Gearhart v. Moxham National Bank , 1957 Pa. Dist. & Cnty. Dec. LEXIS 104 ( 1957 )

Griffith, J.,

This is an action in assumpsit to recover for services rendered to the incompetent prior to the date of the declaration of her incompetency.

In its motion to dismiss the complaint for want of jurisdiction, defendant contends that since the Incompetents’ Estates Act of February 28, 1956, P. L. (1955) 1154, 50 PS §3101 et seq., gives exclusive jurisdiction over incompetents’ estates to the orphans’ court, the court of common pleas no longer has jurisdiction to entertain a suit against an incompetent. Certainly, the orphans’ court has exclusive jurisdiction over the estate of an incompetent person and also over his guardian just as it has over the estate of a deceased person and the personal representative, but this has nothing whatever to do with the right to sue the guardian or the administrator in the court of common pleas. The court of common pleas has jurisdiction and defendant’s motion must be dismissed.

In the second paragraph of defendant’s preliminary objections the same question is raised and our decision is, of course, the same.

In the first paragraph of the preliminary objections defendant contends that under Pa. R. C. P. 2054(c) the action should have been commenced against the incompetent as if she were a competent adult and not against the guardian. Section (c) reads as follows:

“An action in which an incompetent is defendant shall be commenced against the incompetent by name in the manner in which a like action is commenced against a competent adult.”

Consequently, the first paragraph of the preliminary objections must be sustained with leave to plaintiff to amend the caption so that defendant shall be “Ellen Follmar” rather than “Moxham National Bank, Guardian of Ellen Follmar, an Alleged Incompetent”.

We, therefore, enter the following

Decree

And now, January 11, 1957, at 10:30 a.m., after argument and upon due consideration, it is hereby ordered and decreed as follows:

1. Defendant’s motion to dismiss for want of jurisdiction is hereby dismissed.

2. The second paragraph of defendant’s preliminary objections raising the question of the jurisdiction of the court is dismissed.

3. The first paragraph of defendant’s preliminary objections as to the caption of the case is sustained, and plaintiff is directed to amend the caption by changing the designation of defendant from “Moxham National Bank, Guardian of Ellen Follmar, an Alleged Incompetent” to “Ellen Follmar”. Such amendment to be made by plaintiff within 20 days from the date of this decree, otherwise the complaint to be dismissed.