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WESTMORELAND COUNTY

Adopted New Orphans' Court Rules WO101 et seq.

[26 Pa.B. 665]

Order of Court

   And Now, to wit this 1st day of February, 1996, It Is Hereby Ordered, Adjudged, and Decreed that all Westmoreland County Orphans' Court rules are hereby rescinded. New Westmoreland County Orphans' Court Rules WO101, WO102, WO103, WO104, WO105, W106, WO107, WO108, WO109, WO110, WO111, WO112, WO113, WO114, WO115, WO116, WO117, WO118, WO119, WO201, WO202, WO203, WO204, WO205, WO206, WO207, WO301, WO302, WO401, WO402, WO403, WO404, WO405, WO406, WO501, WO502, WO503, WO504, WO505, WO601, WO602, WO603, WO604, and WO605 are hereby adopted. The effective date of this Order is May 1, 1996.

By the Court

CHARLES E. MARKER,   
President Judge

Rule WO101.  Sessions of Court and Filing.

   (a)  All proceedings shall be numbered consecutively by the clerk in the order filed, beginning at the first of each year and numbered as of that year, with a prefix number 65 to indicate Westmoreland County in conformity with the Pennsylvania Department of Revenue numbering, viz: 65-96-   .

   (b)  All papers filed relating to a proceeding shall be filed at the number assigned to the first paper filed in such proceeding.

   (c)  In these rules, any reference to the ''Orphans' Court'' or the ''court'' shall mean the Orphans' Court Division of the Court of Common Pleas of Westmoreland County, unless otherwise stated.

   (d)  In these rules, any reference to the ''register'' shall mean the Register of Wills of Westmoreland County; any reference to the ''clerk'' shall mean the Clerk of the Orphans' Court Division of the Court of Common Pleas of Westmoreland County.

   Explanatory Comments: In Westmoreland County, the duties of the register of wills and the clerk of the orphans' court division are administered by one office. See 20 Pa. C.S.A. § 901 for the jurisdiction of the register of wills.

Rule WO102.  Return Days, Motions and Audits.

   (a)  Return Days. The return day is the last day to answer or take other legal action with respect to a citation, rule to show cause, or other process, or when a matter may ordinarily next be brought before the court for action.

   The return days shall be as fixed by order of court. If no date is fixed, it shall be twenty days from service.

   A hearing will not be held on the return day unless specially ordered.

   A hearing will be scheduled upon the request or motion of any party after the return day. The request or motion shall be accompanied by a proposed order, which shall provide for appropriate blank spaces for the scheduling of a hearing, the scheduling of a status conference, and a filing deadline for memoranda of law.

   (b)  Motions. All applications, petitions, motions and miscellaneous business should be presented to the court, at such time as the court is available.

   (c)  Audit List. The president judge shall decree and the register of wills shall publish in the Westmoreland Law Journal for three consecutive weeks commencing the second week of November a list of dates of audit, dates of confirmation nisi, and the schedule of filing periods as related to the audit dates for the following year.

   The audit list will be called and accounts audited on the dates of audit scheduled by order of court, and will continue until the cases on the list have been heard or other disposition made. All accounts on the audit list filed by an attorney or firm shall be listed together on the audit list.

   Cross References: A suggested form of Scheduling Order, to be used to schedule a hearing after the expiration of the return date, is included in the volume of approved forms.

   Explanatory Comments: With regard to paragraph (b), specific arrangements should be made with the judge's chambers to assure the availability of the judge.

   If a party fails to answer or otherwise respond to a rule or citation, the court may grant a rule absolute, without conducting a hearing.

Rule WO103.  Advertisements.

   At the time of issuing any letters testamentary or letters of administration, the register shall collect from the personal representative to whom such letters are issued, a sum determined by order of the orphans' court from time to time for payment of costs of publication in the Westmoreland Law Journal and proof of advertising; and, the register shall remit monthly to the Westmoreland Law Journal each sum so collected and shall retain a part of the sum as also determined by order of the orphans' court from time to time and remit the same to the Treasurer of Westmoreland County in due course.

