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EBERHARDT v. OVENS (11/28/69)

decided: November 28, 1969.

EBERHARDT
v.
OVENS, APPELLANT



Appeal from decree of Court of Common Pleas of Lackawanna County, Sept. T., 1966, No. 13, in case of Victor Eberhardt v. Mable Ovens, individually, and as executrix of estate of Arthur Ovens, deceased.

COUNSEL

Angelo A. Di Pasqua, with him Robert T. Gownley, and Caine, Di Pasqua & Edelson, for appellant.

Laurence H. Eldredge, with him J. Julius Levy, James K. Peck and James K. Peck, Jr., for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Concurring Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Roberts.

Author: Eagen

[ 436 Pa. Page 321]

Arthur Ovens, a resident of Lackawanna County, died testate on November 21, 1965. His will was probated in the office of the Register of Wills on November 29th and letters testamentary were issued on the same date to his wife as the executrix of his estate.

At the time of his death Ovens was the registered owner of a transportation business known as "Ovens Motor Freight." On September 15, 1966, Victor Eberhardt filed a complaint in equity in the Court of Common Pleas claiming that he was a partner in "Ovens Motor Freight"*fn1 and, as the surviving partner, had the exclusive right to wind up the business. After a hearing, the chancellor filed an adjudication finding that Ovens and Eberhardt owned the business under a partnership agreement at the time of Ovens' death and entered a decree nisi granting relief to Eberhardt consistent with the adjudication. Subsequently, exceptions to the adjudication and decree nisi were dismissed by the court en banc, and the chancellor's decree

[ 436 Pa. Page 322]

    was made final. This appeal followed. We will vacate the decree and dismiss the proceedings.

Section 301 of the Orphans' Court Act of 1951, P. L. 1163, 20 P.S. ยง 2080.301, pertinently provides: "The orphans' court shall have exclusive jurisdiction of: . . . (13) The adjudication of the title to personal property in the possession of the personal representative, or registered in the name of the decedent or his nominee . . . ." The comment to this section states that the provision is "intended to obviate, whenever possible, a preliminary dispute as to whether the Orphans' Court has jurisdiction to determine title to the disputed property." Since the instant case involves the question of whether Eberhardt owns part of what appeared to be the property of the decedent, Ovens, i.e., his business, the foregoing section of the Orphans' Court Act applies and exclusive jurisdiction to resolve the controversy is in the Orphans' Court. See Pope v. Dascher, 429 Pa. 576, 240 A.2d 518 (1968), and Tallarico v. Bellotti, 414 Pa. 535, 200 A.2d 763 (1964).

Although the case was argued on the merits in this Court and equity's jurisdiction was not questioned here or below, we conclude that the issue should be raised sua sponte. See and cf. Commonwealth ex rel. Ransom v. Mascheska, 429 Pa. 168, 239 A.2d 386 (1968), and Balazick v. Dunkard-Bobtown Municipal Authority, 414 Pa. 182, 199 A.2d 430 (1964).

Decree vacated and proceedings dismissed. Each party to ...


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