under conditions of involuntary servitude. 13. In addition to intentionally depriving Plaintiff of the economic fruits of the marriage by devising all of the assets acquired during the marriage to his son, Ronald L. Keck, Plaintiff believes, and therefore avers, that Decedent gifted substantial sums of money to his son in the months prior to his death so as to further deprive Plaintiff of assets acquired during the marriage. 14. Decedent's conduct has left Plaintiff without the economic means to provide for her basic needs and without the wherewithal to live according to the standard of living to which she is entitled as a result of her efforts during the marriage. COUNT I - CONSTRUCTIVE TRUST Pauline E. Keck v. Ronald L. Keck, Executor of the Estate of Arthur S. Keck, and Ronald L. Keck, Individually 15. The averments of Paragraphs 1-14, inclusive, of this Complaint are incorporated herein as if set forth in full. 16. All of the assets comprising Decedent's estate were acquired during the marriage of Plaintiff and Decedent, the acquisition of which resulted from Plaintiff contributing substantial effort and services without remuneration or compensation from Decedent. 17. As the wife of Decedent, Plaintiff had every expectation that she would receive all of the parties' jointly acquired assets upon Decedent's death. 18. Notwithstanding, Decedent secreted and segregated all of the assets acquired during the man/age under his sole and separate ownership by titling all liquid accounts and the parties' marital residence in his sole name, and thereupon excluding Plaintiff from receiving the fruits of her lifetime labors in his Will. 19. None of the assets comprising Decedent's estate were acquired during Decedent's lifetime by gift, inheritance or in any other manner other than through the efforts and contributions of Decedent and Plaintiff, and Plaintiff's contributions were made without remuneration or accumulation of ownership equity. 20. Defendant, Ronald L. Keck, Executor of the Estate of Arthur S. Keck, currently holds title to all estate assets and is subject to an equitable duty to convey the same to Plaintiff. 21. In addition to having been appointed Executor of the estate, Defendant, Ronald L. Keck, is the sole legatee of the estate and, without the intervention of equity, will be unjustly enriched should he receive the estate assets. 22. All of the estate assets are subject to the imposition of a constructive trust for the sole benefit of Plaintiff. 23. Throughout the marriage, Decedent caused such fraud, duress, and undue influence upon the Plaintiff that all of the assets acquired during the marriage should be subject to a constructive trust under this Court's equitable jurisdiction. WHEREFORE, Plaintiff requests the imposition of a constructive trust in her benefit upon all of the estate assets and the transfer of ownership of the assets to her as the rightful and equitable owner. COUNT H - UNJUST ENRICHMENT .Pauline E. Keck v. Ronald L. Keck, Individually 24. The averments of Paragraphs 1-23, inclusive, of this Complaint are incorporated herein as if set forth in full. 25. By virtue of the Decedent's Will, and as a result of Decedent titling all marital assets under his sole and separate name during the marriage, Defendant, as sole legatee under Decedent's Will, has been conferred substantial economic benefit which is unjust. 26. Defendant has not renounced any claim to all, or any portion, of Decedent's estate. 27. The acceptance and retention of Decedent's entire estate by Defendant would be inequitable and would result in the unjust enrichment of Defendant. WHEREFORE, Plaintiff demands restitution fi:om Defendant in amount equivalent to the residual value of Decedent's estate. Date: MARTSON DEARDORFF WILLIAMS & OTTO Edward L. Schorpp,//Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff L/tST WILL ,'IND TESTAMENT I ARTHUR S. KECK, of Lower Frankford Township, Cumberland County, Pennsylvania, declare this instrument to be my Last Will and Testament, hereby expressly revoking all Wills and Codicils heretofore made by me. ON__._~E: I direct my Executor to pay all of my debts, funeral and administrative expenses as soon as may be done conveniently after my decease. TWO: I give, devise, and bequeath all of my estate of every nature and wherever situate, I give, devise, and bequeatl~ to my son, RONALD E. KECK. THREE: I appoint RONALD E. KECK, to serve as Executor of this my Last Will. F~OUR_: My Executor may, at his discretion, compromise claims, borrow money, retain property for such length of time as he may deem proper; lease and sell property for such prices, on such terms, at public or private sales, as he may deem proper; and invest estate property and income without restriction to legal investments. Exhibit "A" FIVE: No Executor, acting bond or enter security in this or any jurisdiction. hereunder shall be