THE COURTS
Title 210--APPELLATE PROCEDURE
[ 210 PA. CODE CHS. 1, 9, 11, 13, 15, 17, 19, 21, 25, 27, 31 AND 33 ]
Order Adopting Amendments to Pa.R.A.P. 102, 121, 122, 123, 124, 905, 909, 911, 1101, 1102, 1112, 1116, 1121, 1123, 1311, 1314, 1321, 1514, 1732, 1972, 2155, 2156, 2171, 2172, 2185, 2186, 2542, 2545, 2571, 2742, 3102, 3191, 3307 and 3309; No. 195 Appellate Procedural Rules; Doc. No. 1
[38 Pa.B. 5257]
[Saturday, September 27, 2008]
Order Per Curiam:
And Now, this 10th day of September, 2008, upon the recommendation of the Appellate Court Procedural Rules Committee, the proposal having been published before adoption at 36 Pa.B. 5554 (September 2, 2006):
It Is Ordered, pursuant to Article V, Section 10 of the Constitution of Pennsylvania, that Pennsylvania Rules of Appellate Procedure 102, 121, 122, 123, 124, 905, 909, 911, 1101, 1102, 1112, 1116, 1121, 1123, 1311, 1314, 1321, 1514, 1732, 1972, 2155, 2156, 2171, 2172, 2185, 2186, 2542, 2545, 2571, 2742, 3102, 3191, 3307 and 3309, are amended in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b) and shall be effective December 1, 2008.
Annex A
TITLE 210. APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
CHAPTER 1. GENERAL PROVISIONS
IN GENERAL Rule 102. Definitions.
Subject to additional definitions contained in subsequent provisions of these rules which are applicable to specific provisions of these rules, the following words and phrases when used in these rules shall have, unless the context clearly indicates otherwise, the meanings given to them in this rule:
* * * * * [Paperbooks. Briefs and reproduced record. The term does not include applications for reconsideration of denial of allowance of appeal under Rule 1123(b) (reconsideration) or applications for reargument under Chapter 25 (post-submission proceedings).]
* * * * * Rule 121. Filing and Service.
(a) Filing.--Papers required or permitted to be filed in an appellate court shall be filed with the prothonotary. Filing may be accomplished by mail addressed to the prothonotary, but except as otherwise provided by these rules, filing shall not be timely unless the papers are received by the prothonotary within the time fixed for filing. [Paperbooks shall be deemed filed on the day of mailing if first class mail is utilized.] If an application under these rules requests relief which may be granted by a single judge, a judge in extraordinary circumstances may permit the application and any related papers to be filed with that judge.[, in which] In that event [that] the judge shall note thereon the date of filing and shall thereafter transmit such papers to the clerk.
A pro se filing submitted by a prisoner incarcerated in a correctional facility is deemed filed as of the date it is delivered to the prison authorities for purposes of mailing or placed in the institutional mailbox, as evidenced by a properly executed prisoner cash slip or other reasonably verifiable evidence of the date that the prisoner deposited the pro se filing with the prison authorities.
* * * * * (c) Manner of service.--Service may be [personal or by first class mail. Personal service under these rules includes delivery of the copy to a clerk or other responsible person at the office of the person served.]:
(1) by personal service, which includes delivery of the copy to a clerk or other responsible person at the office of the person served, but does not include inter-office mail;
(2) by first class, express, or priority United States Postal Service mail;
(3) by commercial carrier with delivery intended to be at least as expeditious as first class mail if the carrier can verify the date of delivery to it;
(4) by facsimile or e-mail with the agreement of the party being served as stated in the certificate of service.
Service by mail is complete on mailing.
* * * * * (e) Additional time after service by mail and commercial carrier.--Whenever a party is required or permitted to do an act within a prescribed period after service of a paper upon that party (other than an order of a court or other government unit) and the paper is served by United States mail or by commercial carrier, three days shall be added to the prescribed period.
Official Note: [The term ''related papers'' in Subdivision (a) of this rule includes any appeal papers required under Rule 1702 (stay ancillary to appeal) as a prerequisite to an application for a stay or similar relief. An acknowledgement of service may be executed by an individual other than the person served, e.g., by a clerk or other responsible person as contemplated by Subdivision (c) of the rule. Subdivision (e) of the rule does not apply to the filing of a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal, or a petition for reconsideration or re-argument, since under these rules the time for filing such papers runs from the entry and service of the related order, nor to the filing of a petition for review, which is governed by similar considerations. However, these rules permit the filing of such notice and petitions (except a petition for reconsideration or re-argument) in the local county (generally in the county court house; otherwise in a post office), thus eliminatiing a major problem under the prior practice.
With respect to appearances by new counsel following the initial docketing of appearances pursuant to Subdivision (d) of this rule, please note the requirements of Rule 120.]
Subdivision (a)--The term ''related papers'' in Subdivision (a) of this rule includes any appeal papers required under Rule 1702 (stay ancillary to appeal) as a prerequisite to an application for a stay or similar relief.
In 2008, the term ''paperbooks'' was replaced with ''briefs and reproduced records'' throughout these rules. The reference to the deemed filing date for paperbooks when first class mail was used that was formerly found in subdivision (a) is now found in Pa.R.A.P. 2185 regarding filing briefs and in Pa.R.A.P. 2186 regarding filing reproduced records.
