[31 Pa.B. 6782]
[Continued from previous Web Page]
CHAPTER 5. PRETRIAL PROCEDURES
IN COURT CASES
PART F. Procedures Following Filing of Information Rule 573. Pretrial Discovery and Inspection.
(A) INFORMAL
Before any disclosure or discovery can be sought under these rules by either party, counsel for the parties shall make a good faith effort to resolve all questions of discovery, and to provide information required or requested under these rules as to which there is no dispute. When there are items requested by one party which the other party has refused to disclose, the demanding party may make appropriate motion [to the court]. Such motion shall be made within 14 days after arraignment, unless the time for filing is extended by the court. In such motion the party must set forth the fact that a good faith effort to discuss the requested material has taken place and proved unsuccessful. Nothing in this provision shall delay the disclosure of any items agreed upon by the parties pending resolution of any motion for discovery.
* * * * * (C) DISCLOSURE BY THE DEFENDANT
(1) MANDATORY:
(a) Notice of Alibi Defense:
A defendant who intends to offer the defense of alibi at trial [shall], [at] within the time required for filing the omnibus pretrial motion under Rule [578] 579, [file of record notice signed by the defendant or the attorney for the defendant, with proof of service upon the attorney for the Commonwealth, specifying intention to claim such defense.] shall file with the clerk of courts notice specifying the intention to claim the defense of alibi, and a certificate of service on the attorney for the Commonwealth. The notice and certificate shall be signed by the attorney for the defendant, or the defendant if unrepresented. Such notice shall contain specific information as to the place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of witnesses whom the defendant intends to call in support of such claim.
(b) Notice of Insanity Defense or Mental Infirmity Defense:
A defendant who intends to offer at trial the defense of insanity, or a claim of mental infirmity, [shall, at] within the time required for filing an omnibus pretrial motion under Rule [578] 579, [file of record notice signed by the defendant or the attorney for the defendant, with proof of service upon the attorney for the Commonwealth, specifying intention to claim such defense.] shall file with the clerk of courts notice specifying the intention to claim the defense of insanity or a claim of mental infirmity, and a certificate of service on the attorney for the Commonwealth. The notice and certificate shall be signed by the attorney for the defendant, or the defendant if unrepresented. Such notice shall contain specific available information as to the nature and extent of the alleged insanity or claim of mental infirmity, the period of time that the defendant allegedly suffered from such insanity or mental infirmity, and the names and addresses of witnesses, expert or otherwise, whom the defendant intends to call at trial to establish such defense.
* * * * *
Comment This rule is intended to apply only to court cases. However, the constitutional guarantees mandated in Brady v. Maryland, 373 U.S. 83 (1963), and the refinements of the Brady standards embodied in subsequent judicial decisions, apply to all cases, including court cases and summary cases, and nothing to the contrary is intended. For definitions of ''court case'' and ''summary case,'' see Rule 103.
Any motion under this rule must comply with the provisions of Rule 575 (Motions and Answers) and Rule 576 (Filing and Service by Parties).
* * * * * See Rule 576(B)(4) and Comment for the contents and form of the certificate of service.
It is intended that the remedies provided in paragraph (E) apply equally to the Commonwealth and the defendant as the interests of justice require.
* * * * * Official Note: Present Rule 305 replaces former Rules 310 and 312 in their entirety. Former Rules 310 and 312 adopted June 30, 1964, effective January 1, 1965. Former Rule 312 suspended June 29, 1973, effective immediately. Present Rule 305 adopted June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; Comment revised April 24, 1981, effective June 1, 1981; amended October 22, 1981, effective January 1, 1982; amended September 3, 1993, effective January 1, 1994; amended May 13, 1996, effective July 1, 1996; Comment revised July 28, 1997, effective immediately; Comment revised August 28, 1998, effective January 1, 1999; renumbered Rule 573 and amended March 1, 2000, effective April 1, 2001; amended ____ , 2002, effective ____, 2002.
Committee Explanatory Reports:
* * * * * Report explaining the proposed changes to paragraphs (C)(1)(a) and (b) published at 31 Pa.B. 6792 (December 15, 2001).
PART F(1). Motion Procedures Rule 581. Suppression of Evidence.
* * * * *
Comment * * * * * It should be noted that failure to file the [application] motion within the appropriate time limit constitutes a waiver of the right to suppress. However, once the [application] motion is timely filed, the hearing may be held at any time prior to or at trial.
All motions to suppress must comply with the provisions of Rule 575 (Motions and Answers) and Rule 576 (Filing and Service by Parties).
* * * * * Official Note: Rule 323 adopted March 15, 1965, effective September 15, 1965; amended November 25, 1968, effective February 3, 1969. The 1968 amendment, suspended, amended, and consolidated former Rules 323, 324, 2000 and 2001 of the Pennsylvania Rules of Criminal Procedure. This was done in accordance with Section 1 of the Act of July 11, 1957, P. L. 819, 17 P. S. § 2084. Paragraph (f) amended March 18, 1972, effective immediately; amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; paragraphs (f) and (g) and Comment amended September 23, 1985, effective January 1, 1986; effective date extended to July 1, 1986; renumbered Rule 581 and amended March 1, 2000, effective April 1, 2001; Comment revised ____ , 2001, effective ____ , 2001.
