Brief in Opposition to Petition for a Writ of Certiorari — Natoli v. Hamilton

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“A Cr 73% i oe

IN THE © as

Supreme Court of the United States

or-

October: Term, 1967 | Offiee-Supreme Court, U.S. |

No. 244: -F I | % E'D

JUL 7 1967.

OLGA NATOLI, Petitioner] sOHN F. DAVIS, CLERK

Vv.

MARGARET K. HAMILTON,

WiLBuR H. HAMILTON, JR.

CONTINENTAL BANK & -TrUST Co.,

SUCCESSOR TO BROAD STREET TrusT Co.

and

THE ESTATE OF WILBUR H. HAMILTON, DECEASED,

Respondents

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF PENNSYLVANIA

BRIEF FOR RESPONDENTS IN OPPOSITION

_ FRANCIS W. SULLIVAN

Attorney for Respondents

_ 2304 Fidelity Bank Building

’ Philadelphia, Pa: 19109

BRADY O. BRYSON F |

2107 Fidelity Bank Bldg.

Philadelphia, Pa. 19109

Of Counsel

_ THE LEGAL INTELLIGENCER, 10 S. 37TH ST., PHILA, 19104

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NORRIE etre be

I nu cos ees cons em

Ee OD Ne re Pe Vigie acne §

I. The Decision of the Court Below Was Clearly

‘Correct and: Does Not Conflict With Any

Prior, Contemporaneous, or Subsequent Deci-

sion of GING oda wacwwveddesetaeete a 1 A

II. Petitioner Is Not Entitled to a J ury Trial asa

Matter of Constitutional Right, But in Any

Event Such Right, If It Exists, Has Not Been

a RI Pee rere ene he 9.

Oe oo es avtsitees aie a ee

TABLE OF CITATIONS

Cases on

Allen v. Biggs, 62 F. Supp. 229 (E. D. Pa. 1945) .. 9, 10

Beehler’s Estate, 3 Phila. 254 .................05. 15

Binenstock Trust, 410 Pa. 425 (1963) ..... hah cA 8

Brown’s Estate, 343 Pa. 230 (1941) ............. 14

Cleveland P. & A. R. Co. v. Erie, 27 Pa. 380, 382,

Oe I oe gud ce evacuees seers uk. 6.

Commonwealth v. Kramer, 146 Pa. Super. 91 (1941) . 12

Commonwealth v. Wesley, 171 Pa. Super. 566 (1952) . 10

;

TABLE OF CITATIONS—Continued

Cases: | - , _ Page

Criswell’s Estate, 384 Pa. 266, 271 (1989) ........ ae

Donovan v. Dallas, 877 U. S. 408, 412 (1964) ........ 9

Fay v. New York, 332 U. S. 261, 288 (1947) ........ 12

Fleming’s Estate, 265 Pa. 399, (1919) ..... eee 9, 15

Frew’s Estate, 340 Pa. 89, 91, 92 (1940) ........ 6

Gately v. Gately, 316 F. 2d 585, (7 Cir. 1963) ....... 9

..’ Graham Estate, 147 Pa. Super. 57, affd. 346 Pa. 479

EERE O I eli pn Signi cepa ie pean = he

Gustafson v. Peck, 216 F. Supp. 370, (N. D., Towa,

<< Renee 12

Holtz Will, 422 Pa. 540 (1966) . Pie ienk auee eu rnens 6:

Lackawanna Ice Co. v. Weingartner, 328 Pa. 362 ie

ms ee eae hts hices Saletan 13

" Landis v. Landis, 348 Pa. 252, 254 (1942) ........ 6,8.

Long’s Estate, 254 Pa. 370.(1916) ....... muareaes 4

Low v. Ahlquist, 28 Lehigh County Law Journal, 455. 13:

McGovern’s Estate, 22 Pa. 379 (1936) ........... 14

Malvestuto Estate, 25 D & C 2d 686 (1962) ..::...4. 7

Marchiafava Estate, 32 D & C 2d 5 (1964) ....... 15

Mauser v. Mauser, 326 Pa. 257 (1987) ....... caeses 8

Minneapolis & St. Louis R. R. v. Bombolis, 241 U. S.

gS a i RE ERD 10—

Moreland Estate, 351 Pa. 623 (1945) eae 14

_ Orban v. Rothrock, 19 D &.C 2d 886.(1959) ........ 18

. Pa. P. U.C. v. W. J. Dillner Transfer Co., 191 i ae

Super. 136 (1960) ............ Perrier wave’ @

‘TABLE OF CITATIONS—Continued

Cases: - Page

; Pennsylvania Publications v. Pa. P. U. C., 16s Pa.

Super. 279 — (1948) juWintwcawen eeanuiuueees — 10,

Princess Lida v. Res un 305 U. S. 456 (1938).

. ay 8, 9.