As to pro se filings by persons incarcerated in correctional facilities, see Commonwealth v. Jones, 549 Pa. 58, 700 A.2d 423 (1997); Smith v. Pa. Bd. of Prob. & Parole, 546 Pa. 115, 683 A.2d 278 (1996); Commonwealth v. Johnson, 860 A.2d 146 (Pa.Super. 2004).
Subdivision (c)--An acknowledgement of service may be executed by an individual other than the person served, e.g., by a clerk or other responsible person.
Subdivision (d)--With respect to appearances by new counsel following the initial docketing of appearances pursuant to Subdivision (d) of this rule, please note the requirements of Rule 120.
Subdivision (e)--Subdivision (e) of the rule does not apply to the filing of a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal, or a petition for reconsideration or re-argument, since under these rules the time for filing such papers runs from the entry and service of the related order, nor to the filing of a petition for review, which is governed by similar considerations. However, these rules permit the filing of such notice and petitions (except a petition for reconsideration or re-argument) in the local county (generally in the county court house; otherwise in a post office), thus eliminating a major problem under the prior practice.
Rule 122. Content and Form of Proof of Service.
(a) Content.--A proof of service shall contain a statement of the date and manner of service and of the names of the persons served.
(b) Form.--Each name and address shall be separately set forth in the form of a mailing address, including applicable zip code, regardless of the actual method of service employed. The proof of service shall also show the telephone number, the party represented, and, where applicable, an e-mail or facsimile address. The name, address and telephone number of the serving party shall be similarly set forth, followed by the attorney's registration number. [The telephone number of each person served shall not be noted next to the person's name.] A proof of service may be in substantially the following form:
I hereby certify that I am this day serving the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of Pa.R.A.P. 121:
Service by first class mail addressed as follows:
[Richard Row, Esquire] Name, [(215) 555-1234] Telephone number
[123 East Walnut Street] Mailing address
[Philadelphia, Pa. 19175]
[(Counsel for XYZ Trucking Co.)]
(Party represented)Acceptance of service endorsed by the following:
[John Doe, Esquire] Name, [(215) 555-5678] Telephone number
[123 East Chestnut Street] Mailing address
[Philadelphia, Pa. 19175]
[(Counsel for ABC Forwarding Co.)]
(Party represented)Service in person as follows:
[John Smith, Esquire] Name, [(717) 787 1234]
Telephone number
[Counsel]
[Pennsylvania Public Utility Commission]
[Room 117]
[North Office Building] Street Address
[Harrisburg, Pa. 17120] Mailing address
(if different) (Party represented)
[Hon. William Bradford (717) 787-3391
Attorney General of Pennsylvania
c/o Miss Mary Smith,
Secretary to the Attorney General
16th Floor Strawberry Square
Harrisburg, Pa. 17120]Service by commercial carrier as follows:
Name of commercial carrier
Addressee's name, Telephone number
Street address
Mailing Address (if different)
(Party represented)Service by e-mail at following:
E-mail address, with agreement of:
Name, Telephone number
Mailing address
(Party represented)Service by facsimile at following:
Fax number with the agreement of:
Name, Telephone number
Mailing address
(Party represented)[Dated: May 26, 1975] Date:
(S)
[John Jones, Esquire
(Attorney Registration No. 00000)
123 East Chestnut Street
Philadelphia, Pa. 19175
Of counsel for ABC Railway Corporation ]Name, Telephone number
(Attorney Registration No. 00000)
Mailing address
(Party represented)Official Note: Under 18 Pa.C.S. § 4904 (unsworn falsification to authorities) a knowingly false proof of service constitutes a misdemeanor of the second degree. [Where a large number of persons are named in the proof of service the appellate prothonotary and other parties may cut up a photocopy of the proof of service to form mailing labels for docketing notices, mailing briefs, etc., without the need to retype the list.]
Rule 123. Application for Relief.
* * * * * (b) Answer.--Any party may file an answer to an application within 14 days after service of the application, but applications under Chapter 17 (effect of appeals; supersedeas and stays), or for delay in remand of the record, may be acted upon after reasonable notice, unless the exigency of the case is such as to impel the court to dispense with such notice. The court may shorten or extend the time for answering any application. Answers shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized.
* * * * * Rule 124. Form of Papers; Number of Copies.
(a) Size and other physical characteristics.--All documents filed in an appellate court shall be on 8 1/2 inch by 11 inch paper and shall comply with the following requirements:
(1) The document shall be prepared on white paper (except for covers, dividers and similar sheets) of good quality.
(2) The first sheet (except the cover of a [paperbook] brief or reproduced record) shall contain a 3 inch space from the top of the paper for all court stampings, filing notices, etc.
(3) The text must be double spaced, but quotations more than two lines long may be indented and single spaced. Except as provided in subdivision (2), margins must be at least one inch on all four sides.
(4) The lettering shall be clear and legible and no smaller than point 12. The lettering shall be on only one side of a page, except that exhibits and similar supporting documents, [and paperbooks] briefs and reproduced records may be lettered on both sides of a page.
* * * * *
CHAPTER 9. APPEALS FROM LOWER COURTS Rule 905. Filing of Notice of Appeal.
* * * * * Official Note: Insofar as the clerk or prothonotary of the lower court is concerned, the notice of appeal is for all intents and purposes a writ in the nature of certiorari in the usual form issued out of the appellate court named therein and returnable thereto within the time prescribed by Chapter 19 (preparation and transmission of record and related matters).
To preserve a mailing date as the filing date for an appeal as of right from an order of the Commonwealth Court, see Rule 1101(b).
