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HomeMy WebLinkAbout02-19-91 '1~J..c.f ~ 1,-,,1l-. /'1" . iqql J. A28013/90 IN THE ESTATE OF ROBERT M.' MUMMA, DECEASED ) IN THE SUPERIOR COURT OF : PENNSYLVANIA ) APPEAL OF: ROBERT M. FREY, GUARDIAN AD LITEM, BARBARA MCK MUMMA and LISA M. : MORGAN, INDIVIDUALLY AND AS ) EXECUTRIXES OF ESTATE OF ROBERT M. MUMMA, DECEASED, ) BARBARA M. McCLURE, LINDA M. ROTH, ) ROBERT M. MUMMA, II NO. 39 HarriSburg, 1990 Appeal from Order Pleas, Orphans' Cumberland county, of the Court of Common Court Division, of No. 21-86-398. BEFORE: WIEAND, DEL SOLE and MONTEMURO, JJ. MEMORANDUM: FILED: JANAURY 7, 1991 Robert M. Mumma died testate on April 12, 1986. By his last will and testament, Mumma created several trusts, naming as remaindermen his four children. On January 6, 1987, one of the children, Robert M. Mumma, II, disclaimed his remainder interest. On June 20, 1989, however, in an apparent change of mind, he filed a petition to revoke the prior disclaimer and obtained from the orphans' Court of Cumberland county a rule to show cause. The petition was opposed by the Executrices/Trustees; by Linda Roth, a child of the testator; and by Robert M. Frey, Esquire, guardian ad litem for minor children of the petitioner. A hearing was held on the petition, and, on November 17, 1989, the Orphans' Court entered an order allowing the petitioner to revoke his disclaimer. The guardian ad litem filed exceptions and, on December 12, 1989, an appeal to this Court. Because of the - 1 - 648 < J. A28013/90 appeal, the exceptions have not been decided by the orphans' Court. 1 The Superior Court wrote in In re Adootion of Hamilton, 362 Pa.super. 249, 523 A.2d 1176 (1987), as follows: Under the rules of equity procedure governing orphans' court matters, [appellant] must have the opportunity to raise his issues before the court in motions for post-trial relief. pennsylvania Orphans' Court Rule 3.1 provides that pleading and practice in orphans' court shall conform ~o pleading and practice in equity, unless otherwise prescribed by statute, supreme court rule, or local orphans' court special order or rule. [Where] there are no local orphans' court rules governing the filing of exceptions or decrees nisi, the court and parties should ... . follow[] the procedure in equity cases. Pennsylvania Rule of Civil Procedure 1517 provides that in equity actions, the court shall proceed by entering an adjudication including a decree nisi. Post-trial practice then proceeds in accordance with Pa.R.C.p. 227.1 which requires the filing of a motion for post- trial relief from an adjudication or decree nisi. Id. at 251, 523 A.2d at 1177. At all times pertinent to the instant case, Rule 77 of the Cumberland county orphans' Court Rules provided as follows: 1The court wrote: "[P]ending resolution of the appeal filed with the Superior Court, we are without jurisdiction to rule on the guardian ad litem's exceptions pursuant to Pa.R.A.P. 1701(a). Should the Superior Court remand for a ruling on said exceptions, we will obviously do so at that time." - 2 - 649 J. A28013/90 "Exceptions shall be filed at such place and time, shall be in such form, copies thereof served and disposition made thereof as local rules shall prescribe. ,,2 similar rules have been interpreted as requiring motions for post-trial relief. Thus, the Court in In re Adoption of Hamilton, supra, said: "In the absence of statutory law specifying a different procedure, or of any special order or general rule in [Cumberland] County regarding the filing of exceptions or decrees nisi ~n orphans' court matters, Orphans' Court Rule 3.1 dictates that the court and parties should have followed equity procedure, which in turn required a decree nisi and motions for post-trial relief before the entry of a final appealable decree." Id. at 253-254, 523 A.2d at 1178. See also: In re Involuntarv Termination of Parental Riqhts to 8.M.D. and R.L.D., 487 Pa. 387, 389 n.l, 409 A.2d 404, 405-406 n.l (1979). The arguments advanced by appellant on appeal are (1) that the Orphans' Court decision is in conflict with the 2The rule in Cumberland county was amended May 15, 1990, effective July 1, 1990, to provide as follows: EXCEPTIONS -GENERALLY RULE 7.1-1 No Exceptions shall be filed to decrees, adjudications, confirmations or other decisions or orders of court entered in proceedings unless the right to except thereto is expressly conferred by Act of Assembly, by general rule, or by special order; and ail decrees, adjudications, confirmations or other decisions or orders of court, other than those to which Exceptions are so allowed to be taken, shall be final and definitive. - 3 - 650 J. A28013/90 law of inter vivos gifts and the law of third party beneficiary contracts; (2) that the decision nullifies the intent of Section 6201 et seg. of the Probate, Estates and Fiduciaries Code; and (3) that the decision constitutes an attempt to follow an improperly construed provision of the will. These issues do not appear to have been considered specifically by the orphans' Court. Moreover, the decision of the Orphans' Court contains no findings of fact. Under these circumstances, we are of the opinion that a remand is essential to permit the trial court to consider the issues raised by appellant. "The opportunity to resolve disputes under Pa.R.C.P. 227 and 227.1 is an essential aspect of the appellate process designed to effect the resolution of controversies, if possible, before they reach this court, and to clarify the issues on appeal." In re Estate of Wood, 355 Fa.Super. 422, 425, 513 A.2d 993, 994 (1986). Remanded for determination of exceptions pending in the trial court. Jurisdiction is not retained meanwhile. DATED: JANUARY J, 1991 JUDGMENT ENTERED ~ ~-_. - ~~1 ~- C. .//~_ DEPUTY PROTHONOTARY - ./ - 4 - 651.