CHAPTER 2
 
PETITIONS, NOTICE
AND OTHER BUSINESS OF THE COURT
 

 
 
 
 
B. Proceeding by Petition
     
   
1. Generally - A petition should contain the following:
         
      a. A decree page attached to the front of the petition (except for petitions filed with the Register of Wills);
       
      b. The petition itself, which should contain:
         
          1. A caption;
             
          2. A heading stating the purpose of the petition;
             
          3. A concise statement of the facts, in numbered paragraphs, conforming to the requirements of any applicable rule;
             
          4. A request for the relief desired; and
             
          5. The signature of the petitioner with the name typed below.
         
      c. An affidavit or verification;
           
      d. Any required exhibits, consents or approvals;
           
      e. A certification of counsel that: (i) no notice is required, (ii) consents of all parties in interest are attached, or (iii) notice has been given, listing the persons notified and stating the date and manner of service, together with a copy of the notice; and
           
      f. A cover page in the format provided by the Clerk’s office.
           
    The petition is prepared on 8½” x l1” paper and should be typewritten (double spaced) or printed, and endorsed with the name of counsel appearing in court. See Phila.O.C. Rule 1.2.A; Pa.O.C. Rule 3.4, Phila.O.C. Rule 3.4.A. Appeals from the Register of Wills are governed by Phila.O.C. Rule 10.2.C; and inheritance tax appeals are governed by Phila.O.C. Rule 10.2.E. See PEPH, Green Book, for sample forms.
     
    There are two methods of proceeding by petition in the Orphans’ Court. As explained in Paragraph B.2, a party proceeds by petition and notice when seeking Court approval of a proposed act. As explained in Paragraph B.3, a party proceeds by petition and citation when seeking to compel another party to act.
     
2.   Petition and Notice
     
    Petitions may be handled in one of two ways when the party seeks the approval of the Court for a proposed act, depending on whether the matter requires notice. See Phila.O.C. Rule 1.2.A. Notice may not be required if all parties in interest have joined in, or consented to the petition.
     
    If no notice is required by statute or rule of court, or where the consents of all parties in interest are attached, the petition, motion or application is filed with the Clerk’s office and the filing fee is paid. The Clerk will then transmit the matter to the Motion Judge or other appropriate Judge of the Orphans’ Court for disposition.
     
    When notice is required, counsel must proceed as follows:
     
      a. Preliminary Procedures
         
        Counsel for the moving party prepares the petition or other document in accordance with the rules. A separate notice to parties in interest is then prepared and sent with a copy of the document to be filed. The notice must state that unless written objections are filed with the Clerk within twenty (20) days of the date of the notice (or any longer period required by statute or rule of court), the Court will assume that the matter is uncontested. The “date of the notice” is the date of mailing, publication or service of the notice.
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Except where specifically provided otherwise, notice may be sent by ordinary mail to the party in interest or to his or her attorney of record.

Notice to a person who is not sui juris must be given to the person’s guardian, trustee, agent, or other fiduciary. If there is no such fiduciary, notice must be given to the person under disability (if over fourteen (14) years of age) and to such person’s next of kin, spouse, the person with whom he or she resides or by whom the person is maintained, the superintendent or other official of the institution having custody of such person, or as the Court may by special order direct. See Pa.O.C. Rule 5.2 and Phila.O.C. Rule 5.2.A.

In addition to the notice requirements in connection with accounts (set forth in Chapter 3), the rules set forth specific notice requirements for other proceedings, such as petitions for allowance to surviving spouse of an intestate decedent (Phila.O.C. Rules 12.1.C and 12.2.A), family exemption (Phila.O.C. Rule 12.1.A), public and private sales of real estate (Phila.O.C. Rules 5.1.B and 12.9.A), settlement of small estates (Phila.O.C. Rule 6.11.B), and determination of title to real estate (Phila.O.C. Rule 12.1.E; PEF Code §3546).

         
      b. Certification of Service
         
        A separate exhibit must be attached to the petition, motion or other application, listing the names of the persons notified and stating the date and manner of service and must be certified by counsel and include a copy of the notice.
         
      c. Filing
         
        On the same day as the date of the notice, or the next business day, counsel for the moving party files the document with the Clerk’s office and pays the required filing fee. The Clerk holds the document until the expiration of the notice period.
         
      d. Responses
         
        If a party objects to the action proposed by the moving party, the objecting party (or their counsel) must file a written response with the Clerk on or before the last day of the notice period and the objecting party must also send a copy of the response to the moving party (or their counsel) on the same day that the response is filed with the Clerk.
         
      e. Disposition
         
        After the expiration of the notice period, the Clerk transmits the petition, motion or other application, together with any response, to the Motion Judge or other appropriate judge of the Orphans’ Court. The judge sets a time and place for a hearing or a conference, or makes such other disposition as is deemed proper.
         