* * * * * Rule 909. Appeals to the Supreme Court. Jurisdictional Statement. Sanctions.
* * * * * (b) [Brief in opposition] Answer.--Within 14 days after service of a jurisdictional statement, an adverse party may file with the Prothonotary of the Supreme Court an original and eight copies of [a brief in opposition] an answer thereto in the form prescribed by Rule 911. The answer shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized. No separate motion to dismiss a jurisdictional statement will be received. A party entitled to file [a brief in opposition] an answer who does not intend to do so shall [file], within the time fixed by these rules for filing an answer, [the brief in opposition] file a letter stating that [a brief in opposition] an answer to the jurisdictional statement will not be filed. The failure to file [a brief in opposition] an answer will not be construed as concurrence in the jurisdictional statement.
* * * * * Rule 911. [Brief in Opposition] Answer to Jurisdictional Statement. Content. Form.
[A brief in opposition] An answer to a jurisdictional statement shall set forth any procedural, substantive or other argument or ground why the order appealed from is not reviewable as of right and why the Supreme Court should not grant an appeal by allowance. The [brief] answer need not be set forth in numbered paragraphs in the manner of a pleading and shall not exceed five pages.
* * * * *
CHAPTER 11. APPEALS FROM COMMONWEALTH COURT AND SUPERIOR COURT
APPEALS AS OF RIGHT FROM COMMONWEALTH COURT AND SUPERIOR COURT Rule 1101. Appeals as of Right from the Commonwealth Court.
* * * * * (b) Procedure on appeal. An appeal within the scope of Subdivision (a) of this rule shall be taken to the Supreme Court in the manner prescribed in Chapter 9 (appeals from lower courts), except that if the notice of appeal is transmitted to the Prothonotary of the Commonwealth Court by means of first class [mail], express, or priority United States Postal Service mail, the notice of appeal shall be deemed received by the [Prothonotary] prothonotary for the purposes of Rule 121(a) (filing) on the date deposited in the United States mail, as shown on a [U.S.] United States Postal Service Form 3817 [certificate] Certificate of [mailing] Mailing or other similar United States Postal Service form from which the date of deposit can be verified. The certificate of mailing or other similar Postal Service form from which the date of deposit can be verified shall be cancelled by the Postal Service, shall show the docket number of the matter in the Commonwealth Court and shall be either enclosed with the notice of appeal or separately mailed to the [P]prothonotary. Upon actual receipt of the notice of appeal the [Prothonotary] prothonotary shall immediately stamp it with the date of actual receipt. That date, or the date of earlier deposit in the United States mail as prescribed in this subdivision, shall constitute the date when the appeal was taken, which date shall be shown on the docket.
Official Note: Subdivision (a) is based on 42 Pa.C.S. § 723 (appeals from the Commonwealth Court). This rule is not applicable to an appeal under 42 Pa.C.S. § 763(b) (awards of arbitrators). See also 42 Pa.C.S. § 5105(b) (successive appeals) which provides as follows:
(b) Successive appeals. Except as otherwise provided in this subsection, the rights conferred by subsection (a) are cumulative, so that a litigant may as a matter of right cause a final order of any tribunal in any matter which itself constitutes an appeal to such tribunal, to be further reviewed by the court having jurisdiction of appeals from such tribunal. Except as provided in section 723 (relating to appeals from the Commonwealth Court) there shall be no right of appeal from the Superior Court or the Commonwealth Court to the Supreme Court under this section or otherwise.
Appealable orders to which this rule is not applicable are governed by the procedures of Rule 1111 (form of papers; number of copies) et seq. Rule 906(4) (service of notice of appeal) is not applicable to an appeal under this rule since that provision relates only to service upon the district court administrator of a court of common pleas.
The [U.S.] United States Postal Service Form 3817 mentioned in Subdivision (b) is reproduced in the note to Rule 1112 (appeals by allowance).
Rule 1102. Improvident Appeals.
* * * * * Official Note: Based on 42 Pa.C.S. § 724(b) (improvident appeals). In a similar fashion, any motion to quash the appeal would be regarded as [a brief in opposition] an answer to the petition under Rule 1116 ([brief in opposition] answer to the petition for allowance of appeal).
PETITION FOR ALLOWANCE OF APPEAL Rule 1112. Appeals by Allowance.
* * * * * (c) Petition for allowance of appeal.--Allowance of an appeal from a final order of the Superior Court or the Commonwealth Court may be sought by filing a petition for allowance of appeal with the Prothonotary of the Supreme Court within the time allowed by Rule 1113 (time for petitioning for allowance of appeal), with proof of service on all other parties to the matter in the appellate court below. If the petition for allowance of appeal is transmitted to the Prothonotary of the Supreme Court by means of first class, express, or priority United States Postal Service mail, the petition shall be deemed received by the [Prothonotary] prothonotary for the purposes of Rule 121(a) (filing) on the date deposited in the United States mail, as shown on a [U.S.] United States Postal Service Form 3817 [certificate] Certificate of [mailing] Mailing or other similar United States Postal Service form from which the date of deposit can be verified. The certificate of mailing or other similar Postal Service form from which the date of deposit can be verified shall be cancelled by the Postal Service, shall show the docket number of the matter in the appellate court below and shall be either enclosed with the petition or separately mailed to the [Prothonotary] prothonotary. Upon actual receipt of the petition for allowance of appeal the Prothonotary of the Supreme Court shall immediately stamp it with the date of actual receipt. That date, or the date of earlier deposit in the United States mail as prescribed in this subdivision, shall constitute the date when allowance of appeal was sought, which date shall be shown on the docket. The Prothonotary of the Supreme Court shall immediately note the Supreme Court docket number upon the petition for allowance of appeal and give written notice of the docket number assignment in person or by first class mail to the prothonotary of the appellate court below who shall note on the docket that a petition for allowance of appeal has been filed to the petitioner and to the other persons named in the proof of service accompanying the petition.
