Title 210--APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
[210 PA. CODE CH. 3]
Order Adopting Amendments to Pa.R.A.P. 311 and 342; No. 166 Appellate Procedural Rules; Doc. No. 1
[35 Pa.B. 3897]
And Now, this 29th day of June, 2005, upon the recommendation of the Appellate and Orphans' Court Procedural Rules Committees, the proposal having been published before adoption at 34 Pa.B. 5014 on September 11, 2004, and a Final Report to be published with this Order:
It Is Ordered, pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the amendments to the Pennsylvania Rules of Appellate Procedure 311 and 342 thereto, are adopted in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b) and shall be effective 60 days after adoption.
TITLE 210. APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
ARTICLE I. PRELIMINARY PROVISIONS
CHAPTER 3. ORDERS FROM WHICH APPEALS MAY BE TAKEN
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:
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(8) Estate and trust matters. An order determining the validity of a will or trust.
(9) Other cases. An order which is made appealable by statute or general rule.
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(g) Waiver of objections.
(1) Where an interlocutory order is immediately appealable under this rule, failure to appeal:
(i) Under Subdivisions (a)(1)--(7), (a)(9), (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.
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(iii) Under [Subdivision] Subdivisions (a)(8) 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.
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Orders determining the validity of a will or trust including, but not limited to, orders of the Orphans' Court following the grant or denial of probate by the Register of Wills are immediately appealable pursuant to the 2005 amendment of this rule. Prior to the 2005 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, 2003 Pa. Super. 230, 827 A.2d 512 (2003), and Estate of Luongo, 2003 Pa. Super. 171, 823 A.2d 942 (2003). However, in Estate of Schmitt, 2004 Pa. Super. 43, 846 A.2d 127 (2004), a panel of the Superior Court held that an order sustaining the Register's striking of 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 decided that while orders determining 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, a party seeking to probate an instrument, or to challenge the validity of an instrument, will be allowed to take an immediate interlocutory appeal as of right under Rule 311, and shall be bound by the waiver doctrine if such party does not file an immediate appeal. See the 2005 amendment to Subdivision (g) of this rule.
Rule 342. Orphans' Court Orders Appealable. Orders Determining Realty, Personalty and Status of Individuals or Entities. Orders Making Distribution.
[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.]
An order of the Orphans' Court Division making a distribution, or determining an interest in realty or personalty or the status of individuals or entities, shall be immediately appealable:
(1) upon a determination of finality by the Orphans' Court Division, or
(2) as otherwise provided by Chapter 3 of these rules.
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 status of individuals or entities, 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 appeals in Orphans' Court matters as heretofore permitted under Rule 311 (Interlocutory Appeals as of Right) and Rule 313 (Collateral Orders).
However, Rule 342 may have been ambiguous in that regard because in Estate of Sorber, 2002 Pa. Super. 226, 803 A.2d 767 (2002), a panel of the Superior Court interpreted the 2001 amendment of Rule 342 to preclude immediate appeals from collateral orders unless determined to be final by the Orphans' Court judge. The holding in Estate of Sorber, to wit, that Rule 342 precludes collateral order appeals under Rule 313, is now superseded by the 2005 amendment to Rule 342.
The 2005 amendment provides that Rule 342 is not the exclusive means for appealing orders: (a) determining an interest in realty or personalty or the status of individuals or entities, or (b) making a distribution. An aggrieved party may appeal such orders under any other Rule in Chapter 3 of the Rules of Appellate Procedure to the extent that the order meets the requirements for appealability under any such rule.
