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ESTATE HAZEL C. VOLKHARDT (03/14/79)

decided: March 14, 1979.

IN RE ESTATE OF HAZEL C. VOLKHARDT, AN ALLEGED INCOMPETENT


No. 70 January Term 1978, Appeal from the final Decree of the Court of Common Pleas, Philadelphia, Orphans' Court Division at No. 475 of 1976.

COUNSEL

Jay D. Barsky, Barsky, Golden & Remick, John L. Jenkins, Philadelphia, for appellant.

Walter T. Darmopray, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, former J., did not participate in the decision of this case.

Author: Eagen

[ 484 Pa. Page 53]

OPINION OF THE COURT

At issue in this appeal is the validity of a final decree of the Orphans' Court Division of the Court of Common Pleas of Philadelphia, adjudicating Hazel C. Volkhardt an incompetent under section 5511 of the Decedents, Estate and Fiduciaries Code, 20 Pa.C.S. § 5511, and appointing Provident National Bank as guardian of her estate.

After three separate hearings, which extended over a ten-month period, the Orphans' Court ordered the appointment of an impartial medical expert to examine the alleged incompetent, to submit a written report, and to testify in person regarding his examination and his opinion of Hazel Volkhardt's mental competency. No further hearing was held, and the final adjudication of incompetency was ordered the day after the expert's written report was filed with the court.

Appellant contends, inter alia, that she was denied due process because the incompetency proceedings were continued over a two-year period without a judicial finding and that the adjudication of incompetency was based on the report of an expert not subject to cross-examination.

An examination of the record discloses the adjudication of incompetency was included in a decree nisi dated January 24, 1978. No exceptions to this decree were entered; hence, it became final after the fifteen-day period allowed for the filing of exceptions. See Phila.O.C.Div. Rule 77.1(a). See also Estate of Stanley, 470 Pa. 483, 368 A.2d 1259 (1977). Additionally, none of the issues now raised by appellant in this appeal have been preserved for appellate

[ 484 Pa. Page 54]

    review since no exceptions were entered to the court's ...


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