THE COURTS

Title 210--APPELLATE PROCEDURE

PART I. RULES OF APPELLATE PROCEDURE

[210 PA. CODE CH. 3]

Proposed Amendments to Rules 311 and 342

[34 Pa.B. 5014]

   The Appellate Court Procedural Rules Committee and the Orphans' Court Procedural Rules Committee propose to amend Pennsylvania Rules of Appellate Procedure 311 and 342. The amendment is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court.

   Proposed new material is bold while deleted material is bold and bracketed.

   All communications in reference to the proposed amendment should be sent no later than November 30, 2004 to:

Dean R. Phillips, Chief Counsel
Rebecca M. Darr, Deputy Counsel
Appellate Court Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, PA 17055

or Fax to
717-795-2116

or E-Mail to
appellaterules@pacourts.us

   An Explanatory Comment precedes the proposed amendment and has been inserted by this Committee for the convenience of the bench and bar. It will not constitute part of the rule nor will it be officially adopted or promulgated.

By the Appellate Court
Procedural Rules Committee

HONORABLE JOSEPH A. HUDOCK,   
Chair

EXPLANATORY COMMENT

Background

   In 1992, the Supreme Court amended Rule 341 to redefine final orders as ''any order that disposes of all claims and all parties.'' Pa.R.A.P. 341(b)(1). This amendment was intended to limit excessive and unnecessary interlocutory appeals that had proliferated under the ''final aspect'' doctrine. Under the final aspect doctrine, a final order was any order that either disposed of the entire case, or that, as practical matter put the appellant out of court. The 1992 amendments to Rule 341 added Subdivision (c), which provided for immediate appeals following a certification of finality where an order dismissed less than all claims and all parties. The discretion to certify an immediate appeal from such orders is circumscribed by specific criteria enumerated in the Note to Rule 341. Otherwise, where an order denies a motion to dismiss less than all claims and parties, the aggrieved party generally has to wait until the end of the entire case or seek permission to appeal immediately under Pa.R.A.P. 312 and 1311. However, appeals under 312 and 1311 are limited, by statute and rules, to orders involving a controlling question of law and where an immediate appeal would facilitate the ultimate resolution of the case.¹

   While elimination of the final aspect doctrine decreased the number of interlocutory appeals and is widely perceived by the bench and bar of this Commonwealth to have facilitated case management and the orderly administration of justice, it has caused significant problems for Orphans' Court litigants and judges. The alternative vehicles for appeal are not sufficiently inclusive to allow interlocutory appeals from certain Orphans' Court orders even though such interlocutory appeals are necessary to the orderly administration and adjudication of estates, trusts and other Orphans' Court matters.

   In 1996, a panel of the Superior Court decided that an appeal filed by co-executors from an order approving the sale of the family farm and farmhouse was interlocutory under the 1992 amendment redefining final orders. In re Estate of Habazin, 679 A.2d 1293 (Pa. Super. 1996). Following input from the Orphans' Court bench and bar, and the recommendation of both the Orphans' Court and Appellate Court Procedural Rules Committees, the Supreme Court of Pennsylvania amended Pa.R.A.P. 342 to permit an immediate appeal from orders determining an interest in realty, personalty or individual rights upon a determination of finality by the Orphans' Court judge. Rule 342 did not limit the Orphans' Court judge's discretion to determine the propriety of an immediate appeal. Nonetheless, the right to appeal depended on the aggrieved party persuading the Orphans' Court judge that such an appeal was appropriate to facilitate the ultimate resolution of the case and the only way to seek review of the denial of such a determination was a petition for review, addressed to the intermediate appellate court, alleging an abuse of discretion. Such petitions for review are reviewed narrowly and very rarely granted.

   Since 2001, Rule 342 has permitted interlocutory appeals in Orphans' Court proceedings while providing for some judicial oversight so that an aggrieved party is not given an unfettered immediate right to appeal orders such as those disposing of incidental property, making small interim distributions or permitting or compelling the payment of debts and taxes.² Within the last two years, however, several decisions have raised the issue of whether Rule 342 is sufficient in its present form to provide a comprehensive vehicle for interlocutory appeals in Orphans' Court matters.