Committee Explanatory Reports:
* * * * * Report explaining the proposed Comment revision referencing Rules 575 and 576 published at 31 Pa.B. 6792 (December 15, 2001).
REPORT Proposed new Rules 113 and 577, amendments to Rules 103, 114, 573, 575, and 576, revision of the Comment to Rule 581, and rescission of Rules 113, 574, and 577.
STATEWIDE UNIFORMITY: MOTIONS, ANSWERS, ORDERS, AND COURT NOTICES IN CRIMINAL CASES INTRODUCTION
The Committee has continued its review of the Criminal Rules to determine how best to (1) promote the statewide uniformity of practice and procedure and (2) eliminate the local rules and local practices that are hampering the statewide practice of law.1 As the result of this ongoing review, the Committee has developed the following proposal for changes to the Criminal Rules governing motions and answers, and the filing and service of motions, answers, orders, and notices.2
BACKGROUND
For a number of years, the Committee has been receiving correspondence from attorneys with practices in more than one judicial district, including counsel from the State Police and the Attorney General's office, questioning the validity of specific local rules or local practices that appear to conflict with current Rules 114, 574, 575, 576, and 577, and are hampering their ability to practice in multiple judicial districts.3 In an effort to better understand the problems related to motions practice, the Committee first contacted current and former Committee members engaged in private practice concerning their experience with local rules and local practices regulating motions practice. Subsequently, we surveyed the members of the Pennsylvania Association of Criminal Defense Lawyers for their input concerning the impact of local rules on their multi-judicial district practices. From the information we received from these surveys, as well as the correspondence from the other attorneys, the Committee identified several aspects of local motions practice that seem to be the major troublemakers for attorneys with multi-judicial district practices, including local rules and local practices
* requiring counsel personally appear to file motions
* requiring counsel personally appear to present motions to the judge before filing with the clerk of courts
* requiring counsel to personally obtain hearing dates and serve the other parties
* requiring counsel to use rules to show cause and rules returnable
* requiring cover sheets, answers, hearings, oral arguments, briefs, or proposed orders in every case.In addition, although not a major troublemaker, there are problems in ensuring prompt service under the rules.
The Committee also surveyed all president judges to gather general information about motions practice in their respective judicial districts, and to determine whether they use cover sheets, rules to show cause or rules returnable, and require proposed orders. We received responses from about half the judicial districts, and found that most do not use cover sheets or rules to show cause or rules returnable, and they were equally divided concerning requiring a proposed order, or answers, hearings, oral arguments, or briefs.
Armed with all this information, after extensive review and discussions, the Committee agreed the rules should be changed to incorporate the following points:
(1) clarify in a new rule the procedures for maintaining the criminal case file and maintaining a list of docket entries (new Rule 113);
(2) require a certificate of service (Rules 575 and 576);
(3) no longer allow the failure to file an answer to be deemed an admission (Rule 575);
(4) abolish rules to show cause and rules returnable and provide for a notice of hearing (Rule 575);
(5) prohibit local rules requiring a proposed order in every case or an answer to every motion (Rule 575);
(6) abolish cover sheets (Rule 575);
(7) make it clear that a motion must be filed with the clerk of courts first, and any local rules to the contrary are prohibited by the rules (Rule 576);
(8) make it clear that any local rules that require personal appearance to file, or court review before filing, or personal appearance to get a hearing date are prohibited by the rules (Rule 576);
(9) provide for service on the court administrator of any document that is filed (Rule 576);
(10) acknowledge that there are variations in how scheduling is handled in the judicial districts, and those variations should be permitted to continue (Rules 114 and 577); and
(11) include provisions governing what happens after a motion is filed and served (new Rule 577).
The proposed rule changes incorporating the above ideas and making other conforming and correlative changes are discussed more fully below.
DISCUSSION
1. UNIFIED PRACTICE
One of the primary goals of the rule changes the Committee is proposing is to eliminate the local rules and local practices that conflict with the statewide rules and adversely affect motions practice and the statewide practice of law within the unified judicial system. After a great deal of discussion trying to come up with the best way to address this matter, we settled on a ''sledgehammer'' approach--adding specific prohibitions in the rules and highlighting the prohibitions in the Comments. To accomplish this, we are proposing that a new section, titled ''Unified Practice,'' be added to Rules 114, 575, 576, and new Rule 577. This section includes the general prohibition against local rules that are inconsistent with the provisions of the rule, tying in with the Rule 105 (Local Rules) general prohibition against all local rules that are inconsistent with the statewide rules, and specific prohibitions against the local rules and local practices that are creating the most significant impediments to the statewide practice of law.
(a) Rules 114 and 577
Rule 114 addresses the filing and service of orders and court notices. The troublesome local practices identified as impediments to the statewide practice of law related to Rule 114 are the requirements in some judicial districts or by some judges that, in every case, counsel must appear in person to obtain a hearing date, and then counsel must file the notice of the hearing date and serve it on the parties. The Committee agreed these local practices specifically should be prohibited, see Rule 114(E), not only because they are impediments to the statewide practice of law, but also because they are contrary to the intent and spirit of the statewide rules. Similarly, the ''Unified Practice'' provision in Rule 577(C) prohibits local rules that require a personal appearance as a prerequisite to a determination whether a hearing or argument is scheduled.
