Kazos v. Diakakis

HUDOCK, Judge:

This is an appeal from the order of the Court of Common Pleas of Washington County which sustained Appellees Anthony and Katy Diakakis’ preliminary objections for lack of jurisdiction over the subject matter. We affirm.

The facts and procedural history of this matter may be summarized as follows: Nicholas Diakakis, who died while a resident of Greece, owned real estate situate on the island of Rhodes. Diakakis had four children, Appellee Anthony Diakakis, Appellant Katherine Georges, Marsha Stamatakis,¹ and one who was deceased at the time of his death. The deceased child had two children of her own, including Appellant Diedre Kazos. Ap-pellee Anthony Diakakis, acting as attorney-in-fact for the above mentioned heirs of Dia-kakis, sold the real estate on the island of Rhodes for an equivalent of $72,000.00. Ap-pellee Anthony Diakakis placed the money into bonds, see Exhibit E, and deposited them into an account in Greece which earned twenty percent interest. Appellee Anthony Diakakis allegedly attempted to bring the bonds into the United States, however, they were seized at customs and were returned to Greece. On or about September 9, 1993, Appellants filed a complaint against Appel-lees seeking to enforce a “constructive trust and obtain an order requiring [Appellees] to immediately return the bonds and their proceeds to Washington County, Pennsylvania and account therefore and disburse the same and pay any losses occasioned] by their handling of the matter.” Complaint, ¶ 11. Ap-pellees filed seven preliminary objections to the complaint. The trial court, addressing only one of the objections, found that it lacked jurisdiction to hear the case. In sustaining the preliminary objection the trial court stated:

[Appellants] are claiming a financial interest in bonds which are located in Greece. Pa.C.S.A. § 5304 provides that the tribunals of this Commonwealth have jurisdiction over documents situated within this Commonwealth whether or not the persons owning or claiming interest therein are subject to the jurisdiction of the tribunals of this Commonwealth. The statute does not provide for documents which are not located within the Commonwealth. The bonds in question here are not now and have never been located in this Commonwealth. Therefore, we do not have jurisdiction over the bonds which are presently located in Greece and [cannot] impose a constructive trust over them.

Order, 8/22/94, at pp. 1-2. This appeal followed.

In their appeal, Appellants first assert that 42 Pa.C.S.A. § 5304 cannot be read to exclude subject matter jurisdiction where the trial court otherwise has personal jurisdiction over the parties.² Section 5304 provides:

§ 5304. Documents

The tribunals of this Commonwealth shall have jurisdiction over documents situated within this Commonwealth whether or not the persons owning or claiming interests therein are subject to the jurisdiction of the tribunals of this Commonwealth.

42 Pa.C.S.A. § 5304. In essence, Appellants aver, without further discussion, that the trial court erred in drawing the negative inference from this section that the trial court did not have jurisdiction over documents which were not located in the Commonwealth. Appellants aver that since Appellee Anthony Diakakis is a fiduciary to Appellants, and that he has control over the personal property (the bonds), the trial court should be able to entertain this action. Moreover, Appellants argue that despite the location of the res in question, they have filed their action in a court of equity and that court “has the power to compel a Defendant to do all necessary things which he could do voluntarily, to give effect to the decree against him.” Appellants’ Brief, at p. 12.

Pennsylvania Rule of Civil Procedure 1028 prescribes that preliminary objections may be granted on the ground that there is a “lack of jurisdiction over the subject matter of the action or the person of the defendant[.]” Pa.R.C.P. 1028(a)(1), 42 Pa.C.S.A. “When a party uses a preliminary objection in the nature of a petition raising a question of subject matter jurisdiction, the court’s function is to determine whether the law will bar recovery due to the lack of such jurisdiction.” Philadelphia Housing Authority v. Barbour, 405 Pa.Super. 140,143, 592 A.2d 47, 48 (1991), aff'd, 532 Pa. 212, 615 A.2d 339 (1992).

Appellants’ claims are without merit, and thus, we affirm the order of the trial court. The trial court properly interpreted 42 Pa.C.S.A. section 5304. By negative inference, it can be said that the Commonwealth does not have jurisdiction over documents situated outside of the Commonwealth. Moreover, this inference is correct given the general proposition that “a court cannot exercise in rem jurisdiction over property outside its own state.” Taddei v. Taddei, 299 Pa.Super. 318, 322, 445 A.2d 773, 775 (1982). In their prayer for relief, Appellants requested a disbursement of the money held in the Greek bonds or that a constructive trust be imposed upon Appellees for the amount of the bonds. Thus, in essence, the primary issue before the trial court, as presented in Appellants’ complaint, is what is to become of the bonds. Because the bonds are located in Greece, a location clearly outside of this Commonwealth, the trial court properly determined that it did not have jurisdiction to render a decision affecting them.

Finally, we add that merely because Appellants filed their claim in equity and because Appellees were residents of Washington County does not impose upon that court jurisdiction to hear the dispute. In support of their position, Appellants cite Cohn v. Weiss, 356 Pa. 78, 51 A.2d 740 (1947), which states:

When a court acts in personam, ... it is not restricted by geographical boundary lines. 30 C.J.S., Equity, sec. 81, page 439, makes this statement: “The general rule is that, where a court of equity has jurisdiction of the person of defendant, it may render any appropriate decree acting directly on the person, even though the subject matter affected is outside the jurisdietion; a decree does not operate directly on a res which is beyond the territorial jurisdiction of the court, but the court may, acting in personam, coerce action respecting it.” 30 C.J.S., Equity, sec. 82, p. 441, lays down this principle: “A court of equity * * * may compel action with respect to land which lies beyond its jurisdiction, as by conveyance thereof, provided it can enforce its decree by the exercise of its powers over the persons before it.”

Cohn, 51 A.2d at 744. However, the Court added:

Where the necessary parties are before a court of equity, it is immaterial that the res of the controversy, whether it be real or personal property, is beyond the territorial jurisdiction of the tribunal. It has the power to compel the defendant to do all things necessary, according to the lex loci rei sitae, which he could do voluntarily, to give effect to the decree against him. Without regard to the situation of the subject-matter, such courts consider the equities between the parties, and decree in personam according to those equities, and enforce obedience to their decrees by process in personam.’n

Id. at 745 (quoting Schmaltz v. York Manufacturing Company, 204 Pa. 1, 53 A. 522 (1902)).³

Given the rationale of Cohn, we find that the trial court sitting in equity could not compel Appellees to act in relation to the bonds located in Greece. The trial court could not enter an order which would compel Appellees to act “voluntarily” in relation to the bonds. The record reveals that the land on the island of Rhodes that was sold by Appellees may be the subject of future litigation in Greece. Thus, if the title to the land is not found to be clear, Appellees will have to return the money to the buyer. See Exhibit D. Moreover, in a memorandum from the American Embassy in Athens, Greece, there is a detailed explanation of how foreigners may remove funds from Greece that are received through the sale of property. See Exhibit F. Thus, the trial court cannot compel Appellees to act in relation to the bonds when it is the law of Greece that controls the distribution of the bonds.

Order affirmed.

TAMILIA, J., files a dissenting opinion.

1 . Ms. Stamatakis is not a party to this action.

2 . Appellees both reside in Washington County.

3 . Lex loci rei sitae is defined as "[t]he law of the place where a thing or subject-matter is situated." Black's Law Dictionary 821 (5th ed.1968).