   For example, a number of Orphans' Court judges and practitioners have expressed the view that appeals from orders removing executors or trustees, or refusing to do so, should be immediately appealable as of right. Prior to 2001, such orders were considered immediately appealable as collateral orders. See Estate of Georgianna, 458 A.2d 989 (Pa. Super. 1983), affirmed, 475 A.2d 744 (Pa. 1984) (holding that if an immediate appeal was not allowed, such orders would evade appellate review resulting in the irreparable loss of important rights). See also McGillick Foundation, 642 A.2d 467 (Pa. 1994) (where the Supreme Court ruled on the merits of a trustee's removal without addressing the jurisdictional issue of whether or not the Orphans' Court order was final and immediately appealable). However, in 2002, a Superior Court panel held that, following the 2001 amendments to Rule 342, orders removing an executor or trustee, or declining to do so, were no longer immediately appealable. See Estate of Sorber, 803 A.2d 767 (Pa. Super. 2002) In Sorber, the Superior Court panel interpreted Rule 342 to be the sole vehicle for appeal of non-final Orphans' Court orders determining an interest in realty, personalty or status of individuals. Sorber held that the new Rule 342, in effect, overruled Georgianna.

   The second decision calling Rule 342 into question is Estate of Schmitt, 846 A.2d 127 (Pa. Super. 2004), where a panel of the Superior Court sua sponte quashed an appeal from an order the Orphans' Court striking a caveat to a will. The Schmitt panel, citing Sorber, held that an Orphans' Court order in a matter involving the validity of a will is not final until confirmation of the final account of the personal representative. The Schmitt panel reached an arguably different result from Superior Court panels in Estate of Janosky, 827 A.2d 512 (Pa. Super. 2003) and Luongo v. Luongo, 823 A.2d 942 (Pa. Super. 2003), appeal denied, 847 A.2d 1287 (Pa. 2003). In each of those cases, the panels did not sua sponte raise the issue of whether orders determining the validity of a will are appealable as final orders and, in both cases, the panels determined the appeals on their merits.

   In Schmitt, the Superior Court determined that since the aggrieved party had not requested a determination of finality under Rule 342, the Orphans' Court did not need to determine whether Rule 342 was broad enough to cover orders determining the validity of a will. Thus, the Schmitt decision left open the possibility that the only vehicle for appealing an order determining the validity of a will (or trust) might be an interlocutory appeal by permission pursuant to Rules 312 and 1311. However, because those rules mandate a strict standard which must be met before interlocutory appellate review will be allowed, including a requirement that the appeal involve a controlling question of law, Rules 312 and 1311 do not represent a realistic avenue of appeal for those seeking to challenge an Orphans' Court determination of an instrument's validity.

   Orphans' Court judges and practitioners have suggested that orders determining the validity of a will are final orders because they determine the only matter at issue in a will contest, to wit, the validity of the will or trust itself. The fact that there may be subsequent litigation involving the administration of a will or trust after its validity is determined by order of court does not mean that the aggrieved party should be deprived of the opportunity for an immediate appeal. Once the validity of the instrument is determined, it is certainly conceivable that the administration of the estate or trust will be routine, such that there will be no ultimate determination of finality. In fact, most estates are settled on the basis of a family settlement agreement or receipt and release. See Fiduciary Review, July 2004. Simply put, the failure to allow an immediate appeal from either orders removing an executor or orders determining the validity of a will cannot be corrected following an appeal after distribution is complete.³

Summary of Recommendation

   It is proposed that orders determining the validity of a will or trust be immediately appealable under Rule 311 as interlocutory appeals as of right. In order to assure that parties will have the opportunity to take an immediate appeal as of right from such orders, the Appellate Court and Orphans' Court Procedural Rules Committees recommend the adoption of proposed new Pa.R.A.P. 311(a)(9). While this recommendation ultimately begs the question of whether such orders are, in fact, true final orders, it is a practical resolution to a conceptual problem. It should be of no consequence to an aggrieved party whether the order is appealable as of right by express definition under Rule 311, or because it is interpreted by case law to be final under Rule 341(b) in that it ends a case as to all claims or parties.

   In order to assure that orders removing executors and trustees, or refusing to remove such fiduciaries, are immediately appealable as of right, as was the practice prior to Schmitt, the Committees also propose to amend Rule 342 to clarify that the 2001 amendment was not intended to overrule Estate of Georgianna, or to otherwise preclude an aggrieved party from pursuing appeals in Orphans' Court matters under Rule 313 (Collateral Orders). The amendment to Rule 342 does not expressly authorize interlocutory appeals by permission under Rules 312 and 1311 because the Committees believe that Rule 342 fully covers permissive interlocutory appeals in Orphans' Court matters and, since such appeals are left entirely to the discretion of the Orphans' Court judge, the standard under Rule 342 is substantially broader than the standard under Rules 312 and 1311.

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

INTERLOCUTORY APPEALS

Rule 311. Interlocutory Appeals as of Right.

*      *      *      *      *

   (a)  General rule. An appeal may be taken as of right and without reference to Pa.R.A.P. 341(c) from:

*      *      *      *      *

   (9)  Estate and trust matters. An order determining the validity of a will or trust.

*      *      *      *      *

   (g)  Waiver of objections.

