J-A13020-17

                                  2017 PA Super 275

    ESTATE OF: EDWARD WINSLOW                  :   IN THE SUPERIOR COURT OF
    TAYLOR INTER VIVOS TRUST                   :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: CHARLES CRESSON                 :
    WOOD AND URQUHART A. WOOD                  :
                                               :
                                               :
                                               :   No. 2289 EDA 2016

                     Appeal from the Decree June 27, 2016
              In the Court of Common Pleas of Philadelphia County
                  Orphans’ Court at No(s): No. 3563 IV of 1939


BEFORE:      LAZARUS, J., OTT, J. and FITZGERALD, J.*

OPINION BY OTT, J.:                                     FILED AUGUST 23, 2017

        Charles Cresson Wood and Urquhart A. Wood (“Appellants”) appeal

from the Decree entered June 27, 2016, in the Court of Common Pleas of

Philadelphia County, denying their request for the issuance of a citation on

their petition for declaratory judgment concerning the termination date of a

trust established by Edward Winslow Taylor, in 1928, as amended on

September 25, 1930.1          Appellants claim the orphans’ court erred (1) in

finding that the orphans’ court’s December 7, 2009 Adjudication foreclosed

their petition, (2) in refusing to issue a citation, and (3) in failing to award




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
 This trust is the subject of an unrelated appeal that was recently decided
by the Pennsylvania Supreme Court. See In re Trust Under Agreement
of Taylor, No. 15 EAP 2016, 2017 Pa. LEXIS 1692, at *2 (July 19, 2017).
J-A13020-17



the relief requested by the petition for declaratory judgment. Based upon

the following, we affirm.

       Appellants are the Executors of the Estate of Anthony T. Wallace,

Deceased (Decedent), who died on January 15, 2015.2             Decedent was the

great-grandson of Edward Winslow Taylor. Appellants filed their petition for

declaratory judgment on May 18, 2016, requesting a citation be issued to all

interested parties to show cause why the court should not issue a

declaratory     judgment       invalidating      the   1930   supplement   (“1930

Amendment”) to the Edward Winslow Taylor Inter Vivos Trust (“Taylor

Trust”), and an order compelling distribution of one quarter of the Taylor

Trust to the Estate of Anthony T. Wallace.

       The orphans’ court summarized the background of this case, as

follows:

       Introduction

             The executors of the Anthony T. Wallace Estate
       (“executors”) are appealing this court’s refusal to issue a citation
       on their petition for declaratory judgment concerning the
       termination date of a trust established by decedent’s great-
       grandfather, Edward Winslow Taylor, in 1928, as amended in
       September 25, 1930 (“1930 Amendment”). Prior to his death,
       Anthony Wallace had been an income beneficiary of this trust
       and had entered into a Family Agreement dated August 12, 2009
       and approved by this court’s December 7, 2009 adjudication.
       With their Family Agreement, the trust beneficiaries unanimously
       agreed that the trust would continue until it terminates in 2028
____________________________________________


2
 Appellants are the stepsons of Anthony T. Wallace. See Appellants’ Brief
at 27; Appellants’ Reply Brief at 1.



                                           -2-
J-A13020-17


     pursuant to the 1930 Amendment. The executors nonetheless
     seek to reopen this issue by seeking an interpretation of the
     trust document of 1928 and its 1930 Amendment to assert that
     the trust terminated in 2008. Because the issue raised in the
     executor[s'] petition has been definitively settled by the Family
     Agreement approved by the 2009 adjudication under the
     provisions of the Pennsylvania Uniform Trust Act, their petition is
     without merit. It was properly denied as raising a moot issue. ….

