THE COURTS
Title 210--APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
[210 PA. CODE CH. 3]
Title 231--RULES OF CIVIL PROCEDURE
PART II. ORPHANS' COURT RULES
[231 PA. CODE PART II]
Proposed Amendments to Pa.R.A.P. 341 and Orphans' Court Rule 7.1; Joint Recommendation 98-1
[29 Pa.B. 1709] The Appellate Court Procedural Rules Committee proposes to amend Rule 341 of the Pennsylvania Rules of Appellate Procedure, together with Rule 7.1 of the Orphans' Court Rules. The proposed amendments are being submitted to the bench and bar for comments and suggestions prior to their submission to the Supreme Court.
All communications in reference to the proposed amendments should be sent not later than May 14, 1999 to the Appellate Court Procedural Rules Committee or the Orphans' Court Procedural Rules Committee, P. O. Box 447, Ridley Park, PA 19078-0447.
The Explanatory Comment which appears in connection with the proposed amendments has been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rules nor will it be officially adopted or promulgated by the Court.
By the Appellate Court Procedural Rules Committee
HONORABLE JOSEPH M. AUGELLO,
ChairBy the Orphans' Court Procedural Rules Committee
HONORABLE JANE CUTLER GREENSPAN,
Chair
Explanatory Comment
Proposed Joint Recommendation of The Orphans' Court Procedural Rules Committee and The Appellate Court Procedural Rules Committee The following is a Joint Recommendation made by the Orphans' Court Procedural Rules Committee and the Appellate Court Procedural Rules Committee. The proposed Recommendation would amend Orphans' Court Rule 7 (Exceptions) to require a party to file exceptions from an otherwise final order of the Orphan's Court in order to preserve issues for appeal; and would amend Pa.R.A.P. 341 by redefining final orders in Orphans' Court proceedings to include orders determining an interest in realty or personalty or determining the status of an individual without regard to whether the order ends the case as to all claims or parties. The following is an explanation of the proposed Joint Recommendation.
Summary Of Proposed Amendment To Pa.R.A.P. 341
Subdivision (b) of Rule 341 currently defines final orders as orders that dispose of all claims and of all parties, orders expressly defined as final by statute, or orders entered as final pursuant to subdivision (c) (requiring an express determination by the trial court that an immediate appeal of an order dismissing less than all claims and parties would facilitate resolution of the entire case.)
The proposed amendment adding subdivision (f) provides:
In addition to final orders pursuant to subdivision (b), an order of the Orphans' Court Division determining: (1) an interest in realty or personalty or (2) the status of individuals or entities shall constitute a final order upon determination of finality by the Orphan's Court judge.
The proposed amendment would allow for an immediate appeal from orders determining realty or personalty, at the sole discretion of the Orphan's Court judge.
The following sections address the problems which have led to the Joint Recommendation.
Summary of Proposed Amendments to Orphans' Court Rules 7.1 and 7.3
Rule 7.1 Exceptions
The proposed amendment would replace Rule 7.1 governing exceptions to make exceptions mandatory in order to preserve issues for appeal. Under the current rule, exceptions are only required where mandated by local rule and in some counties may be required following entry of otherwise interlocutory orders. Under the proposed new Rule, exceptions would only be permitted with respect to final orders under subdivision (b) of Pa.R.A.P. 341 which, under the proposed new subdivision (f), would or could include orders determining an interest in realty or personalty or the status of individuals. A party would not be permitted to file exceptions to interlocutory orders appealable as of right (Pa.R.A.P. 311), interlocutory orders appealable by permission (Pa.R.A.P. 312), collateral orders (Pa.R.A.P. 313) or orders certified for immediate appeal under Pa.R.A.P. 341(c).
The proposed amendment to Orphans' Court Rule 7 would drastically alter existing practice which leaves to the local courts the right to require (or to not require) exceptions. It is warranted because of the need for uniformity in practice.
Rule 7.1 would provide for a 120 day limit for the Orphan's Court to decide exceptions. Failure to decide would result in a deemed denial. This is a modification from the proposal originally considered by the Committees which would have set a 60 day time limit subject to one 60 day extension. The Orphans' Court Procedural Rules Committee decided to increase the proposed time limit for decision to be consistent with the time limit set by Pa.R.A.P. 227 for decisions on post-trial motions. With respect to the procedure to be followed after a ''deemed denial,'' see Pa.R.A.P. 301(d).
