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ESTATE RUTH B. FREEDMAN (11/30/82)

filed: November 30, 1982.

IN RE ESTATE OF RUTH B. FREEDMAN, DECEASED. APPEAL OF NANCY NIEHAUS, A MINOR, BY HER FATHER AND NATURAL GUARDIAN EARL A. NIEHAUS; PAMELA NIEHAUS AND JEFFREY NIEHAUS, MINORS, BY THEIR FATHER AND NATURAL GUARDIAN, LEE NIEHAUS; AND SUSAN PETERS, INDIVIDUALLY AND AS REPRESENTATIVE OF A CLASS OF PLAINTIFFS


NO. 26 PITTSBURGH, 1981, Appeal from the Order of Court of the Court of Common Pleas, Orphans' Court Division, of Allegheny County, at No. 1682 of 1971.

COUNSEL

Myron B. Markel and Daniel M. Berger, Pittsburgh, for appellants.

W. Gregg Kerr, Pittsburgh, for appellee.

Cavanaugh, Montemuro and Van der Voort, JJ. Cavanaugh and Montemuro, JJ., concur in the result.

Author: Van Der Voort

[ 307 Pa. Super. Page 415]

Appellants filed a complaint in the Civil Division of the Court of Common Pleas of Allegheny County, naming appellee, Equibank N.A. as defendant. The complaint contained allegations in both assumpsit and trespass. The complaint alleged that assets of the Freedman estate had been placed in a common trust established by Equibank's predecessor. Appellants claimed to be beneficiaries of the Freedman trust funds. It was alleged that the trustee, Equibank had mismanaged the common trust funds resulting in a substantial depletion of the assets. Appellants sought both compensatory and punitive damages for themselves and all members of a plaintiff class consisting of all those who had an interest in the common trust.

Equibank filed preliminary objections, raising among other things, that the Orphans' Court had jurisdiction of the action. The case was transferred to the Orphans' Court. Equibank filed additional preliminary objections in the Orphans' Court raising, inter alia, that that court could only hear a case started by a petition for a citation; the court could not hear a class action; and the claim for punitive damages was improper. Appellants petitioned to remand the class action to the Civil Division. After argument, the Orphans' Court, en banc,*fn1 struck the class action, dismissed

[ 307 Pa. Super. Page 416]

    the claim for punitive damages and denied the petition to transfer the case back to the Civil Division. This appeal is taken from the majority order of the court.

Prior to appellate argument Equibank motioned to quash this appeal arguing that the order appealed from was interlocutory and in the alternative that the order was not docketed in the court below. By per curiam order, dated July 14, 1981, the motion was denied without prejudice to the parties to renew the issue at the time of argument. The issue was addressed at the time of oral argument and we must first deal with it before attending to the merits of this appeal.

After reviewing the relevant docket entries, we find that the order of December 19, 1980, was filed and noted upon the docket in the court below. We may also summarily dispose of the question as to the appealability of an order denying class action status. Our Supreme Court in Bell v. Benefic. Consumer Co., 465 Pa. 225, 348 A.2d 734 (1975) clearly sanctioned such appeals. There the court found that even though the appellant could bring an individual action, such appellant could nonetheless appeal the denial of the class action status. We hold likewise here and will therefore deny Equibank's motion to quash. Also, see Janicik v. Prudential Insurance Co. of America, 305 Pa. Superior Ct. 120 n. 1, 451 A.2d 451 n. 1 (1982).

Now turning our attention to the appeal itself, two issues are raised before this court:

1) Whether the Orphans' Court should have assumed jurisdiction or have returned the action to the Civil Division for ...


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