     Factual Background

            On August 12, 2009, Wachovia Bank, as trustee of the
     Edward Winslow Taylor Trust (“Taylor Trust”), filed an account of
     its administration of the trust covering the period May 23, 1980
     through May 4, 2008. Its reason for filing the account was the
     death of Edward Taylor’s only grandchild, Frank R. Wallace, Jr.,
     who was the income beneficiary of the trust as well as its
     individual co-trustee.1 In filing the account, Wachovia set forth
         ____________________
        1
         8/12/2009 Edward Winslow Taylor Account (hereinafter
        2009 Account), Petition for Adjudication, ¶ 10.
        ____________________

     its interpretation of the dispositive terms of the trust that
     Edward Winslow Taylor established on February 9, 1928, for the
     initial benefit of his daughter Anna Taylor Wallace. It noted that
     the Trust Agreement was amended on April 20, 1928, on
     September 25, 1930 and on March 20, 1933. According to the
     Trustee, the dispositive terms of the Trust are set forth in
     paragraph 3 of the September 25, 1930 trust amendment. It
     noted that the net income was to be distributed to the settlor’s
     daughter, Anna Taylor Wallace, for her lifetime. Upon her death,
     the net income was to be distributed among the persons she
     chose to appoint under her will. Anna Wallace exercised this
     power of appointment in her will by providing that her only child,
     Frank R. Wallace, should receive all the net income during his
     lifetime. The trustee noted that the Trust is “to terminate 20
     years after the death of the last survivor of the Settlor, Anna
     Taylor Wallace, Frank Rich Wallace (Anna Taylor Wallace’s
     husband) and Frank R. Wallace, Jr.” With the death of Frank R.
     Wallace, Jr. on May 4, 2008, the trustee concluded that the Trust
     will terminate on May 4, 2028.2 Until that termination date, the
          ____________________

                                    -3-
J-A13020-17



        2
          2009 Account, Petition for Adjudication, Attachment to
        Paragraph 9.
        ____________________

     income of the trust was to be distributed to the four surviving
     children of Frank R. Wallace, Jr.:

     Anthony T. Wallace
     Elise W. Carr
     W. Sewell Wallace
     Christopher G. Wallace

     None of these issue was given a power of appointment by the
     Taylor trust documents. Only the settlor’s daughter, Anna Taylor
     Wallace, was granted the power to appoint the net income of the
     trust by her last will.3
         ____________________
        3
          1928 Deed of trust, Paragraph          SECOND;    1930
        Amendment, Paragraph 3(b).
        ____________________

     As an issue for adjudication, the trustee in 2009 sought court
     approval of a Family Agreement to modify the trust pursuant to
     the Pennsylvania Uniform Trust Act, 20 Pa.C.S.A. section
     7740.1(b). In so doing, the trustee characterized the Family
     Agreement as seeking “to divide the Trust, as permitted with
     Court approval under Section 7740.1(b) of the UTA, into four
     separate equal Trusts – one Trust of each of the surviving
     children of Frank R. Wallace, Jr. and to appoint each of the
     children as a Co-Trustee with Petitioner of his or her separate
     Trust until each Trust terminates on May 4, 2028, 20 years
     from the death of Frank R. Wallace Jr.”4
         ____________________
        4
          2009 Account, Petition for Adjudication, Attachment to
        Paragraph 13 (emphasis added).
        ____________________

           A copy of the 2009 Family Agreement was presented with
     the Account. It was signed by all parties in interest, who were
     the four children of Frank R. Wallace, Jr. In addition, it was
     signed by all of Frank Wallace Jr.’s grandchildren. The Family

                                  -4-
J-A13020-17


     Agreement specifically states that “paragraph 3 of the
     September 25, 1930 supplement of the Trust provides for the
     disposition of the income and principal of the Trust.”5 It also
     specifies that the Trust terminates on May 4, 2028 which is 20
     years after the death of Frank R. Wallace Jr.6
         ____________________
        5
            8/12/2009 Family Agreement, ¶ A(2).
        6
         8/12/2009 Family Agreement, ¶¶ A(2).
        ____________________

           No objections were filed to the account. This court
     therefore confirmed the account by adjudication dated December
     7, 2009 (“2009 Adjudication”) and approved the Family
     Agreement. In so doing, this adjudication twice reiterated that
     the trust terminates on May 4, 2028. The adjudication in
     addition approved the distribution of principal as follows to the
     following four trusts:

