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ESTATE RACHEL KEEFAUVER (12/17/86)

filed: December 17, 1986.

ESTATE OF RACHEL KEEFAUVER, DECEASED. APPEAL OF IRIS HENDERSON, APPELLANT


Appeal from the Final Decree dated December 19, 1985 entered in the Court of Common Pleas of Philadelphia County, Orphans' Court Division, at No. 312-1978.

COUNSEL

Suzanne McDonough, Philadelphia, for appellant.

McEwen, Del Sole and Tamilia, JJ.

Author: Del Sole

[ 359 Pa. Super. Page 337]

On December 27, 1976, Decedent's Will was admitted to probate by decree of the Register of Wills of Philadelphia County. Thereafter, on March 10, 1977, Appellees-Contestants appealed from this decree in the Court of Common Pleas, Orphans' Court Division. Appellees' appeal alleged that Decedent lacked testamentary capacity at the time the Will was executed. Subsequently, Appellant-Proponent filed a petition to dismiss the appeal. On April 21, 1983 an Adjudication and Decree Nisi were filed sustaining the appeal and setting aside the decree admitting Decedent's Will to probate. Exceptions were filed and later dismissed by the Orphans' Court, en banc, on December 19, 1985. This appeal followed.

[ 359 Pa. Super. Page 338]

Appellant advances three counts of error allegedly committed by the Orphans' Court:

1. The court erred in concluding that Appellees had produced sufficient evidence to support a finding of testamentary incapacity;

2. The court erred in admitting former testimony of a deceased physician under 42 Pa.C.S.A. ยง 5934;

3. The court erred in denying Appellant's Motion to Dismiss Appellees' challenge to the admission into probate of Decedent's Will.

Initially we note that this case presents a jurisdictional question which was not raised by either party. Accordingly, it is incumbent upon this court to resolve this issue sua sponte. Parker v. MacDonald, 344 Pa. Super. 552, 558, 496 A.2d 1244, 1247 (1985). Our review of the record reveals that Appellant's notice of appeal was filed on January 22, 1986, which is more than thirty days after the Final Decree of December 19, 1985 from which this appeal is taken. At first blush, it would appear that Appellant's appeal was untimely. However, we have detected a procedural impropriety in the "Official Docket Entries", as supplied to this court, which prompts us to excuse its seeming tardiness.

Pa.R.App.P. 903(a) provides that a notice of appeal must be filed within thirty days of the "entry" of the order from which the appeal is taken. Pursuant to Pa.R.App.P. 108(b), the "date of entry" of an order*fn1 in a civil matter is the day on which notation is made in the docket that notice of the order has been given, as required by Pa.R.C.P. 236(b). We have examined the docket entries and the December 19, 1986 Decree and find that neither document bears a notation that Appellant was given the ...


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