THE COURTS
Title 237--JUVENILE RULES
PART I. RULES
[ 237 PA. CODE CHS. 8, 11, 13 AND 18 ]
Order Amending Rules 800, 1120, 1123, 1124, 1364, 1800 and Adopting New Rule 1140 of the Rules of Juvenile Court Procedure; No. 466; Supreme Court Rules; Doc. No. 1
[39 Pa.B. 1614]
[Saturday, April 4, 2009]
Order Per Curiam:
Now, this 19th day of March, 2009, upon the recommendation of the Juvenile Court Procedural Rules Committee; the proposal having been published before adoption at 38 Pa.B. 477 (January 26, 2008), in the Atlantic Reporter (Second Series Advance Sheets, Vol. 939, February 29, 2008), and on the Supreme's Court web page, and an Explanatory Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that new Rule 1140 and the amendments to Rules 800, 1120, 1123, 1124, 1364 and 1800 of the Rules of Juvenile Court Procedure are adopted in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective on June 1, 2009.
By the Juvenile Court
Procedure Rules Committees:FRANCIS BARRY MCCARTHY,
Chair
Annex A
TITLE 237. JUVENILE RULES
PART I. RULES
Subpart A. DELINQUENCY MATTERS
CHAPTER 8. SUSPENSIONS Rule 800. Suspensions of Acts of Assembly.
This rule provides for the suspension of the following Acts of Assembly that apply to delinquency proceedings only:
1) The Act of November 21, 1990, P. L. 588, No. 138, § 1, 42 Pa.C.S. § 8934, which authorizes the sealing of search warrant affidavits, and which is implemented by Pa.R.Crim.P. Rule 211, through Pa.R.J.C.P. Rule 105, is suspended only insofar as the Act is inconsistent with Pa.R.Crim.P. Rules 205, 206, 211.
2) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6335(c), which provides for the issuance of arrest warrants if the juvenile may abscond or may not attend or be brought to a hearing, is suspended only insofar as the Act is inconsistent with [Rule] Rules 124, [and] 140, and 364, which [requires] require a summoned person to fail to appear and the court to find that sufficient notice was given.
3) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6336(c), which provides that if a proceeding is not recorded, full minutes shall be kept by the court, is suspended only insofar as the Act is inconsistent with Rule 127(A), which requires all proceedings to be recorded, except for detention hearings.
4) The Public Defender Act, Act of December 2, 1968, P. L. 1144, No. 358, § 1 et seq. as amended through Act of December 10, 1974, P. L. 830, No. 277, § 1, 16 P. S. 9960.1 et seq., which requires the Public Defender to represent all juveniles who for lack of sufficient funds are unable to employ counsel is suspended only insofar as the Act is inconsistent with Rules 150 and 151, which [requires] require separate counsel if there is a conflict of interest.
5) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6337, which provides that counsel must be provided unless the guardian is present and waives counsel for the juvenile, is suspended only insofar as the Act is inconsistent with Rule 152, which does not allow a guardian to waive the juvenile's right to counsel.
6) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6305(b), which provides that the court may direct hearings in any case or class or cases be conducted by the master, is suspended only insofar as the Act is inconsistent with Rule 187, which allows masters to hear only specific classes of cases.
7) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6321, which provides for commencement of a proceeding by the filing of a petition, is suspended only insofar as the Act is inconsistent with Rule 200, which provides the submission of a written allegation shall commence a proceeding.
8) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6303(b), which provides that a district judge or judge of the minor judiciary may not detain a juvenile, is suspended only insofar as the Act is inconsistent with Rule 210, which allows Magisterial District Judges to issue an arrest warrant, which may lead to detention in limited circumstances.
9) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6334, which provides that any person may bring a petition, is suspended only insofar as the Act is inconsistent with Rules 231, 233, and 330, which provide for a person other than a law enforcement officer to submit a private written allegation to the juvenile probation office or an attorney for the Commonwealth, if elected for approval; and that only a juvenile probation officer or attorney for the Commonwealth may file a petition.
10) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6304(a)(2), which provides that probation officers may receive and examine complaints for the purposes of commencing proceedings, is suspended only insofar as the Act is inconsistent with Rules 231 and 330, which provide that the District Attorney may file a certification that requires an attorney for the Commonwealth to initially receive and approve written allegations and petitions.
11) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6331, which provides for the filing of a petition with the court within twenty-four hours or the next business day of the admission of the juvenile to detention or shelter care, is suspended only insofar as the Act is inconsistent with the filing of a petition within twenty-four hours or the next business day from the detention hearing if the juvenile is detained under Rule 242.
12) Section 5720 of the Wiretapping and Electronic Surveillance Control Act, Act of October 4, 1978, P. L. 831, No. 164, 18 Pa.C.S. § 5720, is suspended as inconsistent with Rule 340 only insofar as the section may delay disclosure to a juvenile seeking discovery under Rule 340(B)(6); and Section 5721(b) of the Act, 18 Pa.C.S. § 5721(b), is suspended only insofar as the time frame for making a motion to suppress is concerned, as inconsistent with Rules 347 and 350.
13) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6340(c), which provides a consent decree shall remain in force for six months unless the child is discharged sooner by probation services with the approval of the court, is suspended only insofar as the Act is inconsistent with the requirement of Rule 373 that a motion for early discharge is to be made to the court.
14) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6335, which provides for a hearing within ten days of the juvenile's detention unless the exceptions of (a)(1) & (2) or (f) are met, is suspended only insofar as the Act is inconsistent with Rule 391, which provides for an additional ten days of detention if a notice of intent for transfer to criminal proceedings has been filed.
15) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6353(a), which requires dispositional review hearings to be held at least every nine months, is suspended only insofar as it is inconsistent with the requirement of Rule 610, which requires dispositional review hearings to be held at least every six months when a juvenile is removed from the home.
Comment The authority for suspension of Acts of Assembly is granted to the Supreme Court by Article V § 10(c) of the Pennsylvania Constitution. See also Rule 102.
Official Note: Rule 800 adopted April 1, 2005, effective October 1, 2005. Amended December 30, 2005, effective immediately. Amended March 23, 2007, effective August 1, 2007. Amended February 26, 2008, effective June 1, 2008. Amended March 19, 2009, effective June 1, 2009.
Committee Explanatory Reports:
Final Report explaining the amendments to Rule 800 published with the Court's Order at 36 Pa.B. 187 (January 14, 2006).
Final Report explaining the amendments to Rule 800 published with the Court's Order at 37 Pa.B. 1485 (April 7, 2007).
Final Report explaining the amendments to Rule 800 published with the Court's Order at 38 Pa.B. 1145 (March 8, 2008).
Final Report explaining the amendments to Rule 800 published with the Court's Order at 39 Pa.B. 1619 (April 4, 2009).
Subpart B. DEPENDENCY MATTERS
CHAPTER 11. GENERAL PROVISIONS
PART A. BUSINESS OF COURTS Rule 1120. Definitions.
ADULT is any person, other than a child, eighteen years old or older.
* * * * * CHILD is a person who is under the age of eighteen who is the subject of the dependency petition, or who was adjudicated dependent before reaching the age of eighteen years and who, while engaged in a course of instruction or treatment, requests the court to retain jurisdiction until the course has been completed, but in no event shall remain in a course of instruction or treatment past the age of twenty-one years.
* * * * * MINOR is any person under the age of eighteen.
* * * * * Official Note: Rule 1120 adopted August 21, 2006, effective February 1, 2007. Amended March 19, 2009, effective June 1, 2009.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 1120 published with the Court's Order at 36 Pa.B. 5599 (September 2, 2006).
Final Report explaining the amendments to Rule 1120 published with the Court's Order at 39 Pa.B. 1619 (April 4, 2009).
Rule 1123. Subpoenas.
A. Contents. A subpoena in a dependency case shall:
1) order the witness named to appear before the court at the date, time, and place specified;
2) order the witness to bring any items identified or described;
3) state on whose behalf the witness is being ordered to testify; and
4) state the identity, address, and phone number of the person who applied for the subpoena.