        Trustees   of   the   Anthony T. Wallace Trust       one-fourth
        Trustees   of   the   Elise W. Carr Trust            one-fourth
        Trustees   of   the   W. Sewell Wallace Trust        one-fourth
        Trustees   of   the   Christopher G. Wallace Trust   one-fourth

         Significantly, no exceptions or appeals were filed to this 2009
     Adjudication nor to the schedule for distribution filed in March
     2010. Anthony T. Wallace died on January 15, 2015. More than a
     year after his death, the executors of his estate on May 18, 2016
     filed a petition seeking a citation on a petition for declaratory
     judgment to interpret the trust as terminating in 2008 upon the
     death of Frank R. Wallace, Jr. In filing this petition, the executors
     seek a declaratory judgment “invalidating the September 25,
     1930 supplement to the Edward Winslow Taylor Inter Vivos Trust
     to the extent it purports to amend any disposition of principal,
     and an order compelling that one-fourth (1/4) of the principal of
     the Trust shall be distributed immediately to the Estate of
     Anthony T. Wallace together with appreciation and interest on
     the share of Anthony T. Wallace....” In addition, they seek
     reasonable attorney’s fees.7
         ____________________
        7
          5/18/2016 Petition, Proposed Preliminary Order.
        ____________________

                                        -5-
J-A13020-17



            Essentially, the executors argue that the terms of the
     Taylor Trust were irrevocably set in the 1928 Deed of Trust to
     provide for the termination of the trust at the death of the
     settlor, his daughter, her husband and settlor’s grandchild. This
     termination date was improperly modified, the executors argue,8
     by the September 25, 1930 Amendment under which the settlor
     provided that the trust would continue for twenty years after the
     death of his grandchild.9 The executors assert that the Family
     Agreement is voidable because it was based on a material
     mistake of fact that the 1930 amendment was effective.10 No
     explanation was offered as to why this claim had not been made
     upon the death of Frank Wallace Jr. or at the time the account
     was filed or even during the lifetime of Anthony Wallace.
     Curiously, the executors seek distribution of trust principal to
     Anthony Wallace’s estate by petition filed more than a year after
     Anthony died. They acknowledge that he left no issue but they
     do not identify the beneficiaries of his estate. They briefly touch
     on the practical ramifications of the timing of the trust
     termination date in 2008 or 2028: “because Anthony Wallace did
     not have issue, this meant the difference between receiving his
     share in 2008, and his share being reallocated among his
     siblings if he died before 2028.”12
            ____________________
           8
             The executors argued that this 1930 Supplement was
           invalid because by the express terms of the 1928 Trust
           Agreement, the “Trust was irrevocable and the Settlor
           did not have the power to unilaterally amend the
           dispositive provisions of the Trust as to the principal.”
           5/18/16 Petition, ¶ 17.
           9
               5/18/16 Petition, ¶ 15.
           10
              5/18/16 Petition, ¶¶ 42 & 43. The executors argue:
           “In fact, the 1930 Agreement was ineffective as to the
           principal provisions of the Trust because it changed the
           terms in violation of the 1928 Trust, which was
           irrevocable.” Id., ¶ 43(a)(i).
           11
              See 5/18/16 Petition, ¶¶ 7 & 44. In Paragraph 41,
           the executors list the children of the income
           beneficiaries (Elise Wallace Carr; William S. Wallace and


                                         -6-
J-A13020-17


             Christopher G. Wallace).      No children were listed for
             Anthony T. Wallace.
             12
               5/18/2016 Petition, ¶ 44.
             ____________________

Orphans’ Court Opinion Sur Appeal, 10/18/2016, at 1–4 (emphasis in

original).

      Here, Appellants’ declaratory judgment action sought to invalidate the

1930 Amendment to the Trust to the extent that it amended the disposition

of principal such that the Trust termination date was modified and is

determined to be 2028, i.e., 20 years after the death of Frank R. Wallace, Jr.

Appellants’ position is that that the Trust should have terminated in 2008

upon the death of Frank R. Wallace, Jr., as set forth in the 1928 deed of

trust, because the 1930 Amendment was invalid as the Trust was

irrevocable. The orphans’ court, however, found that Appellants’ declaratory

judgment action was an attempt to “litigate a legal issue that has been

decisively resolved in 2009 by Family Agreement and court adjudication.”