* * * * * Official Note: Based on 42 Pa.C.S. § 724(a) (allowance of appeals from Superior and Commonwealth Courts). The notation on the docket by the [prothonotary] Prothonotary of the Superior Court or Commonwealth Court of the filing of a petition for allowance of appeal renders universal the rule that the appeal status of any order may be discovered by examining the docket of the court in which it was entered.
The [U.S.] United States Postal Service [Form] form may be in substantially the following form:
The transmittal should be taken unsealed to the Post Office, the Form 3817 Certificate of Mailing or other similar United States Postal Service form from which the date of deposit can be verified should be obtained, cancelled, and attached to the petition, and the envelope should only then be sealed. [Occasionally a postal clerk will refuse to cooperate; in such cases] Alternately, the cancelled Form 3817 or other similar United States Postal Service form from which the date of deposit can be verified can be submitted to the prothonotary under separate cover with clear identification of the filing to which it relates. [may be withdrawn from the envelope, the envelope sealed, the Form 3817 pasted firmly to the outside of the envelope, and the entire package submitted to the postal clerk with instructions to execute the Form 3817 pasted on the envelope.]
It is recommended that the petitioner obtain a duplicate copy of the Form 3817 or other similar United States Postal Service form from which the date of deposit can be verified as evidence of mailing. Since the Post Office is technically the filing office for the purpose of this rule a petition which was mailed in accordance with this rule and which is subsequently lost in the mail will nevertheless toll the time for petitioning for allowance of appeal. However, counsel will be expected to follow up on a mail filing by telephone inquiry to the appellate prothonotary where written notice of the docket number assignment is not received in due course.
* * * * * Rule 1116. [Brief in Opposition] Answer to the Petition for Allowance of Appeal.
Within 14 days after service of a petition for allowance of appeal an adverse party may file [a brief in opposition] an answer. The answer shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized. The [brief in opposition] answer need not be set forth in numbered paragraphs in the manner of a pleading, shall set forth any procedural, substantive or other argument or ground why the order involved should not be reviewed by the Supreme Court and shall comply with Rule 1115(a)(7) (content of petition for allowance of appeal.). No separate motion to dismiss a petition for allowance of appeal will be received. A party entitled to file [a brief in opposition] an answer under this rule who does not intend to do so shall, within the time fixed by these rules for filing [a brief in opposition] an answer, file a letter stating that [a brief in opposition] an answer to the petition for allowance of appeal will not be filed. The failure to file [a brief in opposition] an answer will not be construed as concurrence in the request for allowance of appeal.
Official Note: [Based on former Supreme Court Rule 62 and makes no change in substance except as follows: The time for opposition is increased from ten to 17 days (where service is by mail).] This rule and Rule 1115 contemplate that the petition and [brief in opposition] answer will address themselves to the heart of the issue, i.e. whether the Supreme Court ought to exercise its discretion to allow an appeal, without the need to comply with the formalistic pattern of numbered averments in the petition and correspondingly numbered admissions and denials in the response. While such a formalistic format is appropriate when factual issues are being framed in a trial court (as in the petition for review under Chapter 15) such a format interferes with the clear narrative exposition necessary to outline succinctly the case for the Supreme Court in the allocatur context.
Rule 1121. Transmission of Papers to and Action by the Court.
Upon receipt of the [brief in opposition] answer to the petition for allowance of appeal, or a letter stating that no [brief in opposition] answer will be filed, from each party entitled to file such, the petition and the [brief in opposition] answer, if any, shall be distributed by the Prothonotary to the Supreme Court for its consideration. An appeal may be allowed limited to one or more of the questions presented in the petition, in which case the order allowing the appeal shall specify the question or questions which will be considered by the Court.
Rule 1123. Denial of Appeal; Reconsideration.
* * * * * (c) Manner of filing. If the application for reconsideration is transmitted to the prothonotary of the appellate court by means of first class, express, or priority United States Postal Service mail, the application shall be deemed received by the prothonotary for the purposes of Rule 121(a) (filing) on the date deposited in the United States mail as shown on a United States Postal Service Form 3817 Certificate of Mailing, or other similar United States Postal Service form from which the date of deposit can be verified. The certificate of mailing or other similar Postal Service form from which the date of deposit can be verified shall be cancelled by the Postal Service, shall show the docket number of the matter in the court in which reconsideration is sought and shall be enclosed with the application or separately mailed to the prothonotary. Upon actual receipt of the application, the prothonotary shall immediately stamp it with the date of actual receipt. That date, or the date of earlier deposit in the United States mail as prescribed in this subdivision, shall constitute the date when application was sought, which date shall be shown on the docket.
[Official Note: The 1996 amendment to subdivision (b) lengthens the time for filing an application for reconsideration from seven days after service of notice of entry of the order denying a petition for allowance of appeal to fourteen days after entry of the order. The 1996 amendment adding subdivision (c) provides that an application shall be deemed received on the date deposited in the United States mail as shown on a United States Postal Service Form 3817--certificate of mailing. These amendments conform reconsideration practice under Rule 1123 to reargument practice under Rule 2542.]