Probst v. First National Bank of Williamsport, 73 __

D&C317 (1950) ...... Te peers ny on yee 6. 7,13

Rybak Appeal, 424 Pa. 470 (1967) ............... ' 13

Safeway Trails, Inc. v. Stuyvesant Insurance Co., 211

F. Supp. 227, 237, (M. D. ‘North Carolina, 1926) . 9

-Sharp’s Appeal, 3 Grant 259 ................. annem Stee

- Sheehan’s-Estate, 78 D & C 885 (1952) .......0... 5

Snyder’s Estate, 368 Pa. 398, 398 ( MD Kccaeeserea 4

Snyder v. Massachusetts, 291 U..S. 97, 105 (1934) .. 12

Sprigg v. Commonwealth Title Ins. nae 206 Pa. 548,

OE I ace ccuendewandoecsswcnv races. 6

Teacher v: Kijurina, 365 Pa. 480 (1950) ......... Pigs

Thompson v. Fitzgerald, 329 Pa. 497 (1938) .... 6, 7, 8

United States ex rel. Tillery v. Cavell, 294 F. 2d 12;

(3rd Cir. 1961) cert. denied 370 U. S. 945 (1962) 12

Webb Estate, 391 Pa. 584, 590 (1958) ............ 4

Wilson v. Gaston, 92 Pa. 207 (1879) ......... ‘enn ics 15

Wormley’s Estate, 67 D. & C. 616 (1949) ........ —-

Statutes: or ; .

Fiduciaries Act of 1949, 20 P.S. §320.614........... “2

Fiduciaries Act of 1949, 20 PS. §320.703 ......:... 8

Orphans’ Court Act of 1951, 20 P.S; §2080.801.... 4, 5

Orphans’ Court Act of 1951, 20 P.S. §2080.745 ..... 6

iii

OS Saree

TABLE OF CITATIONS—Continued

Miscellaneous ss | . Page

Constitution of Pennsylvania, 1776, Section XI, Dec- 3

laration of Rights Sikhs veccdsade snkseeaanies 12

Constitution of Pennsylvania, 1776, Section XXV . 12°

Constitution of Pennsylvania, 1790 ..............- 12

Constitution of Peanaylvania, 1874, Article I, Section

De hajhiiensaccenysleeteus ivondeunces4ee an-

50C. J. S., Section 18, page 727, Section 55, page 768 . ‘14

Jury Trial and Federal Constitution, Dennis see 12,

5 Moore, Federal Practice, page 77 Lee poe 12

} Pennsylvania. Orphans’ Court Practice, Partridge &

Remick, Vol. 6, 44.01(e), page 10 ........... 5

iv.

~~ eran ae oad , . = —_

IN THE

Supreme Court of the United States

October Term, . 1967

No. 244

OLGA NATOLI, Petitioner

| v. ; 7

. MarGcarRet K. HAMILTON,

elo. WILBUR H. HAMILTON, JR.

| .. CONTINENTAL BANK & TrusT Co.,

_ SUCCESSOR TO BROAD STREET. TRUST Co.

: and

THE ESTATE oF WILBUR H. HAMILTON, DECEASED,

ee pane ,

¥

ON PETITION FOR A WRIT OF CERTIORARI TO

‘THE SUPREME COURT OF PENNSYLVANIA

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The Opinion of the Court of Common Pleas of Phila-

delphia County is unreported. A true-and correct copy of

such Opinion appears as Appendix A hereof.

’ The Opinion of the Supreme Court of Pennsylvania is

reported at 424 Pa. 643. The Opinion of the Supreme Court

of Pennsylvania respecting Petitioner’s Petition For Recon-

sideration or to Vacate Order is unreported. A true and

_ correct copy of the aforesaid Opinions appear as Appendix

B hereof.

1

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a Vile | JURISDICTION

The jurisdictional requisites are adequately set forth

in the —

QUESTION Ce

Is it epugnant to the provisions of either the Penn-

sylvania Constitution or. the Constitution of the United

States for a court of concurrent jurisdiction to defer, as

a matter of comity, to the Orphans’ Court of Philadelphia,

which latter court first obtained jurisdiction over a credi-

tor’s claim against a decedent’s estate?

STATEMENT

ef Petitioner, on.June 1, 1966 instituted an action in

Assumpsit against Respondent in the Common Pleas Court

of Philadelphia County to recover from the Estate of Wilbur

‘H. Hamilton the amount of an alleged loan made to the

decedent by. Petitioner during ‘the lifetime of the decedent.

On February 28, 1966, three months prior to the insti-

tution of the aforesaid action, counsel for Petitioner pre-

sented the identical claim to the Respondents pursuant to

the Fiduciaries Act of 1949, 20 P.S. §820.614, which

provides : |

* “(a) Written notice. Written notice of any claim

against a decedent given to the personal representa-

tive or his attorney of record before the claim is bar-.

red shall toll the statute of limitations. .

(b) Acts equivalent to written notice. Any/of the

following acts by a claimant shall be equivalent to the

giving of written notice of a claim to the personal -

“ representative:

(1) Instituting proceedings to — the filing of

an account;

(2) eeuiinn: an ented ‘against the personal repre-

sentative in any court having jurisdiction of the claim

and having the writ or pleading duly served on the

personal representative;

(3) Substituting the personal representative as a de-.

fendant in an action pending against the decedent;

(4) Receiving a written acknowledgment by the per- |

sonal representative or his seats of record of the

existence of the claim. ”

The account of the Executors was filed on ‘April 19,

1966 and written notice of the filing of the account and of

' the date of the scheduled audit was sent to Petitioner pur-

. suant to the requirements of the Fiduciaries Act of 1949,

20 P.S. §320.703, which provides: ;

“The personal representative shall give written notice or

of the filing of his account and of its call for audit or

confirmation to every unpaid claimant who has given

- written notice of his claim to the personal representa-

tive or his attorney of record, and to every other person

known to the accountant to have an interest in the

estate as beneficiary, heir; or next of kin.”

submi for adjudication to the Orphans’ Court in such

account, | ; :

Counsel for Petitioner appeared at the audit on the

scheduled date and objected to such audit, which was, there-

fore, continued.