Orphans’ Court Opinion Sur Appeal, 10/18/2016, at 8.

      The orphans’ court denied the petition for citation and declaratory

judgment by Decrees dated June 14, 2016, and June 27, 2016.          The June

27, 2016 Decree, from which this appeal was taken, states:

      AND NOW, this 27th day of June 2016, upon consideration of the
      Petition for Declaratory Judgment, filed by Charles Cresson Wood
      and Urquhart A. Wood (“Petitioners”), Executors of the Estate of
      Anthony T. Wallace, deceased, it is hereby ORDERED and
      DECREED that the requested Citation is DENIED. In response to
      an Account filed by the Trustee of the Edward Winslow Taylor

                                    -7-
J-A13020-17


      Inter [V]ivos Trust, this Court issued an Adjudication dated
      December 7, 2009, wherein the Court stated that “[b]y its
      terms, the Trust terminates 20 years after the death of the last
      surviving of the Settlor, ... which would be May 4, 2028” and
      that “[t]he surviving issue of Frank R. Wallace[,] Jr. ... are
      entitled to receive the trust income until it terminates on May 4,
      2028.” The Court adjudicated the Account in accordance with
      those terms and also approved a Family Agreement to divide the
      Trust into four trusts for each of the four then–surviving
      beneficiaries, including Anthony T. Wallace. No objections were
      filed to the Account or the Adjudication and no appeal was
      taken. Anthony T. Wallace’s failure to object to the Adjudication
      or file an appeal forecloses his Estate from now disputing the
      validity of the Trust termination date provision.

Decree, 6/27/2016.

      In support of its decision, the orphans’ court emphasized the

Pennsylvania   Uniform   Trust   Act,   specifically,   20   Pa.C.S.   §   7740.1

(“Modification or termination of noncharitable irrevocable trust by consent”),

“enabled all the [trust] beneficiaries to enter into this [family settlement]

agreement to modify the trust termination date with court approval,” and

that “the executors concede that all the interested parties signed the family

settlement agreement.” Orphans’ Court Opinion Sur Appeal, 10/18/2016, at

9.   The orphans’ court found that to the extent that Appellants argue the

family settlement agreement is invalid based on the mistake of “fact” that

the 1928 Trust was effectively amended by the 1930 Amendment, such

alleged mistakes are in reality “mistakes of law” that would not render the

2009 Family Settlement Agreement invalid. Id. at 10.

      Furthermore, the issue of the trust termination date was specifically

raised as a question for adjudication in the 2009 Fourth Account, and the

                                    -8-
J-A13020-17


orphans’ court found that the present challenge to the trust termination date

was untimely pursuant to 20 Pa.C.S. § 3521 (setting five year period for

review of account following final confirmation). See id. at 12. In addition,

the orphans’ court noted that Appellants’ objection “was not made until more

than a year after the death of Anthony T. Wallace, who as one of the four

income beneficiaries, had signed the Family Agreement and did not object to

it throughout his lifetime.” Id. at 13. This appeal followed.3

       Our standard of review from a final order of the Orphans' Court is

deferential:

       [W]e accord the findings of the [O]rphans’ [C]ourt, sitting
       without a jury, the same weight and effect as the verdict of a
       jury; we will not disturb those findings absent manifest error; as
       an appellate court we can modify an [O]rphan[s’ C]ourt decree
       only if the findings upon which the decree rests are not
       supported by competent or adequate evidence or if there has
       been an error of law, an abuse of discretion, or a capricious
       disbelief of competent evidence.

       Moreover, we will not reverse the [Orphans’ C]ourt's credibility
       determinations absent an abuse of the court's discretion as
       factfinder. On the other hand, we are not required to give the
       same deference to [the Orphans’ C]ourt’s legal conclusions.
       Where the rules of law on which the [Orphans’ C]ourt relied are
       palpably wrong or clearly inapplicable, we will reverse the court’s
       decree.