CHAPTER 13. INTERLOCUTORY APPEALS BY PERMISSION Rule 1311. Interlocutory Appeals by Permission.
1994 Order * * * * * (b) Petition for permission to appeal.--Permission to appeal from an interlocutory order containing the statement prescribed by 42 Pa.C.S. § 702(b) may be sought by filing a petition for permission to appeal with the prothonotary of the appellate court within 30 days after entry of such order in the lower court or other government unit with proof of service on all other parties to the matter in the lower court or other government unit and on the government unit or clerk of the lower court, who shall file the petition of record in such lower court. An application for an amendment of an interlocutory order to set forth expressly the statement specified in 42 Pa.C.S. § 702(b) shall be filed with the lower court or other government unit within 30 days after the entry of such interlocutory order and permission to appeal may be sought within 30 days after entry of the order as amended. Unless the trial court or other [governmental] government unit acts on the application within 30 days after it is filed, the trial court or other [governmental] government unit shall no longer consider the application and it shall be deemed denied. If the petition for permission to appeal is transmitted to the prothonotary of the appellate court by means of first class, express, or priority United States Postal Service mail, the petition shall be deemed received by the prothonotary for the purposes of Rule 121(a) (filing) on the date deposited in the United States mail, as shown on a [U. S.] United States Postal Service Form 3817 [certificate] Certificate of [mailing] Mailing, or other similar United States Postal Service form from which the date of deposit can be verified. The certificate of mailing or other similar Postal Service form from which the date of deposit can be verified shall be cancelled by the Postal Service, shall show the docket number of the matter in the lower court or other government unit and shall be either enclosed with the petition or separately mailed to the prothonotary. Upon actual receipt of the petition for permission to appeal the prothonotary of the appellate court shall immediately stamp it with the date of actual receipt. That date, or the date of earlier deposit in the United States mail as prescribed in this subdivision, shall constitute the date when permission to appeal was sought, which date shall be shown on the docket. The prothonotary of the appellate court shall immediately note the appellate docket number assignment upon the petition for permission to appeal and give written notice of the docket number assignment in person or by first class mail to the government unit or clerk of the lower court, to the petitioner and to the other persons named in the proof of service accompanying the petition.
* * * * * Official Note:
* * * * * See the [note] Official Note to Rule 1112 (appeals by allowance) for an explanation of the procedure when Form 3817 or other similar United States Postal Service form from which the date of deposit can be verified is used.
* * * * * Rule 1314. [Brief in Opposition] Answer to the Petition for Permission to Appeal.
Within 14 days after service of a petition for permission to appeal an adverse party may file [a brief in opposition] an answer. The answer shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized. The [brief in opposition] answer need not be set forth in numbered paragraphs in the manner of a pleading, shall set forth any procedural, substantive or other argument or ground why the interlocutory order involved should not be reviewed by the appellate court and shall comply with Rule 1312(a)(7) (content of petition for permission to appeal). No separate motion to dismiss a petition for permission to appeal will be received. A party entitled to file [a brief in opposition] an answer under this rule who does not intend to do so shall, within the time fixed by these rules for filing [a brief in opposition] an answer, file a letter stating that [a brief in opposition] an answer to the petition for permission to appeal will not be filed. The failure to file [a brief in opposition] an answer will not be construed as concurrence in the request for permission to appeal.
Rule 1321. Transmission of Papers to and Action by the Court.
Upon receipt of the [brief in opposition] answer to the petition for permission to appeal, or a letter stating that no [brief in opposition] answer will be filed, from each party entitled to file such, the petition and the [brief in opposition] answer, if any, shall be distributed by the prothonotary to the appellate court for its consideration. Permission to appeal may be limited to one or more of the questions presented in the petition, in which case the order granting permission to appeal shall specify the question or questions which will be considered by the court.
CHAPTER 15. JUDICIAL REVIEW OF GOVERNMENTAL DETERMINATIONS
PETITION FOR REVIEW Rule 1514. Filing and Service of the Petition for Review.
(a) Filing with the prothonotary. The petition for review, with proof of service required by Subdivision (c) of this rule, shall be filed with the prothonotary of the appellate court in person or by first class, express, or priority United States Postal Service [or certified] mail.
If the petition for review is filed by first class, express, or priority United States Postal Service [or certified] mail, the petition shall be deemed received by the prothonotary for the purposes of Rule 121(a) (filing) on the date deposited in the United States mail, as [stamped by post office personnel] shown on a [U. S.] United States Postal Service Form 3817, [certificate] Certificate of [mailing] Mailing, or [U. S. Postal Service Form 3800] other similar United States Postal Service form from which the date of deposit can be verified. The certificate of mailing or other similar Postal Service form from which the date of deposit can be verified shall be cancelled by the Postal Service and shall show the docket number of the matter in the government unit, and shall be either enclosed with the petition or separately mailed to the prothonotary.
* * * * * Official Note: See the [note] Official Note to Rule 1112 (appeals by allowance) for an explanation of the procedure when Form 3817 or other similar United States Postal Service form from which the date of deposit can be verified is used.
* * * * *
CHAPTER 17. EFFECT OF APPEALS; SUPERSEDEAS AND STAYS
STAY OF INJUNCTION IN CIVIL MATTERS Rule 1732. Application for Stay or Injunction Pending Appeal.
