*1 are con- rights Grosser’s far as least (at lease rights no can assert Grosser is clear it cerned), lease. on based entry for remanded record vacated;
Judgment pe- Grosser due amount judgment of a 1966. 1965-February 6, 1, riod October Eagen affirm. and would dissents Mr. Justice Appellant. Ovens, Eberhardt v. Argued April 1969. Before C. J., Jones, Bell, J J. Roberts and Cohen, Eagen, O’Brien, Pomeroy, refused 1970. January reargument *2 A. Di him Robert Angelo Pasqua, Gownley, with T. Di Gaine, appellant. é for Pasqua Edelson, Laurence H. with him J. Julius Eldredge, Levy, K. James Peck and James K. Peck, Jr., appellee. Opinion November 28, 1969: Me. Justice Eagen, Arthur a Ovens, resident Lackawanna County, died testate on November 1965. His 21, pro- will was bated in office of the Register of Wills on Novem- ber 29th and letters testamentary were issued on same date to his wife executrix of his estate.
At the time of his death Ovens was the registered owner of a transportation business known as “Ovens Motor September On Freight.” Victor 15, Eber 1966, hardt filed complaint a equity the Court of Com mon Pleas that he claiming partner a in “Ovens Motor Freight”1 as the and, surviving had partner, the exclusive to right up wind the business. a After the chancellor hearing, filed an adjudication finding that Ovens and Eberhardt owned the business under partnership a agreement at the time of Ovens’ death and entered a decree nisi granting relief to Eberhardt consistent adjudication. with the excep Subsequently, adjudication tions to the and decree nisi were dis missed the court en banc, the chancellor’s de- 1 None of the business records of Freight’’ “Ovens Motor or reports to the ICC or any PUC disclosed the part- existence of such nership. appeal We will followed. This final. made cree was proceedings. dismiss the decree vacate L. Orphans’ P. ofAct Court of the Section provides: or- pertinently “The §2080.301,' 20 P.S. . jurisdiction of: . . phans’ exclusive have shall prop- personal adjudication to title (13) representative, personal possession of the erty in the nomi- or his registered the decedent name of or states this section .” The comment . . . nee possi- provision whenever to obviate, “intended is Orphans’ dispute preliminary whether the toas a ble, disput- title to the to determine has Court ques- property.” case involves ed Since instant appeared part of Eberhardt what tion of whether owns property his busi- of the decedent, Ovens, i.e., be the Orphans’ foregoing Court Act *3 of the section ness, applies jurisdiction the contro- exclusive to resolve and Pope Orphans’ versy Dascher, is in the Court. v. See (1968), Tallarico Pa. 240 A. 2d and 429 518 576, (1964). v. 414 Pa. A. 2d 763 Bellotti, 200 535, argued Although the case was on the merits in this equity’s jurisdiction questioned and Court was not here or we conclude that the issue should be below, sponte. sua raised See and cf. Commonwealth ex rel. Ransom v. Pa. Mascheska, 429 2dA. 168, (1968), Municipal and Balazick v. Dunkard-Bobtown Authority, (1964). 414 Pa. 199 A. 2d proceedings
Decree vacated and dismissed. Each pay party own costs.
Concurring Opinion by Mr. Justice Jones: join majority opinion, I in the both in rationale its opinion and result. I concurring file However, this suggestions opinion of dissenting because certain my in only not which, estimation, are erroneous but uncertainty will cause confusion in this of area the law. opinion maintains
The writer
con-
v.
In the case at since the bar, at property was time of death the name of Ovens, we decedent, are concerned with the question who owned actually property titled decedent’s a name, question to be de termined—by legislative mandate1—exclusively by Orphans’ Court. In Ellis, question was the dis position of partnership assets titled not the name of a decedent but rather in the name of a partnership. opinion majority does not nor affect, is it affected by Ellis. In if the fact, Orphans’ Court decides that Eberhardt and Ovens partners were and that the as sets, although titled in Ovens’ were name, actually owned by the then partnership, the Ellis rule applies *4 and the Court of Common Pleas will within proceed, its legislatively-mandated power,2 to dissolve the part nership and determine distribution of the partnership assets. Ellis does not govern the instant case. 1 August 10, (Orphans’ Act of 1951 1951), Court Act of L. P. Ill, §301(13), amended, art. as §2080.301(13). 20 P.S. 2 2'6, 1915, Act of March P. L. §93(4). 59 P.S.
