THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
[234 PA. CODE CH. 1]
Proposed Amendments to Pa.R.Crim.P. 105
[35 Pa.B. 5768] The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Pa.R.Crim.P. 105. The amendments require that all new local rules and local rule amendments be submitted in writing to the Criminal Procedural Rules Committee for review and approval before publishing and before the local rules will be effective and enforceable. The changes also clarify the definition of local rules, the procedures concerning the implementation of local rules, and their enforcement. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note the Committee's Reports should not be confused with the official Committee Comments to the rules. Also note the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.
The text of the proposed amendments to Rule 105 precedes the Report. Additions are shown in bold; deletions are in bold and brackets.
We request that interested persons submit suggestions, comments, or objections concerning this proposal 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 Monday, November 28, 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 105. Local Rules.
(A) For the purpose of this rule, the term ''local rule'' shall include every rule, administrative order, regulation, directive, policy, custom, usage, form or order of general application, however labeled or promulgated, which is adopted or enforced by a court of common pleas, by the Philadelphia Municipal Court, or by the Philadelphia Traffic Court to govern criminal practice and procedure.
(B) [(1)] Local rules shall not be inconsistent with any general rule of the Supreme Court or any Act of Assembly.
(1) The Criminal Procedural Rules Committee may at any time recommend that the Supreme Court suspend, vacate, or require amendment of a local rule.
(2) The Criminal Procedural Rules Committee may suspend that local rule pending action by the Court on that recommendation.
[(2)] (C) * * *
[(C) A local rule shall not become effective and enforceable until the adopting court has fully complied with all the following requirements:
(1) A local rule shall be in writing.
(2) Seven certified copies of the local rule shall be filed by the court promulgating the rule with the Administrative Office of Pennsylvania Courts.
(3) Two certified copies of the local rules and a computer diskette that complies with the requirements of 1 Pa. Code § 13.11(b) shall be distributed by the court promulgating the rule to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.
(4) One certified copy of the local rule shall be filed by the court promulgating the rule with the Criminal Procedural Rules Committee.]
(D) All proposed local criminal rules and proposed amendments to local criminal rules shall be submitted in writing to the Criminal Procedural Rules Committee for the Committee to review. The adopting court shall not proceed with the proposed local rule or amendments until it receives written approval of the local rule from the Committee.
(E) All local rules shall be published in the Pennsylvania Bulletin to be effective and enforceable.
(1) The adopting court shall not publish the local rule in the Pennsylvania Bulletin until it has received the written approval from the Committee.
(2) The adopting court shall distribute two certified copies of the local rule and a computer diskette that complies with the requirements of 1 Pa. Code § 13.11(b) to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.
(3) The effective date of the local rule shall not be less than 30 days after the date of publication of the rule in the Pennsylvania Bulletin.
(F) After publishing the local rule in the Pennsylvania Bulletin, the adopting court shall file seven certified copies of the local rule with the Administrative Office of Pennsylvania Courts.
[(5)] (G) * * *
[(6)] (H) A local rule promulgated before the effective date of this rule shall be filed on or before that effective date with the prothonotary or clerk of court and shall be kept by the prothonotary or clerk for inspection, copying, and furnishing as provided in paragraph [(C)(5)] (G).
[(D) A local rule shall become effective not less than 30 days after the date of publication of the rule in the Pennsylvania Bulletin.
(E)] (I) No pleading or other legal paper shall be refused for filing by the clerk of courts based on a requirement of a local rule. No case shall be dismissed nor request for relief granted or denied because of failure to comply with a local rule. In any case of noncompliance with a local rule, the court shall alert the party to the specific provision at issue and provide a reasonable time for the [attorney] party to comply with the local rule.
[(F) The Criminal Procedural Rules Committee may at any time recommend that the Supreme Court suspend, vacate, or require amendment of a local rule and may suspend that local rule pending action by the Court on that recommendation.]
Comment * * * * * Paragraph (D), added in 2006, requires that the adopting court must submit all proposed local criminal rules or rule amendments to the Criminal Procedural Rules Committee for prior approval before publishing the local rule or proceeding with any of the other requirements in Rule 105.
[Paragraph (C) was amended in] The 2000 [to] and 2006 amendments emphasize that the adopting authority must comply with all the provisions of [paragraph (C)] this rule before any local rule, or any amendments to local rules, will be effective and enforceable. Paragraph [(C)(3)] (E) requires the local rule to be published in the Pennsylvania Bulletin to be effective. Pursuant to 1 Pa. Code § 13.11(b), any documents that are submitted for publication must be accompanied by a diskette formatted in MS-DOS, ASCII, Microsoft Word, or WordPerfect. The diskette must be labeled with the court's name and address and the local rule's computer file name.
Paragraph [(C)(5)] (G) requires that a separate consolidated set of local rules be maintained in the prothonotary's or clerk's office.
* * * * * Although under paragraph [(D)] (E)(3) a local rule shall not be effective until at least 30 days after the date of publication in the Pennsylvania Bulletin, when a situation arises that requires immediate action, the local court may act by specific orders governing particular cases in the interim before an applicable local rule becomes effective.
The purpose of paragraph [(E)] (I) is to (1) require that all documents presented for filing are accepted by the clerk of courts, also see Rule 576(A)(3), and (2) prevent the dismissal of cases, or the grant or denial of requested relief, because a party has failed to comply with a local rule. In addition, paragraph [(E)] (I) requires that the party be alerted to the local rule, and be given a reasonable amount of time to comply with the local rule.
After the court has alerted the party to the local rule pursuant to paragraph [(E)] (I), the court may impose a sanction for subsequent noncompliance either on counsel or the defendant if proceeding pro se, but may not dismiss the case, or grant or deny relief because of non-compliance.