* * * * * (b) Contents of application for stay.--An application for stay of an order of a lower court pending appeal, or for approval of or modification of the terms of any supersedeas, or for an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal, or for relief in the nature of peremptory mandamus, may be made to the appellate court or to a judge thereof, but the application shall show that application to the lower court for the relief sought is not practicable, or that the lower court has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given by the lower court for its action. The application shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the application shall be supported by sworn or verified statements or copies thereof. With the application shall be filed such parts of the record as are relevant. Where practicable, the application should be accompanied by the [paperbooks] briefs, if any, used in the lower court.
* * * * *
CHAPTER 19. PREPARATION AND TRANSMISSION OF RECORD AND RELATED MATTERS
DISPOSITION WITHOUT REACHING THE MERITS Rule 1972. Dispositions on Motion.
* * * * * Any two or more of the grounds specified in this rule may be joined in the same motion. Unless otherwise ordered by the appellate court, a motion under this rule shall not relieve any party of the duty of filing [his paperbooks] briefs and reproduced records within the time otherwise prescribed therefor. The court may grant or refuse the motion, in whole or in part; may postpone consideration thereof until argument of the case on the merits; or may make such other order as justice may require.
* * * * *
CHAPTER 21. BRIEFS AND REPRODUCED RECORD
CONTENT OF REPRODUCED RECORD Rule 2155. Allocation of Cost of Reproduced Record.
* * * * * (b) Allocation by court.--The cost of reproducing the record shall be taxed as costs in the case pursuant to Chapter 27 (fees and costs in appellate courts and on appeal), but if either party shall cause material to be included in the reproduced record unnecessarily, the appellate court may on application filed within ten days after the last [paperbook] brief is filed, in its order disposing of the appeal impose the cost of reproducing such parts on the designating party.
* * * * * Rule 2156. Supplemental Reproduced Record.
When, because of exceptional circumstances, the parties are not able to cooperate on the preparation of the reproduced record as a single document, the appellee may, in lieu of proceeding as otherwise provided in this chapter, prepare, serve and file a Supplemental Reproduced Record setting forth the portions of the record designated by the appellee.
Official Note: Former Supreme Court Rules 36, 38 and 57, former Superior Court Rules 28, 30 and 47 and former Commonwealth Court Rules 32A, 82 and 84 all inferentially recognized that a supplemental record might be prepared by the appellee, but the former rules were silent on the occasion for such a [paperbook] filing. The preparation of a single reproduced record has obvious advantages, especially where one party designates one portion of the testimony, and the other party designates immediately following testimony on the same subject. However, because of emergent circumstances or otherwise, agreement on the mechanics of a joint printing effort may collapse, without affording sufficient time for the filing and determination of an application for enforcement of the usual procedures. In that case an appellee may directly present the relevant portions of the record to the appellate court.
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FORM OF BRIEFS AND REPRODUCED RECORD Rule 2171. Method of Reproduction. Separate Brief and Record.
* * * * * Official Note: See Rule 124 (form of papers; number of copies) for general provisions on quality, size and format of papers (including [paperbooks] briefs and reproduced records) filed in Pennsylvania courts.
Rule 2172. Covers.
(a) Briefs and Petitions for Allowance of or Permission to Appeal.--On the front cover of the brief there shall appear the following:
(1) [The] the name of the appellate court in which the matter is to be heard[.];
(2) [The] the docket number of the case in the appellate court[.];
(3) [The] the caption of the case in the appellate court, as prescribed by these rules[.];
(4) title of the filing, such as ''Brief for Appellant'' or [''Brief for Appellee,''] ''Brief for Respondent.'' [or, if] If the reproduced record is bound with the brief, the title shall so indicate, for example, ''Brief for Appellant and Reproduced Record,'' or ''Brief for Appellee and Supplemental Reproduced Record,'' such as the case may be [, or if the matter involves proceedings on petition for allowance of or for permission to appeal, ''Petition for Allowance of Appeal,'' ''Petition for Permission to Appeal'' or ''Brief in Opposition,'' as the case may be, or if the matter is pending in the appellate court on petition for review, ''Brief for Petitioner,'' ''Brief for Petitioner and Reproduced Record,'' ''Brief for Respondent,'' or ''Brief for Respondent and Supplemental Reproduced Record,'' as the case may be.];
(5) [Designation] designation of the order appealed from such as ''Appeal from the Order of'' the court from which the appeal is taken, with the docket number therein[, or, if the matter involves proceedings on petition for allowance of or for permission to appeal, ''Petition for Allowance of Appeal from the Order of'' or ''Petition for Permission to Appeal from the Order of'' the court or other government unit from which the appeal is sought to be taken, with the docket number therein, or, if the matter is pending in the appellate court on petition for review, ''Petition for Review of'' the determination sought to be reviewed of the government unit involved, with any docket number therein]. On appeals from the Superior Court or the Commonwealth Court its docket number shall be given, followed by a statement as to whether it affirmed, reversed or modified the order of the court or tribunal of first instance, giving also the name of the latter and the docket number, if any, of the case therein[.];
(6) [The] the names of counsel, giving the office address and telephone number of the one upon whom it is desired notices shall be served.
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FILING AND SERVICE Rule 2185. [Time for Serving] Service and Filing of Briefs.