required to post IN WITNESS WHEREOF, I have hereunto set my hand and seal this~'~ day of November, 1998. ARTHUR S. KECK Signed, sealed, published and declared by ARTHUR S. KECK, the above named Testator, as and for his Last Will and Testament, in the presence of us, who, at his request and in his presence and in the presence of each other have subscribed our names as witnesses hereto. ACKNOWLEDGMENT AND AFFIDAVIT WE, ARTHUR S. KECK, CHERYL L. CLELAND and SHARON L. SCHWALM, the testator and witnesses respectively, whose names are signed to the foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as his last will and that he had signed willingly, and that he executed it as his free and voluntary, act for the purpose herein expressed, and that each of the witnesses, in the presence and hearing of the testator, signed the will as a witness and that to the best of their knowledge the testator was, at that time, eighteen years of age or older, of sound mind and under no constraint or undue influence. ARTHUR ~. KEC~ - CH~RYL L. CLELAND ~ SHARON L. SCHWALM COMMONWEALTH OF PENNSYLVANIA : : SS: COUNTY OF CUMBERLAND : Subscribed, sworn to and acknowledged before me by ARTHUR S. KECK, the testator herein, and subscribed and swom,,~to before me by CHERYL L. CLELAND and SHARON L. SCHWALM, witnesses, this ~,~t'/~r"day of November, 1998. .otaria~ Martha L. Noel, Notary Public Carlisle Boro, Cumberland County My Commission Expires Sept. 18. 1999 Member, Pennsylvania Association of i'~otaries Notary Public VERIFICATION I verify that the statements contained herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unswom falsification to authorities. Pauline E. Keck Dated: SHERIFF'S RETURN - REGULAR CASE NO: 2003-01522 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KECK PAULINE E VS KECK RONALD L ET AL JASON VIOPJtL , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EQUITY was served upon KECK RONAI.D L EXECUTOR OF THE ESTATE OF ARTHUR S KECK the DEFENDANT , at 205 RACE STREET at 2002:00 HOURS, on the 4th day of April , 2003 BOILING SPRINGS, PA 17007 by handing to RONALD KECK a true and attested copy of COMPLAINT - EQUITY together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.45 Affidavit .00 Surcharge 10.00 .00 31.45 Sworn and Subscribed to before me this /D~ day of So Answers: R. '~'~ Thomas~ ~ K1 ine ~'~'~'~'~''~ --'~'~"'~"~'"~' ~:''~ '~ '~ 04/07/2003 HDW&O puty Sheriff SHERIFF'S RETURN - REGULAR CASE NO: 2003-01522 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KECK PAULINE E VS KECK RONALD L ET AL JASON VIOP~AL , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EQUITY was served upon KECK RONALD L the DEFENDANT , at 2002:00 HOURS, on the 4th day of April , 2003 at 205 RACE STREET BOILING SPRINGS, PA 17007 by handing to RONALD KECK a true and attested copy of COMPLAINT - EQUITY together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6 00 00 00 10 00 00 16 00 Sworn and Subscribed to before me this /~-~ day of ~ ~3 A.D. /P~othonotary So Answers: 04/07/2003 MDW&O By: Sheriff PAULINE E. KECK, Plaintiff Ve RONALD L. KECK, EXECUTOR OF THE ESTATE OF ARTHUR S. KECK, DECEASED, AND RONALD L. KECK, INDMDUALLY, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-1522 EQUITY TERM CIVIL ACTION IN EQUITY PRAECIPE FOR ENTRY OF APPEARANCE To Curtis R. Long, Prothonotary: Please enter my appearance on behalf of the defendant, RONALD L. KECK, Executor of the Estate of Arthur S. Keck, in the above captioned case. By: Respectfully submitted, l~r~us A~~t, III, Esquire 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for defendant Date: April 24, 2003 PAULINE E. KECK, Plaintiff RONALD L. KECK, EXECUTOR OF THE ESTATE OF ARTHUR S. KECK, DECEASED, AND RONALD L. KECK, INDIVIDUALLY, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 03-1522 EQUITY TERM : : CIVIL ACTION : : IN EQUITY CERTIFICATE OF SERVICE I, Marcus A. McKnight, m, Esquire, hereby certify that a copy of attached Praecipe for Entry of Appearance was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Edward L. Schorpp, Esquire 10 East High Street Carlisle, PA 17013 By: IR~HT & HUGHES ~l~larcust-A. ~ 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Date: April 24, 2003 ¢$1 -~ PRAECIPE FOR LISTING CASE FOR ARGUMENT (M~st be t~tten a~d submitted in d~te) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please ]i~t the within matter for the next A~t Couzt. CAPTION OF CASE (entire captio~ must be stated in full)' PAULINE E. KECK, RONALD L. KECK, EXECUTOR OF THE ESTATE OF ARTHUR S. KECK, DECEASED, AND RONALD L. KECK, INDIVIDUALLY, ( pi ai ntiff ) ( Defem~nt ) No. 03-1522 Civil ~ 2003 1. State matter to be argued (i.e., plaintiff's ~tio~ for new t~Lialo d~fendamt's d~u~r to cc~] mi gr, etc. ): Defendant' s Preliminary Objections 2. Identify counsel who ~ 11 argue cae: (a) for plaintiff: Address: Marcus A. McKnight, III, Esquire IRWIN McKNIGHT & HUGHES 60 West Pomfret