Respondents filed timely Preliminary Objections to

Petitioner’s Complaint in Assumpsit, which, after argu-

ment, were sustained by the Court of Common Pleas of

Philadelphia County. (See: Appendix A).

Upon appeal the.Supreme Court of Pennsylvania af- .

firmed the order of the Court.of Common Pleas in a Per

Curiam opinion. (See: Appendix B).

ied for claim, though contested, was nevertheless

. Thereafter, Petitioner filed a Petition for Reconsid-

eration or to Vacate Order (See: Appendix A of the Peti-

tion) and Respondents filed an Answer to such Petition,

a true and correct copy of which appears as Appendix C

hereof. .

On May 25, 1967, in a Per Curiam opinion, ‘the Su-

_ preme Court of Pennsylvania denied the aforesaid Petition.

_ (See: Appendix B). |

ARGUMENT

I. The Decision of the Court Below Was Clearly Correct

and Does Not Conflict With Any Prior, Contem-

poraneous, or Subsequent Decision of Such Court.

The jurisdiction of probate courts in the Common- °

wealth of Pennsylvania is statutory. The Orphans’ Court

Act of 1951, 20 P. S. §2080. 301 provides, inter alia, as

follows: |

“The Orphans’ Court shall have incitadlit jurisdiction.

over: (1) the administration and disposition of the

real and personal property of decedents’ estates. en

. It is a well settled principle of law in Pennsylvania

that the administration of the estate of a decedent is one

indivisible judicial proceeding, from the grant of letters

appointing the administrator until his discharge. Webb

_ Estate, 391 Pa. .584, 590 (1958). - |

' The scope of the Orphans’ Court jurisdiction includes

the power to determine all questions essential to the matters

-’ properly before it and it is exceptionally well qualified to

- determine claims of creditors. Snyder’s Estate, 368 Pa. —

‘398, 398 .(1951) ; Long’s Estate, 254 Pa. 370 (1916).

' In Long’s ‘Estate, supra, the Court stated:

“It is now. the settled law, that the Orphans’ Court :

has exclusive jurisdiction over all matters pertaining

\-, &

to the settlement and distribution of utates, including

the claims of creditors, next of kin and legatees.

Linsenbigler v. Gourley, 56 Pa. 166, 172; Dundas’

Appeal, 73 Pa. 474; Mauser v. Kerper, 102 Pa. 444;

Kings’ Estate, 215 Pa. 59.” 254 Pa. at 374. ( Empha-

sis supplied.)

ha indtented in the opinion filed by the Court of Com-

mon Pleas, the Orphans’ Court obtained jurisdiction over _.

the claim which formed the basis for Petitioner’s assumpsit

action at least five and one-half weeks prior to the institu-

tion of the latter action in the Court of Common Pleas.

(See: Appendix A, infra, p. 17.) Sheehan’s Estate, 78

D. & C. 385 (1952). =

Once such an account is filed with the Orphans’ Court

the jurisdiction and powers of that Court, both legal and

equitable, become paramount to those of all other courts.

Partridge & Remick, Pennsylvania Orphans’ Court Prac-

tice, Vol. 6, §44.01(e), p.10.

To permit a court of concurrent jurisdiction to under-

take the determination of a creditor’s claim against an

estate, after jurisdiction has attached in the Orphans’

Court and the claim has been submitted for adjudication

would permit the parties to ride “the ‘processes of the two

courts like a circus equestrian astride two spirited horses

at the same time.” Sheehan’s Estate, supra, at 387.

To permit such a situation to exist would be contrary

to the principle of harmonious cooperation in our several

. courts, particularly in light of the fact that the litigan

must ultimately abide the Orphans’ Court’s determination.

. with respect to distribution of. the assets of the estate.

Orphans’ Court Act of 1951, 20 P.S. §2080.301.

' Moreover, even if a right to trial by j jury on an issue

of simple debt between man and estate is constitutionally

protected, the order of the lower court in the instant case,

dismissing Petitioner’s Common Pleas Court action, did

not foreclose such right, since Petitioner has the right to

, ; ° “a,

> i

6

demand a jury trial in the. Orphans’ Court. Act of J uly

14, 1961, 20 P.S. §2080.745.

Respondents suggest that, since Petitioner has never

demanded such right in the Orphans’ Court and that latter

Court has never had the opportunity to pass upon Peti-

_ tioner’s request, the issue of denial of right to jury has

not yet come into fruition and the eu Petition is

premature.

All that was decided i in the Court below was that when

a Court of competent jurisdiction acquires jurisdiction of

_ the subject matter its authority continues, subject only to

appellate authority, unti] the matter is finally and com-

pletely disposed of, and no court of coordinate jurisdiction

- is at liberty to interfere with its action. Cleveland P. &

A. R. Co. v. Erie, 27 Pa. 380, 382-383 (1856) ; Sprigg v.

Commonwealth Title Ins. Co., 206 Pa. 548, 554 (1903) ;

Landis v. Landis, 343 Pa. 252, 254 (1942) ; Frews’ Estate,

340 Pa. 89, 91-92 (1940) ; Criswell’s Estte, 334 Pa. 266,

271 (1939).

This doctrine of comity is particularly applicable where

only the court first obtaining jurisdiction can administer

full relief. Wormley’s Estate, 67 D. & -C. 616 (1949);

Princess Lida v. Thompson, .305 U.S. 456 (1988).

Petitioner cannot draw any meaningful or relevant

distinction between the instant case and Princess Lida,

supra.