FINAL COMMITTEE REPORT OF THE ORPHANS' COURT PROCEDURAL RULES COMMITTEE1
In 1992, the Supreme Court of Pennsylvania amended Rule 341 to redefine final orders as ''any order that disposes of all claims and all parties.'' See Pa.R.A.P., Rule 341(b)(1), 42 Pa.C.S.A. This amendment was intended to limit excessive and unnecessary interlocutory appeals that had proliferated under the ''final aspect doctrine.'' Under that doctrine, a final order was any order that either, disposed of the entire case, or that, as a 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 fewer 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 all parties, the aggrieved party generally has to wait until the end of the entire case, or attempt to appeal under one or more of the other rules in Chapter 3 that permit an appeal of ''non-final'' orders.2
Finally, there is a procedure under Rule 341(c) for an aggrieved party to seek and obtain a ''determination of finality'' to permit an immediate appeal. Such determinations of finality are fictional in a sense because they are not final as to all claims and all parties, but are more closely akin to interlocutory orders appealable by permission. In order to be appealable, such orders must involve a controlling question of law in which an immediate appeal would facilitate resolution of the entire case. Subdivision (c) of Rule 341, somewhat like Rules 312 and 1311, also has strict standards as a predicate for a ''determination of finality.''
While elimination of the ''final aspect doctrine'' decreased the number of interlocutory appeals, and is thus, 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 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. See In re Estate of Habazin, 451 Pa. Super. 421, 679 A.2d 1293 (1996). Following input from the Orphans' Court bench and bar, the Supreme Court of Pennsylvania amended Rule 342 on December 20, 2000, effective January 2, 2001, to permit an immediate appeal from orders determining an interest in realty, personalty or individual rights upon a determination of finality by an Orphans' Court judge. The 2001 version of 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 is appropriate to facilitate the ultimate resolution of the case. At that time, 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 are reviewed narrowly and are very rarely granted.
Since 2001, Rule 342 has permitted interlocutory appeals in Orphans' Court proceedings while providing for 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.3 Within the past two years, however, several decisions of the Superior Court raised the issue of whether the 2001 version of Rule 342 is sufficient to provide a comprehensive vehicle for interlocutory appeals in Orphans' Court matters.
For example, a number of Orphans' Court judges and practitioners 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 the 2001 amendment to Rule 342, such orders were considered immediately appealable as collateral orders. See Estate of Georgiana, 312 Pa. Super. 339, 458 A.2d 989 (1983), affirmed, 504 Pa. 510, 475 A.2d 744 (1984) (holding that such orders were separable from and collateral to the main cause of action, and that if an immediate appeal was not allowed, such orders would evade appellate review and result in the irreparable loss of important rights). See also McGillick Foundation, 537 Pa. 194, 642 A.2d 467 (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).4
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, 2002 Pa. Super. 226, 803 A.2d 767 (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 the status of individuals. Sorber held that the new Rule 342 had, in effect, overruled Georgianna.
Orphans' Court practitioners and judges commenting on the Sorber decision have unanimously stated their view that the inability to obtain immediate review of orders removing executors or trustees, or refusing to so remove them, substantially upsets the orderly administration of an estate. It is essential that there be a final determination that a competent and trustworthy fiduciary was in place to carry out, carefully and faithfully, the intentions of the testator or settlor. See Georgianna, supra.
The second decision calling the 2001 version of Rule 342 into question is Estate of Schmitt, 2004 Pa. Super. 43, 846 A.2d 127 (2004), appeal dismissed, ____ Pa. ____ , 857 A.2d 679 (2004), where a panel of the Superior Court sua sponte quashed an appeal from an Orphans' Court order 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 personal representative's final account. However, an arguably different result was reached by Superior Court panels in Estate of Janosky, 2003 Pa. Super. 230, 827 A.2d 512 (2003), and Estate of Luongo, 2003 Pa. Super. 171, 823 A.2d 942 (2003), appeal denied, 577 Pa. 722, 847 A.2d 1287 (2003). In both Janosky and Luongo, the panels did not sua sponte raise the issue of whether orders determining the validity of a will are appealable as final orders, and thus, in both cases, the Superior Court decided the appeals on their merits.
In Schmitt, the Superior Court determined that since the aggrieved party had not requested a determination of finality under the previous Rule 342, the Orphans' Court did not need to decide whether that rule was broad enough to cover orders determining the validity of a will. 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 did not represent a realistic avenue of appeal for those seeking to challenge an Orphans' Court determination of an instrument's validity.