In re Trust of Hirt, 832 A.2d 438, 447 (Pa. Super. 2003) (citations,

quotation marks and some brackets omitted).
____________________________________________


3
  Appellant timely complied with the order of the orphans’ court to file a
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).




                                           -9-
J-A13020-17


       The orphans’ court judge, the Honorable John W. Herron, has

thoroughly and cogently explained the reasons why Appellants are not

entitled to relief and, based on our review, we find the orphans’ court’s

discussion is sound and warrants no further elaboration by this Court with

regard to the substantive issues raised herein. See Orphans’ Court Opinion

Sur Appeal, 10/18/2016, at 7–13.

       However, as noted by Judge Herron, there is “a dearth of precedent on

the issue of when a citation may be denied upon review of the underlying

petition.”    Orphans’ Court Opinion, supra, at 5.       Accordingly, we are

compelled to address the second issue raised in this appeal. Specifically, we

consider Appellants’ challenge to the orphans’ court’s denial of their request

for issuance of a citation on their petition for declaratory judgment regarding

the termination date of the Taylor Trust.

       By way of background, at all relevant times, the Orphans’ Court Rules

provided:

       Proceeding on petition shall be by citation to be awarded by the
       Court upon application of petitioner in any case where
       jurisdiction over the respondent is required and has not
       previously been obtained.

Pa.O.C. Rule 3.5.4 In addition, at all relevant times, Philadelphia Orphans’

Court Rule 1.2.P provided, in relevant part, that “Every action for declaratory

____________________________________________


4
  The orphans’ court entered its order on June 27, 2016, prior to the
effective date of changes in the Orphans’ Court Rules.   By Order of
(Footnote Continued Next Page)


                                          - 10 -
J-A13020-17


judgment shall be commenced by petition and citation.” Philadelphia Local

Rule 1.2.P(1). Finally, Section 764 of the Probate, Estates and Fiduciaries

Code states: “Jurisdiction of the person shall be obtained by citation to be

awarded by the orphans’ court division upon application of any party in

interest.” 20 Pa.C.S. § 764.

       Appellants argue the orphans’ court should have issued the citation “as

a matter of right upon application by Appellants.”     Appellants’ Brief at 14.

Specifically, Appellants argue:

       Both the Pennsylvania legislature and Pennsylvania Supreme
       Court have indicated that the issuance of a citation is a
       formality, to be issued automatically upon petition by an
       interested party. “Jurisdiction of the person shall be obtained by
       citation to be awarded by the orphans’ court division upon
       application of any party in interest.” 20 [Pa.C.S.] § 764
       (Emphasis added). The Pennsylvania Supreme Court has stated
       that a citation is to be awarded “as a matter of right.” Smith
       v. Black, 9 Pa. 308, 309 (1948)(Emphasis added).

Id.

       Judge Herron, in his Opinion, analyzed Appellants’ claim, as follows:

             The Executors complain that this court abused its discretion
      and committed an error of law in denying their petition for citation
      and declaratory judgment without issuing a citation. To support
      this claim, they reach back to only one case, an 1848 precedent,
      Smith v. Black, 9 Pa. 308 (1848). Regrettably, the facts of
      Smith v. Black are far from clear. After stating that a “citation
      was as much as matter of right as a subpoena in chancery,” the
      Smith court admitted that “[w]e know nothing of previous
                       _______________________
(Footnote Continued)

December 1, 2015, effective September 1, 2016, the Pennsylvania Supreme
Court rescinded and replaced Rules 1.1 through 13.3 and Rule 17 of the
Orphans’ Court Rules and amended Rules 14.1 through 16.12.



