THE NEW SUPREME COURT ORPHANS COURT RULES

Transcription

1 THE NEW SUPREME COURT ORPHANS COURT RULES POWERPOINT PRESENTATION BY JOHN F. MECK, Eckert Seamans Cherin & Mellott, LLC LISA M. RHODE, Gadsden Schneider & Woodward, LLP

2 GUESS WHO? 2

3 Gerald Ford - President of the United States and Milton Shapp - Governor of Pennsylvania GUESS WHEN? 3

4 ANOTHER HINT: 4

5 ANSWER: 1975 The last time the Supreme Court Orphans Court Rules were revised 5

6 Rules of Equity Repealed January 1, 2004 Why Important?? Current Rule 3.1 6

7 PURPOSE OF NEW ORPHANS COURT RULES STANDARDIZE PRACTICE ACROSS ALL JUDICIAL DISTRICTS Except for differing procedures for Accounts and Objections in judicial districts (See Rule 2.5(d), (e) and 2.7(a)) With separate orphans court divisions (See PEF Code 3511) vs Without separate orphans court divisions (PEF Code 3512) 7

8 PURPOSE OF NEW ORPHANS COURT RULES PROVIDE CLEAR PROCEDURES TO THE BENCH AND BAR 8

9 PURPOSE OF NEW ORPHANS COURT RULES HARMONIZE PROCEEDINGS TO CIVIL PRACTICE 9

10 September 1, 2016 TWO IMPORTANT DATES Effective Date of New Rules Repeal of Most Local Rules June 1, 2016 Deadline to Submit New Local Rules 10

11 THURSDAY, SEPTEMBER 1, 2016 Current Supreme Court Orphans Court Rules 1 to 13 are RESCINDED o ALL PARALLEL LOCAL RULES ARE VACATED. 11

12 THURSDAY, SEPTEMBER 1, 2016 What remains??? Current Supreme Court and Local Rules: Chapter 14: Guardianships Chapter 15: Adoptions Chapter 16: ACA 12

13 THURSDAY, SEPTEMBER 1, 2016 NEW RULES: CHAPTER I. Preliminary Rules CHAPTER II. Accounts, Objections and Distributions 13

14 THURSDAY, SEPTEMBER 1, 2016 NEW RULES: CHAPTER III. Petition Practice and Pleading CHAPTER IV. Format and Service of Legal Paper by Parties and Court; Electronic Filing CHAPTER V. Rules Governing Specific Types of Petition (This chapter relocates current Rule 12.) 14

15 THURSDAY, SEPTEMBER 1, 2016 NEW RULES: CHAPTER VII. Rules Relating to Pre-Hearing and Hearing Procedure CHAPTER VIII. Reconsideration CHAPTER IX. Auditors and Masters CHAPTER X. Register of Wills 15

16 WHAT TO DO WITH LOCAL RULES? Eliminate most current local Rules BUT retain or revise some Conform to new numbering 16

17 RULE 1.5: PROCEDURE FOR ADOPTING LOCAL RULES New Local Rules from Judicial District X To OCPRC for review BEFORE can become effective 17

18 CIRCLE JUNE 1, 2016 Deadline for new/revised local rules Send to OCPRC by JUNE 1, 2016 OCPRC to review so not inconsistent with new S.C. Rules 18

19 PROPOSED LOCAL RULES AFTER SEPTEMBER 1, 2016 New or amended local rule To OCPRC for review under same standard 19

20 TOP 10 CHANGES 10. Rules of evidence in Register of Wills Hearings (See Rule 10.3(e)) 9. Virtual representation - Accounts and Petition Practice (See Rules 2.4, 3.4 and 4.2) 8. Local Rules must be reviewed by OCPRC (See Rule 1.5) 20