   Explanatory Comments: In Westmoreland County, the legal periodical is the Westmoreland Law Journal.

Rule WO104.  Depository of the Court.

   All moneys directed to be paid into court shall be paid to the clerk. Upon receipt, the clerk shall deposit the moneys in a federally insured, interest-bearing account with the depository designated by the court to the credit of the court, in the particular estate or proceeding to which they may respectively belong. No moneys shall be paid out of court by said depository except on the checks of the clerk, accompanied by a certified copy of the order directing the payment and attested by the seal of the court.

Rule WO105.  Attorneys.

   (a)  Appearance. Every attorney employed in any proceeding shall enter an appearance. An attorney's appearance may not be withdrawn without leave of court, unless another attorney has entered or simultaneously enters an appearance, and the change of attorneys does not delay any stage of the proceeding.

   (b)  Attorney as Surety. An attorney shall not act as surety in any proceeding in this court, except by special leave of court.

   Cross References: See Pa. R.C.P. No. 1012(b) regarding withdrawal of appearance and the 1985 explanatory comment thereto.

Rule WO106.  Discovery.

   (a)  The practice relating to depositions, production of documents, perpetuation of testimony and other forms of discovery shall conform to the practice in the Civil Division of the Court of Common Pleas of Westmoreland County.

   (b)  Subpoenas shall be issued by the clerk upon request of a party, when a matter is at issue. In all other cases, subpoenas shall be issued only upon order of court.

Rule WO107.  Pleadings.

   (a)  Petitions. All applications to the court shall be by petition of a party in interest, shall be signed by counsel, verified by the petitioner, and shall set forth:

   (1)  the caption;

   (2)  a heading indicating briefly the purpose of the petition;

   (3)  a concise statement of the facts relied upon to give the court jurisdiction and to justify the relief desired, and any averments specifically required by any Supreme Court Orphans' Court Rule or any rule of this court. The statement shall be divided into paragraphs numbered consecutively, each containing but one material allegation, and shall cite the applicable section of any Act of Assembly relied upon;

   (4)  the names of all parties interested, indicating those not sui juris. The names of fiduciaries of parties not sui juris shall be set forth with references to their appointments;

   (5)  a prayer for the relief desired.

   (b)  Exhibits.

   (1)  There shall be attached to the petition as exhibits the originals or copies of all wills, codicils, consents, joinders, approvals, contracts and any other written instruments relied on or pertinent.

   (2)  If the petitioner is unable to attach any necessary exhibit, the petitioner shall so state in the petition, with the reason for such inability.

   (c)  Verifications. Every pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true, upon the signer's personal knowledge or information and belief, and shall be verified. The term ''verified'', when used in reference to a written statement of fact by the signer, means supported by affidavit or made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. The verification extends to the authenticity of all exhibits attached to the pleading.

   (d)  Decrees and Orders. In all proceedings, counsel shall prepare and submit a proposed decree or order, specifying the requested action or relief, with the pleading upon which the same is based.

   (e)  Copies of Pleadings. Copies of pleadings shall be certified by counsel to be correct.

   (f)  Notice. No decree or order of court will be made without evidence of satisfactory notice of the application therefor to all parties of record, or their attorneys of record in the proceeding, and to any party known by the petitioner or the petitioner's attorney to have an interest in the outcome or judicial disposition of the matter.

   Cross References: See Supreme Court Orphans' Court Rule 3.4, which discusses the form of petitions. The requirements set forth in Rule WO107 expand upon the requirements of Rule 3.4.

   See 20 Pa.C.S.A. § 911, which permits unsworn verifications, and Pa. R.C.P. Nos. 1024 and 76, which govern the use of verifications in the civil division.

   No notice need be given upon presentation of a petition for citation, as described in Rule WO108. Pennsylvania Supreme Court Orphans' Court Rule 5 provides detailed procedures regarding notice.

Rule WO108.  Personal Jurisdiction.

