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ESTATE THOMAS PITONE (03/19/82)

filed: March 19, 1982.

IN RE ESTATE OF THOMAS PITONE, A/K/A THOMAS J. PITONE, DECEASED. APPEAL OF ROSE GRECO


No. 38 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Orphans' Court Division, of Delaware County, Pennsylvania at No. 295 of 1976.

COUNSEL

Mark D. Caswell, Philadelphia, for appellant.

Robert B. Ely, III, Radnor, for participating party.

Spaeth, Popovich and Montgomery, JJ. Spaeth and Montgomery, JJ., concurred in the result.

Author: Popovich

[ 297 Pa. Super. Page 162]

This is an appeal from the Order of the Orphans' Court of Delaware County denying appellant's, Rose Greco's, "Petition for Reconsideration". Appellant argues that she is entitled to the relief requested on the basis of after-discovered evidence. We disagree and, accordingly, affirm the Order of the lower court.

Before reaching the merits of the appellant's claim, we need to address appellees' contention*fn1 that, "[e]xcept as to the question of costs and counsel fees allowable to the Appellees for contesting this unwarranted appeal, this Court

[ 297 Pa. Super. Page 163]

    has no jurisdiction in this matter." (Emphasis in original) (Appellees' Brief at 1) According to appellees, what makes this clear is the consideration of: 1) appellant's unsuccessful appeal to the Supreme Court of Pennsylvania (see In re Estate of Pitone, 489 Pa. 60, 413 A.2d 1012 (1980)); and 2) the Supreme Court's denial of appellant's petition for reargument. The aforegoing points, appellees' urge, are to be viewed in the context of 42 Pa.C.S.A. §§ 706 and 742, both of which took effect after the case was appealed. Moreover, appellees assert that the savings clause appearing immediately after Section 706, having perpetuated the jurisdiction of any court over any order pending before it as of the effective date of the statute [June 27, 1978], had the effect of preserving the Supreme Court's jurisdiction over the instant litigation, which was commenced on March 20, 1978, until " a final determination in such court, which court shall have continuing jurisdiction over such matter, including jurisdiction on remand following any appellate review of any order entered in such matter, whether such appellate review was had before or after the effective date of this act. "*fn2

Appellees would have us interpret the italicized verbiage to encompass the present appeal, so as to foreclose this

[ 297 Pa. Super. Page 164]

Court from reviewing appellant's claim. We find such argument to be disingenuous.

Initially, we note that Section 742 of the Judicial Code vests the Superior Court with exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas.*fn3 This jurisdictional provision is substantially a reenactment of the jurisdictional provision provided in the Appellate Court Jurisdiction Act of 1970 ; Act of July 31, 1970 (No. 223), § 302, 17 P.S. § 211.302.*fn4 Next, as appellees correctly state, prior to the amendments to the Judicial Code, the Supreme Court had exclusive jurisdiction of appeals in Orphans' Court matters generally, under Section 202(3) of the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, Art. II, 17 P.S. § 211.202(3) (Supp.1978), since superseded by Section 722 of the Judicial Code, 42 Pa.C.S.A. § 722 (eff. June 27, 1978). However, we find that neither the exception in Section 742 (which precludes the Superior Court from deciding cases "as are by any provision of . . . [C]hapter [7] within the exclusive jurisdiction of the ...


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