Street, Carlisle, PA 17013 for defendant: Anthony T. Lucido, Esquire ~ess: MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street, Carlisle, PA 17013 3. I w~ll notify ~11 parties in writing within t~d~ that this case has been limted for ar~t. 4. Argument Court Date: July 23, 2003 AnthonY T. Lucido, Esquire PAULINE E. KECK, Plaintiff · IN THE COURT OF COMMON PLEAS · CUMBERLAND COUNTY, : PENNSYLVANIA · NO. 03-1522 EQUtTYTERM RONALD L. KECK, EXECUTOR OF THE ESTATE OF ARTHUR S. KECK, DECEASED, AND RONALD L.: KECK, INDIVIDUALLY, Defendants CIVIL ACTION : IN EQUITY IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Before HOFFER, P. J. and HESS~ J. ORDER OF COURT AND NOW, Decembera~ 2003, upon consideration of the Preliminary Objections of defendants to plaintiffs complaint, it is ordered and directed that the objection with respect to jurisdiction is SUSTAINED, and the complaint is dismissed· ~'dward L. Schorpp, Esquire Anthony T. Lucido, Esquire Martson, Deardorff, Williams & Otto Ten Eat High Street Carlisle, PA 17013 For the Plaintiff Marcus A. McKnight III, Esquire 60 West Pomfret Street Carlisle, PA 17013 For the Defendants PAULINE E. KECK, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : NO. 03-1522 EQUITY TERM RONALD L. KECK, EXECUTOR OF : CIVIL ACTION THE ESTATE OF ARTHUR S. KECK, DECEASED, AND RONALD L.: KECK, INDIVIDUALLY, Defendants : IN EQUITY IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Before HOFFER, P. J. and HESS, J. Hoffer, P.J.: Before the court are the preliminary objections of the defendants, Ronald L. Keck, et al., to the complaint of the plaintiff, Pauline E. Keck. The plaintiff brings this action in equity seeking a constructive trust against the estate and against Ronald Keck individually. The defendant, Ronald Keck, on behalf of himself and the Estate of Arthur Keck, has filed Preliminary Objections to this equitable action. The first preliminary objection contends that the plaintiff has failed to state an equitable basis for relief when she already has adequate remedies at law and alleges fraud by the defendant. The second preliminary objection avers that jurisdiction in this court is not proper when the Orphan's Court has exclusive jurisdiction over a decedent's estate and has already assumed jurisdiction over Arthur S. Keck's Estate by granting letters of administration. FACTS Plaintiff, Pauline E. Keck, and Arthur S. Keck ["Decedent"] were married on October 27, 1933. Although neither filed any divorce action over the court of their marriage, the parties apparently endured a long and rocky marriage. The plaintiff brought criminal charges against the decedent which resulted in an ARD disposition in 1999. Throughout their marriage, the plaintiff was fully aware of the fact that the real estate purchased by the decedent was placed into his name alone. On December 20, 2002, Arthur Keck died. His will named one of his sons, Ronald Keck, as his heir and the executor of his estate. Although the plaintiff did not challenge the validity of the will, she did exercise her right to elect against the will, asserting her spousal share of the estate. The plaintiff now brings this action in equity against Ronald Keck, Executor of the Estate and against Ronald Keck individually. She seeks a constructive trust against the estate and against the son individually, claiming the decedent had made financial gifts over the course of his lifetime to his son, Ronald Keck. The defendant, Ronald Keck, on behalf of himself and the Estate of Arthur Keck, has filed two Preliminary Objections. First, the defendant objects to the imposition of a constructive trust. Second, the defendant asserts that the jurisdiction in this court is not proper. DISCUSSION We address the second preliminary objection first. As the defendant objects to the jurisdiction being in the Court of Common Pleas, he argues that the Orphan's Court has exclusive jurisdiction over a decedent's estate and has already assumed jurisdiction over the decedent's estate by granting letters of administration. In his assertion, the defendant correctly relies upon Pope v. Dascher.~ In Pope v. Dascher, the appellant brought an action in the Court of Common Pleas in Philadelphia County seeking a constructive trust to own title to shares of stock and real estate that were held in the name of the decedent? Because the decedent had been holding title to the property for the appellant's benefit, the appellant claimed that the property were assets subject to a constructive trust. The appellee raised a preliminary objection stating that jurisdiction for the case belonged to the Orphan's Court, not the Court of Common Pleas? The Common Pleas Court sustained this preliminary objection. The matter was appealed. On appeal, the Supreme Court of Pennsylvania did not decide whether a ~ Pope v. Dasher, 429 Pa. 576, 240 A.2d 518 (1968). 