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PA Bulletin, Doc. No. 09-979

THE COURTS

Title 255--LOCAL
COURT RULES

DELAWARE COUNTY

Delaware County Orphans' Court Division Local Rules Nos. 3.5A, 3.5B, 3.6A, 6.10B(2), 6.10D(3), 6.9A, 6.10D(3), 6.10D(4), 6.1A(3), 6.1C and 14.2B; No. 08-2750

[39 Pa.B. 2696]
[Saturday, May 30, 2009]

Order

   And Now, this 11th day of May 2009, upon unanimous approval of the Board of Judges of Delaware County, Pennsylvania, the Thirty Second Judicial District, it is hereby Ordered and Decreed that the Orphans' Court Rules are hereby amended to reflect the changes and recommendations of the Orphans' Court Rules Committee prescribed in the following document. Said rules changes shall be effective thirty days after publication in the Pennsylvania Bulletin.

By the Court

JOSEPH P. CRONIN, Jr.,   
President Judge

PROPOSALS FOR CHANGES TO DELAWARE COUNTY LOCAL ORPHANS' COURT RULES

NOVEMBER 7, 2008
AS AMENDED FEBRUARY 4, 2009

First:       Re: Local Rule 3.5A.
The Committee recommends implementation of the new Citation (attached hereto) drafted by William G. Halligan, Esquire, as it is consistent with Local Rule 3.5A. The Committee also recommends drafting of a new Preliminary Decree, for the same purpose. No change to Local Rule 3.5A is recommended.

Second:    Re: Local Rule 3.5B.
The Committee recommends passage of new Local Rule 3.5B, as follows:
Local Rule 3.5B  Uncontested Petitions.
(1)  If a petitioner believes there will be no objections, by creditors and/or parties in interest, to a petition being filed, petitioner may state this in his petition and send notice pursuant to Rule 5.1 to all such creditors and/or parties at least twenty (20) days prior to filing said petition advising said creditors and/or parties in interest of the projected date of filing said potentially unopposed petition. In the notice, petitioner should advise said creditors and/or parties in interest that petitioner intends to state to the Court in the petition that said petition is unopposed and any creditor or party in interest who disagrees with petitioner's position that the petition is unopposed must notify petitioner or his counsel on or before the projected date of filing of the petition. If no creditor or party in interest notifies petitioner or his counsel by the projected filing date that the petition is opposed, the Court may rule on the petition without scheduling a hearing thereon, or may schedule a hearing if the Court believes a hearing is necessary for any reason.
(2)  The date of the notice shall be the date of mailing, or service of the notice. A certification by counsel listing the persons notified and stating the date and manner of service, together with a copy of the notice given, shall be attached to the petition.
(3)  If all potential creditors and/or parties in interest are in agreement and have signed consents to the proposed petition, the petitioner may attach said consents to the petition and advise the Court that all parties in interest have consented to the petition. Under these circumstances, the petitioner does not need to give twenty (20) days notice of the filing of the proposed petition. Upon receipt of the petition, wherein petitioner has advised the Court that all creditors and/or parties in interest have signed consents, and said consents are attached to the petition, the Court may rule on said petition without scheduling a hearing thereon, or may schedule a hearing if the Court believes a hearing is necessary for any reason.
(4)  The above manner of proceeding (without a hearing) is not available in matters wherein the relevant statutes require a hearing.

Third:      Re: Local Rule 3.6A.
The Committee recommends rescission of Local Rule 3.6 and passage of new Local Rule 3.6A, as follows:
Local Rule 3.6A  Practice as to Depositions, Discovery, Production of Documents and Perpetuation of Testimony.
(1)  Leave to take depositions, or to perpetuate testimony, or obtain discovery or the production of documents, may be granted only on petition upon cause shown except upon agreement of parties and counsel.
(2)  Petitions filed pursuant to the Rule shall include a description of all efforts made to resolve discovery issues informally. Petitions shall also state the identity of the persons that are to be deposed; the testimony that is to be perpetuated; the documents that are to be produced; and a description of any other discovery requested. The Petition shall also state the reasons why the aforementioned discovery is necessary and relevant to the litigation.

