THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
[234 PA. CODE CH. 1]
Proposed Amendments to Pa.R.Crim.P. 107
[35 Pa.B. 5676] The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Pa.R.Crim.P. 107 (Contents of Subpoena) to clarify the procedures for issuance of subpoenas by the judges of the courts of common pleas, the Philadelphia Municipal Court, and the minor judiciary. This supplemental proposal, which modifies the original proposal published in 35 Pa.B. 1556 (3/5/05) and in the Atlantic Reporter advanced sheets at 865 A.2d (3/4/05), resulted from the Committee's further review of the proposed rule changes in response to the extensive correspondence received after publication of our original explanatory Report. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Supplemental Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Supplemental Report should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Supplemental Reports.
The text of the proposed amendments precedes the Supplemental Report.
We request that interested persons submit suggestions, comments, or objections concerning this proposal in writing to the Committee through counsel,
Anne T. Panfil, Chief Staff Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
5035 Ritter Road, Suite 100
Mechanicsburg, PA 17055
fax: (717) 795-2106
e-mail: criminal.rules@pacourts.usno later than Friday, November 18, 2005.
By the Criminal Procedural Rules Committee
NICHOLAS J. NASTASI,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES
PART A. Business of the Courts Rule 107. Issuance of Subpoena; Contents of Subpoena.
(A) Court of Common Pleas
(1) Upon the request of a party, the clerk of courts shall issue a subpoena. The subpoena shall be signed and under the seal of the court, but otherwise blank. The party requesting the subpoena shall fill in the contents of the subpoena required in paragraph (C) before the subpoena is served.
(2) The subpoena shall be served as provided in paragraph (B)(3)in the same manner as notices are served on parties pursuant to Rule 576(B)(2).
(B) Minor Judiciary
(1) The attorney for the Commonwealth or the attorney for the defendant, as officers of the court, may sign and issue a subpoena on behalf of the magisterial district court in which the proceeding is pending.
(a) The subpoena shall be in the form designated for use in magisterial district courts.
(b) The attorney must complete the subpoena with the information required in paragraph (C) before the subpoena is served. The subpoena also shall include notice to the individual subpoenaed to contact the issuing attorney with any questions about or challenges to the subpoena.
(c) A copy of the subpoena shall be filed in the magisterial district court in which the proceeding is pending within 48 hours of service, and in no event later than the commencement of the hearing. Filing pursuant to this paragraph may be accomplished by sending a copy by facsimile transmission.
(2) Upon the request of a defendant proceeding pro se, a law enforcement officer, a private criminal complainant, or an attorney who elects to proceed under this paragraph, the issuing authority may issue a subpoena.
(a) The individual requesting the subpoena shall provide the issuing authority with the information required in paragraph (C).
(b) If the subpoena is to be issued, the issuing authority shall fill in the information provided.
(c) The subpoena shall be signed and under the seal of the issuing authority.
(3) All subpoenas shall be served upon any person within the Commonwealth by a competent adult
(a) by handing a copy to the person; or
(b) at the residence of the person, by handing a copy
(i) to an adult member of the family with whom the person resides; but if no adult member of the family is found, then to an adult in charge of such residence; or
(ii) to the clerk or manager of the hotel, inn, apartment house, boarding house, or other place of lodging where the person resides; or
(c) at any office or usual place of business of the person, by handing a copy to the person's agent or another person in charge.
(4) The person making service of a subpoena must file a certificate of service in the magisterial district court in which the hearing is pending within 48 hours of service, and in no event later than the commencement of the hearing. Filing under this paragraph may be accomplished by sending a copy by facsimile transmission.
(C) Contents of Subpoena
A subpoena in a criminal case shall:
(1) order the witness named to appear before the common pleas court or magisterial district court at the date, time, and place specified, and to bring any items identified or described[. The subpeona shall also];
(2) state on whose behalf the witness is being ordered to testify [and];
(3) state the name and address for service on the person being subpoenaed; and
(4) state the [identity] name and attorney identification number, address, and phone number of the attorney, if any, who issued the subpoena pursuant to paragraph (B)(1) or applied for the subpoena pursuant to paragraph (B)(2).
Comment [The form of subpoena was deleted in 1985 because it is no longer necessary to control the specific form of subpoena by rule.]
It is intended that the subpoena [shall] will be used not only for [trial] summary trials or trials in the courts of common pleas and the Philadelphia Municipal Court, but also for any other stage of the proceedings before the minor judiciary, Philadelphia Municipal Court, or common pleas court when a subpoena is issuable, including preliminary hearings, hearings in connection with pretrial and post-trial motions, etc.