. decision of the Supreme Court of Pennsylvania in Thomp-

son v. Fitzgerald, 329 Pa. 497 (1938) which held that aia

a court of coordinate jurisdiction has first undertaken the

. administration of the assets of an estate or other entity,

that court is entitled to retain such jurisdiction to the end,

without interference or hindrance on the part of any other _

court and such other courts of coordinate jurisdiction are

disabled from exercising a like power.

Nothing which is stated in the cases cited in the Peti-

tion (i.e., Holtz Will, 422 Pa. 540 (1966) ; Probst v. First

In the latter case this Honorable Court affirmed the _ |

eres ev ore!

7

National Bank of Williamsport, 73 D. & C. 317 (1950);

Malvestuto Estate, 25 D. & C. 2d 686 (1962) required the

Court below to come to any decision different from the one

they reached or contrary to the holding of this Honorable

Court in Princess Lida, supra. ;

In speaking of the comity doctrine and its importance

the Court in the Thompson case, supra, stated:

“This rule. is essential to the orderly administration .

of justice and to prevent unseemly conflicts between

‘courts whose jurisdiction embraces the same subject

and persons. The doctrine in question is not limited in

its application to cases where property has actually

been seized under judicial process before a second suit

is instityted in another court, but it applies as well ©

‘where suits are brought to enforce liens against specific

property, to marshal assets, administer trusts (italics

supplied ‘by court) or liquidate insolvent estates, and

in all other suits of a similar nature, where in the

progress of the litigation, the court may be compelled

to assume the possession and control of specific per-

sonal or real property. In cases of the latter kind, the |

rule is that the tribunal which first acquires jurisdic-

tion of the cause by the issuance and service of the

process is entitled to retain it to the end, without in-

terference or hindrance on the part of any other court.”

The views expressed by the Pennsylvania Court were

reinforced by this Honorable Court in Princess Lida, supra,

in which Mr. Justice Roberts stated: :

“We have said that the principle applicable to both

_ federal and state courts that the court first assuming

jurisdiction over property may maintain and exercise _

that jurisdiction to the exclusion of the other, is not —

restricted to cases where property has been actually

seized under judicial process before a second suit is

instituted, but applies as well. where suits are brought

Deer ed ie st gratrt oad Ro ee

8

_ -to marshal assets, adeabitatale trusts, or liquidate es-

tates, and in suits of a similar nature where, to give

to .its jurisdiction, the court must control the

_ property. The doctrine is necessary to the harmonious

cooperation of federal and state tribunals.” 305 U.S.

at 466. See also: Palmer v. Texas, 212 U.S. 118 (1908) ;

United States v. Bank of New York & T. Co., 296 US.

468 (1935), ewe |

The application of:the comity principle i in probate mat-

ters is not of recent vintage. It has long been held that

where a matter has been committed to the Orphans’ Court,

a -court of concurrent jurisdiction will not entertain. an

action on: the same issue. Mauser v. Mauser, 326 Pa. 257

(1987) ; Landis v. Landis, 343 Pa. 252 (1942); Graham

Estate, 147 Pa. Super. 57, aff'd 346 Pa. 479 (1943).

In Binenstock Trust, 410 Pa. 425 (1963) the Supreme

Court of Pennsylvania gave recent expression to the need

for the doctrine of comity and considered the deference

which one court of concurrent jurisdiction must give to an- ©

other where the latter has first peymnes jurisdiction. The

Court. stated:

“It is well established that tule judicial procedure

dictates that the court which first acquires jurisdic-

tion over a matter be permitted to decide all questions

relating thereto. See Thompson v.. Fitzgerald, 329 Pa.

497; 198 Atl. 58, (1988) ; Wilson v. Board of Directors

of City Trusts, 324 Pa. 545; 188 Atl. 588 (1936). Our

problem, therefore, becomes’ one of determining which

court first acquired jurisdiction over the inter vivos

trust.” 410 Pa. at 430-431.

It is clear that the jurisdiction exercised over the assets

of an estate by the Orphans’ Court is an in rem jurisdic-

tion. Princess Lida v. Thompson, supra; Thompson v.

Fitzgerald, supra; Orphans’ Court Act of 1951, 20 P.S.

— 301. :

ee ee ee ee ee ee ee ae ee eee ee ee ee ee eee

RIAD: POLLO BG SLIGO IED CLE YAO ELLE POLE OL ALINE MEE PLM IB 8

Since the decision of this Honorable Court in Princess

_ Lida, supra, the rule there enunciated: has been justifiably

relied upon by federal as well as state tribunals. See: Gatel

v. Gately, 316 F. 2d 585 (7th Cir. 1963) ; Safeway Trails, -

Inc. v. Stuyvesant Insurance Co., 211 F. Supp. 227, 237 ©

(M.D. No. Car. 1962) ; Donovan. v. Dallas, 377 U.S. 408, -

412 (1964). |

Thus, it has been consistently held that sound judi-

cial practice requires that the court first obtaining juris-

diction over the subject matter of an action, especially

when sixch jurisdiction is in rem and the parties can obtain

final satisfaction only in such court, should retain such :

jurisdiction without interference or hindrance on the part

of any other. court. ‘

The determination of the court below, premised upon

’ the foregoing principle of “sound judicial practice”, was

clearly correct and consistent with all prior,’ contempo-

raneous, and subsequent decisions of such court and this

Honorable Court. Ae

_ For this reason alone the Petition is completely devoid

of merit and should not be granted.

"IL. Petitioner Is Not Entitled to a Jury Trial as a Matter

of Constitutional Right, but in Any Event Such Right,

If It Exists, Has Not Been Violated.