(b) Rule 575
Rule 575 governs motions and answers. Three specific local rule or local practice requirements have been identified as causing problems, and are prohibited by paragraph (C). These are the requirements in some judicial districts or by some judges that all motions include cover sheets or proposed orders, and that there be an answer filed to every motion. Because we are proposing in Rule 576 that the court administrator be served with a copy of any motion that is filed, and because our survey of president judges revealed that few judicial districts are using cover sheets, the Committee agreed there is no need for cover sheets. To avoid confusion and to eliminate a possible hurdle for statewide practitioners, we are proposing that the use of cover sheets be prohibited. Similarly, from our survey of the president judges, we learned that very few judicial districts require proposed orders. Furthermore, the Committee noted it is often difficult when making a motion to know what should be the precise nature of the order to propose for the motion. Accordingly, the Committee agreed proposed orders should not be mandated for every motion or answer. However, as explained in the Rule 575 Comment, a party has the option of attaching a proposed order in the appropriate case. Finally, the local rules requiring answers in every case conflict with the provisions of present Rule 575,4 and are being prohibited.
(c) Rule 576
The area of motions practice that generates the most local rules and the greatest variance in local practice concerns filing of motions. Although the 1983 amendments to the rules governing filing required all filings to be with the clerk of courts first, either by mail or in person, before transmission to other court officials, the proliferation of local rules and local practices governing filing that are inconsistent with Rule 576 continues to plague multi-judicial district practitioners, as well as the Committee. We still are hearing about local rules or local practices that require a party to bring the motion in person, frequently on specified days or at specified times, to a judge or court administrator before filing with the clerk of courts. The Committee spent a great deal of time revamping Rule 576 to make it absolutely clear that filing may be accomplished only by personally delivering the motion to the clerk of courts or by mail to the clerk. The ''Unified Practice'' provision, Rule 576(A)(5), prohibits any local rules that require a document to be presented in person or reviewed by the court or court administrator before filing.
(d) Comments to Rules 114, 575, 576, and 577
The Comments to Rules 114, 575, 576, and 577 all include a provision explaining the purpose of the ''Unified Practice'' provision, and its relationship to the general prohibition in Rule 105 (Local Rules) against local rules that are inconsistent with the statewide rules. To emphasize the definition of local rule, this explanatory paragraph includes the Rule 105 definition of ''local rule.'' In addition to this general explanatory paragraph, the Rule 575 Comment explains the Committee's reasoning for prohibiting cover sheets. Finally, because of the pervasiveness of the local rules and local practices requiring personal appearances for filing or for securing a hearing date, the Comments to Rules 576 and 577 include a specific statement that these practices are inconsistent with the rules.
2. CERTIFICATE OF SERVICE
The second significant change being proposed is the addition of the requirement that all motions, Rule 575(A)(2)(e), and all answers, Rule 575(B)(3)(c), include a certificate of service. The Committee thought this an important addition to ensure all the proper parties are served.5 This requirement is consistent with similar provisions in the Rules of Civil Procedure and the Rules of Appellate Procedure. The contents of the certificate of service are enumerated in Rule 576(B)(4), and must include the date and manner of service, and the names, addresses, and phone numbers of the persons served. A sample form modeled on Pa.R.A.P. 122 is included in the Rule 576 Comment.
In developing the form of certificate of service, the question of who should sign the certificate arose. The Committee considered whether the rule should require the attorney or party, if unrepresented, to sign, or the person, such as a secretary, who actually mails or delivers the documents. Since the attorney, or the party, if unrepresented, has the responsibility for service under Rule 576, we concluded the attorney or party should sign the certificate of service.
Finally, to conform with these changes, the Committee is proposing that Rule 573(C)(1)(a) and (b) (Pretrial Discovery and Inspection) be amended by changing ''proof of service'' to ''certificate of service.''
3. New Rule 113 (Criminal Case File and Docket Entries)
During the Committee's discussions about the filing and service of motions, answers, orders, and court notices, a number of questions came up about capturing the information concerning a criminal case, such as the dates of filing and service, and maintaining the papers filed in the case. As we considered these questions, we noted the term ''docket'' is used to mean different things in different rules and even within one rule.6 In Pennsylvania, for example, the term ''docket'' is used as a verb to mean either the act of bringing something to the clerk of courts, with ''docketing'' used to mean ''filing,'' or the act of the clerk of courts entering information on the docket, with ''docketing'' used to mean ''entering.'' ''Docket'' also is used as a noun to mean the ''record.''7 In addition, from our research, we learned that some counties do not keep a running record of docket entries, but merely construct the docket if an appeal is taken. In these counties, everything is kept in the case file, and it appears anyone can have access to this file. In view of these considerations, the Committee agreed it would be useful to have a rule governing the ''docket,'' and is proposing new Rule 113 to fill this gap.8
The new rule places the burden of maintaining both the criminal case file, paragraph (A), and the list of docket entries, paragraph (B), on the clerk of courts. As explained in paragraph (A), the criminal case file contains all the original records, papers, and orders filed in the case, and copies of all court notices. Paragraph (A) prohibits the removal of these documents from the criminal case file without a court order, but provides that the parties must be permitted to make copies of the documents. This change is needed to prevent the court's papers from being lost, a problem that from time to time is alluded to in case law because of the difficulties lost documents create in reproducing the record of the case for the appeal.
