Title 210—APPELLATE PROCEDURE
PART II. INTERNAL OPERATING PROCEDURES
[ 210 PA. CODE CH. 65 ]
Amendments to the Superior Court Operating Procedures
[40 Pa.B. 6078]
[Saturday, October 23, 2010]
The Superior Court of Pennsylvania has adopted amendments to its Internal Operating Procedures. These amendments are reflected in the Superior Court Internal Operating Procedures with amendments to Pa. Code 65.1 et seq.
These changes were approved on September 15, 2010, effective immediately.
TITLE 210. APPELLATE PROCEDURE
PART II. INTERNAL OPERATING PROCEDURES
CHAPTER 65. INTERNAL OPERATING PROCEDURES OF THE SUPERIOR COURT
ADMINISTRATIVE OFFICES AND STAFF
§ 65.5. Panels.
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C. [If a member of a panel is unable to attend or is disqualified from sitting on a particular case, the presiding judge of that panel shall secure another judge to sit on that case. If a member of a panel is unable to attend or is disqualified from sitting on a particular panel, the President Judge shall designate and assign another judge to sit on the panel.] 1. After the Prothonotary has listed the cases for an argument panel, but before the actual argument of the cases: (a) if a member of a panel becomes unable to participate in the disposition of a particular case, the presiding judge of that panel shall notify the President Judge or his/her designee, and the President Judge or his/her designee shall secure another judge to sit on that case; (b) if a member of a panel becomes unable to participate in a particular panel, the President Judge or his/her designee shall designate and assign another judge to sit on the panel.
2. After the Prothonotary has listed the cases for a submitted panel: (a) if a member of a panel becomes unable to participate in the disposition of a particular case, the case may be decided by the two remaining judges if they agree on the entire disposition of the case; if the two remaining judges are unable to agree on the entire disposition of the case, the panel shall proceed in accordance with I.O.P. 65.5F.; (b) if a member becomes unable to participate in a particular panel, the President Judge or his/her designee shall designate and assign another judge to the panel.
3. If, after oral argument on a case, a judge becomes unable to participate in the disposition of a particular case, the case may be decided by the two remaining judges if they agree on the entire disposition of the case. If the two remaining judges are unable to agree on the entire disposition of the case, the panel shall proceed in accordance with I.O.P. 65.5F.
D. The presiding judge of each panel shall be the commissioned judge highest in seniority, except where the panel includes the President Judge who shall then be the presiding judge. The presiding judge shall preside at all panel sessions, assign the cases, and record the assignment of cases. The presiding judge shall transmit to the members of the panel and the Reporter a record of all assignments and/or other actions taken by the panel.
E. All discussions, votes, and drafts of decisions prior to the filing of the final decision shall remain confidential.
F. If, following argument or submission, a member of the three judge panel assigned to decide an appeal becomes unavailable, and the remaining two judges are unable to decide the appeal, they shall request the President Judge or his/her designee to either reassign the appeal for reargument or submission before another panel, or they may request that the appeal be reargued before a court en banc. If the full court shall decline to accept the appeal for reargument before a court en banc, the President Judge or his/her designee shall reassign the same to another three judge panel for reargument or submission and decision.
In accordance with Pa.R.A.P. 3102(a), a panel of three judges constitutes a quorum of the Court. 42 Pa.C.S. § 325(e)(1) authorizes the President Judge to make assignments. Subdivision (C) and (D) of this rule [does] do not alter the effect of Pa.R.A.P. 3102(b).
§ 65.6. Courts en banc.
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B. The President Judge shall assign the judges to each en banc panel and shall designate the location, the time, and the date of each session. [The identity of the members of the en banc panel shall be confidential prior to the session.] The presiding judge of a Court en banc shall be the commissioned judge highest in seniority, except where the Court en banc includes the President Judge, who shall then preside.
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APPELLATE MEDIATION PROGRAM
(Editor's Note: The following section is new and printed in regular type to enhance readability.)
§ 65.43. Policy.
The Appellate Mediation Program facilitates settlements or otherwise assists in the resolution of eligible Civil, Family and Orphans' Court appeals. Attorneys with the requisite experience are appointed by the Court to administer the program and conduct mediations. The Mediator shall report directly to the President Judge or his or her designee.