The question presented by Petitioner in her second -

argument is simply: Does a constitutional right to trial

by jury exist as to a claim made on a simple debt by a

creditor against the estate of a decedent? |

Due process does not require a jury trial in all classes

of actions. Article I, Section 6 of the Pennsylvania Con-

stitution of 1874 preserves only the right to trial by jury

in those cases where it existed at the time the Constitu-

tion was adopted. Pa. P..U. C. v. W. J. Dillner Transfer

Co., 191 Pa. Super. 136 (1960) ; Fleming’s Estate, 265 Pa.

399, 407, 408 (1919); Teacher v. Kijurina, 365 Pa. 480

(1950) ; Allen v. Biggs, 62 F. Supp. 229 (E.D. Pa. 1945).

10

2 The dismissal of a complaint on proper grounds is not

tantamount to a denial of a trial by jury. In Allen v..

Biggs, supra, Judge Ganey said at page 230:

“There is now no doubt whatever that a trial court’s

“dismissal of a complaint, which is not well founded,

_..» is not violative of the Seventh Amendment. As

is stated in 31 American Jurisprudence, 561: ‘The

right (to jury trial) does not exist with respect to a

complaint or declaration as to which a dismissal or

nori-suit is proper or with respect to facts as to which

there is no traverse and as to which the defendant

has defaulted. .. .? The right to trial by jury thus

preserved is the right which existed, under the English

common law when the amendment was adopted.”

So also as to Article I, Section 6 of the Pennsylvania

Constitution; it was not intended to extend the right of

trial by jury, but merely to preserve the right as it existed

at the time of the foundation of our state government.

Pennsylvania Publications v. Pa: P.U.C., 152 Pa. Super.

279 (19438) ; Comm. v. Wesley, 171 Pa. Super. 566 (1952).

Petitioner cannot claim any greater right, under the

Seventh Amendment to the Federal Constitution , which

simply makes the same preservation, and moreover has no

application'to actions brought in state courts. Minneapolis

& St. Louis R.R. v. Bombolis, 241 U.S. 211 (1916).

| In the Bombolis case, supra, this Honorable Court

., Stated:

“The one question to be decided is therefore reduced

to this: Did the 7th Amendment apply to the action

of the state legislature and to the conduct of the state

court in enforcing at the trial the law of the state

: as to what was necessary to constitute a verdict?.

“Two propositions as to the operation and effect of the

7th Amendment are as conclusively determined as is

11

that concerning the nature and character of the jury.

required by that Amendment where applicable. (a)

' That the first ten Amendments, including, of course,

the 7th, are not concerned with state action, and deal

only with Federal action. We select from a multitude

of cases those which we deem to be leading: Barron

v. Baltimore, 7 Pet. 248, 8 L. ed. 72; Fox v. Ohio,

5 How. 410, 484, 12 L. ed. 218, 223;. Twitchell v.

_ Pennsylvania, 7 Wall. 321, 19 L. ed. 228; Brown v.

New Jersey, 175 U.S. 172, 174, 44 L. ed. 119, 120, 20

Sup. Ct. Rep. 77; Twining v. New Jersey, 211 U.S.

78, 93, 53 L..ed. 97, 103. And, as a necessary corollary,

__ (b) that the 7th Amendment applies only to proceed-

- ings in courts of the United States, and does not in .

'~. any manner whatever govern or regulate trials by-

jury in state courts, or the standards which must be

-applied concerning the same. Livingston v. Moore, 7

Pet. 469, 552, 8.L. ed. 751, 781; Supreme Justice v.

Murray (Supreme Justice v. United States) 9 Wall.

274, 19 L. ed. 658; Edwards v. Elliott, 21 Wall: 532,

22 L. ed. 487; Walker v. Sauvinet, 92 U.S. 90, 23:L.

ed. 678; ‘Pearson v. Yewdall, 95 U- S. 294, 24 L. ed.

436. So ‘completely arid conclusively haye both of these

principles been settled, so expressly have they been -

recognized without dissent or question almost from ,

_ the beginning in the accepted interpretation of the '

Constitution, in the enactment of laws by. Congress

and proceedings in the Federal courts, and by state

Constitutions and state enactments and proceedings

_ in the state courts, that it is true to say that to

concede that they are open to contention would be to

grant that nothing whatever had been settled as to

the power of state and Federal governments or the

authority of state ‘and Federal courts and their mode

of procedure from the beginning. ” 60 L. ed. p. 963

241 U.S. ‘at 217.

a. ~~

12

While Petitioner cavalierly contends for a federally .

guaranteed right to jury trial in a.stdte court proceeding,

she cites no authority for the proposition and has com- -

pletely overlooked the wealth of authority which is di-

_ rectly contrary to her position. See, e.g., 5 Moore, Federal

Practice, pg. 77; Dennis, Jury Trial and the Federal Con-

stitution (1906) ; Gustafson v.. Peck, 216 F. Supp. 370

(N.D. Iowa 19638) ; Fay vy. New York, 332 U.S. 261, 288

(1947) ; Snyder v. Massachusetts, 291 US. 97, 105 (1994) ; :

U.S. ex rel. Tillery v. Cavell, 294 F. 2d 12 (8rd Cir. 1961),

cert, denied 370 U.S. 945 (1962).

Petitioner’s completely unsupportable reliance upon

‘the provisions of the Constitution of Pennsylvania hold

her in no better stead. .