B. Service.
1) Method of Service. A subpoena shall be served upon a witness by:
a) in-person delivery;
b) registered or certified mail, return receipt requested; or
c) first-class mail.
C. Duration. A subpoena shall remain in force until the end of a proceeding.
D. Bench Warrant. If any subpoenaed person fails to appear for the hearing and the court finds that sufficient notice was given, the [court] judge may issue a bench warrant pursuant to Rule 1140.
E. Parental notification.
1) Generally. If a witness is a minor, the witness's guardian shall be notified that the minor has been subpoenaed.
2) Exception. Upon prior court approval and good cause shown, a subpoena may be served upon a minor without such notification to the guardian. If and when necessary, request for such prior court approval may be obtained ex parte.
Comment A subpoena is used to order a witness to appear and a summons is issued to bring a party to the proceeding.
A subpoena duces tecum is to set forth with particularity, the documents, records, or other papers to be produced at the hearing. The items sought are to be relevant to the proceedings. See Rule 1340 on discovery, In re J.C., 412 Pa. Super. 369, 603 A.2d 627 (1992), and In re A.H., 763 A.2d 873 (Pa. Super. Ct. 2000) for production of documents necessary to prepare for a hearing.
Prior to issuing a bench warrant for a minor, the judge should determine if the guardian of the witness was served. Nothing in these rules gives the guardians of witnesses legal standing in the matter being heard by the court or creates a right for witnesses to have their guardians present. In addition, lack of required notice to the guardian does not prevent the minor witness from testifying. See Rule 1140 for procedures on bench warrants.
For power to compel attendance, see 42 Pa.C.S. § 6333. Nothing in this rule prohibits the court from holding a contempt hearing. See In re Crawford, 360 Pa. Super. 36, 519 A.2d 978 (1987) for punishment of contempt (children). See also In re Griffin, 456 Pa. Super. 440, 690 A.2d 1192 (1997) (foster parents), Janet D. v. Carros, 240 Pa. Super. 291, 362 A.2d 1060 (1976) (county agency), and In re Rose, 161 Pa. Super. 204, 54 A.2d 297 (1947) (parents) for additional guidance on contempt for other parties.
Any person may file a motion to quash the subpoena for a witness and/or for requested items. The court is to rule on the motion prior to the production of the witness or the items.
Official Note: Rule 1123 adopted August, 21, 2006, effective February 1, 2007. Amended May 12, 2008, effective immediately. Amended March 19, 2009, effective June 1, 2009.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 1123 published with the Court's Order at 36 Pa.B. 5599 (September 2, 2006).
Final Report explaining the amendments to Rule 1123 published with the Court's Order at 38 Pa.B. 2360 (May 12, 2008).
Final Report explaining the amendments to Rule 1123 published with the Court's Order at 39 Pa.B. 1619 (April 4, 2009).
Rule 1124. Summons.
A) Requirements of the summons. The summons shall:
1) be in writing;
2) set forth the date, time, and place of the hearing;
3) instruct the parties about the right to counsel; and
4) give a warning stating that the failure to appear for the hearing may result in arrest.
B) Method of Service. The summons shall be served:
1) in-person; or
2) by certified mail, return receipt and first-class mail.
C) Exception to service. If service cannot be accomplished pursuant to paragraph (B), the party may move for a special order directing the method of service. The motion shall be accompanied by an affidavit stating the nature and extent of the investigation which has been made to determine the whereabouts of the person sought to be served and the reasons why service cannot be made.
D) Bench Warrant. If any summoned person fails to appear for the hearing and the court finds that sufficient notice was given, the [court] judge may issue a bench warrant pursuant to Rule 1140.
Comment A subpoena is used to order a witness to appear and a summons is issued to bring a party to the proceeding.
In paragraph (D), this rule provides that a summoned person is to fail to appear and the court is to find that sufficient notice was given before a bench warrant may be issued. The Juvenile Act, 42 Pa.C.S. § 6335(c), which provides for the issuance of arrest warrants if the child may abscond or may not attend or be brought to a hearing, is suspended to the extent that it conflicts with this rule. See Rule 1800 for suspensions.
See Rules 1360(A), 1500(A), and 1600(A) for service of the parties for a proceeding.