A. After an appeal is filed and contemporaneous with the issuance of docketing information, the Superior Court Prothonotary shall provide the Appellant with a Mediation Statement Form directing the Appellant to submit a factual and procedural summary of the case, the issues raised on appeal, a copy of any opinion or order entered in the lower court and such other information that might impact the mediation process.
B. The completed Mediation Statement shall be confidential. It shall be delivered directly to the Mediator whose identity and address will be provided with the Appellate Mediation Statement Form. The Mediation Statement shall not be filed with the Prothonotary and shall not be served on opposing counsel.
C. Based on the Mediation Statement and any other submitted documents, the Mediator, in his or her discretion, shall determine whether the case on appeal will be mediated. The Mediator shall notify the parties when a case is selected for mediation. Once the Mediator selects a matter for mediation, participation is mandatory.
D. In the event that a case has not been selected for mediation, a party or parties to such an appeal may request the Mediator to reconsider the case for mediation. The Mediator may, in his or her discretion, accept such reconsidered case for mediation, provided that no case shall be eligible for the mediation program after the filing of Appellant's brief and the Mediator shall not reconsider and accept a case after that time has passed.
E. After selection of a case for mediation, and in order to facilitate the mediation, the Mediator shall distribute instructions, procedures and forms to the parties. The parties will prepare and timely submit to the Mediator all forms sent in conjunction with the mediation program.
F. The Mediator shall schedule and conduct confidential mediation sessions. The mediation of selected cases shall be conducted in person, however, if necessary, the Mediator may permit the mediation to take place telephonically, or by videoconference if available. Such mediation sessions shall be scheduled and completed prior to the date set for the filing of Appellant's initial brief. A briefing schedule shall not be deferred during the pendency of mediation unless the Court determines otherwise. A referral to mediation shall not defer or extend the time for ordering any necessary transcripts. Unless otherwise ordered by the Court and for good cause shown, the appellate process will not be interrupted as a result of the pendency of mediation.
G. Unless the Mediator directs otherwise, mediation sessions must be attended by: 1) for each party, the lead attorney who is responsible for the appeal; 2) the parties to the appeal; and 3) if other than or in addition to a party, by the person or persons with actual, full and complete authority to agree to the terms of a settlement of the case. Attendance by other persons who may beneficially influence a settlement shall be within the discretion of the Mediator.
H. No party shall be bound by statements or actions at a mediation session unless a settlement is reached. If the case settles, the agreement shall be reduced to writing and signed by all parties at the mediation session or as soon as possible thereafter. A settlement agreement shall be binding upon all parties to the agreement.
I. In the event of settlement, the Appellant shall promptly file with the Prothonotary a Praecipe for Discontinuance of the appeal pursuant to Pa.R.A.P. 1973 and serve a copy of the Praecipe on the trial judge who presided in the case in the Court of Common Pleas pursuant to Pa.R.A.P. 121(c). The Praecipe shall contain a Notice of Service of the trial court judge pursuant to Pa.R.A.P. 121(d).
J. The Mediator shall keep confidential any statements made or information developed during the mediation process. The parties, their attorneys and other persons attending the mediation are likewise prohibited from disclosing statements made or information developed during the mediation process to anyone other than clients, principals, co-counsel, or those whose final permission and authority is essential to effectuate a settlement, and then, only upon receiving confirmation that the recipients will honor the confidentiality of the information. Similarly, the parties are prohibited from using any confidential information obtained as a result of the mediation process as a basis for any motion or argument to any court.
K. The Mediator shall not participate in any attempts to enforce a settlement. Further, the Mediator cannot be called as a witness in any action or proceeding to enforce a settlement reached as a result of the Appellate Mediation Program.
L. All mediation communications and mediation documents are confidential, inadmissible and are privileged communications pursuant to 42 Pa.C.S.A. § 5949. Upon completion of the mediation proceedings, the Mediator will destroy, in a secure manner, all written documentation submitted during the consideration of and/or conduct of mediation.
M. The Mediator will provide a program evaluation form, to counsel for the parties and, if appropriate, to parties. Candid evaluations are encouraged, but are voluntary and may be submitted anonymously.
§ 65.51. [Policy] (Rescinded).
[Pursuant to § 5704(5) of the Wiretapping and Electronic Surveillance Control Act, it is the policy of the Court not to entertain applications for the installation and use of Pen Registers.]
[Pa.B. Doc. No. 10-1993. Filed for public inspection October 22, 2010, 9:00 a.m.]
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