The proposed amendment to Rule 7.1 would make exceptions the exclusive method of review by the Orphans' Court of its orders. A party would not be able to file a motion for reconsideration. See proposed subdivision (e) to proposed Rule 7.1.
Rule 7.3
New Rule 7.3 would address the question of transcripts and would require a party filing exceptions to make a request for that portion of the transcript necessary for the Orphan's Court to dispose of the exceptions. This proposed new rule would be consistent with Pa.R.A.P. 1911 (Order for Transcript).
The proposed amendment conforms the practice with respect to obtaining transcripts with the civil practice pursuant to Pa.R.C.P. 227.3.
The Finality Problem (Pa.R.A.P. 341)--What Is An Appealable Order?
Prior to the 1992 amendments to Rule 341 of the Rules of Appellate Procedure, a final order was incapable of precise definition. The appellate courts permitted appeals on a case by case basis where the court determined that the order had a ''final aspect.'' This ''final aspect'' doctrine was particularly useful in Orphans' Court practice because estate and trust administration inevitably results in many orders which do not end the entire administration process but which effectively dispose of property or irrevocably alter beneficiaries' or other parties' rights. This is also true in matters, like guardianship where orders may affect an individual's legal status. The collateral order doctrine provided an additional common law vehicle to allow appeals from orders which were not truly final and did not fall under the specific enumerated categories for an immediate appeal as of right under Pa.R.A.P. 311. Collateral orders were defined by case law as orders determining rights collateral to the main cause of action and which might be irretrievably lost if review were postponed until the termination of the case.
To simplify the process, the 1992 amendments redefined a final order to include only orders that end a case as to all claims and all parties. See Pa.R.A.P. 341. Collateral orders were acknowledged under new Pa.R.A.P. 313, but continued to be defined by the case law. It is impossible to catalog each and every type of order which would fall within the collateral order doctrine and its definition has been subject to diverse interpretation in the appellate courts.
The 1992 amendments to Rule 341 have reduced delay in achieving final resolution of disputes without causing substantial harm to parties aggrieved by orders previously appealable as final pursuant to the final aspect doctrine. Unfortunately, however, strict finality is difficult to achieve in estate administration where a single estate or trust may involve sale or other disposition of numerous pieces of real or personal property over a period of years. Moreover, other Orphans' Court matters, like guardianship, may involve a series of orders over time, each of which would substantially affect individual rights.
Prior to 1992, personal representatives, guardians and trustees typically sought the ''comfort and finality'' of judicial approval of sales, mortgages, leases and options of estate property under Section 548 of the Fiduciaries Act of 1949, now Section 3353 of the Probate, Estates and Fiduciaries Code (P.E.F. Code). See Houston, Fiduciary Review, June, 1997. Immediate appeal of such orders would have been permissible under the final aspect doctrine which then controlled.
The P.E.F. Code includes authorization for the personal representative to take action which would dispose of or resolve property interest with respect to a portion of an estate, including:
§ 3314 Order authorizing continuation of business including designation of portion of estate subject to business operation liabilities;
§ 3315 Order authorizing incorporation of decedent's business;
§ 3323 Order approving compromise of controversy;
§ 3328 Order directing exercise or non-exercise of powers where fiduciaries are evenly divided on the issue;
§ 3352 Order approving lease for term exceeding one year;
§ 3353 Order approving sale, mortgage, lease or option of estate property;
§ 3355 Order restraining sale by personal representative;
§ 3356 Order approving fiduciary's purchase, taking mortgage on, lease or exchange of real or personal property of the estate;
§ 3390 Order for specific performance of agreement to sell real or personal property; and,
§ 3706 Order apportioning Federal estate tax and enforcing contribution.
It has been argued that the authority granted under these sections of the P.E.F. Code is worthless if the personal representative faces second guessing on appeal at the time of the termination of the estate administration which, in many cases, will not take place until years after the order is entered. Moreover, potential purchasers and others doing business with the estate may be reluctant to pay full market value for property subject to such belated appeals.
The immediate appealability of such orders, even where there has been no final accounting of a personal representative, is necessary. Otherwise, it may be impossible for the personal representative to dispose of assets in an orderly manner. Every sale, mortgage, lease or option would remain uncertain, perhaps for years, until the entire estate has been resolved and a final account approved by the Orphan's Court. Under such uncertain conditions, it is difficult for a personal representative to dispose of estate property in a manner consistent with the interests of beneficiaries.