   (a)  Citations. When jurisdiction over a person is sought, it shall be obtained by citation. Upon petition of any party in interest, the court shall issue an order directing the clerk to issue a citation. The citation shall direct the party named therein to file a complete verified answer to the averments of the petition on or before the day fixed by the court, and to show cause as the order of the court shall provide.

   (b)  Service of Petition with Citation. A copy of the petition shall be served with the citation unless service thereof is authorized and made by publication.

   Cross References: See Supreme Court Orphans' Court Rule 3.5, which provides for the citation as the means for acquiring personal jurisdiction over a person.

   Explanatory Comments: In some situations, the court already has jurisdiction over parties, and a citation is not necessary. For example, the court generally maintains continuing jurisdiction over personal representatives and guardians.

Rule WO109.  Exceptions.

   (a)  Except as provided in (b) below, and except for interlocutory decrees and orders, all decrees and orders are final unless specifically captioned by the court as a decree nisi. No exceptions shall be filed to final decrees and orders, and they must be appealed directly to the Superior Court.

   (b)  Exceptions to any order or decree nisi must be filed with the clerk within ten days after notice of the decree. Issues not raised in the exceptions shall be deemed waived. If no exceptions are filed, the decree shall become nonappealable.

   (c)  Upon filing exceptions, the moving party shall present to the court a proposed order, which shall provide for appropriate blank spaces for the scheduling of the filing of briefs and argument.

   (d)  If not otherwise established by the court, a party filing exceptions must file a brief at least ten days before the date scheduled for oral arguments. Opposing counsel must file a responsive brief within five days of service of opposing counsel's brief. The briefs shall contain, inter alia, a concise statement of issues. A party who has not timely filed a brief may be denied oral argument. Issues not briefed shall be deemed waived.

   Explanatory Comments: The general rule in Westmoreland County is that exceptions must be filed only when the court issues a decree nisi. In all other cases, appeal lies directly with the Superior Court. A common example of when the court issues a decree nisi is in involuntary termination cases.

   An order or decree must meet the definition of ''final order'' under Pa. R.A.P. 341 before it may be appealed to the Superior Court.

   A party who desires to appeal a decree nisi must first file exceptions with the clerk in order to preserve the party's right of appeal. After the court makes a final order to the exceptions, the party may then file an appeal of such final order to the Superior Court of Pennsylvania. If the party fails to file exceptions to a decree nisi, the party may lose the right to appeal to the Superior Court. With regard to subsection (b), in exceptional cases, the Court may grant a party the right to file exceptions nunc pro tunc.

Rule WO110.  Bill of Costs.

   (a)  The following items shall be considered as record costs in a proceeding:

   (1)  Fees paid for filing pleadings;

   (2)  Fees paid for service of pleadings;

   (3)  Fees paid to court reporters for the cost of original and/or no more than one copy of depositions;

   (4)  Any other costs specifically permitted by statute or supreme court rules; and

   (5)  If the case has been tried, fees statutorily permitted to witnesses for per diem attendance and mileage.

   (b)  A bill of costs must be filed with the clerk, along with an affidavit of service on the opposing party or his counsel of record, within ten days of the entry of a verdict by a jury, or a final order or decree by the court. The bill of costs may include the items listed in paragraph (a) of this rule.

   (c)  In cases where an executor, administrator, guardian or trustee has acted in good faith defending the estate against a claim, costs and fees may be allowed out of the estate, even though the claim is allowed.

   (d)  Exceptions specifying those items or amounts of costs to which a party has objections must be filed within ten days of receipt of the bill of costs.

   (e)  The court will enter an order specifying allowable costs.

   Cross References: Paragraph (c) is taken from the former Rule WO9(c). The remaining paragraphs are taken from Rule W609 of the Westmoreland County Rules of Civil Procedure.

Rule WO111.  Enforcement of Decrees.

   Decrees of the orphans' court may be enforced through further proceedings in the orphans' court, or, where appropriate, through the office of the prothonotary.

   Cross References: See 20 Pa.C.S.A. § 781 for methods of enforcement of orders and decrees of the orphans' court.