Paragraph (B) is proposed to address two issues. First, by using the terminology ''list of docket entries'' to replace ''docket'' to describe the entity in which all the information that is required to be maintained in a criminal case is recorded, we are accommodating both the manual system of recording and maintenance of information that is currently being used in a number of judicial districts and the electronic recording and maintenance of information that is used in others.9 Second, the definition in paragraph (B) of ''list of docket entries'' as a ''chronological list, in electronic or written form, of documents and entries in the criminal case file, and of all proceedings in the case,'' is intended to end the practice in some judicial districts of not creating the list of docket entries unless an appeal is taken. This is explained further in the first paragraph of the Comment.
Paragraph (C) outlines the minimum information that must be included in the list of docket entries.10 Paragraph (C)(2) requires the names and addresses of all attorneys who have appeared or entered an appearance. The Committee agreed it was important to capture this information to make sure there is a record of all attorneys who appear in a case, not only for the defendant and the Commonwealth, but also for witnesses or any other litigant in the case. In addition, having the attorneys' addresses ensures proper service under Rules 114 and 576. Paragraph (C)(4) requires notations concerning oral motions and oral orders that are made or issued in the courtroom. Recognizing that not all judicial districts currently have the capacity to make docket entries from the courtroom, the provision is limited to ''when the clerk of courts has the capacity to do so or when ordered by the court.'' Paragraph (C)(6) requires information concerning ''the location of exhibits made part of the record during the proceedings'' and was added to address a serious problem in the criminal justice system. The Committee expects this information in the list of docket entries will aid the courts and the parties in keeping track of the location of exhibits.
Finally, paragraph (F) addresses another problem the Committee has been advised about in numerous communications and which is addressed in case law--supervision of clerks of courts to ensure the timely filing of papers and making of docket entries. The Committee discussed this matter at length and reviewed the constitutional and statutory authorization for clerks of courts. Sections 2756 and 2757 of the Judicial Code, 42 Pa.C.S. §§ 2756 and 2757, establish the duties of the clerks of courts. Section 2757 provides, inter alia, that the office of the clerk of courts shall have the power and duty to:
(5) Exercise such other powers and perform such other duties as may now or hereafter be vested in or imposed upon the office by law, home rule charter, order or rule of court, or ordinance of a county governed by home rule charter or optional plan of government. (Emphasis added.)
Based on this statutory provision, paragraph (F) has been added to specifically authorize the president judge to supervise the clerk of courts.
The Committee also has conformed the terminology in Rules 103, 114, 576, and 577 with the changes being proposed in new Rule 113 concerning filing in the criminal case file and making docket entries.
4. Rule 114 (Filing, Docket Entries, and Service of Orders and Court Notices)
In developing this proposal, as noted above in Part 1, the Committee has been working toward statewide uniformity in the procedures governing motions practice. We recognized that the procedures governing orders and court notices are not uniform statewide, and the practice in many judicial districts are creating problems for the statewide practice of law. In addition to the ''Uniform Practice'' provision being added to Rule 114(E), discussed above in Part 1, the Committee is proposing a number of other changes to Rule 114 that will tighten up the procedures governing orders and court notices.11
First, the title to Rule 114 is being changed to more accurately reflect the application of the rule; that it addresses the filing and service of orders and court notices, and making docket entries with regard to the filing and service of orders and court notices.
Throughout its discussions, a recurring issue the Committee encountered concerned the problems that arise because not all the court papers are filed in a timely manner, accurate docket entries are not always made promptly, and service of orders and court notices is not always made in a timely manner. These problems impact other Criminal Rules12 and cause unnecessary delays in cases. From our research, the Committee noted the problems are exacerbated not only by the varied practices for handling these duties in the judicial districts, but also by the failure of some judicial districts to provide any uniform supervision. After considerable discussion, the Committee concluded that it is the responsibility of the president judge to ensure that orders and court notices are filed, docket entries are made, the orders and notices are served as required by the rules, and all these duties are performed in a timely manner. The Committee also agreed that this responsibility should be made clear in Rule 114, and are proposing a new paragraph (A) to specifically provide for the president judge's authority to oversee the court officials who are given the responsibility to perform these duties.