The problem is illustrated by Habazin Estate, 679 A.2d 1293 (Pa.Super. 1996), a recent panel decision of the Superior Court. It appropriately held under present Pa.R.A.P. 341 that an order approving the sale of real estate to one of three children executors was interlocutory and not subject to appeal by the remaining executors. The panel in Habazin further determined that such an order would not be appealable under Pa.R.A.P. 342 because there was neither an order of distribution, nor a certification by the trial court that ''the order is sufficiently definite to determine the substantial issues between the parties.'' While this decision was technically correct under the existing appellate rules, it illustrates the problem described above.
Shortly after Habazin, another Superior Court panel reached a different, and perhaps contradictory result in Estate of Petro, 694 A.2d 627 (Pa.Super. 1997). In Petro, an administrator's appeal from an order denying his petition for the return of property to the estate was allowed by Superior Court under the collateral order doctrine. While the panel probably reached a sound practical result, use of the collateral order doctrine, which constitutes a discrete exception to the final order doctrine, may have been an inappropriate procedural device for addressing orders such as the one considered in Habizan and Petro. Such orders typically are not separable from the main cause of action and, as such, fail to satisfy the first prong of the collateral doctrine. See Pa.R.A.P. 313.
In many respects, petitions related to disposition of real or personal property in an estate pursuant to the Fiduciary Code are more closely akin to separate and distinct causes of action than to ancillary or collateral proceedings. Accordingly, the Committees have recommended that certain orders pursuant to the Code be treated as ''final orders'' rather than as interlocutory orders appealable as of right.
When Are Exceptions Required? (Orphans' Court Rule 7) The Waiver and Uniformity Problems.
The Waiver Problem
If exceptions are required by local rule and an aggrieved party does not file them, issues are not preserved for appeal. See In Re Estate of Volkhardt, 484 Pa. 52, 398 A.2d 656 (1979). Consequently, if exceptions are filed to a final appealable order and an appeal is not filed within 30 days of the underlying order, the appeal is untimely and will be quashed. See Johnson v. Johnson, 515 A.2d 960 (Pa.Super. 1986). In The Matter of Edward James Waldron, 669 A.2d 415 (Pa.Super. 1995) (unpublished memorandum opinion), the trial court refused to hear exceptions to an order appointing a plenary guardian. Appellee moved to quash an appeal from the guardianship order on the ground that it was untimely because appellant should have appealed immediately instead of filing exceptions. The Superior Court refused to quash the appeal. Instead, it remanded to the trial court for disposition on the exceptions and entry of a final decree. The Waldron case exemplifies the pitfalls of current exceptions' practice for several reasons. It illustrates the risk of waiver that a party takes when deciding whether exceptions are required or not.
The Uniformity Problem
The Waldron case also illustrates that, ultimately, even the local rules are subject to interpretation by the appellate courts. In Waldron a panel of Superior Court reversed the Orphan's Court's interpretation of its own local rule. The lack of statewide uniformity has made it challenging and costly to lawyers with multi-county practices and has increased the likelihood of inadvertent waiver as a result of misinterpretation of local rules. Moreover, the lack of uniformity makes it difficult to draw statewide conclusions from appellate decisions which interpret different local rules governing exceptions. It is significant that the civil and criminal procedural rules mandate a uniform statewide practice pertaining to post-trial motions within their respective subject matter. See: Pa.R.C.P. 227 and Pa.R.Crim.P. 1410 and 1411. The proposed recommendation provides for uniformity and certainty with respect to when exceptions are required in Orphans' Court matters.
Annex A
TITLE 210. APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
ARTICLE I. PRELIMINARY PROVISIONS
CHAPTER 3. ORDERS FROM WHICH APPEALS MAY BE TAKEN
FINAL ORDERS Rule 341. Final Orders; Generally.
* * * * * (f) Orphans' Court Division Final Orders. In addition to final orders pursuant to subdivision (b), an order of the Orphans' Court Division determining: (1) an interest in realty or personalty or (2) the status of individuals or entities shall constitute a final order determination of finality by the Orphans' Court judge.
* * * * * [Rule 342. Final Distribution Orders.