Section 11 of the Declaration of Rights contained

in the first Pennsylvania Constitution of 1776 gave the

right toa jury trial only in “controversies respecting prop-

erty, and in suits between man and man.” This provision

refers to civil actions only. Commonwealth v. Kramer, 146

Pa. Super. 91 (1941).

‘Section 25 of the 1776 Constitution provided. that j jury

trials were to be “as heretofore” and applies generally to

criminal and civil cases. Commonwealth v. Kramer, supra.

The Constitution of 1790 states only that the right to

trial by jury will be as heretofore. Prior to 1790 the right

was applicable to criminal cases and civil actions respect-

ing property or suits between man and man.

Thus, at the time the 1874 Constitution was adopted

3 the, only right to trial by jury was in criminal cases and

. @vil ‘actions involving controversies respecting property

or claims between man and man.

By quoting at. length from the annotations in Purdon’s

‘Statutes, Petitioner comes to the conclusion that even prior

* to: 1776 there was a right to trial by jury in actions of

' debt. Petitioner has actually cited no authority for the.

aforesaid legal conclusion. Even if it was agreed that

.. such: right did exist as. relates to controversies between

~~ nichenmee aoe,

18

man and man, that is not the issue under consideration.

Petitioner has cited no case which holds that prior to 1776 __

a creditor of a decedent’s estate had a right to have his

_Claim of debt presented to a jury.

All of the cases cited by Petitioner are distinguished

-” from the instant case; are not responsive to the question

here involved; and are inapposite. . ps

The cases of Orban v. Rothrock, 19 D. & C. 2d 336

(1959), and Probst v. First National Bank of Williamsport,

73 D. & C. 817 (1950), do not treat at all of the’question

here involved. In neither case does the court concern itself :

with the issue of the right to trial by jury in a claim against

a decedent’s estate. Both cases address themselves only to

the question of concurrent jurisdiction.

Nowhere in Probst, supra, does the court consider the.

issue here involved, and, to the extent that it relied upon

- the existence of a right to. trial“by jury as a basis for its

holding that a common pleas c@urt had concurrent juris-

diction of a claim against a decedent’s estate, it was in

error. as eae

Although Respondents disagree with the holding of the

case even as respects the question of concurrent jurisdic-

tion, it is submitted that the court in Probst considered

only the latter issue and any reference to the right to

trial by jury was mérely poorly chosen and unsupported

dicta. |

o In the case of Low v. Ahlquist, 28 Lehigh County Law

Journal 455, an estate was bringing the action ds opposed

to a creditor suing an. estate. Giving the decision even

the broadest effect, it is not responsive to the issue here

involved and is completely inapposite.

Nor did Lackawanna Ice Co. v. Weingartner, 328

Pa. 362 (1938), cited by the court in Low, deal with a.

claim against a decedent’s estate. The question of title

to real property was there involved, a question always —

determined by a jury at common law. :

In Rybak Appeal, 424 Pa. 470 (1967) the Supreme

Court of Pennsylvania merely restated a familiar prin-’:

14

ciple of law so often enunciated by it and other state courts

in the past: to wit, when an estate makes a claim against

a third party jurisdiction lies only in the common pleas

courts because such third party is not initially within the

orbit of the Orphans’ Court’s power unless he~ submits

himself thereto. McGovern’s Estate, 822 Pa. 879 (1936) ; |

Brown’s Estate, 348 Pa. 230 (1941) ; Moreland Estate, 351

Pa. 623. (1945). +

‘Such decision did not comment upon, rule upon, or even

hint that in suits by claimants against an estate the Or-

phans’ Court should be ousted of juriediction which it first

obtained. -

Moreover, since Petitioner’s reliance on her claim that

her constitutional right to trial by jury has been infringed

is dependent, under the cases, upon her showing that she

was entitled to such right at common law, it, is significant

that she has cited no cases which indicate that she would

have had a right to trial by jury at common law in an

action for the recovery of a simple debt from a decedent’s

estate. Our own research discloses that in the absence of

statutory authority therefor, there is no right to a jury

trial in a probate court. Probate courts have always pro-

ceeded without the intervention of a jury and are not within

the application of the constitutional provisions relating to

the right to a trial by jury: 50 C.J.S. Section 13, p. 727,

Section 55, p.. 763.

It appears that the power to administer a decedent’s

estate in England, was divided between the ecclesiastical

courts and the secular courts with the church courts admin- .

_ istering the personalty of the deceased, while the secular

courts administered the real estate: 8 American Journal

of Legal History; 125 et seq. After the Reformation, par-

liament abolished the church courts and transferred the

jurisdiction of estates to courts of chancery :

Following the passage of the Act of A April 29, 1856,

the Orphans’ Court had control over realty and personalty.

The net effect of this Act was that the probate of a will

devising real estate could not be collaterally attacked. in

15

a common law action of ejectment or trespass: Wilson v. ©

Gaston, 92 Pa. 207 (1879). Arid although prior to 1919 it.

‘was believed that there was a right to trial by jury ‘on

the issue of a validity of a writing purporting to be a will,

the court in Fleming’s Estate, 265 Pa. 399 (1919) held that:

such right did not exist. Under the Orphans’ Court Act

of 1951, the ernpaneling of a jury on such issue is discre-

tionary only: 20 P.S. 2080.745. | :

In Marchiafava Estate, 32 D. & C. 2d 5 (1964), a

guardian argued that he was entitled to a jury trial as a

matter of right as against a claim of the Commonwealth

for monies it expended for the dependent child’s assistance.