2 Pope, 429 Pa. at 520. constructive trust existed, but held that the even if there was a constructive trust, proper jurisdiction for the case was in the Orphan's Court. In coming to this conclusion, the Court examined the property separately. First, the Court ruled that the Orphan's Court had exclusive jurisdiction over the shares of stock because it was personal property.4 Secondly, the Court held that jurisdiction for the real estate, which would be concurrent between the divisions, properly belonged in the Orphan's Court because it had already assumed jurisdiction when it granted letters by the register of wills.5 The case at bar is quite similar to Pope. Much like in Pope where the Orphan's Court had granted letters by the register of wills, the Orphan's case in the present case has also already granted letters of administration prior to the filing of this case in the Common Pleas Court. Therefore, the holding from Pope controls. Since the Orphan's Court has already assumed jurisdiction, the jurisdiction over Arthur S. Keck's estate belongs, not in this court, but in the Orphan's Court.6 4 Although amendments have been made to the Probate Code since the time Pope v. Dascher was decided, the sections that the Court relied upon in rendering its opinion have not changed. The Orphan's Court still has mandatory jurisdiction over the adjudication of personal property held in the name of the decedent. The Orphan's Court has concurrent jurisdiction over the adjudication of title to real estate. 20 Pa. C.S.A. sections 711 (17) and 712 (1). Pope, 429 Pa. at 521. 6 The plaintiff cites Binder v. Mille~, 60 Pa. D&C 2d 675 (Phila. County 1973). However, this case is factually distinguishable in that only a small portion of the property in Binder was in the possession of the estate, whereas, all the property at issue in the present 4 CONCLUSION The defendant's preliminary objection regarding jurisdiction is sustained. case is in the possession of the estate and is held by the personal representative of the decedent. Further distinguishing Binder from the present case is the fact that none of the property at issue in Binder was titled in the name of the decedent, whereas in the present case, all of the property at issue was titled in the decedent's name. PAULINE E. KECK, Plaintiff RONALD L. KECK, EXECUTOR OF THE ESTATE OF ARTHUR S. KECK, DECEASED, AND RONALD L. KECK, INDIVIDUALLY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAbID COUNTY, PENNSYLVANIA NO. 03-1522 CIVIL ACTION IN EQUITY PLAINTIFF'S MOTION FOR RECONSIDERATION 1. On April 2, 2003, Plaintiff Pauline E. Keck filed a Complaint in equity seeking the imposition of a constructive trust for her benefit against the estate of her deceased husband, Arthur S. Keck. 2. On April 30, 2003, the Defendants filed preliminary objections, claiming, inter alia, that this Court lacked subject matter jurisdiction over PlaintifFs Complaint and that the Orphans' Court was the proper judicial forum. 3. On December 18, 2003, the Court issued an Opinion and Order sustaining Defendants' preliminary objections as to jurisdiction, holding tlTat "since the Orphans' Court has already assumedjurisdietion, the jurisdiction over Arthur S. Keck's estate belongs, not in this court, but in the Orphans' Court." Based on this conclusion, the Court dismissed PlaintiWs Complaint. 4. Plaintiff respectfully submits that the Court's dismissal of her Complaint was improper. Rather, the Court should have transferred the case to the Orphan's Court pursuant to Pa.R.C.P. 213(0. 5. Rule 213(0 states, in pertinent part: "When an action is commenced in a court which has no jurisdiction over the subject matter of the action it shall not be dismissed if there is another court of appropriate jurisdiction within the Commonwealth in which the action could originally have been brought but the court shall transfer the action at the cost of the plaintiff to the court of appropriate jurisdiction..." 6. Similarly, 42 Ps.C.S. §5103 provides: "If an appeal or other matter is taken to or brought in a court.., which does not have jurisdiction.., the court shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper tribunal of this Commonwealth, where the appeal or other matter shall be treated as if originally filed in the transferee tribtmal..." 7. The Pennsylvania Superior Court, in Lucidore v. N_ova~k, 391 Pa. Super. 46,570A.2d 93 (1990) affirmed these principles when it held that a case may not be dismissed when brought in the wrong court; rather, the court should transfer the matter to the correct division. 