324 rami- serious more suggestion, much with
A second opinion. dissenting also raised is fications, of the Sched- 4 opinion suggests that Section had has Constitution our new of Article ule to for- jurisdictional abolishing distinctions all effect merly pleas and of common the courts between drawn significance suggestion orphans’ is of such This courts. go unanswered. that it cannot Constitu our amendments to recent to the Prior separate Common in this courts had two we tion, orphans’ pleas courts.3 and of common wealth—courts jurisdiction each many years, and Over functions distinguished delineated and two courts were of these distinctly by the .clearly understood and and were recent Commonwealth. The bar of this bench and orphans’ abolished both to our Constitution amendment pleas they had of common and courts courts3 previously replaced a and courts existed both with type of broader known as the Court of Common court, Pleas. the Constitutional amendment abolished While orphans’ expressly court as it did either such, not, extinguish destroy implication, or what had jurisdiction formerly been the functions exercised orphans’ contrary, courts. On the Section 4 provides Judiciary the Schedule Article orphans’ former courts shall now be “divisions” of the “Orphans’ reconstituted Court of Common Pleas: judicial having separate orphans’ courts in districts orphans’ courts shall become court divisions pleas pleas of common courts and the court common judicial in those districts shall exercise the courts, county were courts, etc., There also other such as litigation. of which is not at issue in this opinion The writer Of this at believed the time and still be- lieves abolition unnecessary court nothing added justice a more efficient administration of under amalgamated system. an *5 courts separate orphans’ the by exercised presently court divisions.” orphans’ respective their through beyond clear 4 renders Section supplied) (Emphasis formerly the jurisdiction doubt any functions be to are now orphans’ courts separate by exercised Pleas Common Court of amalgamated exercised Court of the Orphans’ Court Division only through Common Pleas.5 that, confirmed A recent enactment has legislative former distinction at legislative mind, least, replaced by been the two courts has merely between Com distinction equivalent an between the Courts mon Pleas and their court divi respective orphans’ sions. The Act of March L. No. 5 (Act P. 27, 1969, §240) designed P.S. to effectuate Philadelphia judicial new That Act system County.6 provides that of the of the specifically fifty-six judges of Common Court six of these shall be as Pleas, judges orphans’ to the court division. That Act further signed as provides although judges may be that, temporarily to another they “shall signed division, nonetheless re of their main members original division.” Our new designed permit Constitution was the assignment from one division to another judges order to expe dite court business; this is a far from however, very cry an abolition of jurisdictional functional distinc tions the several among divisions.
If the to the delegates Constitutional Convention had desired to do what the dissenting opinion now sug- could gests, they certainly have done so. they However, did not choose this course. suggestion implication To follow the of the
opinion would indicate that the Constitutional amendment has re pealed Orphans’ amended, Court Act of and other stat dealing orphans’ utes with the and functions of the courts. 6 We, pass sense, upon validity legislation. no of this intent a clear indicates Constitution
The within exclusively formerly which was exclusively courts is orphans’ now province divisions be exercised handled of matters types of Common Pleas. Courts *6 to warrant different sufficiently are the divisions with system judges to retain a whereby the decision determine matters in a area law expertise given in that area. court be- opinion suggests that the even though in a “two hat” capacity that,
low sits the below in its common law (sitting equity ju- jurisdiction erred in of this entertaining risdiction) could put it on its “other hat” and that it matter, futile the would be to reverse court below and have determined the orphans’ matter court division. Such a suggestion purpose offends intent and of the Constitutional amendment, any obliterates distinc- tion jurisdiction between the of functions the trial division and the orphans’ court of division the Com- mon Courts and Pleas constitutes an attempt at judi- cial novel in legislation, my experience on this Court, which cannot justified. be
An amalgamation of our courts into one court has been accomplished, but and functions of the several divisions of that court remain unchanged.
Dissenting Opinion by Mr. Justice Roberts: I with agree the majority that Section 301 of the Orphans’ Court Act of applies in this case. I dis- agree, with however, the conclusion that we must now dismiss case for this lack of jurisdiction.
The majority’s construction of Section amounts to an course, overruling of this Court’s most recent in decision the area, v. Ellis, Ellis 415 Pa. A. 2d In (1964). Ellis, this Court held that - question whether a partners decedent’s may not in partnership interest decedent’s purchase court. orphans’ the exclusive within the ma- much as mentioning Ellis, without so Today, the preliminary question is holding jority conceded partner had a (something whether decedent I think for the court. properly is Ellis) profession should at least majority give idea of it Ellis Cer- today. some where thinks stands some tainly the instant case deserve litigants explanation; no doubt relied on Ellis when they they chose their forum and litigated the without ever issues to that forum. objecting
I believe that Ellis should be overruled. expressly But because the recent our change constitution, I must dissent from the decision dismiss majority’s complaint jurisdiction. lack of 4 of Section the schedule of the Judiciary pro- Article Article, V, vides that the orphans’ courts shall be abolished *7 the courts of common pleas shall juris- “exercise the diction of these courts.” Thus by constitutional man- the court of date, pleas common now has to hear this ease.
The majority’s decision to now dismiss this case in constitutes, my view, a failure of proper judicial ad- ministration. Neither objected party at trial or ap- on and no claim peal, of prejudice has been made. The procedures which would be used to re-try this case court would not differ from procedures which were fact used to try this case. For example, in neither court would the parties in this controversy have had a to right a trial by jury. See also Orphans’ Court Rules Rule §3, (unless provided otherwise statute or local rule, pleading practice in orphans’ conforms common pleas sitting It equity). is senseless to force the parties to now take their case under our what, new constitution, is merely a dif- ferent division of the same court which originally tried I
the matter. see reason absolutely place no to now this burden both useless on litigants the courts, and to thus further proper of this delay resolution controversy. I dissent.
Accordingly, Commonwealth v. Stein, Petitioner. Before C. Bell, J., Jones, Cohen, Eagen, O’Brien, Roberts JJ. Pomeroy, *8 Porter, petitioner.
William O.