PA Bar Assn approves Orphans' Court Mediation Project

On Friday, November 21, 2014, the Pennsylvania Bar Association formally approved, by unanimous vote, a Report and Recommendation presented by its Alternative Dispute Resolution Committee regarding a proposal for mediation in the Orphans' Court Divisions, of the Courts of Common Pleas, in the Commonwealth.  

The "OC Mediation Project" proposes a "Model Local Rule" offered for consideration in the future by judicial districts in Pennsylvania favoring implementation of mediation in that Division for court-filed or court-annexed matters.

The proposal was endorsed by the Real Property, Probate & Trust Law Section and the Elder Law Section of the PBA.  

As a co-chair of the Subcommittee, a member of the ADR Committee, and a member of both those Sections, I presented the proposal first to the PBA Board of Governors on Wednesday, November 19, 2014 (which suggested amendments and then approved it 25-0) and then to the PBA House of Delegates on Friday, November 21st (which approved the amended proposal unanimously).

Participants on the Subcommittee who prepared the OC Mediation Project included Co-Chairs Bernice J. Koplin, Neil E. Hendershot, and Hon. Jay J. Hoberg; and Members Ann Lee Begler (Liaison to PBA Elder Law Section), David A. Fitzsimmons, John Francis Gough, Frederick K. Hatt, Timothy J. Holman, Hon. Richard B.  Klein, Vincent B. Lackner, Robert H. Lefevre, M. Melvin Shralow, Stanley A. Pelli, James A. Rosenstein (Chair of PBA ADR Committee), Ross F. Schmucki (Liaison to Philadelphia Guardianship Task Force), P. Douglas Sisk, Eric R. Strauss (Liaison to PBA RPPT Section), and Gordon M. Wase.

Following is the Report without the referenced attachments. The full report can be obtained from the PBA in the short term, prior to posting of the full Report on the PBA website in the future.

Recommendation

The PBA Alternative Dispute Resolution Committee recommends the Pennsylvania Bar Association to approve the Orphans’ Court Mediation Project as described in this report which includes but is not limited to the Model Local Orphans’ Court Rule 1.6 that is outlined in Attachment 5, on pages 18-19 of this Report.

Report

Members[1] of the Orphans’ Court Mediation Subcommittee (the “Subcommittee”), of the Alternative Dispute Resolution Committee, of the Pennsylvania Bar Association, examined how other states and some counties within Pennsylvania have expanded mediation into their probate-related divisions and have become mediation-friendly in the Orphans’ Court Division of the court.

Members of the Subcommittee are Pennsylvania attorneys, either trained or active as mediators, or involved in past mediations in representation of participants.  Some are licensed as mediators in additional jurisdictions, serve as mediators for various agencies and organizations (e.g. FINRA), or participated in programs of the Pennsylvania Superior Court and federal courts. 

The Subcommittee’s objective is to develop a Model Local Rule for Mediation in the Orphans’ Court Division (the “OC Mediation Project” or the “Project”), with accompanying forms and explanations that will be “not inconsistent” with the anticipated form of a new Supreme Court Orphans’ Court Rule 1.6.  The Model Local Rule would be made available for consideration by judicial districts in Pennsylvania for litigation filed in the Orphans’ Court Division or in certain court-annexed matters, where the Orphans’ Court Division has both in personam jurisdiction and subject matter jurisdiction if litigation would be commenced in the matter.

The present OC Mediation Project is limited to court-filed or court-annexed mediation.  However, statewide Supreme Court O.C. Rule 1.6 is anticipated to be broader.  Following a successful deployment of this phase of the OC Mediation Project, the Subcommittee expects to work on an expansion of mediation in this subject matter area to address private mediation or mediation which is not court-annexed.

The OC Mediation Project was described in two bar association newsletter articles.[2]

This presentation is intended for the Pennsylvania Bar Association governance.  It is proposed by the PBA’s Alternative Dispute Resolution Committee[3], and is supported by the PBA Real, Property & Trust Law Section[4], and by the PBA Elder Law Section.[5] 

Attachments 

Attached are the following materials, which explain or constitute the present status of the OC Mediation Project:

1. Article: A Model Local Orphans’ Court Rule for Mediation, by Bernice J. Koplin and Neil E. Hendershot, dated May 22, 2014, as published in two newsletters.  (Page 6)
2. Resources and References: Comparable Fiduciary Court Mediation Programs  (Page 8)
3. Comparison: Previously Published, versus Anticipated Revised, New Statewide O.C. Rule 1.6  (Page 13)
4. Brochure: Pennsylvania Orphans’ Court-Annexed Mediation Program  (Page 14)
5. Proposed Model Local Rule: Model Local Orphans’ Court Rule 1.6  (Page 18)
6. Form: Agreement to Mediate on a Confidential Basis  (Page 20)
7. Form: Notice of Initiation of Mediation  (Page 22)
8. Form: Notice of Completion of Mediation  (Page 23)
9. Form: Praecipe  (Page 24)
10. Statement:  Orphans’ Court Mediators and Their Qualifications  (Page 25)

 The Subcommittee may revise or expand generic forms for use in the OC Mediation Project, such as an application for a person to serve as a mediator.  The OC Mediation Project contemplates

periodic revision of these documents as various judicial districts or local bar associations gain experience with mediation in Orphans’ Court Division matters and provide feedback.

