CHAPTER 1
 
 
GENERAL FORM OF PETITION
 
 

1.1
General Types of Petitions

 
 
 
 

There are two petition procedures to begin proceedings in Orphans' Court Division (the "Orphans' Court"). Both require filings with the Clerk of the Orphans' Court (the "Clerk"). One must decide whether a Rule 1.2.A petition, as so designated in the Philadelphia Orphans' Court Rules (the "Rules"), or a petition for citation under Rule 3.5.B, is appropriate.

A Rule 1.2.A petition is used when a party wishes court approval of a proposed act. Typically, this would be approval to invade principal held in a restricted account, leave to take discovery, the appointment of a guardian for a minor, or a request for the fixing of additional security in order to sell real estate.

A Rule 1.2.A petition, when filed, is held by the Clerk for the requisite twenty days under the Rules. Counsel is required to give notice to and serve a copy of the petition on all interested parties at the time of filing. The notice must state that an answer may be filed with the Clerk within twenty days, and that failure to file an answer will result in the matter going before the court as uncontested. See 3.2. A copy of the notice letter must be attached to the petition as an exhibit. No notice is required of a Rule 1.2.A petition when the consents of all interested parties are attached to the petition.

Counsel should indicate on the cover sheet which is affixed to the petition whether notice is required and whether the joinders of all parties are attached. If no notice is required or all joinders are attached, the petition would then be sent by the Clerk directly to the Motion Judge.

If a party wishes to compel another party to perform an act, then a petition for citation under Rule 3.5.B must be filed, in which the individual is cited to show cause why he should not be compelled to perform the designated act. A citation is a writ issued out of a court of competent jurisdiction, commanding a person or entity named therein to appear on a day named and do something therein mentioned, or show cause why the person or entity should not. The purpose of a citation is to obtain in personam jurisdiction over a person or entity.

If a citation is required, counsel should prepare a petition requesting the court to issue a citation. The petition would fall under Rule 1.2.A.(1) as a petition for which no notice is required. Once the petition has been approved by the court, the Clerk will prepare the citation to be served by counsel upon all interested parties along with a copy of the petition. The preliminary decree awarding the citation states that the citation is "Returnable sec. leg." (meaning "returnable according to law"). The Clerk typically fixes a return date of forty-five days from the date the judge signs the preliminary decree. Pursuant to Section 765 of the Probate, Estates and Fiduciaries Code (the "PEF Code"), when no time is specifically fixed by the Orphans' Court, the citation is effective for six months from the date the judge awards the citation. Under the Orphans' Court Rules, any party cited must be given at least twenty days notice in which to file an answer with the Clerk. Service of the citation and petition may be made by an adult person, by the Sheriff of the county wherein the citation issued, or by deputized service by the Sheriff of any county in which service can be had. The citation can also be served by registered mail, by publication, or written acceptance of service by or on behalf of the person to whom the citation is directed. After service of the citation and petition has been made, the original citation with proof of service must be filed with the Clerk. If the party to whom a citation has been awarded fails or is unable to serve the citation and petition within the time provided, an alias citation may be requested. In the event the party to whom an alias citation has been awarded fails or is unable to serve the citation and petition within the time provided, a pluries citation may be requested. Any subsequent citations requested are also called pluries citations.

 
 
 

 
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