The subpoenas issued by the judges of the Philadelphia Municipal Court should be issued pursuant to paragraph (A).
Paragraph (B)(1) authorizes an attorney for the Commonwealth or an attorney for the defendant to complete, sign, and issue subpoenas under the authority of the court in all cases in the magisterial district courts, and requires that subpoenas issued by an attorney on behalf of a magisterial district court be on a designated form. An attorney may not use a blank subpoena form from the court of common pleas. It is intended that the magisterial district court blank subpoena forms will be readily available for use by attorneys.
There is no provision for the court to review or approve prior to issuance a subpoena issued by an attorney under paragraph (B)(1). The authority to issue subpoenas given to attorneys under this paragraph carries with it the responsibility to use good judgment and to make every effort to limit the scope of subpoenas to persons, documents, or things that are relevant to the cause of action before the magisterial district judge.
For a suggested form of certificate of service to use as required in paragraph (B)(4), see Rule 576(B)(4) and Comment. The copy of the subpoena required to be filed under paragraph (B)(3) and the certificate of service required to be filed under paragraph (B)(4) may be filed simultaneously.
Nothing in this rule is intended to preclude the attorney from proceeding pursuant to paragraph (B)(2) and requesting that the magisterial district judge complete, sign, and issue the subpoena.
When the subpoena is for the production of documents, records, or things, these should be specified.
When issuing a subpoena pursuant to paragraph (B)(2), the issuing authority may limit the scope of the subpoena to persons, documents, or things that are relevant to the cause of action before the issuing authority.
All subpoenas issued pursuant to paragraph (A) or paragraph (B)(2) must be signed by a judge of the court issuing the subpoena. The signature may be in any of the forms of signature authorized in the Rule 103 definition of ''signature.''
The requirements in paragraph (B)(3) for the service of the subpoena are the same as the requirements for service of a subpoena in a civil matter pursuant to Pa.R.C.P.M.D.J. No. 214(c) (Subpoena; Issuance; Service).
See 42 Pa.C.S. § 1725.1 concerning costs to be charged by the minor judiciary.
For the scope of the contempt powers of magisterial district judges, see 42 Pa.C.S. § 4137. See also Rules 140-142.
Official Note: Previous Rule 9016 adopted January 28, 1983, effective July 1, 1983; rescinded November 9, 1984, effective January 2, 1985. Present Rule 9016 adopted November 9, 1984, effective January 2, 1985; renumbered Rule 107 and amended March 1, 2000, effective April 1, 2001; amended , 2005, effective , 2005.
Committee Explanatory Reports:
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).
Supplemental Report explaining the proposed changes concerning issuance of subpoenas by attorneys published at 35 Pa.B. 5677 (October 15, 2005).
SUPPLEMENTAL REPORT
Proposed Amendments to Pa.R.Crim.P. 107
Procedures for Issuance and Service of Subpoena I. Introduction
The Criminal Procedural Rules Committee's original proposal1 was for amendments to Rule 107 (Contents of Subpoena) that would distinguish between the procedures for issuance of subpoenas by the court of common pleas and issuance of subpoenas by the minor judiciary. In this Supplemental Report, the Committee is explaining several changes to the proposed Rule 107 amendments.2
The core of the proposal as published remains the same.3 The changes in this supplemental proposal address the major issues raised in the publication responses, and include some fine tuning by the Committee. Briefly, these changes:
* permit an attorney, as an officer of the court, to sign and issue a subpoena on behalf of the magisterial district court;
* require that the subpoena issued by an attorney be in the form designated for use in magisterial district courts and these forms must be readily available;
* require the attorney-issued subpoena to include all the information required by paragraph (C) of Rule 107, and to include a statement advising the individual subpoenaed that any questions about or challenges to the subpoena must be directed to the attorney;
* require that a copy of the subpoena be filed with the proper magisterial district judge within 48 hours of service and in no event later than the commencement of the hearing;
* permit the attorney to elect to proceed pursuant to Rule 107(B)(2) and have the magisterial district judge complete, sign, and issue the subpoena;
* add to the Comment cross-references to 42 Pa.C.S. § 4137 and Pa.Rs.Crim. P. 140-142 concerning the magisterial district judge contempt powers;
* require that a written proof of service be filed; and
* because the rules will permit the attorneys to issue the subpoenas and the magisterial district court subpoena forms will be readily available, include in the Rule 107 Comment a prohibition on attorneys using the subpoena forms that are used in the court of common pleas for subpoenaing individuals to magisterial court proceedings.
