In Re Estate of Banes

336 A.2d 248, 461 Pa. 203, 1975 Pa. LEXIS 748

• Court: Supreme Court of Pennsylvania
• Decided: March 18, 1975
• Docket: 497
• Status: Published

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

This appeal arises from the decree entered by the orphans’ court on April 24, 1974, pursuant to our mandate in Banes Estate, 452 Pa. 388, 305 A.2d 723 (1973) (rehearing denied, June 25, 1973), directing that the conveyance to appellant be set aside. Appellant contends that the court erred in failing in its decree to provide for reimbursement of appellant upon reconveyance of the real estate. Appellant failed to raise in the orphans’ court after the prior appeal the issue of its entitlement to reimbursement. It seeks to excuse this failure by alleging that it received no notice of the impending decree and thus had no opportunity to raise the issue.

However, it could have raised the issues of its reimbursement and alleged lack of notice by seeking some form of relief from the decree, of which it had almost immediate notice at the direction of the court. Appellant did not file exceptions or seek any ether relief from the decree in the orphans’ court but instead took an appeal to this Court. Having failed to properly present and preserve this issue in the orphans’ court and give that court an opportunity to consider whether its decree should include reimbursement, appellant may not raise the issue on appeal. See Sup.Ct.O.C. Rules § 3, rule 1, & Pa.R.Civ.P. 1518; Logan v. Cherrie, 444 Pa. 555, 282 A.2d 236 (1971); see also Glass v. Freeman, 430 Pa. 21, 31, 240 A.2d 825, 831 (1968); Commonwealth v. Reid, 458 Pa. 357, 326 A.2d 267 (1974); cf. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Motion to quash the appeal denied and decree affirmed. Costs on appellant.

NIX, J., did not participate in the consideration or decision of this case. POMEROY, J., filed a dissenting opinion in which EAGEN, J., joins.