Official Note: Rule 6 adopted January 28, 1983, effective July 1, 1983; amended May 19, 1987, effective July 1, 1987; renumbered Rule 105 and amended March 1, 2000, effective April 1, 2001; amended October 24, 2000, effective January 1, 2001; Comment revised June 8, 2001, effective immediately; amended October 15, 2004, effective January 1, 2005; amended September 9, 2005, effective February 1, 2006; amended , 2006, effective , 2006.
Committee Explanatory Reports:
* * * * * Report explaining the changes to Rule 105 concerning submission of local rules for approval published at 35 Pa.B. 5770 (October 22, 2005).
REPORT
Proposed Amendments to Pa.R.Crim.P. 105
Local Rule ProceduresI. BACKGROUND
In 1983, the Court adopted Pa.R.Crim.P. 105 and Pa.R.Civ.P. 239 ''to facilitate the statewide practice of law under this Court's general rules, and to promote the further policy that a general rule of criminal [and civil] procedure normally preempts the subject covered.'' The new rule provided a uniform definition of local rules, prerequisites to effectiveness and effective dates, procedures for accessibility and distribution, and for the suspension of inconsistent local rules.
From the Committee's ongoing monitoring of local criminal rules and local practices, and from the experience of the Committee members and other members of the bar who have communicated with the Committee, notwithstanding the Court having adopted several subsequent Rule 105 amendments that were intended to make the requirements for local rules absolutely clear, we have learned Rule 105 continues to be honored in the breach. Some judges continue to implement local practices and procedures that do not comply with Rule 105 by calling them something other than a local rule, even though they are local rules within the definition of Rule 105. In addition, some judicial districts' ''local rules'' still are not being published or are not being made available to the members of the bar. Finally, in many cases, these local practices and procedures conflict with the statewide rules.
Recognizing the changes to Rule 105 since 1983 have not been successful in resolving the problems with local rules, the Committee agreed that Rule 105 should be amended to require that prior to publication and enactment, all new local rules and local rule amendments must be submitted in writing to the Committee for approval to publish, and to make it clear in the rule that unless the local adopting court receives the Committee's approval, the local rule will not be effective and enforceable. The proposed amendments are discussed below.
II. DISCUSSION
In an effort to ensure compliance with the Rule 105 requirements, the Committee is proposing that all new local rules and local rule amendments must be submitted to the Committee for the Committee's review before the local rule may be published and before it will be effective and enforceable. This new provision is set forth in new paragraph (D). Pursuant to this new procedure, the adopting court is required to submit in writing to the Committee any proposal that governs criminal practice and procedure for the Committee's review. The Committee will determine whether the proposal complies with Rule 105, including whether it is consistent with the general rules of the Supreme Court and with the Acts of Assembly as required in current Rule 105(B). Following our review, the Committee will communicate in writing with the adopting court. The adopting court is prohibited from proceeding with the proposal until receiving written approval from the Committee.
The Committee also is proposing that Rule 105 be reorganized to more clearly emphasize the essential requirements of the rule. Paragraph (A), which sets forth the ''definition'' of local rule, would remain the same. The Committee is proposing that ''administrative order'' be added to the list of things in paragraph of (A) that are considered ''local rules.'' In our experience, many local enactments labeled ''administrative orders'' are in fact ''local rules'' that should be in compliance with Rule 105. Because this apparently is not as clear as the Committee had thought, we agreed this term should be added to paragraph (A). The only administrative orders that would be subject to Rule 105 are those that govern in some way criminal practice and procedure. This change is not intended to affect administrative orders that govern other aspects of court operations, such as administrative orders that establish local court calendars.
Current paragraph (B) addresses both the requirement for consistency with statewide rules and Acts of Assembly, paragraph (B)(1), and the requirement that local rules be given numbers keyed to the statewide rules, paragraph (B)(2). To add emphasis to both requirements, paragraph (B)(1) is retained as paragraph (B), and paragraph (B)(2) would become paragraph (C). In addition, the Committee is proposing that paragraph (F), which addresses the procedures concerning the suspension, vacation, and amendment of local rules that are not in compliance with Rule 105, become new paragraphs (B)(1) and (B)(2).
New paragraph (E) sets forth the provisions related to publishing proposed local rules in the Pennsylvania Bulletin, making it clear that to be effective and enforceable, the local rule must be published, but not until the Committee has given its approval in writing as provided in new paragraph (D). In addition, the Committee is proposing that current paragraph (C)(3) concerning the information about what must be sent to the Pennsylvania Bulletin be moved to new paragraph (E)(2), and current paragraph (D) that requires the effective date of new local rules and amended local rules be not less than 30 days after publishing in the Pennsylvania Bulletin be moved to new paragraph (E)(3).
New paragraph (F) is taken from former paragraph (C)(2) and sets forth the current requirement that the adopting court file seven copies of the local rule with the AOPC after the local rule has been published. Because paragraph (D) requires that the adopting court submit a written copy of the proposed local rule to the Committee for prior approval, current paragraphs (C)(1) and (C)(4) are no longer necessary.
New paragraph (G) is current paragraph (C)(5) and new paragraph (H) is current paragraph (C)(6).
New paragraph (I) incorporates former paragraph (E). The Committee is proposing that paragraph (I) include as a first sentence the requirement that the clerk of courts accept all pleadings and other legal papers for filing even if the document does not satisfy the requirements of a local rule. This new provision is comparable to Pa.R.Civ.P. 205.2, and conforms with the requirements in Pa.R.Crim.P. 576(A)(3).
Finally, the Committee has made conforming changes to the Comment.
[Pa.B. Doc. No. 05-1939. Filed for public inspection October 21, 2005, 9:00 a.m.]
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