PBA Project Approval, Deployment, and Continuing Refinement

If approved by PBA governance and with continued monitoring by the ADR Committee, the Elder Law Section, and the Real Property, Probate & Trust Law Section, the OC Mediation Project will be ongoing.  If successful in its court-annexed approach, perhaps it can be expanded.  Perhaps this model for mediation could be expanded into other areas of substantive law not already addressed by mediation.

Who will promote, and then monitor and update, the Project on behalf of PBA? 

• The Subcommittee will promote the Project to local bar associations and provide information to the judicial districts in Pennsylvania on behalf of the PBA.
• The Subcommittee will monitor and update the OC Mediation Project with feedback received.
• The Subcommittee is accountable to the PBA ADR Committee.  The Subcommittee expects designated members to act as a liaison with the RPPT Section and the Elder Law Section, as active supporters of the Project.

Will additional resources be deployed?

• The Subcommittee recommends that the brochure, the forms, and reliable links regarding mediation be posted on a webpage of the PBA’s website, to be substantively supervised by the Subcommittee with maintenance by PBA Staff.
• The current PBA brochure on arbitration and mediation should be updated to include reference to the OC Mediation Project.
• The PBA may, through its ADR Committee, make available a database of trained mediators with significant Orphans' Court Division experience.  However, approval of this Presentation does not mandate creation or maintenance of a particular form of list. Local bar associations may also undertake to maintain such lists of mediators.
• The PBA will create disclaimers that there will be no liability, express, implied, or otherwise, regarding the Program, including actions or omissions of a mediator.
• Participants in a mediation shall agree to that condition in the written Agreement to Mediate.

What will the Project cost, and who will bear the costs?

• Costs of a webpage could come from the PBA’s operation budget with existing staff
• A source of ongoing funding could be, but is not committed to be: 1) the PBA general fund, 2) funds of the ADR Committee and/or the two supporting Sections, or 3) foundation or grant funds.  It is not anticipated presently that funds of the Unified Judicial System will be applied to the OC Mediation Project.
• The costs of individual mediation will be borne by the parties in interest, not the PBA, nor the Unified Judicial System.

Will this pro bono Project expand into a standalone operation?

• This is a targeted, limited authorization for mediation in Orphans’ Court Division matters and potentially related private matters not presented to an Orphans’ Court Division but within its subject matter jurisdiction.  If, over a period of years this Project is maintained and proves successful, it may become integrated into Pennsylvania’s Unified Judicial System in some way presently unforeseen, or it may become a self-supporting non-profit activity. 
• The present Project will produce a complete product outlining a mediation process, which then can be adopted through local rule under anticipated statewide OC Rule 1.6, or even in a case by case determination by special order. A local bar association may be involved, or a judicial district may adopt a local rule.
• In its present form, the Project would be maintained as a pro bono activity of PBA members to the extent of their available time and the PBA’s resources.  It is a model, not a mandate in any manner.  The Project is conditional in deployment upon approval by the PA Supreme Court of a new statewide Orphans’ Court Rule 1.6 substantially in the anticipated form, which would specifically authorize mediation in an Orphans’ Court Division of a local judicial district to occur after a specified effective date.
• There is no plan to expand the Project beyond this status, unless demand occurs and circumstances permit, and with the approval of the sponsors and PBA governance.
• The PBA is not committed to provide any funding.

What is sought from PBA governance? 

• The ADR Committee, with the support of the Real Property, Probate & Trust Law Section and the Elder Law Section, request approval of the OC Mediation Project.  
• Approval would allow public dissemination of the present form of a Model Local Rule for Orphans’ Court Division mediation and the proposed forms. 
• Approval would also authorize dissemination of information regarding the OC Mediation Project on the PBA’s website, with adequate disclaimers to the public.
• If PBA desires to monitor the Project over a period of time, and request subsequent review, for example, two years after its inception (which will depend upon the issuance of a new statewide Orphans’ Court Rule 1.6), the Subcommittee would accept that. 
• When the Project would be reviewed, it could be terminated, maintained as then in effect, or expanded, depending upon its reception statewide and upon the reactions of local courts, the Administrative Office of Pennsylvania Courts, and other organizations, such as bar associations, mediation providers, and even healthcare industry groups with members involved in resolution of end-of-life health care disputes, where subject matter jurisdiction resides in the Orphans’ Court Division.[6]

Respectfully Submitted,

James Rosenstein, Chair, PBA Alternative Dispute Resolution Committee

Submitted on October 14, 2014; Amended on November 19, 2014.

Approved, as amended, by the Pennsylvania Bar Association’s Board of Governors on November 19, 2014 (25-0), and by the PBA’s House of Delegates on November 21, 2014 unanimously.

