Appeal, No. 271, Jan. T., 1951, from judgment of Superior Court, Oct. T., 1951, No. 34, affirming order of Municipal Court of Philadelphia County, dated September 7, 1950, in re Nancy Louise Salemno. Judgment affirmed.
David Berger, with him Leon H. Kline, for appellants.
Herbert Mayers, for appellee.
Before Drew, C.j., Stern, Stearne, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an appeal by foster parents from the judgment of the Superior Court affirming the order of the Municipal Court of Philadelphia, sitting as a juvenile court, awarding custody of a minor, Nancy Louise Salemno, to her natural mother.
The appeal was allowed because in our opinion the Superior Court misconceived its reviewing function. The Juvenile Court Law of 1933, June 2, P.L. 1433, Section 16, 11 PS § 258, provides: "... appeals shall lie as a matter of right to the Superior Court of this Commonwealth, upon the same terms and with the same regulations as are provided by law with respect to appeals from any decree of the orphans' court. In hearing such appeals, the Superior Court shall consider the testimony as part of the record." The Orphans' Court Act of 1917, June 7, P.L. 363, Section 22 [b], 20 PS § 2602, provides as follows: "The Supreme and Superior Courts of this Commonwealth shall, in all cases of appeal from the definitive sentence or decree of the orphans' court, hear, try and determine the same as to right and justice may belong, and decree according to the equity thereof; and may refer the same to auditors when, in their discretion, they may think proper."
Despite the broad power thus conferred upon the Superior Court, it held that the scope of its review was limited to ascertaining only whether the lower court had abused its discretion in making its award of custody.
The Superior Court relied on its decision in Weintraub Appeal, 166 Pa. Superior Ct. 342, 71 A.2d 823, which in turn relied upon the Supreme Court's opinion in Garrett's Estate, 335 Pa. 287, 6 A.2d 858. Whether or not Garrett's Estate ruled the determination of the issue presented in Weintraub Appeal, it is not controlling here. In Garrett's Estate the Supreme Court was confronted only with the refusal of the orphans' court to order the taking of depositions in a foreign country, not with the permanent welfare of a child. This Court held that the procedural matter of taking depositions under the Orphans' Court Act of 1917 was committed to the discretion of the orphans' court, and there was no specific standard by which the exercise of judgment could be tested. Under the Juvenile Court Law of 1933 it is made the duty of the lower court to determine what is for the best interest and welfare of the child. While appeals from the orphans' court may in some instances, as in Garrett's Estate, supra, be properly limited to determination whether there has been an abuse of discretion by the lower court, the comprehensive review provided for includes determination as to whether any error, of judgment or otherwise, has been committed. Section 22(b) of the Orphans' Court Act, above quoted, provides that the Supreme and Superior Courts "... shall... hear, try and determine... as to right and justice may belong, and decree according to the equity thereof;...". Obviously its scope extends to the fullest review consistent with equitable principles. See Shelley's Estate, 288 Pa. 11, 135 A. 740; McCullough's Estate (No. 2), 292 Pa. 422, 141 A. 239; Nimlet's Estate, 299 Pa. 359, 149 A. 658; Chadwick Estate, 154 Pa. Superior Ct. 157, 35 A.2d 582. Where so important an issue as the welfare of a child is involved, in which the State has a paramount interest, the Superior Court should not
in this case have limited its review but have exercised its independent judgment after ...