(a) General Rule.--The appellant shall serve and file appellant's brief not later than the date fixed pursuant to Subdivision (b) of this rule, or within 40 days after the date on which the record is filed, if no other date is so fixed. The appellee shall serve and file appellee's brief within 30 days after service of appellant's brief and reproduced record if proceeding under Rule 2154(a). A party may serve and file a reply brief permitted by these rules within 14 days after service of the preceding brief but, except for good cause shown, a reply brief must be served and filed so as to be received at least three days before argument. In cross appeals, the second brief of the deemed or designated appellant shall be served and filed within 30 days of service of the deemed or designated appellee's first brief. Except as prescribed by Rule 2187(b) (advance text of briefs), each brief shall be filed not later than the last day fixed by or pursuant to this rule for its service. Briefs shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized.
(b) Notice of deferred briefing schedule.--When the record is filed the prothonotary of the appellate court shall estimate the date on which the matter will be argued before or submitted to the court, having regard for the nature of the case and the status of the calendar of the court. If the prothonotary determines that the matter will probably not be reached by the court for argument or submission within 30 days after the latest date on which the last [paperbook] brief could be filed under the usual briefing schedule established by these rules, the prothonotary shall fix a specific calendar date as the last date for the filing of the brief of the appellant in the matter, and shall give notice thereof as required by these rules. The date so fixed by the prothonotary shall be such that the latest date on which the last [paperbook] brief in the matter could be filed under these rules will fall approximately 30 days before the probable date of argument or submission of the matter.
(c) Definitive copies.--If the record is being reproduced pursuant to Rule 2154(b) (large records) the brief served pursuant to Subdivision (a) of this rule may be typewritten or page proof copies of the brief, with appropriate references to pages of the parts of the original record involved. Within 14 days after the reproduced record is filed each party who served briefs in advance form under this subdivision shall serve and file definitive copies of his brief or briefs containing references to the pages of the reproduced record in place of or in addition to the initial references to the pages of the parts of the original record involved (see Rule 2132 (references in the briefs to the record)). No other changes may be made in the briefs as initially served, except that typographical errors may be corrected.
Official Note: [Unlike the provision for filing other papers, Rule 121(a) provides ''paperbooks shall be deemed filed on the day of mailing if first class mail is utilized.'' ''Paperbooks'' are defined in Rule 102 as briefs and reproduced records, but ''the term does not include applications for reconsideration of denial of allowance of appeal under Rule 1123(b) (reconsideration) or applications for reargument under Chapter 25 (post-submission proceedings).'']
* * * * * Rule 2186. [Time for Serving] Service and Filing of Reproduced Record.
(a) General rule.--The reproduced record shall be served and filed not later than:
(1) the date of service of the brief; or
(2) 21 days from the date of service of the appellee's brief in advance form, if the record is being reproduced pursuant to Rule 2154(b) (large records).
Reproduced records shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized.
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CHAPTER 25. POST-SUBMISSION PROCEEDINGS
APPLICATION FOR REARGUMENT Rule 2542. Time for Application for Reargument. Manner of Filing.
* * * * * (b) Manner of Filing.--If the application for reargument is transmitted to the prothonotary of the appellate court by means of first class, [mail] express, or priority United States Postal Service mail, the application shall be deemed received by the [Prothonotary] prothonotary for the purposes of Rule 121(a) (filing) on the date deposited in the United States mail as shown on a [U.S.] United States Postal Service Form 3817 Certificate of Mailing or other similar United States Postal Service form from which the date of deposit can be verified. The certificate of mailing or similar Postal Service form from which the date of deposit can be verified shall be cancelled by the Postal Service, shall show the docket number of the matter in the court in which reargument is sought and shall be enclosed with the application or separately mailed to the prothonotary. Upon actual receipt of the application, the prothonotary shall immediately stamp it with the date of actual receipt. That date, or the date of earlier deposit in the United States mail as prescribed in this subdivision, shall constitute the date when application was sought, which date shall be shown on the docket.
Official Note:
* * * * * The 1986 amendment [provides] provided that an application shall be deemed received on the date deposited in the United States mail as shown on a [U.S.] United States Postal Service Form 3817 [certificate] Certificate of [mailing] Mailing.
The 2008 amendment provides that an application shall be deemed received on the date deposited in the United States mail as shown on a United States Postal Service Form 3817 Certificate of Mailing or other similar United States Postal Service form from which the date of deposit can be verified.
Rule 2545. Answer [in Opposition] to Application for Reargument.
Within 14 days after service of an application for reargument, an adverse party may file an answer [in opposition]. The answer shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized. The answer [in opposition] need not be set forth in numbered paragraphs in the manner of a pleading. The answer shall set forth any procedural, substantive or other argument or ground why the court should not grant reargument. No separate motion to dismiss an application for reargument will be received. A party entitled to file an answer [in opposition] under this rule who does not intend to do so shall, within the time fixed by these rules for filing an answer [in opposition], file a letter stating that an answer [in opposition] to the application for reargument will not be filed. The failure to file an answer [in opposition] will not be construed as concurrence in the request for reargument.
REMAND OF RECORD Rule 2571. Content of Remanded Record.
* * * * * (b) [Paperbooks] Briefs.--The prothonotary of an appellate court shall not forward any [paperbook] brief in a matter to the lower court either prior to or in connection with the remand of the record. The lower court on remand may direct any party to the appeal to file of record in the lower court and serve on the trial judge a copy of any [paperbook] brief filed in the appeal.
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CHAPTER 27. FEES AND COSTS IN APPELLATE COURTS AND ON APPEAL
COSTS Rule 2742. Costs of [Paperbooks] Briefs and Reproduced Records.