   Explanatory Comments: Judgments for money damages are often enforced through the office of the prothonotary.

Rule WO112.  Appeals and Transfers to the Orphans' Court.

   (a)  Petition and Appeal from Register.

   (1)  An appeal to the court from any judicial act, proceeding or decree of the register shall be effected by filing a notice of appeal with the clerk. The notice of appeal shall contain the caption, name of the appellant, and a reference to the judicial act, proceeding or decree appealed from, and shall be signed by the appellant or counsel. A copy of the notice of appeal shall be mailed to or personally delivered to all parties appearing before the register or their counsel, and a proof of notice shall be filed with the clerk within five days.

   (2)  Within thirty days after filing the notice of appeal, the appellant shall present to the court a petition complying with Rule WO107, including a reference to the notice of appeal, and whether bond was required or filed.

   Upon filing of the petition, the court will award a citation to all interested parties, including the register, to show cause why the appeal should not be sustained and the decision complained of set aside and, in cases where a jury trial has been requested, why the disputed issue of fact should not be submitted to a jury.

   (3)  This section shall not apply to appeals for inheritance tax purposes nor to appeals specially regulated by law.

   (b)  Certified Cases. When a certification of a dispute has been made by the register to the court under Section 907 of the PEF Code, the court will determine whether pleadings will be required.

   Cross References: The time period for filing appeals from decrees of the register is a matter of statutory law, under 20 Pa.C.S.A. § 908.

   Explanatory Comments: An appeal from a decree of the register is a two-step process. The first step involves the filing of a notice of appeal. The second step is the filing of a petition within thirty days after filing the notice of appeal. Both steps are required for the perfection of an appeal from a decree of the register.

Rule WO113.  Fiduciaries to be Appointed.

   When a petition discloses that minors, unborn or unascertained persons, incapacitated persons, absentees, or presumed decedents or others not sui juris having interests are necessary parties and are without fiduciaries, an order will be made directing that the petition be filed, provided that the petition contains the names and ages of any minor children, the names and addresses of their parents, parent or persons with whom they reside, and all other facts required by Supreme Court Orphans' Court Rules Section 12, Rule 4. If it appears that a fiduciary should be appointed to represent any such person, the court will direct the petitioner to notify minors over fourteen years of age, the next of kin or next friends of minors under fourteen years of age, and the next of kin of incapacitated persons, that unless a fiduciary is appointed for them within ten days after service of the notice, the court, on petition of proper parties or on its own motion, may appoint a guardian or a trustee ad litem to represent their interests.

Rule WO114.  Temporary Fiduciaries.

   When a fiduciary of an estate under the jurisdiction of the court is in miliary service, in other government service, in a position of conflicting interest or in any situation where, for a temporary period, it may not be in the best interests of the estate for the fiduciary to act, a co-fiduciary or co-fiduciaries, if any, may be authorized to exercise all the powers of such fiduciary or the court may appoint a substitute fiduciary pro tem.

   Cross References: See Sections 4301-4306 of the PEF Code.

Rule WO115.  Records.

   (a)  Withdrawal of Records. No original wills shall be withdrawn from the office of the clerk or from the court without a written order of the court. No other record shall be withdrawn from the office of the clerk without a written order of the clerk or assistant clerk, which order shall limit the time for its return. The clerk shall report to the court any failure to return the same after the time limit so fixed has expired.

   (b)  Record Books--Clerk of the Orphans' Court. The clerk shall keep the following books:

   (1)  a book called the Orphans' Court Docket in which shall be set forth all proceedings of this court;

   (2)  a book called the Accounts Docket in which all accounts (excepting exhibits) of executors, administrators, guardians and trustees shall be transcribed in summary form;

   (3)  a book called the Distribution Docket in which shall be copied at length all distributions made by the court and all auditor's distributions when finally confirmed;

   (4)  a book called the Marriage License Docket in which shall be kept a memorandum of all marriage licenses granted, the return thereto, showing the number of the license, the date thereof, the date of marriage, by whom married, etc.;

   (5)  a book called the Minute Book in which shall be entered the sittings of the court and a brief memorandum of all matters brought before it, with the action of the court thereon, which entries shall be made at the time of each sitting of the court;

   (6)  a book called Delayed Registration of Birth Records in which shall be set forth all applications for delayed registration of birth records and the decrees of the court thereon;

   (7)  a book called the Adoption Docket in which shall be set forth all reports of intent to adopt, adoptions, voluntary and involuntary relinquishments and the decrees of the court thereon, and the Adoption Docket shall be impounded along with all other adoption matters.