21 TOP 10 CHANGES 7. Preliminary Objections permitted; Preliminary Objections to Account Objections limited (See Rules 2.8 and 3.9) 6. Notice to Plead Affixed to Notice Petition and Response with New Matter and New Matter (See Rule 3.5(b)(1) and 3.7(e)) 5. Objections and Response to all interested parties (See Rules 2.7(a) and 3.7(b)) 21

22 TOP 10 CHANGES 4. Notice of an Account s filing Changes (See Rule 2.5) 3. Petition for Adjudication must be filed with Account (See Rule 2.4(a)) 2. Supreme Court forms Exclusive (See Rules 1.8 and 10.1) 1. Petitions for Reconsideration replace Exceptions (See Rules 8.1 and 8.2) 22

23 See NEW Rule 8.1 WHAT TO DO WHEN YOUR CLIENT DOES NOT LIKE COURT S DECISION First, Orphans Court Clerks need to give notice to each party (or counsel). Analogous to Civ. Rule 236 Starts clock running for appeal Second EXCEPTIONS 23

24 REPLACING EXCEPTIONS Rule 8.2 MOTIONS FOR RECONSIDERATION BE CAREFUL 30-DAY APPEAL PERIOD CONTINUES RUNNING 24

25 MORE BIG CHANGES: Exclusive use of Supreme Court approved Forms (See Rules 1.8 and 10.1) OC-01 to OC-07 RW-01 to RW-10 OCPRC Making Conforming Revisions to Forms 25

26 NO MORE LOCAL FORMS WHERE A SUPREME COURT FORM EXISTS Petitions for Adjudication Register of Wills Guardianships and ACA Proceedings 26

27 ACCOUNT AND PETITION FOR ADJUDICATION MUST BE FILED TOGETHER See Rule 2.4 THE ACCOUNT THE PETITION FOR ADJUDCIATION 27

28 NOTICE ACCOUNT S FILING WHEN RULE 2.5 Current practice local rule Some Counties 10, 15 or 20 days before audit 10 days after filing Account in one county New Rules Separate orphans court divisions 20 days before audit Without separate orphans court divisions 20 days before the last day to file objections (See Rule 2.5(d)) 28

29 SOME CHANGES IN WHO RECEIVES NOTICE WHO GETS NOTICE of Account s filing????? (See Rule 2.5(a)) Language clarified E.g., Rule 2.5(a)(1) notice of a creditor s claim Charitable interest - Rule 2.5(a)(4) added reminder Rule 2.5(b) to both counsel and the individual, even if represented 29

30 SOME NEW RECIPIENTS GET NOTICE AS WELL Beneficiaries of a receiving trust or estate if dual fiduciaries (See Rule 2.5(b)) AG s Office (See Rule 2.5(c)) charity is beneficiary of receiving estate charity is a qualified trust beneficiary 30

31 WHAT MUST BE INCLUDED WITH NOTICE LETTER See Rule 2.5(d) Petition for Adjudication Notice Letter of account s filing Account Beneficiary/ Counsel 31

32 UNLESS. 1) Special Order from Orphans Court (Voluminous Account???) 2) Trust beneficiary is more remote than a qualified beneficiary under 20 Pa.C.S

33 CONTENT OF NOTICE LETTER (See Rule 2.5(h)) 1) Date, time, and place of audit or in judicial districts that do not have an audit list, last day for filing objections 2) Accountant s position on known disputes or interpretation question 3) Detail Accountant s understanding of contested or unpaid claim 4) State how recipient is to present objections to Account or Petition for Adjudication 33

34 CONTENT OF NOTICE LETTER 5) To beneficiary not receiving Account and Petition for Adjudication, state amount of fiduciary compensation and attorney fees paid or to be paid 34

35 PROCEDURES FOR OBJECTIONS See Rule 2.7 Orphans Court Clerk Accountant and his/her counsel Objections Mailed This is NEW All interested parties 35