                                           - 11 -
J-A13020-17


    litigation between the parties. We have no more before us than a
    petition for citation, without rejection for no apparent cause.”
    Smith v. Black, 9 Pa. 308, 1848 WL 5609 (Pa. 1848). In
    contrast, in this matter the executors’ declaratory judgment
    action raised issues that had been decisively decided by this court
    as well as by a Family Agreement.16 There is admittedly a dearth
    of

     _______________________________________
        16
          The executors’ petition conceded that an account had
        been audited and confirmed in 2009, but they did not
        acknowledge the legal implications of the resulting
        adjudication issued by this court. 5/18/2016 Petition,
        ¶¶32 -33.
     _______________________________________

     precedent on the issue of when a citation may be denied upon
     review of the underlying petition. In a more recent Pennsylvania
     Supreme Court case decided in 1980, however, a divided
     Pennsylvania Supreme [C]ourt upheld an Orphans’ Court[’s]
     refusal to issue a citation where the underlying petition did not
     comply with local rules. Estate of Lachmuth, 487 Pa. 605, 410
     A.2d 776 (Pa. 1980) (ruling by Orphans’ Court dismissing a
     Petition for Citation on the grounds that it was not printed or
     typewritten in violation of Philadelphia Orphans’ Court Rule 34.1
     affirmed by divided court). The reasons for denying the citation
     in this case involving the Taylor trust were clearly more
     compelling.

           Procedurally, courts have analogized a citation to a rule to
     show cause. Appeal of Beiler, 144 Pa. 273, 277, 22 A. 808
     (1891) (a citation “is in substance a rule to show cause”). In
     contrast to the dearth of precedent on the granting of citations,
     there are Pennsylvania Rules of Procedure that specifically
     address the issuance of a rule to show cause when a petition
     proceeds upon it. These rules offer guidance on when a citation
     might be denied by a court as “gatekeeper.” Under the
     Pennsylvania Rules of Civil Procedure, the issuance of a rule to
     show cause may be discretionary or it may issue “as of course.”
     The issuance of a rule to show cause “shall be discretionary with
     the court as provided by Rule 206.5 unless the court by local
     rule adopts the procedure of Rule 206.6 providing for issuance
     as of course.” See Pa.R.C.P. 206.4(a)(1). In those instances

                                   - 12 -
J-A13020-17


     where the rule to show cause is discretionary, the court
     considers whether the petition “is properly pleaded and states
     prima facie grounds for relief.” Pa.R.C.P. 206.5(c). A local court
     rule, however, may provide that a rule to show cause shall issue
     as a matter of course upon the filing of a petition. See Pa.R.C.P.
     206.4(a)(1);Pa.R.C.P. No. 206.6(a). The rationale behind these
     differing approaches is explained in the Explanatory Note to
     Pa.R.C.P. 206.4 as follows:

        The two methods of issuing the rule to show cause reflect
        differing concepts in the administration of petition
        practice. The discretionary issuance reflects the view of
        the court which wants to assume the “gatekeeper”
        function. Petitions are reviewed prior to the issuance of
        the rule to show cause requiring that an answer be filed
        and those which show no merit on their face or which can
        be determined by a brief presentation by the attorneys
        are disposed of without a formal fact-finding procedure.
        Courts which review a petition prior to issuing a rule to
        show cause may short circuit a laborious procedure of
        filing an answer, taking discovery and holding argument.
        Pa.R.C.P. 206.4 (Explanatory Comment-1995).

            The Civil Trial Division of the Philadelphia Court of
     Common Pleas by local rule *206.4(c) has provided that rules to
     show cause for petitions under Pa.R.C.P. 206.1 shall issue as a
     matter of course by the Motion Court Clerk on behalf of the
     Court. See Phila.Civ.R. *206.4(c). The Orphans’ Court, in
     contrast, has not adopted this limited view of the court’s role as
     gatekeeper when presented with an analogous citation. Instead,
     the Philadelphia Orphans’ Court rule 1.2.P in effect until
     September 1, 2016 and the newly enacted Pennsylvania
     Supreme Court Rule 5.1 merely state that a declaratory
     judgment action shall commence by citation and petition. The
     court is thereby assigned the task of deciding whether the
     citation should issue.