See Rule 1140 for procedures on bench warrants.
Official Note: Rule 1124 adopted August 21, 2006, effective February 1, 2007. Amended March 19, 2009, effective June 1, 2009.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 1124 published with the Court's Order at 36 Pa.B. 5599 (September 2, 2006).
Final Report explaining the amendments to Rule 1124 published with the Court's Order at 39 Pa.B. 1619 (April 4, 2009).
(Editor's Note: The following section is new. The text has been printed in regular print to enhance readability.)
Rule 1140. Bench Warrants for Failure to Appear.
A. Issuance of warrant.
1) Before a bench warrant may be issued by a judge, the judge shall find that the subpoenaed or summoned person received sufficient notice of the hearing and failed to appear.
2) For the purpose of a bench warrant, a judge may not find notice solely based on first-class mail service.
B. Party.
1) Where to take the party.
a) When a party is taken into custody pursuant to a bench warrant, the party shall be taken without unnecessary delay to the judge who issued the warrant or a judge designated by the President Judge to hear bench warrants.
b) If the party is not brought before a judge, the party shall be released unless the warrant specifically orders detention of the party.
c) If the warrant specifically orders detention of a party, the party shall be detained pending a hearing.
i) Minor. If the party is a minor, the party shall be detained in a shelter-care facility or other placement as deemed appropriate by the judge.
ii) Adult. If the party is an adult, the witness shall be detained at the county jail.
2) Prompt hearing.
a) If a party is detained pursuant to a specific order in the bench warrant, the party shall be brought before the judge who issued the warrant, a judge designated by the President Judge to hear bench warrants, or an out-of-county judge pursuant to paragraph (B)(4) within seventy-two hours.
b) If the party is not brought before a judge within this time, the party shall be released.
3) Notification of guardian. If a party is a child and is taken into custody pursuant to a bench warrant, the arresting officer shall immediately notify the child's guardian of the child's whereabouts and the reasons for the issuance of the bench warrant.
4) Out-of-county custody.
a) If a party is taken into custody pursuant to a bench warrant in a county other than the county of issuance, the county of issuance shall be notified immediately.
b) Arrangements to transport the party shall be made immediately.
c) If transportation cannot be arranged immediately, then the party shall be taken without unnecessary delay to a judge of the county where the party is found.
d) The judge will identify the party as the subject of the warrant, decide whether detention is warranted, and order that arrangements be made to transport the party to the county of issuance.
5) Time requirements. The time requirements of Rules 1242, 1404, 1510, and 1607 shall be followed.
C. Witnesses.
1) Where to take the witness.
a) When a witness is taken into custody pursuant to a bench warrant, the witness shall be taken without unnecessary delay to the judge who issued the warrant or a judge designated by the President Judge to hear bench warrants.
b) If the witness is not brought before a judge, the witness shall be released unless the warrant specifically orders detention of the witness.
c) A motion for detention as a witness may be filed anytime before or after the issuance of a bench warrant. The judge may order detention of the witness pending a hearing.
i) Minor. If a detained witness is a minor, the witness shall be detained in a shelter-care facility or other placement as deemed appropriate by the judge.
ii) Adult. If a detained witness is an adult, the witness shall be detained at the county jail.
2) Prompt hearing.
a) If a witness is detained pursuant to paragraph (C)(1)(c) or brought back to the county of issuance pursuant to paragraph (C)(4)(f), the witness shall be brought before the judge by the next business day.
b) If the witness is not brought before a judge within this time, the witness shall be released.
3) Notification of guardian. If a witness who is taken into custody pursuant to a bench warrant is a minor, the arresting officer shall immediately notify the witness's guardian of the witness's whereabouts and the reasons for the issuance of the bench warrant.