---

[1]   Participants on the Subcommittee include Co-Chairs Bernice J. Koplin, Neil E. Hendershot, and Hon. Jay J. Hoberg; and Members: Ann Lee Begler (Liaison to PBA Elder Law Section), David A. Fitzsimmons, John Francis Gough, Frederick K. Hatt, Timothy J. Holman, Hon. Richard B.  Klein, Vincent B. Lackner, Robert H. Lefevre, M. Melvin Shralow, Stanley A. Pelli, James A. Rosenstein (Chair of PBA ADR Committee), Ross F. Schmucki (Liaison to Philadelphia Guardianship Task Force), P. Douglas Sisk, Eric R. Strauss (Liaison to PBA RPPT Section), and Gordon M. Wase.

[2]   This article was published in the Newsletter of the Probate and Trust Law Section, Philadelphia Bar Association, in Issue No. 134 (May, 2014) at pp. 21-22 ( Link: http://goo.gl/h09sUA),, and in the Newsletter of the Real Property, Probate and Trust Law Section of the Pennsylvania Bar Association, in Issue No. 75 (Summer, 2014) at pp. 18 (Link: http://goo.gl/JIL9Wl -- available for limited time publicly, then archived into Section’s Member area).

[3] The PBA ADR Committee voted conditional approval of the OC Mediation Project during its leadership conference call on September 30, 2014, and final approval of this presentations packet subsequently.

[4]   The PBA Real Property, Probate & Trust Law Section voted approval of the OC Mediation Project during its Council Conference Call on September 19, 2014, and final approval of this presentation packet subsequently. 

[5]   The PBA Elder Law Section voted tentative support of the OC Mediation Project during its leadership conference call on September 5, 2014, and final approval of this presentation packet subsequently.

[6]  The PBA might address mediation of health care representative disputes that remain under the subject matter jurisdiction of the Orphans’ Court Division under Chapter 54 of the Probate, Estates & Fiduciary Code.  Bioethical mediation can be effective in difficult end-of-life situations or in surrogate healthcare decision making.  See: Waldman, Ellen, Bioethics Mediation at the End of Life: Opportunities and Limitations, Cardozzo Journal of Conflict Resolution, Vol. 15, pp. 449-471 (Feb. 14, 2014), found online at: http://cardozojcr.com/wp-content/uploads/2014/02/Waldman.pdf. For a model health care mediation program in Pittsburgh, see: Brochure, UMPC Intermediation Program, found online at: http://goo.gl/m2idu1.

Philadelphia Court Upholds Stephen Girard's Intentions

Stephen Girard, late in life

Painted by J.R. Lambdin

Judge O'Keefe, Administrative Judge of the Philadelphia Court of Common Pleas, sitting in the Orphans' Court Division, issued an opinion and order, dated August 21, 2014 (filed and released on August 25, 2014), regarding the administration of Girard College.

The Court denied a petition filed in June, 2013, by the Board of Directors of City Trusts, for proposed temporary modifications of the Last Will of Stephen Girard in the Estate's operations of the 1-12 grade boarding school.

The changes would have altered its residential nature, and cut its grades from 12th down to 8th, with no graduation. Fiscal reasons were cited as the necessity for such actions.

These proposed changes required deviation from the stated intentions of Stephen Girard, characterized as the "Father of Philanthropy" in a 1997 article in The Wall Street Journal.

The case is important for both its procedural aspects and for its substantive ruling.

A copy of the Opinion Sur Decree and the Court's Decree are posted informally here (PDF, 20 pages).

The Philadelphia Inquirer posted an article about the ruling, entitled Judge: Girard must remain a boarding school, keep high school programs, by Martha Woodall (08/26/14).

I and our law firm (Serratelli, Schiffman & Brown, P.C., in Harrisburg, PA), including Carol Verish, Esq., served as counsel for the Girard College Alumni Association​, and for the representative students and parents, throughout the proceedings in their opposition. Local counsel in Philadelphia was Gerard M. McCabe, Esq., of Mitts Law.

The Alumni, students, and parents are gratified by the ruling.

This decision, like any other ruling by a court of common pleas in Pennsylvania, is subject to rights of appeal.

Update: 2014-08-28:

• The Philadelphia Inquirer published an editorial on August 28, 2014, entitled Girard's School Spirit, which contemplated the future of the College and its administration, in view of Judge O'Keefe's findings and ruling. 

• Professor Katherine M. Pearson, of Penn State Law / Dickinson School of Law, contributed a brief overview and analysis of this decision on the Elder Law Prof Blog, which she co-authors.  She identifies this ruling as a "classic" decision, likely to be studied by law students. See: The Latest Ruling on "The Most Litigated Will In History" (08/28/14).

PA Supreme Court Appoints New Elder Law Task Force

On April 18, 2013, in a posted press release entitled Supreme Court’s Elder Law Task Force Will Tackle Growing Abuses to Older Pennsylvanians, the Pennsylvania Supreme Court announced creation of a new Elder Law Task Force.  The initial meeting of the group was held on April 16 and 17, 2013, at the Pennsylvania Judicial Center, in Harrisburg, PA.