8. Based on the foregoing authorities, Plaintiff respectfully requests that the Court reconsider its prior Order dismissing her Complaint and issue an amended Order transferring her Complaint to the Orphans' Court. MARTSON DEARDORFF WILLIAMS & OTTO Edward L. Schorpp, Esquire I. D. Number 17495 Anthony T. Lucido, Esquire I. D. Number 76.';83 Ten East High Street Carlisle, PA 170i[3 (717) 243-3341 Date: January 2, 2004 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Plaintiff's Motion for Reconsideration was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Marcus A. McKnight, III, Esquire IRWIN & McKINIGHT West Pomfi'et Professional Building 60 West Pomfret Street Carlisle, PA 17013-3222 MARTSON DEARDORFF WILLIAMS & OTTO Ami J. Thtihuna Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: January 2, 2004 PAULINE E. KECK, Plaintiff RONALD L. KECK, EXECUTOR OF THE ESTATE OF ARTHUR S. KECK, DECEASED, AND RONALD L. KECK, INDIVIDUALLY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-1522 CiVIL ACTION 1N EQUITY RULE TO SHOW CAUSE AND NOW, this ay of , a Rule is issued upon the Defendants to show cause why the relief requested in Plaintiffs Motion for Reconsideration should not be granted. Rule returnable within~e days. 0\-xq'0 PAULINE E. KECK, : IN THE COURT OF COMMON PLEAS Plaintiff RONALD L. KECK, EXECUTOR OF THE ESTATE OF ARTHUR S. KECK, DECEASED, AND RONALD L. KECK, INDIVIDUALLY, Defendants CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-1522 EQUITY TERM CIVIL ACTION IN EQUITY DEFENDANT'S ANSWER TO PLAINTIFF,,C, MOTION FOR RECONSIDERATION AND NOW this 12th day of February 2004, comes the Defendants, RONALD L. KECK, EXECUTOR OF THE ESTATE OF ARTHUR S. KECK, DECEASED and RONALD L. KECK, Individually, by and through his attorneys, Irwin & McKnight, and makes the following Answer to the Plaintiffs Motion for Reconsideration: 1. The averments of fact contained in paragraph one (1) of the Motion for Reconsideration are admitted. It is admitted that the Plaintiff, Pauline E. Keck, filed a Complaint in Equity. It consisted of two (2) counts seeking both the imposition of a Constructive Trust in Count I and a claim for Unjust Enrichment in Count 1/. 2. The averments of fact contained in paragraph two (2) of the Motion for Reconsideration are admitted. 3. The averments of fact contained in paragraph three (3) of the Motion for Reconsideration are admitted. 4. The averments of fact contained in paragraph four (4) of the Motion for Reconsideration are denied. On the contrary, Pa. R.C.P 213(f) is inappropriate in this case. This role applies only "when an action is commenced in a court which has no jurisdictions over the subject matter of the action it shall not be dismissed if there is another court of appropriate 'urisdiction within the Commonwealth in which the action could ori inall have been br°-LqP-g~...(Emphasis added). In this case, the Complaint sought equitable relief of the imposition of constructive trust and unjust enrichment which appropriately could be brought in Equity Court. The Plaintiff has already exercised her remedies available in the Orphans Court. A transfer of this Complaint is not appropriate or permitted. 5. The averments of fact contained in paragraph five (5) of the Motion for Reconsideration are admitted but inappropriate in this case. 6. The averments of fact contained in paragraph six (6) of the Motion for Reconsideration are admitted. 42 Pa. C.S. Section 5103(a) deals with "an appeal or other matter...". In this case, it is the relief sought by the Plaintiff which is inappropriate. 7. The averments of fact contained in paragraph seven (7) of the Motion for Reconsideration are inappropriate in this case. In Lucidore v. Norack, 391 Pa. Super 46, 570 A.2d 93 (1990) the disputed issues were whether the "decedent lacked testamentary capacity" and whether "an attorney exercised undue influence over and were in confidential relationships with the decedent". Lucidore at p 94. The court appropriately transferred those issues to the Orphan's Court. In this case, the Plaintiff has already filed all her available remedies in the Orphan's Court. The Orphan's Court also has jurisdiction of all the assets. The Plaintiff is 2 seeking that the Court award her all the estate assets and all the residual value of the estate based upon her complaints of abuse by the deceased during the mm~ciage. The Orphan's Court has no ability to provide the relief requested against the deceased. The Complaint should be dismissed and not transferred. In Pope v. Dascher 429 Pa. 576, 240 A2d 518 (1968) the Court held simply that jurisdiction was already in the Orphan's Court. As this Court in its opinion of December 18, 2003 correctly ruled at pp 4, "Since the Orphan's Court has already assumed jurisdiction, the jurisdiction over the Arthur S. Keck Estate belongs not in Equity but in the Orphan's Court. 