Litigator Beware! It’s Different “Over There”

“Over there” in this context refers to the Orphans’ Court – theoretically a “division” of the Court of Common Pleas (the trial court) in each Pennsylvania county. Orphans’ Court matters include adoptions, name changes, will contests, guardianship matters, and other similar family-related issues, as well as trust litigation, which can involve very substantial sums of money. Large trusts are frequently administered by institutional trustees (banks), whom I have frequently represented. Considering the large sums of money involved in these matters, misunderstanding the rules of this unusual court can implicate huge consequences. As such, it’s worthwhile to understand the peculiarities of appellate practice in the Orphans’ Court (because a detailed description of the similarities and distinctions between practice there and on the civil “side” of the court could fill – and have filled – entire volumes).

As to appellate practice, the most fundamental difference between the civil side and the Orphans’ Court side of the court has to do with the basic concept of an “appealable order.” Before addressing the merits of any appeal, an appellate court must always satisfy itself that the appeal is properly before it in the first place. In typical civil litigation, a disappointed party must generally wait for the entry of a “final order” in a case before appealing. (See PA R.A.P. 341). Generally speaking, a final order is the last order in a case, and the one that resolves “all claims and all parties” – or whatever claims remain open in a complicated case. (As with everything in the law, there are numerous exceptions to the general rule.) All prior interim (“interlocutory”) orders in a civil case must await the entry of a “final” order in order to be appealed. Then they are all appealed at the same time upon the entry of the final order.

Orphans’ Court Orders Are Drastically Different

Because estate and or trust administration can sometimes go on for an extended time (decades, even), waiting for a “final order” in the ordinary sense described above would make estate and trust administration difficult, if not impossible. Consequently, the rules are fundamentally different as regards to appealability in the Orphans’ Court. An entire list of orders that are immediately appealable are set out in Rule 342 of the Rules of Appellate Procedure. Indeed, most of these are not “final orders” in the sense described above (where the case is over). However, the Rules nevertheless provide that if an appeal is available but is not taken in a timely fashion (30 days from entry), the right of appeal is irretrievably lost. In the language of Rule 342 (c), “Failure to appeal an order that is immediately appealable under paragraphs (a)(1) – (7) of this rule shall constitute a waiver of all objections to such order and such objections may not be raised in any subsequent appeal.”

Obviously, a lawyer bringing an understanding of the Rules borne of his experience with typical civil litigation into the Orphans’ Court setting can be disastrous, and result in the waiver of a client’s legal rights. Such a lawyer might believe that he needs to await the entry of a “final” order in the typical sense, and slumber through the expiration of a critical appeal deadline.

A recent experience may help to illustrate how complicated this can be. In our example, the trustee of a life insurance trust filed an account (a description of the assets and the trustees’ handling of the same). The account detailed many years’ worth of transactions. The beneficiaries objected to the account (accusing the trustee of mismanagement). The case ultimately went to trial. Following trial, the court entered an order on January 2, dismissing the beneficiaries’ objections and “confirming” the account. In the same order, the court also directed the trustee to file a “schedule of proposed distribution” – a proposal as to what it intended to do with the assets still held in the trust. The beneficiaries were afforded an opportunity to file objections to the proposed distribution. A lawyer evaluating this order from the background of typical civil litigation might well expect an appeal would lie only from the “final order,” (the one directing distribution of the remaining assets held in the trust and finalizing the dispute). Not so.

The order in our example actually does two things, each of which will be appealable, but on separate, different, schedules. Confirming the account is an order specifically defined as an appealable order under Rule 342 (a)(1). An appeal from that portion of this order is immediately available, and the right to appeal the “merits” decision (as to the management of the life insurance policies held in the trust – as described in the account) will be waived if not taken within 30 days, or February 1 in our example. However, the order in question also set forth a process to determine how the remaining assets will be distributed. An appeal will also be available from that order, too, once entered, but no decision on that issue has yet been made. That order will be appealable later. (Not because it is the “final order” but because — again– an order directing a distribution of assets is also defined as an appealable order under Rule 342 (a)(1). (This order also happens to be “final” in the sense that it is the last order, but that is not what makes it appealable.)

Otherwise stated, the order in our example has two aspects, one of which must be appealed immediately — upon pain of waiver, and the other of which will require careful attention later to ensure a timely appeal.

As demonstrated, failing to appreciate the nuances and differences in the application of the appellate rules in this example could result in the loss of a right to appeal important issues (in our example, the administration of a $10 Million insurance policy that has lapsed).

It is, indeed, different “over there” in Orphans’ Court, and one simply cannot be too careful when it comes to appeal deadlines.

Mark Bradshaw has nearly 35 years’ experience in representing institutional fiduciaries in Orphan’s Court matters, including trials and appeals in these cases. For any questions or for more information, please reach out to him at 717.255.7357 or