The Press Release announced that "The Supreme Court of Pennsylvania has formed an Elder Law Task Force, chaired by Justice Debra Todd, to study the growing problems involved in guardianship, abuse and neglect, and access to justice. The task force has been charged by Chief Justice of Pennsylvania Ronald D. Castille with recommending solutions that include court rules, legislation, education and best practices."

The task force is made up of 38 elder law experts, including judges, lawyers and social workers.

The task force will have three subcommittees, one devoted to appointment and qualifications of guardians and attorneys, a second on guardianship monitoring and data collection, and a third on elder abuse and powers of attorney.  The work of the group will take approximately one year.  

“As a society, we have increased concentration on child abuse, but the issue of elder abuse has not kept pace,” said Justice Todd.

“This task force is the judiciary’s attempt to study the issues under its purview and make adjustments now, before the numbers of older Pennsylvanians and the commensurate jump in abuse, occurs." * * *

"The U.S. Administration of Aging’s National Center on Elder Abuse estimates that for every one case of elder abuse reported, five more go unreported. This is shameful, and we need to do better.” * * *

The appointed members of the Task Force met in Harrisburg on Tuesday, April 16th and Wednesday, April 17th, for introductions, initiation, presentations, and  discussions, and then for organizational activities within the three subcommittees.  During a break, a group photo was taken (reposted above).  I stand in the back row, behind the pretty lady in the red dress, Prof. Katherine Pearson, of Penn State / Dickinson School of Law.

Simultaneously with the announcement, the Administrative Office of Pennsylvania Courts posted "a variety of resources" on the UJS website, including high-definition video footage of an interview with Justice Debra Todd, the convener and Chair of the Task Force  (the first time such form of media content was posted on that website), an audio clip of the interview, and a graphic, all of which can be used or distributed freely.

Great opportunities for change -- some in study and development for five years or more -- are now presented by the Legislative branch and within the Judicial system in Pennsylvania, even as programs operated by the Executive branch are refined.  These proposals and changes would affect positively the Commonwealth's senior and disabled populations: 

• The Report and Recommendations of the Joint State Government Commission (JSGC), through its Advisory Committee on Decedents' Estate Laws (ACDEL), issued October, 2012, entitled Guardianship Law: Proposed Amendments to the Probate, Estates and Fiduciaries Code, which is now in the form of Senate Bill 117 of the 2013-14 Legislative Session, according to its legislative history.  

• The Report and Recommendations of the JSGC-ACDEL, issued June, 2011, entitled Powers of Attorney and Health Care Decision Making: Proposed Amendments to the Probate, Estates and Fiduciaries Code, which is now in the form of Senate Bill 620 of the 2013-14 Legislative Session, according to its legislative history. 

• Pending, proposed new Pennsylvania Orphans' Court Rules, published for comment in the Pennsylvania Bulletin on Saturday, April 13, 2013, which were the subject of my PA EE&F Law Blog posting PA Orphans' Court Rules Proposed for Sweeping Changes (04/04/13).

• Other proposed and pending legislative measures on similar subjects, but with different approaches.

I applaud and thank the Pennsylvania Supreme Court Justices, particularly the Chief Justice and Justice Debra Todd, for this initiative.

PA Orphans' Court Rules Proposed for Sweeping Changes

On April 3, 2013, the Pennsylvania Unified Judicial System website posted a news article entitled Input Sought on Proposed Rewrite of 40-year-old Orphans' Court Rules, which announced: "A substantial overhaul of the current Orphans’ Court Procedural Rules, which have remained relatively intact for nearly four decades, is being proposed."

The article continued:

The Supreme Court’s Orphans’ Court Procedural Rules Committee is seeking input from attorneys, judges and the public concerning the proposal, including those comments that may address only a specific rule or series of rules.

Interested parties may submit suggestions, comments, and/or objections in writing to the committee no later than June 13, 2013 to Lisa M. Rhode, Counsel, in the following ways:

Email:
orphanscourtproceduralrules@pacourts.us

Fax:
(717) 231-9551

USPS:
Supreme Court of Pennsylvania
Orphans’ Court Procedural Rules Committee
601 Commonwealth Avenue, Suite 6200
Harrisburg, PA 17106-2635

Proposed new Pennsylvania Orphans' Court Rules (PDF, 56 pages; See also: Official forms as published in the Pennsylvania Bulletin on Saturday, April 13, 2013, in Vol. 43, No.15, beginning at Page 654) -- when revised after consideration of comments to be offered (no later than June 13, 2013) by the public, then finalized by the Committee, and thereafter submitted for adoption by the Pennsylvania Supreme Court -- will be more than five years in the making, about forty years after the last comprehensive restatement of such rules.  

Once adopted, the final version of such new rules would take effect some time thereafter to be applicable statewide to all Orphans' Court jurisdiction matters and in all Orphans' Court Division proceedings in the Courts of Common Pleas in this Commonwealth.

