Mann v. Benge

BUCHER, J., This is apetition for custody under the Act of June 26,1895, P.L. 316, sec. 2, 48 P.S. §92. Neither petitioner nor respondents are related to the child, J ason Du till, who was born December 4, 1961. The natural parents are unknown and respondents are said to have been awarded custody by a Philadelphia county court in a dependency proceeding. The child went to live with petitioner on his own and petitioner then brought this action to translate physical custody [370] into legal custody. Respondents do not oppose the petition. At the conclusion of the hearing we ordered an investigation by the Bureau of Children’s Services, Lancaster County Institution District, which is pending. Upon reflection we believe that this is a matter for the Orphans’ Court Division upon a petition for appointment of a guardian of the person. See Probate, Estates and Fiduciaries Code of June 30, 1972, P.L. 508, sec. 2 et seq., 20 Pa.C.S.A. §5111. The aforesaid act of June 26,1895, applies only to “cases of dispute between the father and mother of such minor.” Even if we were to treat this as a habeas corpus action it has been held that a mere stranger or volunteer who is in no way entitled to the custody of, or responsible for the welfare of a child; has no right to the writ: Com. ex rel. Ebel v. King, 162 Pa. Superior Ct. 533, 58 A. 2d 484 (1948). And see concurring opinion of Judge Montgomery in Com. ex rel. Dogole v. Cherry et ux., 196 Pa. Superior Ct. 46, 173 A. 2d 650 (1961). For the aforesaid reasons we enter the following ORDER And now, September 14, 1978, the petition is dismissed without prejudice to apply to the Orphans’ Court Division of this court for the appointment of a guardian of the person. The prothonotary is directed to serve a copy of this order on counsel and to deliver a copy to Judge Appel of the Orphans’ Court Division for his information. The report of the Bureau of Children’s Services, Lancaster County Institution District, shall be filed of record when received. Costs on petitioner.