   (c)  Record Books--Register of Wills. The register of wills and ex-officio clerk of the orphans' court shall keep the following books:

   (1)  a book known as the Memorandum Book in which shall be entered the names of decedent's and minor's estates and all other matters requiring the designation of a new number and term, together with a brief note of the subject matter of the entry;

   (2)  a book called the Administration Docket in which shall be noted the issuing of letters of administration, and accounts, and elections to take under or against wills;

   (3)  a book called the Inventory and Appraisement Docket in which shall be set out the total amount of the personal property set out in the inventory, together with a brief reference to each tract of real estate and valuation thereof, as set out in all inventories filed in the register of wills office or the clerk of courts office, except those noted or set out in other dockets or books in either of those offices;

   (4)  a book called the Will Book in which shall be transcribed at length all wills probated, together with the date of death and the name of such executors as have qualified;

   (5)  a book called Transfer Inheritance Tax Docket in which shall be set forth a description in full of the real estate of decedent and totals of personal property and list of debts, together with notations as to assessment and payment of tax.

   (d)  Indexes. The clerk or register of wills shall keep a proper index for each docket whenever the same may be required, together with a general index.

   (e)  Endorsement of Filing Date. The clerk or register of wills shall endorse upon all papers filed the date of filing, which date shall be conclusive upon all parties, unless changed by order of court because of error or other cause showing the same to be incorrect.

   Cross References: This Rule is taken from prior Rule W018.

   Explanatory Comments: The books required in this rule may be kept electronically.

Rule WO116.  Format of Pleadings and Documents.

   (a)  All originals of pleadings and forms of decrees shall be typed.

   (b)  Pleadings or documents submitted for filing must be clear and unblurred.

   (c)  When submitted to the court or the clerk, documents which are handwritten or not readily legible shall be accompanied by a typed copy.

   (d)  All documents in a foreign language shall be translated into English. The translation shall be typed and a certification of accurate translation shall be attached.

   (e)  ''Typed'' means typewritten or machine printed in black type on white paper and double spaced. Unconventional fonts shall be avoided.

   (f)  ''Documents'' shall include all written material, including but not limited to wills, trusts, powers of attorney, contracts and leases.

   Explanatory Comments: If a holographic will is presented for probate, there must be offered with it a typewritten copy of the original will. This is known as a ''copy fair''.

   Unconventional fonts include script or cursive style fonts.

Rule WO117.  Accounts.

   (a)  Accounts shall conform with the Uniform Fiduciary Accounting Principles and accompanying commentaries and illustrations recommended by the Committee on National Fiduciary Accounting Standards in collaboration with the National Center for State Courts. Accounts shall be stated on 8-1/2 x 11 paper, fastened at the top and the pages shall be numbered consecutively.

   Cross References: See Supreme Court Orphans' Court Rule 6.1.

   (b)  Transcribing. The clerk, when transcribing into account books such accounts as are required by law to be transcribed, shall omit from the record all schedules attached to accounts, description of unconverted real estate, testimony and documents accompanying the same and auditor's reports, unless otherwise directed by special order of the court, provided that accounts of guardians and trustees which are not final shall be transcribed in full.

   (c)  Notice to Co-Fiduciaries. When there are co-fiduciaries, actual notice of filing of an account and of audit must be given to those who do not join in the accounting.

   (d)  Signing--Verification. All accounts shall be signed and verified by the fiduciaries. In the first account filed in a decedent's estate, the verification shall include a statement that four months have elapsed from the date of the first complete advertisement of the original grant of letters (except where a personal representative has been directed by the court to file an account prior to that time). All fiduciaries must verify that the disbursements claimed have been made or will be made to the proper parties, and that the account as stated is true and correct. The verification must be attached after the last schedule.