4) Out-of-county custody.
a) If a witness is taken into custody pursuant to a bench warrant in a county other than the county of issuance, the county of issuance shall be notified immediately.
b) The witness shall be taken without unnecessary delay and within the next business day to a judge of the county where the witness is found.
c) The judge will identify the witness as the subject of the warrant, decide whether detention as a witness is warranted, and order that arrangements be made to transport the witness to the county of issuance.
d) Arrangements to transport the witness shall be made immediately.
e) If transportation cannot be arranged immediately, the witness shall be released unless the warrant or other order of court specifically orders detention of the witness.
i) Minor. If the witness is a minor, the witness may be detained in an out-of-county shelter-care facility or other placement as deemed appropriate by the judge.
ii) Adult. If the witness is an adult, the witness may be detained in an out-of-county jail.
f) If detention is ordered, the witness shall be brought back to the county of issuance within seventy-two hours from the execution of the warrant.
g) If the time requirements of this paragraph are not met, the witness shall be released.
D. Return & execution of the warrant for parties and witnesses.
1) The bench warrant shall be executed without unnecessary delay.
2) The bench warrant shall be returned to the judge who issued the warrant or to the judge designated by the President Judge to hear bench warrants.
3) When the bench warrant is executed, the arresting officer shall immediately execute a return of the warrant with the judge.
4) Upon the return of the warrant, the judge shall vacate the bench warrant.
Comment Pursuant to paragraph (A), the judge is to ensure that the person received sufficient notice of the hearing and failed to attend. The judge may order that the person be served in-person or by certified mail, return receipt. The judge may rely on first-class mail service if additional evidence of sufficient notice is presented. For example, testimony that the person was told in person about the hearing is sufficient notice. Before issuing a bench warrant, the judge should determine if the guardian was notified.
Under Rule 1800, 42 Pa.C.S. § 6335(c) was suspended only to the extent that it is inconsistent with this rule. Under paragraph (A)(1), the judge is to find a subpoenaed or summoned person failed to appear and sufficient notice was given to issue a bench warrant. The fact that the party or witness may abscond or may not attend or be brought to a hearing is not sufficient evidence for a bench warrant. The normal rules of procedure in these rules are to be followed if a child is detained. See Chapter Twelve, Part D.
Pursuant to paragraph (B)(1)(a), the party is to be taken immediately to the judge who issued the bench warrant or a judge designated by the President Judge of that county to hear bench warrants. Pursuant to paragraph (B)(1)(b), if a bench warrant specifically provides that the party may be detained, the party may be detained without having to be brought before the judge until a hearing within seventy-two hours under paragraph (B)(2)(a). Pursuant to this paragraph, if a hearing is not held promptly, the party is to be released. See paragraph (B)(2)(b).
In paragraphs (B)(1)(c)(i), (C)(1)(c)(i), & (C)(4)(e)(i), ''other placement as deemed appropriate by the judge'' does not include a detention facility if a child is only alleged to be dependent because the use of detention facilities for dependent children is strictly prohibited. See 42 Pa.C.S. §§ 6302 & 6327(e).
Under paragraphs (B)(2) and (B)(4), a party taken into custody pursuant to a bench warrant is to have a hearing within seventy-two hours regardless of where the party is found. See Rule 1242(D).
Pursuant to paragraph (B)(4), the party may be detained out-of-county until transportation arrangements can be made.
Pursuant to paragraph (B)(5), the time requirements of all other rules are to apply to children who are detained. See, e.g., Rules 1242, 1404, 1510, and 1607.
Pursuant to paragraph (C)(1)(a), the witness is to be taken immediately to the judge who issued the bench warrant or a judge designated by the President Judge of that county to hear bench warrants. Pursuant to paragraph (C)(1)(b), if the judge is not available, the witness is to be released immediately unless the warrant specifically orders detention. Pursuant to paragraph (C)(1)(c), a motion for detention as a witness may be filed. If the witness is detained, a prompt hearing pursuant to paragraph (C)(2) is to be held by the next business day or the witness is to be released. See paragraph (C)(2)(b).
Pursuant to paragraph (C)(4)(b), a witness is to be brought before an out-of-county judge by the next business day unless the witness can be brought before the judge who issued the bench warrant within this time. When the witness is transported back to the county of issuance within seventy-two hours of the execution of the bench warrant, the witness is to be brought before the judge who issued the bench warrant by the next business day. See paragraph (C)(4)(f).