Fourth:    Re: Local Rule 6.10B(2).
The Committee recommends that reference to non-existent Local Rule 5.1C be deleted from Local Rule 6.10B(2), which should be amended accordingly to read as follows:
Local Rule 6.10B(2).
(2)  Service of Copy. A copy of the objections shall be served contemporaneously after filing, on accountant's attorney or on the accountant if not represented, in the manner provided in Pa. O.C. Rule 5.1 and Del. Co. O.C.D. Rules 5.1A and 5.1B.

Fifth:       Re: Local Rule 6.10D(3) and Local Rule 6.9A.

The Committee recommends rescission of Local Rule 6.10D(3)(a), (b) and (c), and placement of those subsections with Local Rule 6.9A, which deals with Petitions for Adjudication. (See Proposal Seventh, below, for proposed changes to Local Rule 6.9A.)
However, the subject matter contained in Local Rule 6.10D(3)(d) does concern Audits and Claims and, therefore, should remain with Local Rule 6.10D. The removal of subparagraphs (a), (b) and (c) would result in the slight restructuring of 6.10D(3), so that Local Rule 6.10D(3) would read in its entirety as follows:
Local Rule 6.10D(3).
(3)  Objections to Petitions for Adjudication. Objections to the petition for adjudication may be made orally at the time of audit.

Sixth:      Re: Local Rule 6.10D(4).
The Committee recommends rescission of Local Rule 6.10D(4) and the placement of that provision within Local Rule 6.9A, as set forth in Proposal Seventh, below.

Seventh: Re: Local Rule 6.9A.
The Committee recommends that the material presently contained at Local Rule 6.10D(3)(a), (b) and (c) and D(4) be added to present Local Rule 6.9A, and that the title of the Rule be amended, so that the Rule would read in its entirety as follows:
Local Rule 6.9A  Filing Petition for Adjudication and Statement of Proposed Distribution.
(1)  Recital of Facts. Accountant shall file with his account a petition for adjudication, setting forth all facts necessary to enter a proper decree.
(2)  Forms of Petitions. The petition for adjudication shall be on forms provided by the clerk, or typewritten in conformity therewith, signed by the fiduciaries stating the account and verified by at least one of them. The statement of proposed distribution is the concluding paragraph of the printed forms of petition for adjudication to be filed with the account.
(3)  Additional Receipts and Disbursements. Receipts and disbursements since the date to which the account was stated and to be included in the adjudication, shall be set forth in the petition for adjudication, or in a separate statement attached thereto, or in the appearance slip of the attorney for accountant.
(4)  Exhibits. Accountants shall submit with the petition the several documents enumerated in the forms provided by the clerk. The accountant shall submit, at or prior to the audit, a copy of the audit notice under Del. Co. O.C.D. Rule 6.3A and an affidavit listing those to whom such audit notice was sent.

Eighth:   Re: Local Rule 6.1A(3).
The Committee recommends rescission of Local Rule 6.1A(3).

Ninth:    Re: Local Rule 6.1C.
The Committee recommends that Local Rule 6.1C be rewritten to state as follows:
Local Rule 6.1C Forms of Account.
All forms for fiduciaries' accounts should conform to the model account forms promulgated by the Pennsylvania Supreme Court. In the absence of a state-mandated form, the account should conform as nearly as possible to the forms provided for other fiduciaries.

Tenth:    Re: Local Rule 14.2B
The Committee recommends that the typographical error in the heading to Local Rule 14.2B be corrected so that the heading will read as follows:
Local Rule 14.2B  Allowances from Incapacitated Persons' Estates.

CYNTHIA A. McNICHOLAS, ESQUIRE,   
Chair, Orphans' Court Rules Committee

[Pa.B. Doc. No. 09-979. Filed for public inspection May 29, 2009, 9:00 a.m.]


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