36 PLEADINGS AFTER OBJECTIONS ARE FILED (See Rule 2.8) Answers Allowed but not required Preliminary Objections Allowed but limited to two grounds (See Rule 2.8(b)) Lack of standing Lack of jurisdiction Answers to Preliminary Objections 36

37 CHAPTER X: PROCEEDING BEFORE REGISTER OF WILLS Supreme Court forms only: RW-01 et seq. (See Rule 10.1) Rules of Evidence apply in Register s hearings (See Rule 10.3(c)) Chapter III (Petition Practice) applies to Register s Hearing (See Rule 10.2) 37

38 CHAPTER X: PROCEEDING BEFORE REGISTER OF WILLS Rule 10.5 replaces Rule 5.6 Rule 10.6 replaces Rule 6.12 Fee for filing Certification of Notice and Status Report not prohibited - NEW 38

39 CHAPTER III: PETITION PRACTICE If not proceeding by Objections to an Account Conform Orphans Court petition practice to civil division procedure 39

40 SUMMARY OF CHAPTER III General Rules that apply to all Pleadings Rule 3.2 (Captioning), Rule 3.3 (General and Specific Averments), and Rule 4.1 (Format) Rule 3.12 (Signing) and Rule 3.13 (Verification) Rule 3.14 (Amendment) and Rule 3.15 (Alternative Pleading) 40

41 SUMMARY OF CHAPTER III Rules specific to Petition Rule 3.4 (Contents of Petition and Exhibits/Consents) Rule 3.5 (Citation Petition v. Notice Petition) 41

42 SUMMARY OF CHAPTER III Rules specific to Responsive Pleadings Rule 3.6 (Pleadings Allowed) and Rule 3.8 (Headings) Rule 3.7 (Time for Filing and Service of Responsive Pleadings) Rule 3.9 (Preliminary Objections) Rule 3.11 (Raising new matter in Answer) Rule 3.10 (Denials in Answer) 42

43 RULE 3.5: CITATION V. NOTICE PETITION Citation Petition When personal jurisdiction needed Not previously obtained Not conferred by statute Service of citation: original process (Rule 3.5(b)(1)) Follow civil rules personal service By any adult individual See PEF Code 765 sheriff not needed 43

44 RULE 3.5: CITATION V. NOTICE PETITION Notice Petition When personal jurisdiction not required Or jurisdiction previously obtained Service of Notice Petition regular mail Regular mail, postage prepaid Notice to Plead Affixed Rule to Show Cause and Rule Returnables will be governed by Local Rule 44

45 RULE 3.6: PLEADINGS ALLOWED AFTER PETITION An answer that can include new matter A reply to new matter Preliminary Objections see Rule 3.9 Answer to Preliminary Objections Petition to Join One or More Parties 45

46 RULE 3.9: PRELIMINARY OBJECTIONS PERMITTED Preliminary Objections are broader than for an Account Include all grounds under Pa.R.C.P EXCEPT: (7) Failure to exercise or exhaust statutory remedy; and (8) Full, complete, and adequate non-statutory remedy 46

47 TIME AND SERVICE OF RESPONSIVE PLEADING Time: 20 days 20 days after later of date of citation/notice or date of filing If outside United States 60 days Responding to all subsequent filings 20 days 47

48 TIME AND SERVICE OF RESPONSIVE PLEADING Who to serve (See Rule 3.7 (b)) Filed with OC Clerk Responsive Pleading Mailed to Petitioner or Counsel Mail to all other interested parties identified in petition This is a NEW requirement 48

49 SPECIFIC TYPES OF PETITION Current Rule 12 Becomes Chapter V And Chapter V adds a new rule for Declaratory Judgment Petition 49

50 RULES FOR PRE-HEARING AND HEARING Discovery Same as current rule. Controlled by local rule and specific court orders New Rules Permit Motion for Judgment on Pleading (See Rule 7.2) Motion for Summary Judgment (See Rule 7.3) Injunction (See Rule 7.4) 50