   (e)  Filing Time. To be placed on the audit list, accounts shall be filed in the office of the clerk no later than the last day scheduled by the court for the filing of accounts in any given month.

   (f)  Confirmation Nisi. All accounts will be confirmed nisi when presented at the stated meetings of the court, not less than thirty days after the time of filing.

Rule WO118.  Change of Address.

   A personal representative of a decedent's estate or a guardian of the estate of a minor or an incapacitated person shall file with the Register of Wills of Westmoreland County any change of address. Notice or service to the last recorded address shall be deemed notice or service to the said personal representative or guardian.

Rule WO119.  Approved Forms.

   The court shall periodically file a decree listing approved forms which may be utilized in practice before the court. A complete set of these approved forms shall be kept in the clerk's office.

   Cross References: The Westmoreland Bar Association is publishing a volume of approved forms as a companion volume to these Rules.

Rule WO201.  Application for Judicial Authorization of an Abortion.

   (a)  Whenever the term ''Application'' is used in the Abortion sections of these rules, it shall refer to an Application for Judicial Authorization of an Abortion as set forth in (c) below.

   (b)  An Application may be submitted by a minor, by a guardian on behalf of an incapacitated person, or by a proposed guardian on behalf of an alleged incapacitated person.

   (c)  An Application and supporting documents shall be substantially in the form available from the judge of the orphans' court, and the form of verification to be signed by the applicant shall be substantially in the form set forth in Supreme Court Orphans' Court Rule No. 16.12.

   (d)  The Application and supporting documents shall be available from the judge of the orphans' court.

   (e)  The Application shall be submitted to, and filed directly with, the judge of the orphans' court for scheduling.

   (f)  The Verification of Medical Provider required by the Abortion Control Act shall be attached to the Application or shall be delivered to the court no later than 24 hours before hearing scheduled upon the Application.

   (g)  The date of filing of the Application for purposes of compliance with the Abortion Control Act shall be deemed to be the date when the Application is first presented to the judge of the orphans' court for scheduling.

   Cross References: The Abortion Control Act is set forth at 18 Pa. C.S.A. § 3200, et seq. See Supreme Court Orphans' Court Rule No. 16.10 and No. 16.11. See Pennsylvania Orphans' Court Rule No. 16.12.

   See Forms Abortion-1 and Abortion-2 for suggested forms of Application and Verification of Medical Provider.

Rule WO202.  Confidentiality.

   (a)  All proceedings relating to an Application shall be confidential.

   (b)  Upon the initial filing of the Application, the court shall review the Application and note any information identifying the pregnant woman (such as name and address and social security number) and shall then seal the Application in an envelope, denoting on the face thereof a caption using the initials of the pregnant woman and writing an order on the face of the envelope, which shall indicate the contents of the envelope (for example, Application for Judicial Authorization of an Abortion, Verification of Applicant, Verification of Medical Provider, etc.). The court shall direct that the record (Application, pleadings, submissions, transcripts, exhibits, orders, evidence and any other written material to be maintained, which shall include its own findings and conclusions) be sealed. The order shall specifically state that the envelope shall remain sealed and confidential.

   (c)  The clerk of the orphans' court shall docket the case by using a docket number only. Neither the name nor the initials of the pregnant woman shall appear anywhere upon the docket. All subsequent pleadings and exhibits shall be similarly sealed and maintained. A final decree in the matter, using only the initials of the pregnant woman, may appear on the face of a sealed envelope, but the Findings of Fact and Memorandum Opinion of the court shall be sealed.

   (d)  The identity of the pregnant woman shall not be disclosed in any report or decision of the proceeding.

   (e)  All persons shall be excluded from hearings upon the Application except the pregnant woman, her attorney, her guardian ad litem, her proposed guardian (if she is alleged to be incapacitated), the proposed guardian's attorney, and witnesses of the applicant or of the applicant's attorney and guardian ad litem, or other individuals as directed by the court.