The cost of printing or otherwise producing necessary copies of briefs and reproduced records, including copies of the original record reproduced under Rule 2151(a) (consideration of matters on the original record without the necessity of reproduction) shall be taxable, except as otherwise ordered pursuant to Rule 2155 (allocation of cost of reproduced record) at rates not higher than those generally charged for such work in this Commonwealth.
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CHAPTER 31. BUSINESS OF THE COURTS GENERALLY
IN GENERAL Rule 3102. Quorum and Action.
* * * * * (b) Absence from panel.--If less than three members of a panel attend a session of the panel, another judge or judges shall be designated to complete the panel if reasonably possible, and if it is not reasonably possible to do so the presiding judge with the consent of the parties present may direct that the matter be heard and determined by a panel of two judges. If the two judges who so heard the matter are unable to agree upon the disposition thereof, the president judge of the court may direct either that the matter be submitted on the [paperbooks] briefs to a third judge, or that the matter be reargued before a full panel.
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[PAPERBOOKS] BRIEFS Rule 3191. Distribution of [Paperbooks] Briefs.
The following entities shall be entitled to receive distribution of [paperbooks] briefs filed in an appellate court:
(1) The State Library (two copies).
(2) The Jenkins Law Library of Philadelphia.
(3) The Allegheny County Law Library.
(4) The University of Pennsylvania Law Library.
(5) The Dickinson Law School Library.
(6) The University of Pittsburgh Law Library.
(7) The Harvard Law School.
(8) The Duquesne University Law Library.
(9) The Temple Law School Library.
(10) The Villanova University Law School Library.
(11) The Delaware Law School of Widener College Law Library.
(12) The Legal Intelligencer.
(13) The West Publishing Company
Official Note: Based on former Supreme Court Rule 59 and former Superior Court Rule 49. The whole subject of the distribution of [paperbooks] briefs to the court and others is an administrative matter, but the existence of the rule will continue the free distribution of the Pennsylvania Consolidated Statutes, the Pennsylvania Code, the Pennsylvania Bulletin and local government codes to the entities named in the rule by reason of 1 Pa.C.S. § 501 (publication and distribution) 45 Pa.C.S. § 730(3) (pricing and distribution of published documents) and act of May 29, 1935 (P. L. 244, No. 102), § 2.1(b)(4) (46 P. S. § 431.2a(b)(4)).
CHAPTER 33. CODE OF JUDICIAL CONDUCT
Subchapter A. CANONS
ORIGINAL MATTERS Rule 3307. Applications for Leave to File Original Process.
* * * * * (b) General rule.--The initial pleading in any original action or proceeding shall be prefaced by an application for leave to file such pleading, showing service upon all parties to such action or proceeding. The matter will be docketed when the application for leave to file is filed with the Prothonotary of the Supreme Court. The application shall be deemed filed on the date received by the prothonotary unless it was on an earlier date deposited in the United States mail and sent by first class, express, or priority United States Postal Service mail as shown on a United States Postal Service Form 3817 Certificate of Mailing or other similar United States Postal Service form from which the date of deposit can be verified. The certificate of mailing or similar Postal Service form from which the date of deposit can be verified shall be cancelled by the Postal Service, shall show the docket number of the matter if known and shall be either enclosed with the application or separately mailed to the prothonotary. Appearances shall be filed as in other original actions. An adverse party may file an answer no later than 14 days after service of the application. The answer shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized. An adverse party who does not intend to file an answer to the application shall, within the time fixed by these rules for the filing of an answer, file a letter stating that an answer to the application will not be filed. Upon receipt of the answer to the application, or a letter stating that no answer will be filed, from each party entitled to file such, the application, pleadings and answer to the application, if any, shall be distributed by the Prothonotary to the Supreme Court for its consideration.
* * * * * Official Note: Based on U.S. Supreme Court Rule 9. Presumably this rule will seldom be invoked, since questions concerning the scope of the original jurisdiction of the Supreme Court may usually be avoided by filing the action in a lower court which clearly has subject matter jurisdiction, and immediately thereafter making application for transfer to the Supreme Court under Rule 3309 (applications for extraordinary relief).
KING'S BENCH MATTERS Rule 3309. Applications for Extraordinary Relief.
(a) General rule.--An application for relief under 42 Pa.C.S. § 726 (extraordinary jurisdiction), or under the powers reserved by the first sentence of Section 1 of the Schedule to the Judiciary Article, shall show service upon all persons who may be affected thereby, or their representatives, and upon the clerk of any court in which the subject matter of the application may be pending. The application shall be deemed filed on the date received by the prothonotary unless it was on an earlier date deposited in the United States mail and sent by first class, express, or priority United States Postal Service mail as shown on a United States Postal Service Form 3817 Certificate of Mailing or other similar United States Postal Service form from which the date of deposit can be verified. The certificate of mailing or similar Postal Service form from which the date of deposit can be verified shall be cancelled by the Postal Service, shall show the docket number of the matter if known and shall be either enclosed with the application or separately mailed to the prothonotary. Appearances shall be governed by Rule 1112 (entry of appearance) unless no appearances have been entered below, in which case appearances shall be filed as in original actions.
(b) Answer.--An adverse party may file an answer no later than fourteen days after service of the application. The answer shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized. An adverse party who does not intend to file an answer to the application shall, within the time fixed by these rules for the filing of an answer, file a letter stating that an answer will not be filed.
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[Pa.B. Doc. No. 08-1744. Filed for public inspection September 26, 2008, 9:00 a.m.]
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