8. Based upon the foregoing authorities, Defendants respectfully request that the Court dismiss the Motion for Reconsideration filed by the Plaintiff in this case. By: Respectfully Submitted, Marc ¢n. M l' h II, Esquire Supreme Co~i't ID No. 23476 West Pomfr~al Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-.2353 Date: February 12, 2004 3 PAULINE E. KECK, Plaintiff RONALD L. KECK, : EXECUTOR OF THE ESTATE OF : ARTHUR S. KECK, DECEASED, AND : RONALD L. KECK, INDIVIDUALLY, : Defendants : : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA ._ NO. 03-1522 EQUITY TERM CIVIL ACTION IN EQUITY CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of foregoing document was served upon the following by depositing a tree and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Edward L. Schorpp, Esquire Martson, Deardorff, Williams & Otto 10 East High Street Carlisle, PA 17013 Attorney for Pauline F. Keck By: IRWIN ~KNIG~ Supt,~me Court ID No. 254~6 ~V0ex~vt e stl~p ~et Profes~uilding Carlisle, Pennsylvania 17013 (717) 249-2353 Date: February 12, 2004 4 PAULINE E. KECK : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 03-1522 CIVIL RONALDL. KECK, EXECUTOR OF THE ESTATE OF ARTHUR S. KECK, DECEASED and RONALD L. KECK, INDIVIDUALLY ORDER OFCOURT AND NOW, April 2, 2004, by request of Anthony T. Lucido, Esquire, counsel for the plaintiff, argument on the above matter is set for April 21, 2004. Petitioner's brief is due by April 12, 2004; respondent's brief is due by April 19, 2004. By the Court, Anthony T. Lucido, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 For the Plaintiff Marcus A. McKnight Ill, Esquire 40 West Pomfret Street Carlisle, PA 17013 For the Respondent Court Administrator PAU.lINE E. KECK, Plaintiff IN THE COUHT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 03-1522 EQUITY TERM RONALD L. KECK, EXECUTOR OF THE ESTATE OF ARTHUR S. KECK, DECEASED, AND RONALD L.: KECK, INDIVIDUALLY, Defendants CIVIL ACTION IN EQUITY IN RE: PLAINTIFF'S MOTION FOR RECONSIDERATION ORDER OF COURT Hoffer, P.J.: AND NOW, this 20th day of January, 2005, upon consideration of Plaintiff's Motion for Reconsideration and Briefs submitted by both parties, it is hereby ordered that Motion is GRANTED. Plaintiff's Complaint is TRANSFERRED to the Orphans' Court Division. .J. Ami J. Thumma, Esq. Ten E. High Street Carlisle, PA 17013 (717)243-3341 Attorney for Plaintiff ~ Marcus A. McKnight III, Esq. 60 W. Pomfret Street Carlisle, PA 17013 (717)249-2353 Attorney for Defendants / ~;L /- oJ/-os q~- " Cl :~) '.~) ~2 ~ :"',.,) ~, ; C' ,J 'In::l . sOOZ , :10 PAULINE E. KECK, Plaintiff IN THE COUIRT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 03-1522 EQUITY TERM RONALD L. KECK, EXECUTOR OF THE ESTATE OF ARTHUR S. KECK, DECEASED, AND RONALD L. : KECK, INDIVIDUALLY, Defendants CIVIL ACTION IN EQUITY IN RE: PLAINTIFF'S MOTION FOR R:ECONSIDERATION Hoffer, P.J. Before the court is the Plaintiff's Motion for Reconsideration of the court's dismissal of her Complaint. On April 2, 2003, Plaintiff brought an action in equity seeking imposition of a constructive trust against her husband's (Arthur S. Keck, "Decedent") estate and her son, Ronald Keck, the Defendants, individually. Defendants Answered and filed preliminary objections to the Complaint, averring that jurisdiction in this court was not proper, and that Orphans' Court was the proper judicial forum for issues concerning the distribution of property of Arthur Keck's estate. The court agreed with the Defendants, and dismissed thEl Complaint for lack of subject matter jurisdiction on December 18, 2003. It found that Orphans' Court had assumed prior jurisdiction over Arthur Keck's estate by granting letters of administration. On January 5, 2004, Plaintiff filed a Motion for Reconsideration seeking a transfer of the case to Orphans' Court, and both parties filed briefs on the issue. STATEMENT OF FACTS Plaintiff, Pauline E. Keck, and Arthur S. I<eck ["Decedent"] were married on October 27, 1933. Although neither filed any divorce action over the course of their marriage, the parties apparently endured a long and rocky marriage. Throughout their marriagl3, Decedent purposefully excluded Plaintiff from ownership of their marital assets despite the fact that Plaintiff contributed to the household by performing all household duties, raising the parties' children, and working in Decedent's shoe repair shop. On December 20, 2002, Arthur Keck died. His will named one of his sons, Ronald Keck, as his heir and the executor of his estate to which he was appointed to on January 7, 2003. Althou!Jh the plaintiff did not challenge the validity of the will, she did exercise her right to elect against the will, filing for her spousal share on March 3, 2003. Plaintiff then brought an action in equity against Defendants seeking a constructive trust for her benefit, claiming that the decedent had made financial gifts over the course of his lifetime to his son, and that he would be unjustly enriched if he also received all estate assets. After the court granted the Defendant's Preliminary Objection to jurisdiction and dismissed the case, the Plaintiff filed a Motion for Reconsideration which 2 averred that the court should have transferred the case to the correct division pursuant