   (f)  The judge hearing the Application shall direct all persons present at any hearing or proceeding upon the Application not to disclose any information regarding the case.

   Cross References: See Supreme Court Orphans' Court Rule No. 16.2, Rule No. 16.6 and the Explanatory Comment accompanying Rule No. 16.1.

Rule WO203.  Consent to an Abortion on Behalf of an Incapacitated Person.

   (a)  Whenever a person seeks judicial consent to an abortion on behalf of an alleged incapacitated person, a Petition for Guardianship of the pregnant woman shall be filed either before an Application is filed or simultaneously therewith.

   (b)  A Petition for Guardianship or consolidated Petition for Guardianship and Application, filed on behalf of an incapacitated pregnant woman, by a petitioner seeking authority to consent to an abortion on behalf of the pregnant woman, shall maintain the anonymity of the pregnant woman, and confidentiality shall be maintained as set forth in Rule WO202. If a Petition for Guardianship alleges that the alleged incapacitated person is in need of a guardian for the purpose of authorizing the guardian to consent to an abortion that would be in the best interests of the incapacitated person, the Petition for Guardianship shall contain all of the information required by Chapter 55 of the Probate, Estates & Fiduciaries Code and by the abortion sections of these rules.

   (c)  The court will conduct proceedings to determine the capacity of the pregnant woman in the same manner as provided for in Chapter 55 of the Probate, Estates & Fiduciaries Code, and will render a decision on the incapacity of the pregnant woman before proceeding to rule on the Application.

   (d)  The standard for granting authority to a guardian to consent to an abortion shall be whether or not the procedure would be in the best interests of the incapacitated person.

   (e)  The statutory requirement that a decision by the court upon an Application shall be rendered within three business days of filing of the Application shall apply to filing of the Application and not to a prerequisite Petition for Guardianship, unless the two petitions are consolidated.

   Cross References: See Supreme Court Orphans' Court Rule No. 16.1.

   Pursuant to the Abortion Control Act, 18 Pa.C.S.A. §  3206(f)(4), decision upon an Application must be rendered within three business days of the filing of the Application.

   In regard to paragraph (d), the rule is in accordance with the Abortion Control Act, 18 Pa.C.S.A. § 3206(d).

Rule WO204.  Guardian Ad Litem.

   (a)  The court shall advise the pregnant minor filing an Application at the time when she files the Application that she has a right to court-appointed counsel or the right to retain private counsel at her own expense, and that she has a right to appointment of a guardian ad litem, and the court shall appoint such counsel or guardian ad litem upon request of the applicant or at its discretion.

   (b)  The orphans' court shall maintain a list of qualified attorneys within the jurisdiction of the court who shall serve by court appointment as counsel for the applicant or as guardian ad litem whenever required by the Abortion Control Act or by these Rules.

   (c)  A guardian ad litem will be appointed by the court in all cases where it is necessary to obtain records pertaining to an adult applicant's mental capacity to request or to consent to an abortion. The guardian ad litem may act on behalf of the minor or incapacitated pregnant woman to sign authorizations to release medical records to the court.

   Cross References: See 18 Pa.C.S.A. § 3206(e) and Supreme Court Orphans' Court Rule No. 16.1, note.

   Explanatory Comments: Records essential to the court's decision on an Application on behalf of a mentally incapacitated woman should be obtained through written consent of her guardian ad litem. This rule is of particular importance in cases where a medical practitioner or family member seeks authority to consent to an abortion as the guardian of the pregnant woman. Section 106 of the Mental Health Procedures Act, 50 P.S. § 7106, provides that medical records related to proceedings under the Mental Health Procedures Act may not be released without the signed authorization of the patient and that, in no case, may confidential communications between the patient and doctor, resulting from any proceedings under the Mental Health Procedures Act, be released.

Rule WO205.  Medical Testimony.