   (1)  Where an interlocutory order is immediately appealable under this rule, failure to appeal:

   (i)  Under Subdivisions (a)(1)--(8), (b)(2) or (f) of this rule shall not constitute a waiver of the objection to the order and the obligation may be raised on any subsequent appeal in the matter from a determination on the merits.

*      *      *      *      *

   (iii)  Under [Subdivision] Subdivisions (a)(9) or (e) of this rule shall constitute a waiver of all objections to such orders and any objection may not be raised on any subsequent appeal in the matter from a determination on the merits.

*      *      *      *      *

Explanatory Comment--2004

   Orders determining the validity of a will or trust, including, but not limited to, orders granting or denying the probate of a will, are immediately appealable pursuant to the 2004 amendment adding subdivision (a)(9). Prior to the 2004 amendment, the Superior Court often permitted an immediate appeal from such orders without determining the basis for an immediate appeal under the Rules of Appellate Procedure. See Estate of Janosky, 827 A.2d 512 (Pa. Super. 2003), and Estate of Luongo, 823 A.2d 942 (Pa. Super. 2003). However, in Estate of Schmitt, 846 A.2d 127 (Pa. Super. 2004), a panel of the Superior Court held that an order striking a caveat was not immediately appealable as a final order under Pa.R.A.P. 341(b). In response to the Schmitt decision, the Appellate Court Procedural Rules Committee determined that while orders deciding the validity of a will or trust are not strict final orders under Subdivision (b) of Rule 341, it is not practical to administer an estate or trust while there is a pending challenge to the validity of the instrument. Accordingly, the Committee believes that a party seeking to probate an instrument or to challenge the validity of an instrument should be allowed to take an immediate interlocutory appeal as of right under Rule 311 and shall be bound by the waiver doctrine if the party does not immediately appeal. See the 2004 amendment to Subdivision (g) of this Rule.

FINAL ORDERS

Rule 342. Orphans' Court Orders Determining Realty, Personalty and Status of Individuals or Entities.

   In addition to final orders pursuant to Rule 311(a)(9), Subdivision (b) of Rule 341, or determined to be final under Subdivision (c) of Rule 341 and collateral orders under Rule 313, 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 or determined to be final under Subdivision (c) of Rule 341 shall constitute a final order upon a determination of finality by the Orphans' Court Division.

Explanatory Comment--1976

   See comment following Rule 341.

   Official Note: This Rule was amended in 2001 to allow appeals from orders determining an interest in realty, personalty or the status of individuals, upon certification of the Orphans' Court judge. Prior to the 2001 amendment, this rule only permitted appeals from an order of distribution not final under Rule 341(b). The amendment to the Rule was not intended to preclude immediate of appeals in Orphans' Court matters as heretofore permitted under Rule 311 (Interlocutory Appeals as of Right) and Rule 313 (Collateral Orders). However, the Rule may have been ambiguous in that regard because in Estate of Sorber, 803 A.2d 767 (Pa. Super. 2002), a panel of the Superior Court interpreted the 2001 amendment to Rule 342 to preclude immediate appeals from collateral orders unless determined to be final by the Orphans' Court judge. To the extent that Estate of Sorber would not permit appeals pursuant to the collateral order doctrine codified in Rule 313, Sorber is no longer applicable.

[Pa.B. Doc. No. 04-1682. Filed for public inspection September 10, 2004, 9:00 a.m.]

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¹  There are several other vehicles for interlocutory appeals. Pa.R.A.P. 311 permits interlocutory appeals as of right for certain specific kinds of orders while Pa.R.A.P. 313 permits an appeal as of right from collateral orders.

²  Rule 342 currently reads as follows: ''In addition to final orders pursuant to Subdivision (b) of Rule 341 or determined to be final under Subdivision (c) 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 or determined to be final under Subdivision (c) of Rule 341 shall constitute a final order upon a determination of finality by the Orphans' Court Division.''

³  For example, in the Pennsylvania Probate, Estates and Fiduciaries Code, (''the P.E.F. Code''), 20 Pa.C.S.A. § 101 et seq., personal representatives who act pursuant to a will that has been admitted to probate are protected. Section 793 of the P.E.F. Code states: ''No appeal from an order or decree . . . concerning the validity of a will or the right to administer shall suspend the powers or prejudice the acts of a personal representative acting thereunder.'' Section 3329 of the P.E.F. Code provides: ''No act of administration performed by a personal representative in good faith shall be impeached by the subsequent revocation of his letters or by the subsequent probate of a will, of a later will or of a codicil . . .'' Accordingly, there is no effective remedy against the personal representative if he or she administers an estate under one instrument and, after a final accounting, an appellate court determines that such distribution was made under the wrong will.

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