to Pa.R.Civ.P. 213(f), Pa.Con.Stat. tit. 42, S 5103, instead of dismissing it. DISCUSSION The issues in this case are whether the Orphans' Court has proper jurisdiction over the Plaintiff's Complaint, and if so, whether the court must transfer the case to that forum instead of dismissing it. Because the Orphans' Court assumed jurisdiction over all the assets of Arthur Keck's estate, an action for imposition of a constructive trust of estate assets for her benefit belongs in Orphans' Court. In addition, since an action filed in an improper tribunal must be transferred to the appropriate one instead of dismissed when the matter is justiciable, the instant case must be transferred to Orphans' Court. I. Jurisdiction is ProDer Because OrDhans' Court Assumed Jurisdiction over Matters Concernina the Decedent's Estate. The jurisdiction of Orphans' Court is set out in Pa.Cons.Stat.Ann. tit. 20, S 711-712 (2004). It has mandatory jurisdiction over adjudication of personal property held in the name of decedent, and concurrent jurisdiction with Common Pleas over the adjudication of title to real estate. III Although constructive trusts are excluded from mandatory jurisdiction, Orphans' Court has concurrent jurisdiction ovm matters involving the determination of persons to whom title to realty has passed. Moreover, the 3 Pennsylvania Supreme Court held that when Orphans' Court has already assumed jurisdiction prior to the filing of a case in Common Pleas, by granting letters of administration, jurisdiction over continuing matters, even constructive trust claims, is vested there. See Pooe v. Dascher, 429 Pa. 576, 577 (1968). The court also noted that "it is well established that orderly judicial procedure dictates that the court which first acquires jurisdiction over a matter be permitted to decide all questions relating thereto." kl at 583. In Pooe, the appellant brought an action in the Court of Common Pleas seeking a constructive trust to own title to shares of stock and real estate that were held in the name of the decedent. 429 Pa. at 579. The appellee raised a preliminary objection stating that jurisdiction was improper in Common Pleas, and was vested in Orphans' Court. kl The court sustained the objection, and dismissed the case. On appeal, the court first reasoned that Orphans' Court had exclusive jurisdiction over shares of stock because it was personal propHrty. Second, it reasoned that concurrent jurisdiction for real estate properly belonged in the Orphans' Court because it had already assumed jurisdiction when it granted letters by the register of wills. kl at 584. In the case at bar, the court in granting Ithe Defendant's preliminary objections affirmatively answered whether Orphans' Court has proper jurisdiction. It stated, "Since the Orphans' Court has already assumed 4 jurisdiction, the jurisdiction over Arthur S. Keck's estate belongs, not in this court, but in the Orphans' Court." See prior Opinion at 4. Defendants themselves argued in filing preliminary objections that Orphans' Court had exclusive jurisdiction over further challenges to Arthur Keck's wil1.1 Like the Pope case, the Orphans' Court has already granted letters of administration prior to the filing of this case in Common Pleas. Second, although constructive trusts are excluded from mandatory jurisdiction, Orphans' Court has concurrent jurisdiction to determine to whom real estate may be passed. This concurrent jurisdiction is properly vested with Orphans' Court because it has previously assumed jurisdiction, and has a continuing duty to determine to whom real estate is passed. II. Plaintiff's Complaint Was Filed in lthe Wrona Court and Must be Transferred to Orphans' Court. The purpose of a unified court system with separate divisions is to simplify procedure and remove archaisms from the courts. See Commonwealth v. Wadzinski, 485 Pa. 247, 2514 (1978). The Pennsylvania Supreme Court stated if a matter is justiciable and there is jurisdiction within the divisions of the Court of Common Plleas to hear it, the remedy in this multi-division court is not a dismissal, but a transfer of the matter to the correct division. J.l:l This principle is reflected in Pa.Con.Stat. tit. 42, sec. 5103 which states: 1 See Defendants' Preliminary Objections to Plaintiff's Complaint 'll'll14-16. 5 If an appeal or other matter is takEm to or brought in a court or magisterial district of this Commonwealth which does not have jurisdiction of the appeal or other matter, the court or district justice shall not quash such appeal or dismiss the matter, but shall transfer the record therEwf to the proper tribunal of this Commonwealth... Further, the Pennsylvania Rules of Civil Procedure 213(f), states: When an action is commenced in a court which has no jurisdiction over the subject matter of the action it shall not be dismissed if there is another court of appropriate jurisdiction within the Commonwealth in which the action could have been brought, but the court shall transfer the a.ction at the cost of the plaintiff to the court of appropriate jurisdiction... In addition, in Lucidore v. Novak. 