II. Discussion of Proposed Rule Changes
Proposed Rule 107(A) provides the procedures for the issuance of a subpoena by the court of common pleas. This paragraph is the same as was originally published.
Paragraph (B) provides the procedures for the issuance of a subpoena in cases pending before the minor judiciary. Because of the concerns raised in the publication responses about the provision in the original proposal that required the magisterial district judges to issue subpoenas in blank when requested by an attorney, the Committee is proposing as new paragraph (B)(1) a completely new approach that permits an attorney as an officer of the court to sign and issue a subpoena on behalf of the magisterial district court in which the proceeding is pending.4 A cautionary provision has been added to the Comment explaining to these attorneys, when exercising their new authority to issue subpoenas in cases before the minor judiciary, that they should exercise good judgment.5
Paragraph (B)(1)(a) requires that, if the attorney is going to issue the subpoena, he or she must use the form of subpoena designated for use in magisterial district courts. The Comment explains that the attorney may no longer use a common pleas court form of subpoena in cases in the magisterial district courts.
Paragraph (B)(1)(b) addresses the contents of the attorney-issued subpoena. This paragraph includes a cross-reference to paragraph (C) for the mandatory contents of the subpoena. The provision also requires that the attorney-issued subpoena include notice to the subpoenaed individual that all questions about or challenges to the subpoena must be directed to the issuing attorney, not the magisterial district judge. This new provision recognizes that, when the attorney issues the subpoena, the attorney assumes all responsibility for that subpoena.
Paragraph (B)(1)(c) requires that a copy of the attorney-issued subpoena be filed in the magisterial district court in which the proceeding is pending within 48 hours of service, but in no event later than the commencement of the proceeding. This requirement was added to ensure the magisterial district judges have copies of all subpoenas for the court's records. To accommodate the attorneys and the magisterial district judges, the rule permits these filings to be accomplished by facsimile transmission.
Paragraph (B)(2) sets forth the procedures for the issuance of subpoenas by members of the minor judiciary. Agreeing that there may be cases in which an attorney would not want to issue a subpoena pursuant to paragraph (B)(1), the Committee has modified paragraph (B)(2) to accommodate these attorneys. In all other respects, this paragraph is the same as was published.
Paragraphs (B)(3) and (B)(4) are new and address service of the subpoenas, whether the subpoena was issued by an attorney or a magisterial district judge. For the service procedures, the published version of Rule 107 had merely included a cross-reference to PA.R.C.P.D.J. NO. 214(C). On reflection, the Committee agreed listing the service requirements in Rule 107(B)(3) and including the cross-reference in the Comment to Rule 214(c) as the derivation of these requirements makes more sense and is more ''user friendly.'' Paragraph (B)(4) requires that the person serving the subpoena also must file a certificate of service in the magisterial district court in which the hearing is pending.6 Tying the time for this filing to the filing requirement in paragraph (B)(1)(c), the certificate of service must be filed within 48 hours of service and in no event later than the commencement of the proceeding. The certificate of service may be filed by facsimile transmission. The Comment explains that the form of certificate of service that is set forth in the Rule 576 Comment is an example of the type of certificate of service that should be filed under paragraph (B)(4). The Comment also explains that the copy of the subpoena and the certificate of service may be filed simultaneously.
Finally, paragraph (C) has been amended from the published version by adding the requirement that the attorney issuing the subpoena or requesting a subpoena must include his or her attorney identification number on the subpoena.
[Pa.B. Doc. No. 05-1894. Filed for public inspection October 14, 2005, 9:00 a.m.] _______
1 See 35 Pa.B. 1556 (3/5/05) and the Atlantic Reporter advanced sheets, 865 A.2d (3/4/05).
2 As with the original proposal, a joint subcommittee of the Minor Court Rules Committee and Criminal Rules Committee was formed to assist the two Committees in addressing the issues raised by the publication responses, in particular the issue of blank subpoenas. The Joint Subcommittee's recommendations have been approved for publication by both Committees.
3 See the Committee's March 2005 explanatory Report, supa., for the explanation of the development and the contents of the proposal.
4 The authority of attorneys, as officers of the court, to issue subpoenas has been recognized for a number of years in the Federal Courts in paragraph (D)(3) of F.R.Civ.P. 45 (Subpoena).
5 This provision is reflective of the responsibilities imposed on attorneys by Rule 4.4 of the Rules of Profession Conduct.
6 Because the Criminal Rules provide a certificate of service requirement in Rule 576 (Filing and Service by Parties), we have used this terminology in paragraph (B)(4).
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