Appeal from order of Court of Common Pleas of Carbon County, Sept. T., 1965, No. 38, in re appointment of a guardian for Ann Petrash.
Elias Magil, with him Martin H. Philip, and Rappeport and Magil, for appellant.
Paul A. Barrett, with him Eugene Nogi, Roger Nanovic, and Nogi, O'Malley & Harris, for appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Cohen took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Jones. Mr. Justice Eagen and Mr. Justice Roberts join in this concurring opinion.
Ann Petrash, a resident of Carbon County, was injured on September 12, 1963, in an automobile accident caused allegedly by the negligence of Bertrand Steele. At the time of the accident, Miss Petrash was the recipient of relief provided by the Carbon County Board of Public Assistance. This board petitioned the Court of Common Pleas of Carbon County for the appointment of a guardian to prosecute Miss Petrash's cause
of action against Steele so as to create a fund from which the board could reimburse itself for past expenditures in her behalf and at the same time create a reserve for future maintenance, it being asserted in the petition that Miss Petrash would never become self-supporting. The petition expressly stated that the requested guardianship was to be restricted to Miss Petrash's estate and that it was not to exercise any control over her person. Ann Petrash joined in this petition.
The court, after due consideration, appointed Ruth A. Levenger, a resident of New York, as guardian of Miss Petrash's estate. The foreign residence of Miss Levenger permitted her to institute action in behalf of her ward in a Federal Court and she did file a complaint in trespass against Steele in the United States District Court for the Middle District of Pennsylvania.
Bertrand Steele objected to this procedure and petitioned the Court of Common Pleas of Carbon County to revoke the guardianship on the ground that (1) no citation had ever been issued and served (2) that a foreign guardian had been appointed solely for the purpose of creating diversity of citizenship to confer on a Federal Court jurisdiction over the parties; and (3) that the court had held no hearing on the petition.
The court below properly held that since Ann Petrash had joined in the petition for the appointment of a guardian over her estate, no hearing into the facts asserted therein was necessary, nor did the appointment of a foreign guardian for the express purpose of creating diversity of citizenship invalidate the guardianship. However, the court was of the view that it had no authority to appoint a guardian solely of the estate because the Act under which the appointment was made provided for the appointment of a guardian over the estate and the person. Section 6(a) and (b) of the Act of June 24, 1937, P. L. 2045, 62 P.S. § 1976,
provides, inter alia: "(a) Any public body or public agency caring for or assisting any indigent person may apply, by petition, to the court of common pleas, if the person is of full age, or to the orphans' court, if the person is a minor, for a citation upon such person to show cause why such public body or public agency, or some other person appointed by the court, should not become the legal guardian of the person and property of such person . . . (b) After hearing, the court may make ...