After the matter was heard by the Orphans’ Court en bane,

in an opinion by ident Judge Klein, he said: -

“We are of one mind that this contention is.completely

_ devoid of merit. Although counsel for the guardian _

cavalierly states that his client would have been en-

titled to a trial by jury to pass on thé merits of the

Commonwealth’s claim, he’ furnishes no reliable sup-

port for hig contention. He would have us destroy a

judicial sy which has been functioning effectively

and satisfactorily for countless years. . . . It-is, there-

fore, clear that. the Orphans’ Court has complete au-

thority to dispose of all issues of fact arising in the

course of any, proceeding properly before it, with or

without the assistance of a jury and issues need no

longer be sent to the law courts for determination.”

_ It is respectfully submitted that there is no authority

indicating that on claims for simple debt against a dece-

dent’s estate in common law courts, a claimant was entitled

to a jury trial. On the contrary, it would appear that such

courts as passed on claims for debts of decedents passed

judgment thereon without the benefit of_a jury: Sharp’s

Appeal, 3 Grant 259; In Re: Beehler’s Estate, 3 Phila. 254.

__ In summary, Petitioner has failed to cite a single

authority for the proposition for which she contends and

» 3

16

| the cases herein cited al lead ineniteiay to the. conclusion

that no right to jury tri: | existed either at common_law or

exist under the Pennsyl nia Constitution or the Federal

Constitution in actions } - claimants against a decedent's

estate.

8 Moreover, theré is : ) conflict in the decisions of the

Supreme Court of Penns lvania on the question here pre+

sented, which decisions : re consistent with those of this

Honorable Court.

Finally, the question aised by Petitioner i is not a sub-

stantial federal question ind is premature in any event

‘since Petitioner has not, ven as of this date, demanded a

jury trial in the Orphan; Court and that latter court has —

_-- not had an opportunity pass upon any such request.

vor CLUSION ©

For the adie r asons, it is respectfully submitted —

that the petition for a‘ rit of certiorari should be denied.

Respectfully submitted;

FRANCIS W. SULLIVAN

Attorney for Respondents

2304 Fidelity Bank Bldg.

, Philadelphia, Pa. 19109

_ Brapy O. BRYSON | 7

‘2107 Fidelity Bank B).

Philadelphia, Pa. 1910:

o Counsel

é

ae Ar

APPENDIX “A” |

OPINION IN ACCORDANCE WITH

RULE 63 OF THE PENNSYLVANIA

~ SUPREME COURT’ ~

CHUDOFF, J. . September 28, 1966

__. On June 1, 1966, the plaintiff, Olga Natoli, instituted

an action: in assumpsit in the Court of Common Pleas of

Philadelphia County against the Executors of the Estate

of Wilbur H. Hamilton, deceased. On June 10, 1966,‘ de-

fendants filed Preliminary Objections, questioning the juris-.

diction of the Common Pleas Court over the subject matter.

Argument was heard by the court on J uly 26, 1966, and

_ dismissed the following. day. ae |

- ‘Wilbur H. Hamilton died on July 22, 1964, and on

August 18, 1964, letters. testamentary’ were granted to

"his executors. Plaintiff alleges that prior to decedent’s

death she had made two loans to him; one in the amount of

~ - $10,000.00 and.another in the amount of $15,000.00, both |

of which remained unpaid at his death. On February 28,

1966, plaintiff, through her attorney, presented her claim

_ to the executors of decedent’s estate.The claim was de-

nied by the executors but was submitted to the Orphans’

Court for adjudication when the account was filed on

April 19, 1966. eats | ;

On May 28, 1966, plaintiff was notified that the ac- -

count would be called for audit on June 6, 1966, before the

Honorable Kendall H. Shoyer. On that date counsel for

plaintiff appeared before the Orphans’ Court to inform

Judge Shoyer that.a suit in assumpsit had been instituted

in the Common Pleas Court of Philadelphia County on

June 1,'1966, to recover the alleged debt. The audit was

. continued to allow the Court of Common Pleas to determine

the question of jurisdiction. . ? , ;

a

| 18

In essence, defendant cmuate that the Orphans’

Court Act of 1951 gave exclusive jurisdiction. over the

claims of creditors against an estate to the Orphans’ Court

and that even if there were concurrent jurisdiction with the

Court of Common Pleas, comity would. require us. to defer

to the Orphans’.Court.

Plaintiff asserted that there was concurrent juris-

diction between the two’ courts and that she had an abso- —

- lute right to either select her forum or to proceed in both.

The Orphans’ Court has exclusive jurisdiction over

all things pertaining to the settlement and distribution of

estates: Long’s Estate, 254 Pa. 870 (1961); but the Or-

_phans’ Court.does not possess exclusive jurisdiction in the

proof of claims of decedént’s creditors.. Commonwealth ~

use v. Easton Trust Co., 347 Pa. 162 (1943). While these

points appear superficially inconsistent, a close ponte

leads to a logical conclusion. ‘Apparently, either the Or-

phans’ Court or the Common Pleas Court may consider:

the validity of a debt, but only the Orphans’ Court may ©

determine how a debt is to be included i in the distribution

of any estate. .

Notwithstanding. the existence of concurrent *juris- |

diction over the subject-matter, sound judicial practice

would preclude the possiblity of proceeding on the same —

claim in two courts. In the words of the Honorable Charles ©

Klein, it would be as parties, “riding the processes of

the two courts like a circus equestrian astride two spirited

horses at the same time.” In Sheehan’s Estate, 78 D. & C.

385 (1952).

The rule of comity woul d dictate that’ the court which

first entertained the p ing ought to retain control of

the matter until its conclusion. Thus, the problem resolved _

into determining which court first acquired jurisdiction.

