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HICKS ESTATE. (03/17/64)

March 17, 1964

IN RE HICKS ESTATE.


Appeals, Nos. 49, 50 and 51, March T., 1964, from decree and order of Orphans' Court of Allegheny County, No. 5491 of 1961, in re estate of Melinda Morrow Hicks, an incompetent. Decree reversed; reargument refused April 28, 1964.

COUNSEL

Kenneth G. Jackson, with him Charles Weiss, and Thorp, Reed & Armstrong, for appellant.

Malcolm Anderson, with him Griggs, Moreland, Blair & Douglass, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Roberts

[ 414 Pa. Page 132]

OPINION BY MR. JUSTICE ROBERTS

On December 19, 1961, James T. McLaughlin, M.D., physician for Melinda Morrow Hicks, appellant, filed petitions in the Orphans' Court of Allegheny County, seeking to have appellant declared incompetent and to have guardians appointed for her person and her estate. The petitions did not pray for the issuance of a citation. It is a conceded fact of record that no citation was sought, awarded or served upon the alleged incompetent. On presentation of the petitions, the court entered an order fixing January 4 as the date for hearing. Dr. McLaughlin was directed to serve copies of the petitions, together with notice of the same, upon appellant ten days prior to the date of hearing. The order provided that notice was to be given appellant "by a reading of the petition to her by her physician. ..." This Dr. McLaughlin did on December 24, 1961, at St. Francis Hospital, Pittsburgh, where appellant was a patient. Counsel who had previously acted for and represented Melinda Morrow Hicks prepared the petitions and conducted the proceedings which followed.

[ 414 Pa. Page 133]

Testimony was taken by the court on January 4 and January 8, 1962, to determine the issues raised by the petitions. On January 15, 1962, the court adjudicated appellant an incompetent in accordance with the Incompetents' Estates Act of 1955, February 28, 1956, P.L. (1955) 1154, as amended, 50 P.S. ยงยง 3101-3801 (Supp. 1963), and appointed The Commonwealth Bank and Trust Company guardian of her estate and her person. Appellant was not present at the proceedings because it was Dr. McLaughlin's opinion that it would be harmful to her to hear the testimony concerning her condition.

On or about March 9, 1962, appellant retained counsel of record in this appeal, who applied to the orphans' court for review of the impounded record of the above proceedings. This request was granted. On August 2, 1962, following the filing of an appropriate petition and answer by the guardian, the court entered an order confirming appellant's retention of counsel as of March 9, 1962, and directing that counsel have wide latitude in reviewing the proceedings.

On April 23, 1963, appellant petitioned the court to vacate the decree of incompetency and to direct the guardian to deliver to her all the assets of her estate and to account for the period of its administration. The petition attacked the jurisdiction of the court over the person of appellant on the ground that no citation had been issued or served upon her. It alleged, inter alia, that she was not represented by counsel, or by any one else, that she was never adequately advised of the true nature or consequences of the proceedings, and that she did not learn until after March 9, 1962, that she was entitled to a trial by jury on the issue of her incompetency. It further averred denial of appellant's personal and property rights guaranteed by the federal and state constitutions.

[ 414 Pa. Page 134]

The guardian filed preliminary objections asserting that the petition failed to state a cause of action. On October 2, 1963, the court en banc sustained the preliminary objections and dismissed the petition of April 23. At the same time, the court, sua sponte, entered two orders directing that (1) a memorandum reciting the conversation in a personal interview between the hearing judge and appellant on January 10, ...


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