The Proposed New Pa.O.C. Rules 1.1 – 11.6 and Publication Notice and Explanatory Notes are posted in PDF forms on the web page devoted to the PA Supreme Court Orphans' Court Procedural Rules Committee.  See also: Official forms as published in the Pennsylvania Bulletin on Saturday, April 13, 2013, in Vol. 43, No.15, beginning at Page 654).

The Publication Notice for the proposed new rules states as follows:

The Orphans' Court Procedural Rules Committee intends to recommend that the Supreme Court of Pennsylvania vacate Orphans’ Court Rules 1.1 through 14.5 and adopt new Orphans’ Court Rules governing the practice and procedures for the areas currently covered by these rules.

The new rules are divided into sections addressing, inter alia, the filing and audit of Accounts, procedures for Orphans’ Court matters raised by citation and petition, pre-hearing and post-hearing dispositions, and rules for practice before the Registers of Wills.

In some cases, the current Orphans’ Court rule has not been modified substantially, but is merely being relocated to a new section based upon the revised structure of the proposed new rules (e.g., Rules governing Specific Types of Petitions are moved from Rule 12 to Chapter IV and Rules governing Guardianships are moved from Rule 14 to Chapter V).

The proposal also contains Explanatory Comments, which accompany certain rules to elucidate upon the addition or modification of certain provisions or to provide additional analysis of the relationship between the particular rule and another Orphans’ Court rule and/or statutory provisions in the Probate, Estates and Fiduciaries Code.

This proposal has not been submitted to the Supreme Court of Pennsylvania for review in advance of this publication. The proposal, though, has been reviewed by an advisory group of Orphans’ Court judges appointed by then-Chief Justice Ralph J. Cappy, and these judges have provided insights, comments, and suggestions incorporated into the proposal that is being published. * * * [Paragraphing added.]

The Explanatory Report notes the objectives of the revision project outlined in October, 2007, and the extent of the revision project since then:

The proposed rule review is intended to:

• Promote standardization of statewide practice and reduce variations caused by reliance on local practice.
• Provide better direction to practitioners and judges throughout the state, especially in counties without dedicated Orphans’ Court divisions.
• Clarify certain procedures involving citation practice and pleadings.
• Harmonize Orphans’ Court proceedings with general civil practice to the extent possible, given the unique subject matter within Orphans’ Court jurisdiction.

This project has continued in earnest for nearly five years. The Committee extends recognition and gratitude to prior Committee Chairs, Judge Calvin S. Drayer and Mary Jane Barrett, Esq., for their leadership and commitment to this project.

The Committee now publishes its proposal and solicits the input, comments and suggestions of practitioners and jurist throughout the Commonwealth, particularly those who practice routinely in the Orphans’ Court divisions of various counties. * * *

The Pennsylvania Supreme Court's Orphans’ Court Procedural Rules Committee reviews current rules governing statewide practice and procedure in the Orphans’ Court and recommends new rules as necessary.

The Committee's current Members are: Margaret Gallagher Thompson, Esq., Chair; Lisa Marie Coyne, Esq.; Eugene H. Gillin, Esq.; Neil E. Hendershot, Esq.; Jeffrey R. Hoffmann, Esq.; Paul Kuntz, ex officio; John F. Meck, Esq.; and Honorable Lawrence J. O'Toole.

The Committee is supported by staff members: Lisa M. Rhode, Esq., as Counsel; James F. Mannion, Esq., as Deputy Counsel; and Elizabeth J. Knott, as Administrative Assistant.

I will make a presentation upon the proposed new Orphans' Court Rules during the 2013 Annual Meeting of the Pennsylvania Bar Association, through its Real Property, Probate & Trust Law Section, on Wednesday, May 8, 2013, from 3:15 - 4:15 p.m., at the Wyndham Grand Pittsburgh Hotel Downtown.

I will speak not as an Orphans' Court Procedural Rules Committee member (for the past six years), but as a PBA-RPPT member during its Annual Retreat.  I will encourage local bar associations and the two statewide PBA sections having an interest -- the Real Property, Probate & Trust Law Section, and the Elder Law Section -- to offer comments in writing before June 13, 2013.

Other community, governmental, business, and service organizations interfacing with Orphans' Court proceedings should also review the proposed new rules and make comments towards improvement or clarification.

New Postings of PA OC & R/W Forms Online

While seeking to access Pennsylvania Orphans' Court forms through this Blog's sidebar links to their source on the Internet, I discovered my links are no longer valid.  What happened?  Something changed.

On January 31, 2013, the website of the Uniform Judicial System of Pennsylvania was completely refreshed and reformatted.  Not only is there a new homepage for the PA UJS, there is also a new "portal" leading into it.

Those Orphans' Court forms were reposted to different Internet references.  Now, these forms are displayed in a more pleasant presentation, along with other content formerly on that website.