Some Orphans' Court judges and practitioners have suggested that orders determining the validity of a will or trust are ''final orders'' because they decide 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, the administration of the estate or trust may be routine and not result in a formal accounting. Consequently, there would be no final order approving the accounting, and hence, no final, appealable order. Simply put, the failure to allow an immediate appeal from orders determining the validity of a will may put the losing party out of court without any right of appeal if he or she must wait until ''confirmation of the personal representative's final account.'' Since that party may not be a beneficiary under the document admitted to probate, he may not have standing to compel the filing of a final account.5 Moreover, it would not be efficient to administer an estate under one instrument only to have it supplanted with a new instrument after a successful appeal challenging the initial instrument's validity.
Summary of Recommendation
As a result of the 2005 amendments, orders determining the validity of a will or trust are immediately appealable under Rule 311 as interlocutory appeals as of right.6 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 have recommended, and the Supreme Court has adopted, new Rule 311(a)(8).7
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 the Superior Court panel decision in Sorber, the Supreme Court has amended Rule 342 to clarify that the 2001 amendment was not intended to overrule the Georgianna case, or to otherwise preclude an aggrieved party from pursuing immediate appeals in Orphans' Court matters from any order that meets the requirements of any other Rule in Chapter 3 of the Pennsylvania Rules of Appellate Procedure. The 2005 amendment to Rule 342 authorizes interlocutory appeals by permission under Rules 312 and 1311.
However, because the standard for permitting an appeal under Rule 342 is in the discretion of the trial judge, and because the standard for permitting an interlocutory appeal pursuant to Rules 312 and 1311 is much stricter, it is doubtful, as a practical matter, that those Rules will be used as alternative bases for the appeal of orders covered by Rule 342. Moreover, any final order in an Orphans' Court matter that ends a case as to all claims and all parties is still appealable as a final order pursuant to Rule 342(b).
[Pa.B. Doc. No. 05-1320. Filed for public inspection July 15, 2005, 9:00 a.m.]
1 The Orphans' Court Procedural Rules Committee has prepared this Final Committee Report for the convenience of the bench and bar. It is not a part of the Appellate Rules and has not been officially adopted by the Court.
2 There are several other vehicles for appealing from ''non-final'' orders. Rule 311 permits interlocutory appeals as of right for certain specific kinds of orders, while Rules 312 and 1311 allow interlocutory appeals by permission under certain specific circumstances. Rule 313 allows an appeal as of right from collateral orders, and while such orders are not, strictly speaking, characterized as interlocutory, once the three prongs of the collateral order doctrine test are satisfied, they are not ''final'' in the sense of ''ending the case as to all claims and all parties.''
3 Prior to the 2005 amendments, Rule 342 provided, 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.''
4 See Geniviva v. Frisk, 555 Pa. 589, 725 A.2d 1209 (1999) (where the Supreme Court of Pennsylvania clarified the meaning of the ''importance'' factor of the collateral order doctrine, stating that '' . . .it is not sufficient that the issue be important to the particular parties. Rather, it must involve rights deeply rooted in public policy going beyond the particular litigation at hand.'' Id. at 598, 725 A.2d at 1214). Even absent the Sorber decision, the Geniviva case calls into question the continued use of the collateral order doctrine for appeals from Orphans' Court orders removing executors or trustees, or refusing to do so.
5 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.''
6 The 2005 amendments were published in the following periodicals: Pennsylvania Bulletin, the Pittsburgh Legal Journal, The Legal Intelligencer, the Pennsylvania Law Journal, as well as on the internet website of the Administrative Office of Pennsylvania Courts. Comments were received and considered by the Committee, resulting in several changes ot the Final Recommendation submitted to the Court.
7 Former Subdivision (a)(8) of Rule 311 concerned ''other cases,'' in which an order was made appealable by statute or rule.
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