3.   Petition and Citation
     
      a. General Requirements and Procedure
         
        A party seeking to compel a person to act must proceed by petition and citation if the Court has not previously obtained jurisdiction over the person. See Pa.O.C. Rule 3.5. “Jurisdiction of the person shall be obtained by citation to be awarded by the orphans’ court division upon application of any party in interest. The citation shall direct the party named therein to file a complete answer under oath to the averments of the petition on or before a day certain, which shall not be less than ten (10) days after the service thereof, and to show cause as the decree of the division shall provide.” See PEF Code §764; Pa.O.C. Rule 5.3.

It is not always clear whether counsel should proceed by petition and citation or by petition and notice. Generally, jurisdiction of the person is required in two types of situations: (i) where the petitioner requests the Court to order the respondent to perform a specific act or to refrain from a specific act; and (ii) where the relief requested will have a direct impact on property in which the respondent has an interest. For example, if a personal representative of a decedent’s estate seeks to recover the proceeds of a bank account titled jointly between the decedent and his son, the citation to show cause will be directed to the son to compel the delivery of funds to the estate and to the bank where the funds are on deposit. The bank has a direct interest in the property involved by virtue of its contract of deposit. Another typical situation where an action is commenced by petition and citation is an action to compel a personal representative to file an account.

The petition and citation procedure in Philadelphia is as follows:

         
       
1. The petitioner files a petition with the Clerk, for example, “for a citation to show cause why John Jones, executor, should not be compelled to file an account.” The prayer for relief requests only that a citation be issued.
           
          2. No notice of the presentation of a petition for citation is required. Therefore, the Clerk transmits the petition to the assigned Judge as soon as it is filed. If the petition is properly brought, the Court will enter a decree ordering the issuance of a citation. On occasion, the Court will require additional information, revisions of the petition, or a brief supporting the authority for obtaining the ultimate relief desired by the petitioner before a citation will issue.
             
          3. After the decree is entered, the Clerk prepares the citation. Counsel obtains the citation and necessary service copies from the Clerk. The citation is in the form of an order directing each respondent named in the petition to show cause on or before a day certain why the relief sought by the petitioner should not be granted.
             
          4. The respondent shows cause by filing a response to the petition on or before the return date. One noteworthy exception is a petition for adjudication of incapacity. In that case, the citation directs the incapacitated person to appear in Court on the return date pursuant to the preliminary decree. See Chapter 6. When a response is filed, the matter is referred to the assigned judge for appropriate disposition. If no response is filed, the petitioner must file a second petition requesting the specific relief sought, namely, a motion for a default order in accordance with Phila.O.C. Rules 3.5.B(3) and 1.2.A(1).
             
      b. Method of Service
             
        Counsel must obtain the citation and copies from the Clerk and arrange for service of the copies of the citation and the petition. The citation shall be served in the same manner as original process in a civil action under Pa.R.C.P. 402. See also Phila.O.C. Rule 3.5.B. The citation must be served at least twenty (20) days prior to the return date. For service of a citation in proceedings for an adjudication of incapacity, See Chapter 6; Phila.O.C. Rule 14.2.B(4). A copy of the petition must be served with the copy of the citation.
             
      c. Proof of Service
             
        Proof of service of a citation is by affidavit of the person mailing, publishing, or personally serving the citation, by return of the sheriff, or by written acceptance of service by or on behalf of the person to be served. The affidavit of proof of service must be completed on the reverse side of the original citation, which is then filed with the Clerk.

In the case of service of a citation on an alleged incapacitated person, the affidavit of service must state that the petition and citation were read to the alleged incapacitated person and explained in terms the alleged incapacitated person would be most likely to understand. See Phila.O.C. Rule 14.2.B(4)(a). Proof of service on an incapacitated person is handed to the Court at the time of the hearing.

The Rules require service of a copy of the petition and a copy of the citation on the person served. The original citation must be retained and submitted to the Court as part of the proof of service.

             
4.   Cost of Filing
     
    The fee for filing the petition, motion or other pleading is payable at the time of filing with the Clerk. An itemized list of fees fixed by the Court may be found in the Philadelphia Bar Association Legal Directory and on the Philadelphia Orphans’ Court website: www.courts.phila.gov.
 
 

 
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