An appeal may be taken as of right from any order of distribution entered in an orphan's court division which is not final within the meaning of Rule 341 (final orders generally) if the lower court shall certify that the order is sufficiently definite to determine the substantial issues between the parties.]
TITLE 231. RULES OF CIVIL PROCEDURE
PART II. ORPHANS' COURT RULES
RULE 7. EXCEPTIONS Rule 7.1 is deleted in its entirety and replaced with the following:
Rule 7.1. Post-Trial Practice.
(a) General Rule. No later than twenty (20) days after entry of an order, decree or adjudication, a party may file exceptions to any order, decree or adjudication which would become a final appealable order under Pa.R.A.P. 341(b) or (f) following disposition of the exceptions. No appeal shall be filed until the disposition of exceptions.
(b) Waiver. Exceptions may not be sustained unless the grounds are specified in the exceptions and were raised in pretrial proceedings or by petition, answer, claim, objection, offer of proof or other appropriate method and are specified in the exceptions. Grounds not specified in the exceptions and not previously raised are deemed waived unless the interest of justice requires otherwise.
(c) Time for Filing Exceptions. If a party files timely exceptions, any other party may file cross exceptions within ten (10) days after the final exceptions.
(d) Time Limits for Decision on Exceptions. The judge shall decide exceptions including supplemental exceptions and cross exceptions within one hundred and twenty (120) days of the filing of the initial exceptions. If the judge fails to decide the exceptions within one hundred and twenty (120) days, the exceptions shall be deemed denied by operation of law on the one hundred and twenty first (121st) day and the clerk is directed to enter the deemed denial on the docket as of that date. The appeal period shall begin to run as of the one hundred and twenty first (121st) day.
(e) Exceptions. Exceptions shall be the exclusive procedure for review by the Orphans' Court of an order, decree or adjudication. A party may not file a motion for reconsideration.
Official Note: The 1999 amendment discontinues the prior practice not permitting local rules to govern whether exceptions are required after entry of an order, decree or adjudication. The 1999 amendment limits the filing of exceptions to order, decree or adjudication which are final appealable orders after disposition of exceptions under Pa.R.A.P. 341(b) or new subdivision (f) added by the parallel 1999 amendment to Pa.R.A.P. 341. If an aggrieved party appeals from such order, that appeal shall not affect proceedings with regard to other aspects of the case.
It is understood that failure to appeal may constitute a waiver of any issues in the order which the Judge has determined as final.
The 30 day appeal period pursuant to Pa.A.R.A.P. 903 from such final orders begins to run from the date of entry of an order disposing of exceptions or on the date of a deemed denial pursuant to subdivision (d) of this rule.
If an order would not become final within the definition of Pa.R.A.P. 341(b) or (f) following disposition of exceptions, then no exceptions may be filed until subsequent entry of a final order within the definition of Pa.R.A.P. 341(b) or (f). This will eliminate the practice in some counties of permitting issues to be raised by exception following entry of an otherwise interlocutory order and raising the same issues in exceptions to a final order, decree or adjudication. See, e.g., Estate of McCutcheon, 699 A.2d 746 (Pa.Super. 1997).
The 1999 amendments to this Rule and to Pa.R.A.P. 341 resolves the dilemma that the judiciary and litigants have faced in determining whether exceptions are required under local practice and which has required the appellate courts to determine whether issues have been preserved for appeal in accordance with the disparate rules throughout the Commonwealth. The prior practice also made it difficult to draw conclusions as to whether an appellate decision constituted controlling authority on a statewide basis or whether the holding was based in whole or part on the vagaries of a local rule.
Local practice shall continue to govern with respect to place of filing, briefs, oral argument, courts en banc, etc. Neither Pa.R.C.P. 227.1 nor 1517 shall apply to Orphans' Court matters.
Rule 7.3. Transcript of Testimony.
All exceptions shall contain a request designating a portion of the record to be transcribed in order to enable the court to dispose of the exceptions. Within ten days after the filing of the exceptions, any other party may file an objection requesting that an additional, lesser or different portion of the record be transcribed. If no portion is indicated, the transcription of the record shall be deemed unnecessary to the disposition of the exceptions. The trial judge shall promptly decide the objection to the portion of the record to be transcribed.
[Pa.B. Doc. No. 99-531. Filed for public inspection April 2, 1999, 9:00 a.m.]
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