            While, at first blush, a citation in Orphans’ Court might
     seem analogous to a complaint in a civil action there are
     significant differences. In the civil division, for instance, no court
     approval is necessary prior to filing a complaint. Instead, a civil
     action can be initiated by filing a complaint with the
     prothonotary pursuant to Pa.R.C.P. 1007(b). The rules for
     Orphans’ Court have subtle differences. Under the local

                                    - 13 -
J-A13020-17


      Philadelphia rules in effect when the executors filed their petition
      as well as the Pennsylvania Orphans’ court rules in effect since
      September 1, 2016, certain petitions can be filed without
      seeking a citation while a petition for declaratory judgment
      requires the issuance of a citation by the Orphans’ Court.17 This

         ____________________
         17
            Prior to their repeal effective September 1, 2016, the
         local Philadelphia O.C. Rule 1.2.P required a citation for a
         declaratory judgment petition, while the Special Petitions
         under the Philadelphia O.C. Rules 12.1.1 through 12.16.A
         were silent on the need for a citation. Likewise, the
         newly enacted Pennsylvania Supreme Court Rules require
         a citation for a Declaratory Judgment Action.           See
         Pa.O.C. Rule 5.1.
         ____________________

      suggests that a court exercise some scrutiny before issuing the
      citation. Finally, the PEF code states that “[j]urisdiction of the
      person shall be obtained by citation to be awarded by the
      Orphans’ Court upon application of any Party in interest,” 20
      Pa.C.S.A. § 764. A natural reading of this provision suggests that
      the “shall” language refers to obtaining jurisdiction over a person
      not already under the jurisdiction of orphans’ court, not that an
      orphans’ court must issue a citation regardless of the contents of
      a petition. This strongly suggests that the court has some kind of
      gate-keeping responsibility when presented with such a petition.
      Admittedly, denying a petition for a citation is a rare occurrence,
      but in this case it is justified based on the following facts of
      record and in the interest of equity and judicial economy.

Orphans’ Court Opinion Sur Appeal, 10/18/2016, at 5–7.

      We agree with the sound reasoning of Judge Herron, and our research

has revealed no legal authority that addresses whether an orphans’ court

judge must issue a citation automatically, or whether such act is a matter

of the court’s discretion.   In Smith, cited by Appellants, the Pennsylvania

Supreme Court, in indicating that a citation must be issued as “a matter of


                                     - 14 -
J-A13020-17


right,” reasoned that “We know nothing of previous litigation between the

parties. We have no more before us than a petition for a citation, with a

rejection of it for no apparent cause.”      Smith v. Black, 9 Pa. 308, 309

(1848). Fifty years later, in Krug v. Keller, 8 Pa. Super. 78, 81 (1898), the

Pennsylvania Superior Court clarified:

     [T]he appellant had a right to come into court, and, under the
     provisions of the Act of March 29, 1832, have a citation against
     [appellee], which, on an adequate showing, is a matter of
     right: Smith v. Black, 9 Pa. 308. However, the citation is ‘in
     substance but a rule to show cause:’ Lightner’s Estate, 144 Pa.
     273. Practically, a citation and a rule to show cause serve the
     same purpose[.]

Krug v. Keller, 8 Pa. Super. 78, 81 (1898) (emphasis added). Therefore,

we agree with Judge Herron that Appellants’ reliance on Smith is misplaced.

     Furthermore, we adopt Judge Herron’s analysis of the Pennsylvania

Rules of Civil Procedure and local Philadelphia court rules in evaluating the

nature of a citation in Philadelphia orphans’ court. Pursuant to Pennsylvania

Rule of Civil Procedure 206.4(a)(1), the issuance of a rule to show cause is

discretionary unless the court by local rule adopts Rule 206.6, that provides

for issuance as of course. Pa.R.C.P. 206.4(a)(1); Pa.R.C.P. 206.5. In this

regard, the Court of Common Pleas of Philadelphia has adopted a local rule

pursuant to Pa.R.C.P. 206.4, which provides for the issuance of a rule to




                                    - 15 -
J-A13020-17


show cause “as of course” for any petition.                     Phila.Civ.R. 206.4(c).5

However, the Philadelphia Orphans’ Court Rules simply provide, in relevant

part, that “Every action for declaratory judgment shall be commenced by

petition and citation.”      Phila.O.C.R. 1.2.P(1).       As such, in contrast to the

Philadelphia Rules of Civil Procedure that govern the rule to show cause, the

Philadelphia Orphans’ Court Rules impose no limits on the discretion of the

orphans’ court to deny a citation.

