J-A13020-17

2017 PA Super 275

ESTATE OF: EDWARD WINSLOW 

TAYLOR INTER VIVOS TRUST

APPEAL OF: CHARLES CRESSON 

WOOD AND URQUHART A. WOOD

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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). 
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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 greatgrandfather, 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. 
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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

____________________
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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 
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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.”5It 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.

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

Notably, the Explanatory Comment7to 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).
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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).”).
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