   (a)  It is presumed that the testimony of physicians, psychologists and other medical professionals may be taken in the courtroom by speaker telephone in all proceedings conducted in accordance with these rules and pursuant to 18 Pa.C.S.A. §  3206(c), unless objections are filed at least ten days before the hearing.

   (b)  Telephone testimony shall be limited to medical, psychological and other medical personnel who can provide information relevant to the emotional development, maturity, intellect and understanding of the applicant; the fact and duration of the applicant's pregnancy; the nature, possible consequences, and alternatives to abortion; and any other relevant evidence which the court may find useful in making a determination about the applicant's ability to give informed consent pursuant to 18 Pa.C.S.A. § 3205 or an allegation that the abortion is in the best interests of the applicant.

   (c)  All documents in a foreign language shall be translated into English. The translation shall be typed and a certificate of accurate translation shall be attached.

Rule WO206.  Testimony of Applicant's Parents.

   The parents of a minor seeking judicial authorization of an abortion may be given an opportunity to be heard, within the discretion of the court, provided said opportunity to be heard does not delay the hearing on the Application beyond the time period described by statute, unless the applicant objects to disclosure of her pregnancy to her parents.

Rule WO207.  Transcript of Testimony.

   A record of all proceedings before the court upon an Application shall be made as a matter of course, and shall be transcribed, insofar as is practicable and necessary to meet the requirements for a prompt appeal, on the same day as the proceeding is conducted.

   Explanatory Comments: An applicant for judicial consent to an abortion is entitled to an appeal directly to the Pennsylvania Superior Court after an adverse decision rendered by the Court of Common Pleas. The appeal must be heard within five days. Other time constraints related to gestational age of the fetus may make it imperative that a transcript be prepared expeditiously.

   The Pennsylvania Rules of Appellate Procedure, Rule No. 3804, requires that the court reporter, without charge to the applicant, transcribe the notes of testimony and deliver them to the clerk by 5:00 o'clock P.M. on the business day following receipt of the notice of appeal to the Superior Court.

   Cross References: See 18 Pa.C.S.A. § 2306(f)(4).

Rule WO301.  Termination of Parental Rights--Unknown Father.

   (a)  Court Proceedings--Voluntary Termination of Natural Mother's Parental Rights.

   (1)  When the natural mother of a child petitions the court to voluntarily terminate her parental rights and alleges in her petition that the identity and/or domicile of the birth father is unknown, she shall testify, under oath, as to the circumstances of the conception including, but not limited to, a physical description of the alleged natural father, his name, nickname or alias, his occupation or alleged occupation, his home or region of origin, and any subsequent contact with him.

   (2)  If the natural mother does not identify the father of her child by name in her petition to voluntarily terminate her parental rights or in her consent to adoption, the court shall require her presence, even if a petitioner files the appropriate pleading under 23 Pa.C.S.A. § 2304.

   (b)  Notice. The notice to ''Unknown Father'' pursuant to 23 Pa. C.S.A. § 2513 shall include the child's name, the child's date of birth, the natural mother's name and the place of birth when the Notice is published pursuant to Pa. O.C. Rule 5.1(c). It shall be published in the county and state where, by petition, the notice is most likely to effectively notify the ''Unknown Father''.

   (c)  When the proposed adoptee has been born outside the Commonwealth of Pennsylvania, any Petition for Adoption filed with the court shall include as exhibits thereto certified copies of all orders of court or decrees issued by a court of competent jurisdiction, which orders or decrees:

   (1)  terminate the parental rights of the birth parents of the child proposed to be adopted;

   (2)  establish rights of guardianship or custody of the child proposed to be adopted in any other person or entity other than the birth parents; and/or

   (3)  establish or set forth any special conditions and/or considerations concerning placement, custody or guardianship and adoption of the proposed adoptee.

Rule WO302.  Medical Testimony.

   (a)  It is presumed that the testimony of physicians, psychologists and other medical professionals may be taken in the courtroom by speaker telephone in termination of parental rights cases unless objections are filed at least ten days before the hearing.

   (b)  All documents in a foreign language shall be translated into English. The translation shall be typed and a certificate of accurate translation shall be attached.

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