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 Rules 7.1 and 7.2; Revised Joint Recommendation 98-1
[29 Pa.B. 6325] The Appellate Court Procedural Rules Committee and the Orphans' Court Procedural Rules Committee have determined to publish for comment its revised proposals to amend Rule 341 of the Pennsylvania Rules of Appellate Procedure, together with Rule 7.1 of the Orphans' Court Rules. The 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 February 15, 2000 to the Appellate Court Procedural Rules Committee or the Orphans' Court Procedural Rules Committee, P. O. Box 447, Ridley Park, PA 19078-0447.
The Revised Explanatory Comment which appears in connection with these 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. The original Joint Recommendation 98-1 and Explanatory Comment was published in the Pennsylvania Bulletin on April 3, 1999 at Vol. 29, pages 1709-1712 with a revision appearing on May 29, 1999 in Vol. 29, page 2766.
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--Revised Joint Recommendation 98-1 On April 3, 1999, the Orphans' Court Procedural Rules Committee and the Appellate Court Procedural Rules Committee published for comment Joint Recommendation 98-1 addressing the related issues of exceptions practice in the Orphans' Court and finality for purposes of appeal with respect to Orphans' Court orders, decrees and adjudications.
Following review of comments from the Bench, Bar and court administrators, the Orphans' Court Procedural Rules Committee at its meeting on July 22, 1999 and the Appellate Court Procedural Rules Committee at its October 22, 1999 meeting recommended republication with the following changes to the Joint Recommendation:
1. Proposed new subdivision (f) to Rule 341 is moved to Rule 342 of the Rules of Appellate Procedure. Since orders determining an interest in personalty, realty or the status of individuals are not true final orders because they do not dispose of all claims and all parties, see Rule 341, the Committee determined that Rule 342 was the appropriate location for an exception to the strict finality requirement for Orphans' Court orders. Following receipt of comments from the Bench and Bar, the Committees are satisfied that the orderly administration of estates requires a vehicle for immediate appeal once certain interests are determined. The Committees received no criticism of such an exception. Rule 342 had previously permitted appeals from nonfinal orders of distribution upon a determination of the Orphans' Court that the order is sufficiently definite to determine the substantial issues between the parties. The original Joint Recommendation had recommended deletion of Rule 342 in its entirety. The revised Joint Recommendation retains the right of the Orphans' Court to determine finality as to nonfinal orders of distribution. Following an informal work session with interested Orphans' Court judges, the consensus was that nonfinal orders of distribution should continue to result in an immediate appeal.
The Committees rejected several comments suggesting that the scope of the proposed amendment should be expanded to include orders ''impacting'' on realty, personalty or individual rights. The Committees agreed to recommend that only orders ''determining'' such rights be immediately appealable.
All references to a standard for a determination of finality were previously deleted and the Orphans' Court Procedural Rules Committee recommended that the Orphans' Court have sole discretion to determine finality under the proposed amendment to Rule 342. Nothing in this proposed amendment limits the right of a party to seek leave to appeal pursuant to subdivision (c) of Rule 341 or pursuant to Rules 311, 312, 313 or 1311. Also, nothing in the proposed amendment to Rule 342 is intended to preclude a party from an appeal pursuant to Rule 341(b) where an Orphans' Court order ends a case as to all claims or parties.
2. Following review of comments, the Orphans' Court Procedural Rules Committee has proposed that the original proposed amendment to Orphans' Court Rule 7.1 be modified to make exceptions optional with the aggrieved party. This optional exceptions practice would apply statewide. The original Joint Recommendation had proposed a rule of statewide application mandating exceptions to preserve issues statewide. Current Rule 7.1 permits local courts to prescribe if exceptions are required.
Under the proposed revision, an aggrieved party would have the option of filing exceptions to an order that would otherwise be final or taking an immediate appeal. Failure to file exceptions would not result in waiver of issues on appeal. This is analogous to the practice under the Pennsylvania Rules of Criminal Procedure and under the Federal Rules of Procedure. It is generally agreed that exceptions are rarely granted and that the goals of judicial economy and finality are best achieved if exceptions are limited to those cases in which an aggrieved party perceives a realistic possibility that the trial court is inclined to change its mind. It should be noted that the idea of optional exceptions was favorably received by the judges attending the work session, although two judges recommended that exceptions be permitted only when requested by the judge, as is the current practice in Montgomery County.
