by Peter Klenk, Esq.

Our attorneys regularly appear before the Orphans’ Courts of many counties in Pennsylvania. The Supreme Court of Pennsylvania has created uniform Orphans’ Courts rules, different from those of the other courts in Pennsylvania, and experience has taught us that to practice effectively in the Orphans’ Court one must not only be familiar with the Supreme Courts’ Orphans’ Court Rules, but also be familiar with the local rules of each individual Orphans’ Court. An attorney who may litigate often in another court, but does not regularly practice in the Orphans’ Court, need carefully review these unfamiliar Orphans’ Court Rules before rushing with a Will Challenge or a Petition to Account. If he does not, he risks endangering his clients’ case.

The Pennsylvania Supreme Court has promulgated the “Orphans’ Court Rules of the Supreme Court of Pennsylvania”. Each County has an Orphans’ Court and at least one Orphans’ Court judge with jurisdiction to hear disputes regarding estates, such as Will Challenges and Executor and Administrator’s Accountings. Rule 1.2 states that The Orphans’ Courts of the several judicial districts may adopt local rules regulating practice and procedure, but such rules shall not be inconsistent with any rule adopted by the Supreme Court. In other words, the various Orphans’ Courts may add to the Supreme Court’s Orphans’ Courts Rules, but cannot subtract or contradict the basic outline created in the Orphans’ Court Rules of the Supreme Court.

When in front of an Orphans’ Court during a Will Challenge, Accounting or Guardianship the various interested parties in the dispute must receive notice of hearings and filings by other parties. The Supreme Court in the Orphans’ Court Rules has laid out the general rules regarding notification and, in accordance with Rule 1.2, the various Orphans’ Courts have added to this general rule. If pursuing an executor or administrator’s accounting or a Will Challenge, the parties must not only follow the Supreme Court’s Rules, but also must be aware of the local rule.

Supreme Court Rule 5.1 deals with Notice. The Rule states that whenever notice is to be given it shall be given:

(a) by service upon the attorney appearing of record for such person; or

(b) if there is no such attorney, by personal service, delivery at the residence of such person or by mail, if his residence is known; or

(c) if his residence is not known, by publication once a week during three successive calendar weeks in the legal periodical, if any, and in a newspaper of general circulation published at or near his last known residence within the county;

(d) in such other manner as the court shall direct.

It should be noted that notice rules for the Pennsylvania Orphans’ Court are liberal when compared to other jurisdictions, such as the New York Surrogate Court. In New York personal service on parties…often requiring the hiring of a professional to hunt down the party being served… is the rule. In Pennsylvania generally notice goes to the Attorney of Record and if there is no attorney or lawyer of record the general practice is to serve interested parties notice by regular mail. This is much less expensive and time consuming than personal service in New York.

Various Orphans’ Courts have added to the Supreme Court Orphans’ Court Rule 5.1. Most counties have at a minimum amended Orphans’ Court Rule 5.1 to name the local legal publication/periodical in which all notices under Rule 5.1(c) must be published.

• Beaver County Orphans’ Court Rule L.5.1.A designates Beaver County Legal Journal.
• Berks County Orphans’ Court Local Rule 5.1A designates the Berks County Law Journal.
• Bucks County Orphans’ Court Rule 5.1A designates Bucks County Law Reporter.
• Chester County Orphans’ Court Rule L.5.1.A designates Chester County Law Reporter.
• Delaware County Orphans’ Court Rule 5.1A designates the Delaware Cty Legal Journal.
• Lackawanna County Orphans’ Court Rule 5.1(a) designates The Lackawanna Jurist.
• Lehigh County Orphans’ Court Rule 5.1-5 designates the Lehigh Law Journal.
• Luzerne County Orphans’ Court Rule (5) 1.1 designates the Luzerne Legal Register.
• Montgomery County Orphans’ Rule 5.1A designates the Montgomery County Law Reporter.
• Philadelphia County Orphans’ Court Rule 5.1.A designates The Legal Intelligencer.
• Schuylkill County Orphans’ Court Rule 5.1A designates the Schuylkill Legal Record.
• Washington County Orphans’ Court Rule 5.1-1 designates The Washington County Reports.
• Westmoreland County Orphans’ Court WO103 designates the Westmoreland Law Journal.
• York County Civil rule 6210 designates the York Legal Record.

Other counties have gone even further, amending and supplementing the Supreme Court Orphans’ Rule 5.1 on Notification to address specific notification issues. For example, if during a Will Challenge notification need be made to a person who is not sui juris (i.e. a person who is under age or incapacitated) then to satisfy the Philadelphia Orphans’ Court notification must be given to the person (if over 14) and also to the persons’ next of kin, spouse, the person with whom the person lives, the superintendent of the institution in which the person lives or in such manner as the Court by special order may direct. Another example is Bucks County Orphans’ Court Rule 5.1B, where Supreme Court Orphans’ Court Rule 5.1(a), service on the attorney of record, is clarified. Rule 5.1B states that 5.1(a) should not be read to mean that service has to be directly to the attorney of record, but also includes service to such attorney’s partner, principal, associates, employee at his office or even by mail addressed to his office.

Thus care must be taken while petitioning for an executor’s or administrator’s accounting or pursuing a Will Challenge in the Orphans’ Court. Not only does the lawyer need to be familiar with the Supreme Court Orphans’ Court Rules, but the lawyer must also review and become familiar with the local rules created by the local Orphans’ Court.