A related issue debated at length by the Committee concerned which court officials should have the responsibility to file, make docket entries of, and serve orders and court notices. We are aware that in many judicial districts the clerk of courts is responsible for filing and for making the docket entries, and either the clerk of courts or the court administrator serves the orders and court notices. Because determining who has the responsibility is an administrative matter, we initially considered requiring the president judge to designate which court officials would have the responsibilities for these duties, but were concerned that until the president judge made the designation, there would be confusion and this would only make the problems worse. The Committee concluded the better procedure would be to have the rule ''default'' to the clerk of courts; that is, under paragraphs (B) and (C), the clerk of courts is the official responsible for filing, making docket entries, and serving orders and court notices. However, we agreed that this was one area where local practice should be accommodated as long as the president judge ensures the duties are performed in a timely manner. In recognition of this, new paragraph (C)(2) authorizes the president judge to designate the court administrator as the official to serve some or all orders and court notices.
During our review of Rule 114, the Committee discussed what information concerning orders and court notices should be included in the docket entries. First, although we recognize that most clerks of courts time stamp documents that come into their offices, to ensure accuracy concerning when the clerk of courts receives orders or court notices for filing and to eliminate variations in practice in this area, the Committee is proposing that Rule 114(B), which is taken from the first sentence of current Rule 114, should require the clerk of courts to time stamp the order or court notice with the date of receipt, which is the date the order or court notice is received in the clerk's office for filing. In addition, paragraph (B) requires the clerk also to make a docket entry of the date on the order or court notice, because frequently this will be different from the date of receipt, and this information could be important in the case.
Paragraph (C)(1), which is taken from the second sentence of current Rule 114, requires the clerk to make a docket entry of the date of service, and retains the requirement that the clerk make a docket entry of the manner of service. To ensure that the provisions of (C)(1) are complied with when the court administrator serves an order or court notice, paragraph (C)(2) includes the requirement that the order or court notice be filed in the criminal case file and a docket entry made.
Paragraph (D) incorporates the service provisions of current Rule 113 with the following changes. First, in our review of current Rule 113(1)(a), which provides for service by ''personal delivery to the defendant or defendant's attorney,'' some members questioned whether service could be on a defendant instead of his or her attorney as implied by this language. The Committee concluded service should always be on the attorney unless the party is unrepresented, and is proposing this provision be amended accordingly. See paragraph (D)(1)(a).13 During our discussion of this provision, the Committee considered whether service could be on an attorney's employee, noting that in practice this frequently occurs but is not specifically provided for in former Rule 113. We agreed Rule 114 should permit this practice but that it should be limited to service on the employee at the attorney's office. See paragraph (D)(1)(b).14
The Committee also considered the practice in some judicial districts of assigning mail slots/boxes in the courthouse for service on members of the local bar and the court administrator. We agreed this practice was a legitimate manner of service as long as the courthouse mailboxes are not used to serve a party who does not have a box or who has not given their permission to be served in the box. Accordingly, paragraph (1)(d) specifically permits service in courthouse mailboxes, with a Comment provision elaborating on the caveat.15
Finally, concerning methods of service, the Committee considered whether the rule should permit service of orders and court notices by facsimile or electronic transmission, similar to what is permitted by Pa.R.Civ.P. 236(d). Although fully cognizant that the use of electronic technology for transmitting documents is proliferating, the Committee was concerned about issues such as proof of service and signatures that arise with the various means of electronically transmitting documents, and agreed this matter required further research before proposing such a change for the criminal courts. Accordingly, the Committee concluded that for this proposal, we only would include facsimile transmissions as an acceptable method of service. Following the lead of Civil Rule 236(d), new paragraph (D)(1)(f) limits this method of service to cases in which the party's attorney, or, if unrepresented, the party, has authorized this method of service either by filing a specific request or including the facsimile number on a prior legal paper filed in the case. The Comment includes a paragraph clarifying that the facsimile number on letterhead is not sufficient to authorize service by facsimile.
The Committee's final consideration concerning Rule 114 was whether the court administrator or judge should be able to electronically transmit documents from their offices to the clerk of courts if the technology is available in the judicial district. We agreed that they should, but that this should not be mandatory. We, therefore, have added an explanation to this effect in the Comment.
5. Rule 575 (Motions and Answers)
As part of our review of the motions rules in general, the Committee noted that the rule governing motions, current Rule 574, and rule governing answers, current Rule 575, are similar in nature and closely related in process: motions and answers are documents that a party files, have similar contents, and must be served. In view of this, the Committee is proposing that Rules 574 and 575 be combined into one rule. Accordingly, current Rule 574 has been merged into current Rule 575 as new paragraph (A).16
Rule 575(A)(1) is taken from former Rule 574(A). The Committee agreed to define ''motion'' in Rule 103 rather than having to enumerate the laundry list of documents considered motions--motions, challenges, and applications or requests for an order or relief--each time we refer to ''motions'' in the rules.17 In addition, consistent with our goal of statewide uniform motions procedures, the Committee is proposing the ''except as otherwise provided by these rules'' language be deleted from paragraph (A)(1) because (1) there does not appear to be any motion that would not be in writing, or as permitted by the court, or when made in open court during a trial or hearing,18 and (2) the language could be used as support by the judicial districts for enacting conflicting local rules that could be construed as falling within the ''except as otherwise provided by the rules'' provision.
Paragraphs (2)(a)--(c) and (f) are the same as present Rule 574(B)(1)--(3). Paragraphs (A)(2)(d) and (e) are new to the motions rule. Paragraph (A)(2)(d) adds the requirement that the motion include any requests for a hearing or argument or both, which is in accord with current practice. Paragraph (A)(2)(e) adds the requirement that the motion include a certificate of service. See discussion in Part 2 above.
