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MATTER MILDRED J. TERWILLIGER (09/24/82)

filed: September 24, 1982.

IN THE MATTER OF MILDRED J. TERWILLIGER, AN ALLEGED INCOMPETENT. APPEAL OF MILDRED J. TERWILLIGER


No. 812 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, Orphans' Court Division, of Jefferson County at No. 26 O.C. of 1981.

COUNSEL

Sharon L. Smith, Brookville, for appellant.

David G. Matson, Brookville, for Melvin and Florence Terwilliger, participating parties.

Lawrence A. Frolik, Pittsburgh, submitted a brief on behalf of American Civil Liberties, participating party.

Eva Borsody Das and Ilene W. Shane, Philadelphia, submitted a brief on behalf of Developmental, participating party.

Beck, Montemuro and Popovich, JJ.

Author: Popovich

[ 304 Pa. Super. Page 557]

This is an appeal from the Order of the Court of Common Pleas of Jefferson County, Orphans' Court Division, appointing a guardian for Mildred J. Terwilliger and authorizing said guardian to give consent to the sterilization of his ward.

We vacate and remand for proceedings consistent with this Opinion.

The scenario of this case began to unfold with the filing of a Petition for Appointment of Guardian of The Person of Mildred J. Terwilliger by Melvin L. and Florence K. Terwilliger, the parents of the ward. In said Petition, Melvin sought to have Mildred declared incompetent and to have himself appointed as guardian for the purpose of consenting to Mildred's sterilization by means of a tubal ligation. The court, after a hearing, granted both requests by Order dated May 8, 1981. Thereafter, Mildred's court-appointed counsel appealed the Order. Moreover, pursuant to a Petition For Supersedeas filed by counsel for Mildred, the lower court stayed its May 8, 1981, Order pending the outcome of the appeal. See Pa.R.App.P. 1732, 1733 and 1736. Additionally, Mildred's counsel also secured the appointment of Carol Holland as her guardian ad litem.

The issue raised on appeal for our consideration, which all parties concede is one of first impression in this Commonwealth, is whether the trial court had the power to authorize a guardian to consent to the sterilization of a person adjudged incompetent. Inextricably tied to such an issue is the determination of whether there was sufficient evidence presented by the petitioning parties to justify the lower court's ruling that tubal ligation was warranted.

On the question of jurisdiction, we observe that the petition for the appointment of a guardian was filed in the

[ 304 Pa. Super. Page 558]

Orphans' Court division of the Court of Common Pleas of Jefferson County. The authority of said court, to entertain such a petition, is specifically set forth in 20 Pa.C.S.A. § 712 (Supp.1982-83) and reads:

"§ 712. Non-mandatory exercise of jurisdiction through orphans' court division

The jurisdiction of the court of common pleas over the following may be exercised through either its orphans' court division or other appropriate division:

(1) Title to real estate. The determination of the persons to whom the title to real estate of a decedent or of the creator of an estate or trust has passed by devise or descent or by the terms of the trust instrument where jurisdiction of such estate or trust is exercised through the orphans' court division: Provided, That nothing herein shall be construed to restrict the provisions of section 711 of this code (relating to mandatory exercise of jurisdiction through orphans' court division in general) relating to distribution of real estate in an estate or trust.

(2) Guardian of person. The appointment, control and removal of the guardian of the person of any incompetent.

(3) Other matters. The disposition of any case where there are substantial questions concerning matters enumerated in section 711 (relating to mandatory exercise of jurisdiction through orphans' court division in general) and also matters not enumerated in that section.

(4) Powers of attorney. All matters pertaining to the exercise of powers of attorneys in fact or agents acting under powers of attorney as provided in Chapter 56 (relating to powers of attorney) when the principal is or may be deceased, disabled or incapacitated." (Emphasis added)

[ 304 Pa. Super. Page 559]

Based on the preceding, jurisdiction to hear the instant matter was not restricted solely to the orphans' court, but could have been pursued in another "appropriate division" of the court of common pleas. Id.; see also In re Estate of R. Page 559} L. L., 487 Pa. 223, 409 A.2d 321 (1979). Thus, it cannot be gainsaid that under 42 Pa.C.S.A. § 931 (1981) the courts of common pleas, "hav[ing] unlimited original jurisdiction of all actions and proceedings," have been vested with the mantle of authority to rule on the petition for the appointment of a guardian. Moreover, under 42 Pa.C.S.A. § 323 (1981), captioned "Powers," and dealing with the general structure and authority of the courts of this Commonwealth, it is set forth that:

"Every court shall have power to issue, under its judicial seal, every lawful writ and process necessary or suitable for the exercise of its jurisdiction and for the enforcement of any order which it may make and all legal and equitable powers required for or incidental to the exercise of its jurisdiction, and, except as otherwise prescribed by general rules, every court shall have power to make ...


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