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ESTATE WILLIAM KOTZ A/K/A F. WILLIAM KOTZ A/K/A FREDERICK WILLIAM KOTZ (10/01/79)

decided: October 1, 1979.

ESTATE OF WILLIAM KOTZ A/K/A F. WILLIAM KOTZ A/K/A FREDERICK WILLIAM KOTZ, DECEASED (TWO CASES). APPEAL OF VIRGINIA KOTZ. APPEAL OF MARY A. KOTZ


No. 677 January Term, 1977, No. 691 January Term, 1977, Cross-Appeals from the Decree and Order of the Court of Common Pleas, Orphans' Court Division, of Montgomery County, at No. 77-899

COUNSEL

Raymond B. Reinl, Willow Grove, Bucks County, for Virginia Kotz.

Michael J. O'Neill, Jr., Renninger, Spear & Kupits, Doylestown, Bucks County, for Mary A. Kotz.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Roberts and Nix, JJ., join in the opinion of the court and file separate concurring opinions. Manderino, J., concurs in the result.

Author: O'brien

[ 486 Pa. Page 446]

OPINION OF THE COURT

There cases are before the court on cross appeals of Virginia Kotz, sister of decedent, William Kotz, and Mary A. Kotz, widow of decedent, from the order and decree of September 8, 1977, of the Court of Common Pleas, Orphans' Division, of Montgomery County. This order permitted the widow to claim the family exemption and determined property held by decedent and his sister, Virginia Kotz, as joint tenants with right of survivorship, was subject to a widow's election against conveyances. The order further determined that the joint tenancy was not severed by a mortgage executed by decedent and his sister.

I. No. 677 -- Appeal of Virginia Kotz

Virginia Kotz seeks our review of that portion of the September 8 order permitting Mary A. Kotz to include property located at 14 Warminster Road, Hatboro, Pennsylvania, for purposes of her widow's election. Mary Kotz has filed a motion to quash the appeal because of the failure of Virginia Kotz to file exceptions to the September 8, 1977 order and decree.

A. Motion to Quash

The facts pertinent to this issue are: On June 21, 1976, Mary Kotz filed a notice that she intended to elect to take against all conveyances by her husband to which she was not a party. The notice specified the property at 14 Warminster Road, Montgomery County, This property had been owned by decedent and his sister, Virginia Kotz, as joint tenants with right of survivorship since 1959, eight years prior to the marriage of decedent and Mary Kotz.

On August 26, 1976, Mary Kotz filed a petition for citation, returnable on September 24, 1976, to show cause why the Warminster Road property should not be included in the estate or otherwise subject to the election of the surviving spouse. Mary Kotz also filed a petition for family exemption and a petition for allowance to the surviving spouse.

[ 486 Pa. Page 447]

On September 21, 1976, Virginia Kotz filed an answer to the August 26, 1976, petition. On November 5, 1976, a hearing was held on the petition to include the Warminster Road property in the estate and the propriety of the election by the surviving spouse against that property. The presiding judge at the hearing was the Honorable Benjamin Sirica. Judge Sirica died prior to issuing an order or decree in this case and subsequently Judge Alfred Taxis heard oral argument on the petitions. On September 8, 1977, Judge Taxis issued an "Opinion and Decree sur petitions for family exemption and for allowance of spouse's election under ยง 6111, PEF Code." Kotz Estate, 103 Montg. 120, 4 D & C 3d 85 (1977). The Orphans' Court determined that the joint tenancy with right of survivorship was not severed by a mortgage taken by both tenants and, therefore, the Warminster Road property was not includable in the probate estate of William Kotz. The court further determined that the widow could elect to take against the Warminster Road property. No exceptions by either party were filed. Virginia Kotz appealed to this court at No. 677 January 1977 and Mary Kotz appealed to this court at No. 691 January 1977. In October, 1977, Mary Kotz filed a motion to quash the appeal of Virginia Kotz.

Mary Kotz argues that the appeal of Virginia Kotz should be quashed because of the failure of Virginia Kotz to file exceptions to the September 8, 1976, "order and decree" entered by Judge Taxis. We deny the motion to quash. The failure to file exceptions does not affect the appealability of an order; rather, the lack of exceptions fails to preserve issues for appellate review. Estate of McGrorey, 474 Pa. 402, 378 A.2d 855 (1977).

B. Waiver

Mary Kotz argues, as an alternative to quashing the appeal, the issues raised by Virginia Kotz are not preserved for appellate review because of the failure to file exceptions to the September 8 order and adjudication. We do not agree.

[ 486 Pa. Page 448]

Section 7.1 of Pennsylvania Orphans' Court Rules provides:

"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."

This rule clearly allows the Orphans' Court of different judicial districts to determine when and how exceptions are to be filed. This court, therefore, sanctioned different procedures to be utilized throughout the Commonwealth.

Two other rules of procedure promulgated by this court are necessary to analyze and decide this issue.

Section 3.1 of Pennsylvania Orphans' Court Rules provides:

"Except where otherwise provided by a rule adopted by the Supreme Court, or by an Act of Assembly, or by general rule or special order of the local Orphans' Court, and except for the Notice to Defendant required by Rule of Civil Procedure 1018.1, which form of notice shall be required only if directed by general rule or special order of the local Orphans' Court, the pleading and practice shall conform to the pleading and practice in equity in the local Court of Common Pleas." Amended November 24, 1975, effective January 1, 1976.

Rule 1518 of Pennsylvania Rules of Civil Procedure provides:

"Within ten (10) days after notice of the filing of the adjudication, exceptions may be filed by any party to rulings on objections to evidence, to statements or findings of fact, to conclusions of law, to the decree nisi or in cases where requests for findings of fact or conclusions of law have been submitted by leave of court to a failure or refusal to find any matter of fact or law substantially as requested. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived, unless, prior to final decree, leave is granted to file exceptions raising these matters."

[ 486 Pa. Page 449]

The applicable Montgomery County Local Rule of Court provides:

"Local Rule 7.1A Exception to Decrees -- Generally.

"No exceptions shall be filed to orders or decrees entered in proceedings unless the right to except thereto is expressly conferred by act of assembly, by general rule, or by special order; and all decrees other than those to which exceptions are so allowed to be taken, shall be final and definitive."

The local rule provides that exceptions shall be filed only in those orders where the right to file ...


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