A major change being proposed by the Committee is the abolition of rules to show cause and rules returnable in paragraph (A)(5). The Committee agreed these ''rules'' are confusing and no longer serve any useful purpose, and should be replaced by ''plain language'' notices of hearings issued by the court or court administrator as provided in Rules 114 and 557. The basis for this change is highlighted in the Comment.
Paragraph (B) incorporates the provisions of current Rule 575. The first sentence of current Rule 575(A) raised two questions for the Committee. The first question was whether the ''or otherwise provided in these rules'' language was necessary. Noting that Rule 906(E)(1)(a) requires an answer to all first counseled PCRA petitions in death penalty cases, and that down the road there may be other rules requiring answers, the Committee agreed the provision is necessary and should be retained. See paragraph (B)(1). For purposes of clarity, the Committee also is proposing that a cross-reference to Rule 906(E) be added to the Rule 575 Comment.
The second question was whether the ''ordered by the court'' language could be construed as authorizing a judicial district to establish a local rule requiring answers in every case. Agreeing there is a potential for the phrase to be misconstrued, and to avoid any language that could be read as encouraging local rules, the Committee has modified that portion of current Rule 575(A) by deleting ''ordered by the court'' and replacing it with ''the judge orders an answer in a specific case as provided in Rule 577,'' see paragraph (B)(1), with an explanation in the Comment that the court may order an answer in specific cases. We also are proposing that a cross-reference to Rule 114 be added to the Rule 575 Comment to emphasize that the orders must be filed and served, and docket entries made.
The Committee discussed the provision in the second sentence of current Rule 575(A) that failure to answer is deemed an admission when an answer has been required by the court or otherwise by the rules, and whether the Criminal Rules should ever permit the failure to answer to be deemed an admission. We concluded the ''deemed admission'' is a civil concept and could lead to problems in the criminal context, and therefore, a failure to answer should never be an admission. Accordingly, the Committee is proposing the deletion of the ''unless an answer has been required'' clause at the end of the second sentence of current Rule 575(A). See paragraph (B)(1). In view of this change, the Committee also agreed the rule had to be clear that the judge could impose other appropriate sanctions on the non-responding party in a specific case, and has added a Comment provision explaining this point.
Paragraph (B)(3), which is essentially the same as current Rule 575(D), has been modified by the deletion of the requirement that the answer ''be divided into consecutively numbered paragraphs corresponding to the numbered paragraphs of the motion.'' See paragraph (B)(3)(b). Several members pointed out that answers may need to be less formally structured for a number of reasons, such as the answer may not respond to an entire motion or may raise other matters that do not correspond to the numbered paragraphs of the motion. The Committee agreed with this assessment, noting the provision is more mischievous than beneficial to the system, and that it makes sense to provide some flexibility in the nature of the answers in criminal cases.
Finally, as explained in Part 2 above, the Committee has added as paragraph (B)(3)(C) the requirement that the answer include a certificate of service.
6. Rule 576 (Filing and Service By Parties)
During the development of this proposal, the Committee agreed there should be a separate rule addressing the procedures following the filing and service of motions. See discussion below in Part 7. To accommodate this new rule, the Committee is proposing that Rules 576 (Filing) and 577 (Service) be combined into one rule because they are closely related in process. Accordingly, current Rule 577 has been merged into current Rule 576 as new paragraph (B).19
The title to Rule 576 has been changed (1) to reflect the new dual nature of the rule--filing and service--and (2) to distinguish the requirements of this rule, which applies to parties, from the filing and service requirements of Rule 114, which applies to the court.
Paragraph (A) is taken from current Rule 576. The order in which the paragraphs appear in the current rule has been reorganized so the method of filing, former paragraph (D), follows the requirements for filing in paragraph (A)(1).
Paragraph (A)(1) is similar to current Rule 576(A), with two changes. First, the ''or otherwise provided in these rules'' language has been deleted because of our concerns about the language being misconstrued as permitting inconsistent local rules in this area. See also the discussion in Part 5 above.20 Second, the Committee has added ''written answers'' to the list of documents that must be filed to make the rules clear that the same requirements for filing apply to any answers. In addition, because Rule 575(A)(1) applies to ''notices or documents for which filing is required,'' the Committee has added a cross-reference in the Comment to the Criminal Rules that require a notice to be filed. This cross-reference will serve as an aide to the bench and bar by clarifying the scope of the application of this provision of the rule.
Paragraph (A)(2) is the same as current Rule 576(D), except that the ''may'' has been changed to ''shall'' in the introductory clause to make the rule clear that these are the only ways to accomplish filing.21 This clarification is intended to preempt local rules dealing with filing of motions.
As the Committee worked on this proposal, the question of how to handle filings that are untimely or that do not comply with the rules arose. Should the clerk of courts have any role in determining the acceptability of filings? The Committee concluded that the determination of the acceptability of filings was not an issue for the clerk of courts, and that they should accept all filings submitted to their offices. Paragraph (A)(3) has been amended to make this clear, with further elaboration in the Comment. It also is suggested in the Comment that the judicial districts implement procedures to inform the filing party when the filing does not comply with the rules so the party may correct the problem.