3. Subsequent to publication of the original Joint Recommendation, the Superior Court requested that the Orphans' Court Procedural Rules Committee consider amendments to Rule 7.1 eliminating exceptions in adoptions and involuntary termination of parental rights' cases. See In Re: A.L.A., 719 A.2d 363 (Pa. Super. 1998) (en banc). In that opinion, the Superior Court held that post-trial practice does not apply to adoption and termination matters in Philadelphia because such matters fall within the jurisdiction of Family Court. Pa.R.Civ.P. 1930.2 eliminates post-trial practice in domestic relations' matters. In broad dicta, the Superior Court in A.L.A. suggested elimination of post-trial practice in termination and adoption matters arising in all other counties where such matters fall within Orphans' Court jurisdiction stating:
We believe that the time sensitive nature of these proceedings warrants the elimination of post-trial practice. Such a practice often extends the process to the detriment of the child, natural parents, and prospective adoptive parents.''Id. at 364. See also In Re: J.J.F., 729 A.2d 79 (Pa. Super. 1999). The Committees believe that consideration of such a dramatic departure from prior practice should involve input from the Bench and Bar familiar with such matters and, accordingly, solicit your comments on this issue.
4. The title of Rule 7 has been changed from Post-Trial Practice to Exceptions.
5. Proposed Rule 7.3 has been renumbered Rule 7.2
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 342. [Final Distribution Orders] Orphans' Court Orders Determining Property, Interest and Status of Individuals.
[An appeal may be taken as of right from any order of distribution entered in an orphans' 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.]
In addition to final orders pursuant to subdivision (b) of Rule 341, an order of the Orphans' Court Division determining an interest in realty, personalty, the status of individuals or entities or an order of distribution not final under subdivision (b) of Rule 341 shall constitute a final order upon a determination of finality by the Orphans' Court.
TITLE 231. RULES OF CIVIL PROCEDURE
PART II. ORPHANS' COURT RULES
RULE 7. EXCEPTIONS Rule 7.1. Exceptions.
[Exceptions shall be filed at such place and time, shall be in such form, copies thereof served and disposition made thereof as local rules shall prescribe.]
(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 Rule 342 following disposition of the exceptions. If exceptions are filed, no appeal shall be filed until the disposition of exceptions. Failure to file exceptions shall not result in waiver if grounds for appeal are preserved as provided in subdivision (b) of this Rule.
(b) Waiver. Exceptions may not be sustained unless the grounds are specified in the exceptions and were raised by petition, motion, answer, claim, objection, offer of proof or other appropriate method.
(c) Time for Filing Exceptions. If a party files timely exceptions, any other party may file cross exceptions within ten (10) days after the filing of exceptions.
(d) Time Limits for Decision on Exceptions. The Orphans' Court 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 Orphans' Court 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 a final order, decree or adjudication. A party may not file a motion for reconsideration of a final order.
Official Note: The 2000 amendment discontinues the prior practice permitting local rules to govern whether exceptions are required after entry of an order, decree or adjudication. The 2000 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 amended Pa.R.A.P. 342. 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 Orphans' Court has determined as final.
The 30 day appeal period pursuant to Pa.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 Pa.R.A.P. 342, then no exceptions may be filed until subsequent entry of a final order within the definition of Pa.R.A.P. 341(b) or Pa.R.A.P. 342. 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).
Rule 7.1 permits but does not require exceptions to orders pursuant to Pa.R.A.P. 341(b) and 342. The election of an aggrieved party not to file exceptions will not result in waiver of issues on appeal. However, nothing in this rule is intended to abrogate the requirement of decisional law or court rule mandating that issues on appeal be preserved by a timely petition, answer, claim, objection, offer of proof or other appropriate vehicle.
The 2000 amendments to Rule 7.1 and to Pa.R.A.P. 341 resolve the dilemma that the judiciary and litigants have faced in determining whether exceptions are required under local practice and 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 7.2. 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. 99-2120. Filed for public inspection December 17, 1999, 9:00 a.m.]
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