570 A.2d 93, 94 (1990), the civil division of Common Pleas found that it lacked the jurisdiction to hear an equity action that alleged the decedent's will was obta.ined as a result of undue influence. The civil division refused to transfer the action to Orphans' Court, which had jurisdiction, and dismissed thl3 matter. On appeal, Superior Court held that dismissal was impropEir merely because it was brought before the incorrect division, and remanded it back to Orphans' Court. llL at 95. It relied on the mandatory lan9uage of Pa.Con.Stat. tit. 6 42, ~ 5103, which states that "a court lacking jurisdiction shall transfer the action..." (Emphasis added) .!Q, Similar to the civil division in the lucidon~ case, this court lacks proper jurisdiction to hear the Plaintiff's claims. Orphans' Court has proper jurisdiction over the constructive trust claim because it assumed jurisdiction over all matters concerning distribution of Arthur Keck's estate. Similar to the plaintiffs in lucidore, Plaintiff claims that undue influence upon her permitted Decedent to keep all marital assets in his name, and now brings a claim that concerns how estate assets should be distributed. Therefore, lucidore and the aforementioned statutes are controlling. Defendant argues that since the plaintiff already elected her spousal intestate share in Orphans' Court that she has l~xhausted all her remedies, and that Orphans' Court is precluded from granting her any further equitable relief on this matter. Therefore, he arques, there is no other court of appropriate jurisdiction that is able to grant relief, and the matter must be dismissed, not transferred. Generally, "where the legislature provides a statutory remedy which is mandatory and exclusive, equity is without power to act, and a jurisdictional question is presented." Deluca v. Buckeye Coal Co., 463 Pa. 513, 519 (1975). However, there is no such jurisdictional question present here. Orphans' Court already acquired exclusive jurisdiction oyer distribution issues of Arthur Kirk's estate by 7 42, S 5103, which states that "a court lacking jurisdiction shalltransfer the action..... (Emphasis added) .!Q, Similar to the civil division in the lucidor~ case, this court lacks proper jurisdiction to hear the Plaintiff's claims. Orphans' Court has proper jurisdiction over the constructive trust claim because it assumed jurisdiction over all matters concerning distribution of Arthur Keck's estate. Similar to the plaintiffs in lucidore, Plaintiff claims that undue influence upon her permitted Decedent to keep all marital assets in his name, and now brings a claim that concerns how estate assets should be distributed. Therefore, lucidore and the aforementioned statutes are controlling. Defendant argues that since the plaintiff already elected her spousal intestate share in Orphans' Court that she has exhausted all her remedies, and that Orphans' Court is precluded from granting her any further equitable relief on this matter. Therefore, he argues, there is no other court of appropriate jurisdiction that is able to grant relief, and the matter must be dismissed, not transferred. Generally, "where the legislature provides a statutory remedy which is mandatory and exclusive, equity is without power to act, and a jurisdictional question is presented." Deluca v. Buckeye Coal Co., 463 Pa. 513, 519 (1975). However, there is no such juriSdictional question present here. Orphans' Court already acquired exclusive jurisdiction over distribution issues of Arthur Keck's estate by 7 granting of the letters. It will decide whether Plaintiff's actions preclude her from recovering on the equitable theory of constructive trust. The court in Pooe held that Orphans' Court acquired prior jurisdiction over distribution of realty in decedent's name, and under section 304 of the Orphans' Court Act of 1951 (currently, See 20 lPa.C.S.A. 9701) has "all legal and equitable powers required for or incidental to the exercise of its jurisdiction." 429 Pa. at 584. Furthermore, Orphans' Court has mandatory jurisdiction over distribution of personalty of a decedent's estate. 20 Pa.C.SA 9 711. A question of whether a constructive trust consisting of estate assets may be set up for the benefit of the plaintiff is a matter of distribution of the estate. Therefore, in this case" Orphans' Court has all the equitable powers of Common Pleas Court to fashion appropriate relief concerning distribution of realty(concurrent jurisdiction became mandatory because of prior jurisdiction) and personalty of Decedent's estate even where a plaintiff has already received a legal remedy. This case is transferred to Orphans' Count pursuant to Pennsylvania law. 8