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PA Bulletin, Doc. No. 00-468

THE COURTS

Title 231--RULES OF CIVIL PROCEDURE

PART II.  ORPHAN'S COURT RULES

[231 PA. CODE PART II]

Proposed Amendments to Orphans' Court Rules 7.1, Exceptions; Joint Recommendation 98-1

[30 Pa.B. 1476]

   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 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 March 31, 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.

By the Appellate Court Procedural Rules Committee

HONORABLE JOSEPH M. AUGELLO,   
Chair

MARVIN L. WILENZIK,   
Vice Chair

By the Orphans' Court Procedural Rules Committee

HONORABLE JANE CUTLER GREENSPAN,   
Chair

DEAN R. PHILLIPS, ESQUIRE   
Counsel

Explanatory Comment--Revised Joint Recommendation 98-1

   The Appellate Court Procedural Rules Committee and the Orphans' Court Procedural Rules Committee have previously published Joint Recommendation 98-1. See Pennsylvania Bulletin dated April 3, 1999 at Vol. 29, No. 14 at pages 1709-1712 with revisions also appearing on May 29, 1999 in Vol. 29, No. 22 at page 2766 and Vol. 29, No. 51 at pages 6325--6327.

   Following receipt and consideration of comments, the Committees propose two new subdivisions to Orphans' Court Rule 7.1: subdivision (d) (Multiple Aggrieved Parties) and (e) (Adoptions and Involuntary Terminations). Previously published proposed subdivisions (d) (Time Limits for Decision on Exceptions) and (e) (Exceptions) will now become subdivisions (f) and (g) respectively.

Multiple Aggreived Parties

   New subdivision (d) provides that where there are multiple aggrieved parties to a final order, any aggrieved party may file an appeal without filing exceptions. If any other party has filed exceptions prior to a timely appeal by any other party, those exceptions are nullified by the appeal. Once any aggrieved party has filed a timely appeal, no other party may file exceptions even if the time period for filing exceptions has not otherwise expired. Any exceptions filed after an appeal has been taken will be deemed a nullity.

Adoptions and Involuntary Terminations

   In order to avoid delay of final determination of adoption and termination matters, new subdivision (e) eliminates post-trial practice in such cases.

   For the convenience of those who wish to comment on these revisions, proposed Orphans' Court Rule 7.1 (as revised) is set forth in its entirety. Since there are no recommended revisions to proposed amended Pa.R.A.P. 342 and proposed Orphans' Court Rule 7.2, they are not reprinted here.

Annex A

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 342 following disposition of the exceptions. If exceptions are filed, no appeal shall be filed until the disposition of exceptions except as provided in subdivision (d) (Multiple Aggrieved Parties). 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)  Multiple Aggrieved Parties. Where more than one party is aggrieved by a final appealable order under Pa.R.A.P. 341(b) or 342, a timely appeal filed by any party supersedes exceptions by any other party and the order shall be submitted directly to the appellate court.

   (e)  Adoptions and Involuntary Terminations. No exceptions shall be filed to any final order in involuntary termination or adoption matters under the Adoption Act, 23 Pa.C.S. Section 2501, et seq.

   (f)  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.

   (g)  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 (f) of this rule. Where no exceptions are filed, the 30 day appeal period runs from entry of the final appealable order.

   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. 342 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.

   Subdivision (d) provides that where there are multiple aggrieved parties to a final order, any aggrieved party may file an appeal without filing exceptions. If any other party has filed exceptions prior to a timely appeal by any other party, those exceptions are nullified by the appeal. Once any aggrieved party has filed a timely appeal, no other party may file exceptions even if the time period for filing exceptions has not otherwise expired. Any exceptions filed after an appeal has been taken will be deemed a nullity. See also Pa.R.A.P. 1701(b).

   In order to avoid delay of final determination of adoption and termination matters, see In Re A.L.A., 719 A.2d 363 (Pa.Super. 1998), subdivision (e) eliminates post-trial practice in such cases.

[Pa.B. Doc. No. 00-468. Filed for public inspection March 17, 2000, 9:00 a.m.]


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