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ESTATE NORMAN H. GILBERT (04/26/85)

filed: April 26, 1985.

ESTATE OF NORMAN H. GILBERT, DECEASED. APPEAL OF ANNA M. REKATZKY


No. 171 Philadelphia, 1984, Appeal from Judgment of the Court of Common Pleas, Orphans' Court Division, of Philadelphia County, No. 2482 of 1977.

COUNSEL

Jeremy Ross, Philadelphia, for appellant.

Wieand, Montemuro and Cercone, JJ.

Author: Wieand

[ 342 Pa. Super. Page 84]

Norman H. Gilbert, a resident of Philadelphia, died testate on June 5, 1976 at the age of 88. His will, dated April 25, 1973, named as residuary legatees his three daughters, Alberta C. Bacon, Helen Muriel Smith, and Anna M. Rekatzky. A codicil, executed in 1974, named his son-in-law, William L. Rekatzky, as executor. Upon the testator's death, his estate was insolvent; in the latter days of his life he had transferred virtually all his property to Anna Rekatzky, or into her name and his jointly with right of survivorship. The executor died on November 8, 1976, and letters of administration d.b.n.c.t.a. were issued to A. Groh Schneider, Esquire. He obtained a citation directed to Anna Rekatzky to show cause why she should not return to the estate of her deceased father those assets which she had acquired as a result of transfers between 1974 and 1976. After evidentiary hearings, the orphans' court ordered Anna Rekatzky to return assets to the estate in the amount of $40,931.82.*fn1 Exceptions were dismissed, and this appeal followed.

[ 342 Pa. Super. Page 85]

It is argued (1) that the orphans' court lacked jurisdiction to compel a retransfer of assets by appellant to the estate of the decedent; and (2) that the evidence was insufficient to show that the transfers by the decedent had been induced by undue influence. We find no merit in these contentions and, therefore, affirm.

The Judicial Code provides as follows:

The divisions of a court of common pleas are administrative units composed of those judges of the court responsible for the transaction of specified classes of the business of the court. In a court of common pleas having two or more divisions each division of the court is vested with the full discretion of the whole court, but the business of the court may be allocated among the divisions of the court by or pursuant to general rules.

42 Pa.C.S. § 952. It has been held, therefore, that "[t]he issue of which division [is] proper to hear [an] action is not a question of jurisdiction or of venue." Baskin & Sears v. Edward J. Boyle Co., 506 Pa. 62, 66, 483 A.2d 1365, 1367 (1984). "[E]ach division of a court of common pleas is vested with the full jurisdiction of the whole court." Guerin v. Guerin, 296 Pa. Super. 400, 404 n. 3, 442 A.2d 1112, 1113 n. 3 (1982). The remedy for bringing a proceeding in the wrong division of a court is not dismissal but transfer to the correct division. Commonwealth v. Wadzinski, 485 Pa. 247, 254-255, 401 A.2d 1129, 1132 (1978); Balter v. Balter, 284 Pa. Super. 350, 357 n. 7, 425 A.2d 1138, 1142 n. 7 (1981). In the instant case, although appellant asked that the proceeding be dismissed, she made no request that it be transferred to another division.

The Probate, Estates and Fiduciaries Code provides, at 20 Pa.C.S. § 711, as follows:

[ 342 Pa. Super. Page 86]

Except as provided in section 712 of this code (relating to non-mandatory exercise of jurisdiction through orphans' court division) . . ., the jurisdiction of the court of common pleas over the following ...


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