On the related new PA UJS Portal, the layout is straightforward and efficient.  The left column offers many direct links to various sections of the new website, much like a book index, thereby avoiding navigation delays.  Such links include:

• UJS Web Portal
• Attorney Registration
• County Court Calendar
• Rules of Court
• Public Calendar Schedule
• Public Web Docket Sheets
• Financial Records

The main PA UJS website is more colorful and animated.  "Welcome to the Pennsylvania Judiciary's New Website" presently is displayed upon opening its home page:

Pennsylvania’s Unified Judicial System was the second state court system—by one week—to launch a website in 1995. With nearly 60 million hits last year, Pennsylvanians have come to depend on pacourts.us for information about the judiciary, court cases and the most recent court news and statistics.

The UJS is dedicated to continuously improving the way we provide information about the courts. Our goal was to develop something that is easy to use, attractive in appearance and capable of serving our vastly diverse audience. We want to keep you up-to-date regarding events in the judiciary and news and issues, and this space will allow us to do that. 

In a Press Release entitled Redesigned courts website helps meet changing user expectations, dated January 31, 2013, the Administrative Office of Pennsylvania Courts announced the redesigned website:

Enhancements to the new website include redesigned page layouts, improved navigation and organization of various court information areas, and highlighted news of interest to the court community and general public. * * *

The changes provide Pennsylvania’s judiciary a unified website while providing each court the opportunity to feature its own news and information on separate web pages. * * *

Among the radical changes to the PA UJS website is a redesigned home page, offering recent news involving Pennsylvania's Court System.  On the right sidebar are links for the Court's welcome message, Opinions, Docket Sheets, Fee or Fine Payments, Public Records, and Forms.

In an expansive area below is a listing, with links, to components of the Court System, by function and organization, like a "mini-portal".  This lower banner appears consistently on every web page, so you can't get lost.

A link to the Orphans' Court and Register of Wills forms is prominently featured as the first category in the full list of all types of court forms provided "For the Public".

The current approved OC/RW forms, which remain unchanged so far in 2013, are then divided into categories:

• Audit and Administration (7 forms)
• Guardianship (6 forms)
• Abortion Control Act (2 forms)
• Register of Wills (10 forms)
• Model Account Forms (4 forms)
• Foreign Adoption Forms (9 forms)

My random sampling of forms indicates that most are in fillable PDF format.  This allows data entry into the form, which could be saved using PDF editing software to retain it for later revision.  PDF reader or viewer software could only print the form with data, but not save it, so that, upon closing it online, such personalized data would be lost. See: Wikipedia's List of PDF Software.

These website revisions mean greater convenience for the public and for practitioners.  

But it creates work for me.  I must go back -- once again -- and reset links in my Blog to those forms' new online references.

“This is a new year. A new beginning.

And things will change.”

― Taylor Swift
(popular singer, born December 13, 1989,
in Wyomissing, Berks County, PA) 

AOPC.org is Dead; Long Live PAcourts.us! Very Tweet!

By September, 2012, the original Internet address of Pennsylvania's Unified Judicial System -- www.aopc.org (which reflected the initials of the Administrative Office of Pennsylvania Courts) -- will be deactivated.

Through the summer, that web address already had redirected users automatically to the updated PA Unified Judicial System (Court) website -- www.pacourts.us. But, beginning in September, that redirection will end.  Those links will be "dead".

Regular users should change the web address in browser “favorites” from www.aopc.org to the successor Internet address -- www.pacourts.us. 

Local court administrators should check their local court rules for any references to the www.aopc.org website, and revise them.  The statewide court rules were already revised to accommodate this change via technical rule amendments.

This change will require me, over an extended span, to revisit old blog entries and update AOPC links, or else those links will be useless.  (Yea, I really look forward to that process.)  In the future, all links on this Blog will relate to the new website address.

There is another noteworthy technological development involving Pennsylvania's courts.  Around June, 2012, AOPC began "tweeting" (via the Twitter online service) notices of proposed rulemaking by the PA Supreme Court's various rule committees. These "tweets" complement the Prothonotary’s past tweets as to actual rule amendments.

For those interested in following the rules committees' proposals when issued, the Twitter account is: @SCOPARules. A general “follow us on Twitter” link appears on the court rules committees’ web page, as follows:

Follow us on Twitter @SCOPARules to receive notification of proposed rulemaking from the rules committees. For the latest available Pennsylvania Supreme Court dispositional orders and opinions, please follow @SupremeCtofPA. For press releases and general information about the Court please follow @PACourts.

Appeal Procedures from PA Orphans' Court Rewritten

Appeals from orders issued by the various Orphans' Court Divisions, of the Courts of Common Pleas in Pennsylvania, are governed, effective February 12, 2012, by revised procedural rules, which were further amended by the Pennsylvania Supreme Court by order dated July 16, 2012.

A completely rewritten Rule 342 ("Appealable Orphans' Court Orders"), of the Pennsylvania Rules of Appellate Procedure (Pa. R.A.P.), was adopted December 29, 2011, in conjunction with an amended PA R.A.P. Rule 311 ("Interlocatory Appeals as of Right") , by the Pennsylvania Supreme Court, applicable to all Orphans’ Court orders entered forty-five days after that adoption.  See:  42 Pa. Bulletin 374 (01/12/12, PDF). 