Paragraph (B)(1), which is taken from current Rule 577(A), specifically requires the parties to serve not only all parties but also the court administrator. The Committee agreed this additional requirement is necessary to address a problem that had come to our attention; some clerks of courts are not complying with the provision of current Rule 576(B) requiring them to promptly transmit a copy to the designated court official.22 Because the court administrator frequently is the designated court official who schedules hearings and arguments, or who is responsible for getting the motions to the judge for scheduling, the Committee concluded the court administrator should receive a copy of all filings from the parties concurrently with filing. As noted in the Comment, this requirement however does not replace the requirement that the documents must be filed with the clerk of courts. In addition, recognizing that some counties assign judges to handle designated cases from the time of arraignment, the Committee has included in the Comment the suggestion that, in these cases, the attorney send the assigned judge a courtesy copy of the filings.
Another purpose of providing for service on the court administrator is to acknowledge the variations in practice concerning who does scheduling in each judicial district. The Committee agreed in this one area of the rules that there did not have to be uniformity, that either the court or the court administrator could continue to schedule hearings and arguments and other court proceedings. This point also is explained in the Comment.
Paragraph (B)(2), which is taken from current Rule 577(B), provides the methods of service. The Committee agreed that the same changes made in Rule 114 concerning service of orders and court notices should be made with regard to service by the parties. See discussion in Part 4 above. Paragraph (B)(2)(a) provides for personal service on the attorney unless the party is unrepresented. Paragraph (B)(2)(b) permits service by personal delivery to the attorney's employee at the attorney's office. Paragraph (B)(2)(d) acknowledges the local practice of using courthouse assigned boxes for receipt of service.
Paragraph (B)(3) has been added to enumerate the means of service on the court administrator. The Committee is proposing the means of service be limited to mail, a courthouse box, or leaving a copy at the court administrator's office.
Paragraph (B)(4) sets forth the requirements for the certificate of service, discussed more fully above in Part 2.
Another issue the Committee considered at length concerned the application of Rule 576 to non-parties. Several members expressed concern that the addition of ''by parties'' to the title and using the term ''parties'' in the rule could be construed as limiting the application of the rule to parties, thereby excluding others who may make a motion in a specific case, such as a member of the press who is challenging, for example, a closure order. The Committee agreed anyone filing any form of request for relief in a criminal case, whether or not a party, should follow the requirements of Rule 576, and therefore, we have added new paragraph (C) to make this clear. Accordingly, any non-party requesting relief from the court in a case must file and serve the motion as required by Rule 576(A) and (B). New paragraph (C), however, in no way is intended to give ''party'' status to a non-party filing and serving under the rule.
7. Rule 577 (Procedures Following Filing of Motion)
As we developed this proposal, the Committee noted a gap in the rule procedures following the filing and service of motions. The current rules do not set forth procedures that would explain what happens after the filing and service of motions. Because most of the changes included in this proposal are intended to reduce the statewide variations in motions practice and procedure, the Committee concluded this gap should be filled, and is proposing a separate rule, new Rule 577.
Rule 577 is divided into 3 parts: (A) procedures following the filing of the motion, including the determination by the court whether an answer is required and scheduling of hearing and arguments; (B) the requirement that the court promptly dispose of any motion; and (C) the ''unified practice'' section prohibiting local rules concerning personal appearance to request a hearing.
The provisions of paragraph (A) tie in with the provisions of Rule 114 to make it clear that when any order for an answer is issued pursuant to paragraph (A)(1), or any court notice for a hearing or argument is issued pursuant to paragraph (A)(2), the filing, docket entries, and service provisions of Rule 114 must be followed, and that this is the responsibility of the court, not the parties. Furthermore, although the Committee was adamant that hearings, oral arguments, and briefs should not be required in every case, but rather should only be scheduled when necessary to assist the judge in deciding the motion, as noted in Part 4 above in the discussion of Rule 114, the Committee was aware that in a number of counties, the hearings are scheduled by the court administrator as a matter of course. We agreed that, just as is proposed for Rule 114, new Rule 577 must permit either the court administrator or the judge to do the scheduling, leaving the decision to local practice. This concept is reiterated in the Comment.
8. Correlative Amendments
(a) Rule 103 (Definitions)
Consistent with the changes being made to the motions rules and with new Rule 113, the definition of ''clerk of courts'' is being modified. In addition, the Committee is proposing that a definition of ''court administrator'' be added. Both definitions are intended to included the deputies or assistants when acting in the capacity of the clerk of courts or court administrator, as well as to accommodate those judicial districts that use other titles for their ''clerks of courts.'' Finally, as explained in Part 3 above, the Committee agreed to include a definition of ''motion'' thereby eliminating the need to include the laundry list of documents that are motions every time the term ''motion'' is used in a rule.