       Moreover,     Appellants’    argument       that   a   petition   for   citation   is

equivalent to a complaint is unavailing in light of the new orphans’ court

rules that, while specifically representing an intent to “harmonize orphans’

court proceedings with general civil practice to the extent possible,” 6 have

retained the citation procedure.               See Pa.O.C. Rule 3.5(a) (“Citation

Practice.”) (effective September 1, 2016).            See also Pa.O.C. Rule 5.1(a)

(“An action for declaratory judgment shall be commenced by petition and
____________________________________________


5
  We acknowledge that this Court recently held that a trial court cannot
decide to refuse to issue a rule to show cause where the local rule provides
for issuance as of course.         U.S. Space v. Berkshire Hathaway
Homeservices, ___ A.3d ___ [2017 Pa. Super. LEXIS 403] (Pa. Super.
June 5, 2017).
6
 In re Order Rescinding & Replacing Rules 1.1 through 13.3 & Rule
17, No. 682, 2015 Pa. LEXIS 2736, at *105 (Dec. 1, 2015).

      This author was a member of the Pennsylvania Supreme Court
Orphans’ Court Rules Committee from 2004 to 2010, when discussions
commenced about revising the Orphans’ Court Rules to more closely
conform with civil practice.



                                          - 16 -
J-A13020-17


citation directed to the interested parties.”) (effective September 1, 2016).

Notably, the Explanatory Comment7 to Orphans’ Court Rule 3.5 explains that

“[t]he court, by local rule or by order in a particular matter, may establish a

procedure for rules to show cause as provided in Pa.R.C.P. 206.4 et seq.”

This comment suggests the issuance of a rule to show cause is discretionary,

unless the court establishes otherwise by a local rule or by order.8

        Here, Judge Herron analogized the citation procedure to instances

where the rule to show cause is discretionary and the court considers
____________________________________________


7
 “Notes and explanatory comments are not part of the Rules but they may
be used in construing the Rules.” Pa.O.C. Rule 1.2 (effective September 1,
2016), Explanatory Comment.
8
    Pa.O.C. Rule 1.5, effective September 1, 2016, states in relevant part:

        (a)   All previously promulgated local rules are hereby vacated,
              effective September 1, 2016, except for those local rules
              promulgated under Chapter 14 regarding guardianship of
              incapacitated persons, Chapter 15 regarding adoptions,
              and Chapter 16 regarding proceedings pursuant to section
              3206 of the Abortion Control Act.

        (b)   The Orphans’ Court Divisions of the several judicial
              districts of this Commonwealth may adopt local rules
              regulating practice and procedure. Such local rules shall
              not be inconsistent with these Rules.

        (c)   The local rules applicable to practice in the Civil or Trial
              Division of the local Court of Common Pleas shall not be
              applicable in the Orphans’ Court Division unless so directed
              by these Rules or by local rule adopted by the court of the
              particular judicial district in accordance with Pa.R.J.A. No.
              103.

Pa.O.C. Rule 1.5(a)–(c).



                                          - 17 -
J-A13020-17


whether the petition states a prima facie case. See Orphans’ Court Opinion,

10/18/2016, at 5–7. As such, Judge Herron’s refusal to issue a citation in

this case is tantamount to the grant of a demurrer. We find no error in his

conclusion that the issuance of a citation was discretionary.         The current

Orphans’ Court Rules, although not applicable, lend further support to this

conclusion. Further, as we have already stated, our review reveals no basis

upon which to disturb his decision that the petition is barred by 20 Pa.C.S. §

35219 (five year limit as to when an adjudication to an account may be

reviewed) where the Family Settlement Agreement was approved by the

court’s December 7, 2009 Adjudication.             See Orphans’ Court Opinion Sur

Appeal, 10/18/2016, at 12. Accordingly, we affirm.

       Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2017




____________________________________________


9
 See also 20 Pa.C.S. § 7799.2 (“The provisions concerning accounts, audits
and distributions in trust estates shall be the same as those set forth in …
Section 3521 (relating to rehearing; relief granted).”).



                                          - 18 -
J-A13020-17




              - 19 -