- Obviously, the Common Pleas Court entered the picture on’

June 1, 1966, the date on which plaintiff filed her complaint.

At what point the issue came before the Orphans’

Court is more difficult to. discern. In Sheehan’s Estate,

a’

supra, President Judge Klein stated’ that the Orphans’

Court acquired jurisdiction when the. administrator’s ac-

| count was first called for audit. However, J udge, Klein’s

remarks were not stated as'a general principle ‘but were

'.. ¢arefully limited to that particular case. Nonetheless, his .

words did suggest that the Orphans’ Court would obtain

control no later than the. date on which audit was called.

Pennsylvania Orphans’ Court Practice, an accepted au-

thority, states that once an account has been filed in the -

Orphans’ Court the jurisdiction: and ‘the powers of that:

ies court, both legal and equitable, become paramount to those

of other courts. Pennsyloania Orphans’ Court Practice,

es Partridge-Remick, Vol. 6, §44.01(e).

* This view. was persuasive with the court because the

~~ filing of an account most readily compares to the filing of .

oe a complaint. It is at this point in both procedures that the —

_ controversy first comes under the control of a court. There-

fore, we concluded that the Orphans’ Court first acquired .

jurisdiction on April 19, 1966, the day on which the account

was filed; approximately five and. one-half weeks before

plaintiff instituted suit in €ommon Pleas Court. Following

the rule of comity we deferred to the Orphans’ Court.

Moreover, we did not believe-that. plaintiff's argument

that she would be denied her right to a jury trial in Or- _

phans’ Court was timely made. The Orphans’ Court has

the power to.grant a jury trial in proper instances and . ©

should plaintiff be-denied ‘a jury she may raise this issue.

at that time. Meanwhile,,she will have the benefit of a

court which the Pennsylvania Supreme Court said, “. . .

is by custom and experience exceptionally well qualified °

to determine the claims of creditors . . .” Snyder’s Estate,

868 Pa. 398 (1951). 7 ; wt

For the foregoing reasons the court allowed defend-

ants’ preliminary objections. ‘ liar ee

| : _ By THE COURT: 3

/8/ CHUDOFF, J:

~

o*

APPENDIX “Br

OPINION PER. CURIAM, MARCH 14, 1967

ORDER AFFIRMED

OPINION PER CURIAM, MAY 25, 1967

\ PETITION DENIED

——

| See, mee Ge

APPENDIX “C”? is

IN‘THE |

SUPREME COURT OF PEN NSYLVANIA

| EASTERN DISTRICT:

_ APPELLEES’ ANSWER TO APPELLANT'S

PETITION FOR RECONSIDERATION *

OR TO VACATE ORDER |

¥

‘Supreme Court: | |

1. Denied ‘as stated. Appellant appealed from a de-

~To'the Honorable the Chief Justice and Justices of the

termination of the Court of Common Pleas of -Philadel- -

phia’ County sustaining Defendants’ Preliminary Objec-_ .

tions to her Complaint’ in Assumpsit on the ground that |

the Orphans’ Court had first acquired jurisdiction over ’

the subject matter of the dispute and that the rule of

comity required that the matter remain in the Orphans’

Court. The Court of Common Pleas also held that Appellant

had not been denied her right to trial by jury if one in

fact. existed ‘since she had not requested such right from

the Orphans’ Court.

“8 MR ee ode Ogaaaaw 2

8. Denied as stated. The opinion of this honorable

court being in writing speaks for itself. Rte,

___ 4 The opinion of this honorable court being in writ- ’

ing speaks for itself. ” gis Pek Ah eee

5.. The opinion of this honorable court being in writ-

ing speaks for itself “os Asay asa et gue hae

6. Denied. \The court in the Estate of Eva Rybak.

"reaffirmed the principle that a claim by an estate against

. 8 third party must be commenced in the Court of Common

‘Pleas whereas in Natoli v. Hamilton this court held thata

oS

.

Lied 22 ; Riga ait - | | .

lola by a third iatite against a an ‘eatate should: be com-

menced in’the Orphans’ Court and that once jurisdiction

- : attached in the Orphans’ ‘Court, the principle of comity

~“s Operated to preclude subsequent litigation in. any other

court. Appellant again ignores the Rules of the Supreme .

Court of Pennsylvania. Rule.71 of the. Supreme Court .

_ requires that a Petition for Reargument must be filed

within ten days after the final order, judgment or decree

of: the Supreme Court. The final judgment of the Supreme

date on which this honorable court decided the Estate of

‘ -Eva Rybak, and it is manifest that Appellant’s Fequest

‘ for reargument has not been timely made. -

ee Appellant has again raised the question of the right to

__jury trial. This question was raised in the Court of Com- .

- mon Pleas, and in Appellant’s brief. and argument ‘before

the Supreme Court of Pennsylvania. It is submitted that

this issue has already: been carefully considered by the |

lower court andthe reapsad Cou rt and decided adversely

. to Appellant.

7. Denied as stated. The opinion of the, Superior

Court being in writing speaks for itself and the issues there

' considered were and are irrelevant and immaterial to the

issue presented to this-court in Natoli v. Hamilton. ;

WHEREFORE, Appellees, by their attorney, Francis

W. Sullivan, respectfully request this ‘Court to dismiss

: — Petition. © :

Respectfully submitted,

set tif | ‘FRANCIS W. SULLIVAN,

oh tite, . Attorney for Appellees.

’ Court in Natoli v, Hamilton was March 14, 1967, thesame ——-