(b) Rule 573 (Pretrial Discovery And Inspection) and Rule 581 (Suppression Of Evidence)
To conform with the proposed changes in Rules 575 and 576, and to avoid the misconstruction that Rule 573 provides an exception to the filing requirements of Rule 576(A), the Committee is proposing the deletion of the provision for making an appropriate motion ''to the court'' from Rule 573(A). Although similar language appears in Rule 581, the Committee agreed to retain ''to the court'' in Rule 581(A) because there are times when an suppression motion is made orally in open court and on the record, and we did not want to preclude this practice.
The Committee also is proposing that cross-references to Rules 575 and 576 be added to the Comments to Rules 573 and 581 to make it clear that both Rules 575 and 576 must be followed for any motions filed under Rules 573 and 581.
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1 The first phase of our review resulted in the Court's amendment of Pa.R.Crim.P. 105 (Local Rules) to more clearly define local rules and set forth the procedures for local rules to be effective and enforceable. See Court's Order and Committee explanatory Final Report at 30 Pa.B. 5842 (November 11, 2000). The present proposal is the second phase of the project.2 The Judicial Council's Local Rules Subcommittee, under the supervision of Madame Justice Newman, also is studying statewide local rules governing motions practice, and has been apprised of this proposal.
3 We repeatedly have heard that, notwithstanding the requirements of Rule 105 (Local Rules), frequently the local requirements are not memorialized as local rules or vary from judge to judge within a judicial district, are difficult for out-of-county practitioners to find, and are not lodged with the Committee making it difficult for us to monitor.
4 Rule 575 provides that an answer is not required unless ordered by the court, which does not mean a general order for an answer in all cases, but rather an order issued in a specific case.
5 For example, this will be helpful in cases in which the Attorney General's office is representing the Commonwealth, so the court will know whether that office has received service.
6 Black's Law Dictionary defines docket as a verb meaning ''to abstract and enter in a book. To make a brief entry of any proceeding in a court of justice in the docket.'' As a noun, it is defined as ''A minute, abstract, or brief entry; or the book containing such entries. A formal record, entered in brief of the proceedings in a court of justice. A book containing an entry in brief of all the important acts done in court in the conduct of each case, from its inception to its conclusion. The name 'docket' or 'trial docket' is sometimes given to the list or calendar of causes set to be tried at a specified term, prepared by the clerks for the use of the court and bar.''
7 A rule example is current Rule 114, which provides ''the clerk of courts shall immediately docket the order and record in the docket the date. . . .''
8 Because the Committee is proposing that present Rule 113 be rescinded as part of the changes proposed for Rule 114 discussed in Part 4, Rule 113 is an available number.
9 This also is intended to accommodate the statewide automation of the criminal divisions of the courts of common pleas that is expected to be in place by 2004.
10 It is expected that some judicial district may require additional information be included in the list of docket entries for administrative purposes.
11 As pointed out in footnote 5, the Committee is proposing that Rule 113 be rescinded and the provisions added to Rule 114. We are making this change because with the other changes being proposed for Rule 114, the two rules would cover the same procedures, thus making Rule 113 unnecessary.
12 See, for example, Rule 720(B)(3)(c) that requires the clerk of courts to ''forthwith enter an order on behalf of the court, and shall forthwith furnish a copy of the order . . . to the attorney for the Commonwealth, the defendant(s), and defense counsel . . . .''
13 A similar change is being proposed for Rule 576(B)(2)(a). See Part 6 below.
14 A similar change is being proposed for Rule 576(B)(2)(b). See Part 6 below.
15 Similar changes are being proposed for Rule 576(B)(2)(d) and (B)(3)(b). See Part 6 below.
16 Although the motion rule provisions are indicated in bold and underlined, for the most part, except where indicated in the discussion in this Part, the provisions of Rule 574 have been incorporated into Rule 575 without change, although the provisions have been reorganized. In addition, as part of this proposal, current Rule 574 would be rescinded and the number reserved for future use.
17 The changes to Rule 103 are explained in the ''correlative amendments'' section below.
18 A review of the Committee's Report and Supplemental Report explaining the changes when the motions rules were adopted in 1984 found that the two rules referred to in the Report that provided different filing procedures, or were the ''otherwise provided'' rules, have been rescinded and replaced by other rules that do not provide different procedures. From a search of the current rules, we found that Rules 573 and Rule 581 have provisions for making a motion ''to the court.'' As explained below in the ''correlative amendments'' section, the Committee agreed to delete the provision from Rule 573 but retain it in Rule 581, with a Comment in both rules explaining that Rules 575 and 576 must be followed.
19 Although the service rule provisions are indicated in bold and underlined, for the most part, except where indicated in the discussion in this Part, the provisions of Rule 577 have been incorporated into Rule 576 without change. In addition, as part of this proposal, current Rule 577 would be rescinded and replaced by new Rule 577.
20 For the same reasons, this language has been deleted from paragraph (B), which is taken from current Rule 577(A).
21 For the same reason, the same change has been made in paragraphs (B)(2) and (3) concerning methods of service.
22 The last sentence in (A)(3), formerly Rule 576(B), has been deleted as no longer necessary because of the addition of this requirement.
[Pa.B. Doc. No. 01-2223. Filed for public inspection December 14, 2001, 9:00 a.m.]
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