On July 27, 2012, the Pennsylvania Supreme Court order, dated July 16, 2012, amending both Pa.R.A.P. 311 and 342 and providing for further, minor changes, effective immediately, was submitted for publication to the Pennsylvania Bulletin. See: 42 Pa. Bulletin 4693 (07/28/12, PDF).

The collective revisions contemplate disputed matters in an "estate", "trust", or "guardianship" -- terms defined terms under subsection (b) of Rule 342 -- that have been resolved by a trial court order, from which appeal is sought by a party to Pennsylvania's appellate courts -- first, to the Pennsylvania Superior Court, or, if granted further, to the Pennsylvania Supreme Court.

These rule revisions address trial court-ordered dispositions that are appealable "as of right" from the Orphans' Court Division, as set forth in the revised Pa. R.A.P. 342:

General rule. An appeal may be taken as of right from the following orders of the Orphans’ Court Division:

(1) An order confirming an account, or authorizing or directing a distribution from an estate or trust;

(2) An order determining the validity of a will or trust;

(3) An order interpreting a will or a document that forms the basis of a claim against an estate or trust;

(4) An order interpreting, modifying, reforming or terminating a trust;

(5) An order determining the status of fiduciaries, beneficiaries, or creditors in an estate, trust, or guardianship;

(6) An order determining an interest in real or personal property;

(7) An order issued after an inheritance tax appeal has been taken to the Orphans’ Court pursuant to either 72 Pa.C.S. § 9186(a)(3) or 72 Pa.C.S. § 9188, or after the Orphans’ Court has made a determination of the issue protested after the record has been removed from the Department of Revenue pursuant to 72 Pa.C.S. § 9188(a); or

(8) An order otherwise appealable as provided by Chapter 3 of these rules. [Link added.]

The revised Official Note to Pa. R.A.P. 342 recounts the history since 1992 regarding orders appealable and the failed past efforts towards clarification, and then explains the situations sought to be remedied by the recent sweeping changes:

In 1992, the Supreme Court amended Rule 341 to make clear that, as a general rule, a final order is an order that ends a case as to all claims and all parties. Because of this amendment, many Orphans' Court orders that may have been considered constructive final orders prior to 1992 became unappealable interlocutory orders. Although some Orphans' Court orders were construed by case law to be appealable as collateral orders, see Estate of Petro, 694 A.2d 627 (Pa. Super. 1997), the collateral order doctrine was neither consistently applied nor was it applicable to other Orphans' Court orders that previously had been considered final under the ''final aspect'' doctrine. See, e.g. Estate of Habazin, 679 A.2d 1293 (Pa. Super. 1996).

In response, the Supreme Court revised Rule 342 that initially permitted appeals from Orphans' Court orders concerning distribution even if the order was not considered final under the definition of Rule 341(b). In 2001, Rule 342 was amended to also allow appeals from orders determining an interest in realty or personalty or the status of individuals or entities, in additional to orders of distribution, if the Orphans' Court judge made a determination that the particular order should be treated as final. In 2005, the Supreme Court amended Rule 342 again, adding subdivision (2) to clarify that Rule 342 was not the exclusive method of appealing Orphans' Court orders.

Also, in 2005, the Supreme Court amended Rule 311 to provide for an interlocutory appeal as of right from an order determining the validity of a will or trust. See former Rule 311(a)(8). Such an order needed to be immediately appealable and given finality so that the orderly administration of the estate or trust could proceed appropriately.

Since 2005, it has become apparent that other adversarial disputes arise during the administration of an estate, trust or guardianship, and that orders adjudicating these disputes also must be resolved with finality so that the ordinary and routine administration of the estate, trust or guardianship can continue. See Estate of Stricker, 602 Pa. 54, 63-64, 977 A.2d 1115, 1120 (2009) (Saylor, J., concurring). Experience has proven that the determination of finality procedure in subdivision (1) of Rule 342 is not workable and has been applied inconsistently around the Commonwealth. See id. (citing Commonwealth v. Castillo, 585 Pa. 395, 401, 888 A.2d 775, 779 (2005) (rejecting the exercise of discretion in permitting appeals to proceed)).

Experience has also proven that it is difficult to analogize civil litigation to litigation arising in estate, trust and guardianship administration. The civil proceeding defines the scope of the dispute, but the administration of a trust or estate does not define the scope of the litigation in Orphans' Court. Administration of a trust or an estate continues over a period of time. Litigation in Orphans' Court may arise at some point during the administration, and when it does arise, the dispute needs to be determined promptly and with finality so that the guardianship or the estate or trust administration can then continue properly and orderly. Thus, the traditional notions of finality that are applicable in the context of ongoing civil adversarial proceedings do not correspond to litigation in Orphans' Court.

In order to facilitate orderly administration of estates, trusts and guardianships, the 2011 amendments list certain orders that will be immediately appealable without any requirement that the Orphans' Court make a determination of finality. Orders falling within subdivisions (a)(1)—(7) no longer require the lower court to make a determination of finality. * * *

  The revised Official Note then explains in detail the substantive changes contained in revised PA. R.A.P. 342.  I cannot improve upon this concise and reliable explanation -- other than breaking up the text into shorter paragraphs and emphasizing the subdivision explanations; and so I quote, with highlighting and re-paragraphing applied:

Subdivisions (a)(1)—(7) list orders that are unique to Orphans' Court practice, but closely resemble final orders as defined in Rule 341(b). 

Subdivision (a)(1) provides that the adjudication of any account, even an interim or partial account, is appealable. Previously, only the adjudication of the final account would have been appealable as a final order under Rule 341. The prior limitation has proven unworkable for estate administration taking years and trusts established for generations during which interim and partial accounts may be adjudicated and confirmed. The remainder of subdivision (a)(1) permits appeals from orders of distribution as Rule 342 always has permitted since its initial adoption.

Subdivision (a)(2) is a new placement for orders determining the validity of a will or trust that previously were appealable as interlocutory appeals as of right following the 2005 amendment to Rule 311. See prior Rule 311(a)(8).

Subdivision (a)(3) is a new provision that allows an immediate appeal from an order interpreting a will or other relevant document that forms the basis of a claim asserted against an estate or trust. Such orders can include, among other things, an order determining that a particular individual is or is not a beneficiary or determining if an underlying agreement executed by the decedent during life creates rights against the estate.

Subdivision (a)(4) addresses trusts and is similar to subdivision (a)(3), but also permits immediate appeals from orders modifying, reforming or terminating a trust since such judicial actions are now permitted under 20 Pa.C.S. § 7740 et seq.

Subdivision (a)(5) is intended to clarify prior Rule 342 in several respects: First, an appealable Orphans' Court order concerning the status of individuals or entities means an order determining if an individual or entity is a fiduciary, beneficiary or creditor, such as an order determining if the alleged creditor has a valid claim against the estate. Second, such orders include orders pertaining to trusts and guardianships as well as estates. Finally, this subdivision resolves a conflict in prior appellate court decisions by stating definitively that an order removing or refusing to remove a fiduciary is an immediately appealable order.

Subdivision (a)(6) retains the same language from prior Rule 342.

Subdivision (a)(7) permits appeals of an Orphans' Court order concerning an inheritance tax appraisement, assessment, allowance or disallowance when such order is issued separately and not in conjunction with the adjudication of an account. Sections 9186 and 9188 of Chapter 72 provide three procedures, outside the context of an accounting, whereby either the personal representative or the Department of Revenue may bring before the Orphans' Court a dispute over inheritance taxes imposed. See also Estate of Gail B. Jones, 796 A.2d 1003 (Pa. Super. 2002) (analogizing a petition regarding the apportionment of inheritance taxes to a declaratory judgment petition given that an estate account had not yet been filed). A decision concerning inheritance taxes issued in conjunction with the adjudication of an account would be appealable under subdivision (a)(1). 

In keeping with the 2005 amendment that added subdivision (2) to prior Rule 342, subdivision (a)(8) tracks subdivision (2) of former Rule 342. Subdivision (2) was adopted in response to Estate of Sorber, 2002 Pa. Super. 226, 803 A.2d 767 (2002), a panel decision holding that Rule 342 precluded immediate appeals from orders that would have otherwise been appealable as collateral orders under Rule 313 unless the Orphans' Court judge made a determination of finality under Rule 342.

Subdivision (a)(8) makes clear that Rule 342, as amended, is still not the sole method of appealing an Orphans' Court order and an order not otherwise immediately appealable under Rule 342 may still be immediately appealable if it meets the criteria under another rule in Chapter 3 of these rules. Examples would include injunctions appealable under Rule 311(a)(4), Interlocutory Orders Appealable by Permission under Rules 312 and 1311, Collateral Orders appealable under Rule 313, and an order approving a final accounting which is a true final order under Rule 341. Whether or not such orders require certification or a further determination of finality by the trial court depends on the applicable rule in Chapter 3. Compare Rules 311(a)(4), 313 and 341(c) with Rules 312 and 1311.

The revised Official Note concludes with a stern warning about a failure, under Subsection (c) to appeal, which constitutes a "waiver of all objections" to an order:

Failure to appeal an order that is immediately appealable under subdivisions (a)(1)—(7) of this rule shall constitute a waiver of all objections to such order and may not be raised in any subsequent appeal. See Subdivision (c) of this Rule. The consequences of failing to appeal an Orphans' Court order under (a)(8) will depend on whether such order falls within Rules 311, 312, 313, 1311 or 341.

The revision amended Pa. R.A.P. Rule 311(g) under this concept, to provide as follows:

 (g) Waiver of objections.

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

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

            (ii) Under Subdivisions (b)(1) or (c) of this rule shall constitute a waiver of all objections to jurisdiction over the person or over the property involved or to venue, etc. and the question of jurisdiction or venue shall not be considered on any subsequent appellate review of the matter.

           (iii) Under Subdivision (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.

Don't forget another process perhaps necessary post-trial to protect appeal rights from an orphans' court's order -- "Exceptions" -- that may be applicable under local rules.  See:  Pa. Orphans' Court Rule 7.1.