Pursuant to paragraph (D)(2), the bench warrant is to be returned to the judge who issued the warrant or to the judge designated by the President Judge to hear warrants by the arresting officer executing a return of warrant. See paragraph (D)(3).
Pursuant to paragraph (D)(4), the bench warrant is to be vacated after the return of the warrant is executed so the party or witness is not taken into custody on the same warrant if the party or witness is released. ''Vacated'' is to denote that the bench warrant has been served, dissolved, executed, dismissed, canceled, returned, or any other similar language used by the judge to terminate the warrant. The bench warrant is no longer in effect once it has been vacated. See 42 Pa.C.S. § 4132 for punishment of contempt for children and witnesses.
Throughout these rules, the ''child'' is the subject of the dependency proceedings. When a witness or another party is under the age of eighteen, the witness or party is referred to as a ''minor.'' When ''minor'' is used, it may include a child. This distinction is made to differentiate between children who are alleged dependants and other minors who are witnesses.
See also Rule 1120 for the definitions of ''child'' and ''minor.''
Official Note: Rule 1140 adopted March 19, 2009, effective June 1, 2009.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 1140 published with the Court's Order at 39 Pa.B. 1619 (April 4, 2009).
CHAPTER 13. PRE-ADJUDICIATORY PROCEDURES
PART D(2). ADJUDICATORY SUMMONS AND NOTICE PROCEDURES Rule 1364. Failure to Appear on the Summons.
If any summoned person fails to appear for the adjudicatory hearing and the court finds that sufficient notice was given, the judge may issue a bench warrant pursuant to Rule 1140.
Comment See Rule 1140 for issuance of a bench warrant.
Official Note: Rule 1364 adopted August 21, 2006, effective February 1, 2007. Amended March 19, 2009, effective June 1, 2009.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 1364 published with the Court's Order at 36 Pa.B. 5599 (September 2, 2006).
Final Report explaining the amendments to Rule 1364 published with the Court's Order at 39 Pa.B. 1619 (April 4, 2009).
CHAPTER 18. SUSPENSIONS Rule 1800. Suspensions of Acts of Assembly.
This rule provides for the suspension of the following Acts of Assembly that apply to dependency proceedings only:
1) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6335(c), which provides for the issuance of arrest warrants if the child may abscond or may not attend or be brought to a hearing, is suspended only insofar as the Act is inconsistent with [Rule] Rules 1124, 1140, and 1364, which [requires] require a summoned person to fail to appear and the court to find that sufficient notice was given.
2) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6336(c), which provides that if a proceeding is not recorded, full minutes shall be kept by the court, is suspended only insofar as the Act is inconsistent with Rules 1127(A) & 1242(B)(2), which [requires] require all proceedings to be recorded, except for shelter care hearings.
3) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6311(b)(9), which [provide] provides that there is not a conflict of interest for the guardian ad litem in communicating the child's wishes and the recommendation relating to the appropriateness and safety of the child's placement and services necessary to address the child's needs and safety, is suspended only insofar as the Act is inconsistent with Rule 1151, which allows for appointment of separate legal counsel and a guardian ad litem when the guardian ad litem determines there is a conflict of interest between the child's legal interest and best interest.
4) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6337, which provides that counsel must be provided unless the guardian is present and waives counsel for the child, is suspended only insofar as the Act is inconsistent with Rule 1152, which does not allow a guardian to waive the child's right to counsel and a child may not waive the right to a guardian ad litem.
5) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6305(b), which provides that the court may direct hearings in any case or classes of cases be conducted by the master, is suspended only insofar as the Act is inconsistent with Rule 1187, which allows masters to hear only specific classes of cases.
6) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6324, which authorizes law enforcement officers to take a child into custody, is suspended only insofar as the Act is inconsistent with Rule 1202, which provides for police officers taking a child into custody.
7) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6331, which provides for the filing of a petition with the court within twenty-four hours or the next business day of the admission of the child to shelter care, is suspended only insofar as the Act is inconsistent with the filing of a petition within twenty-four hours or the next business day from the shelter care hearing if the child is in protective custody under Rules 1242 and 1330(A).
8) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6334, which provides that any person may bring a petition, is suspended only insofar as the Act is inconsistent with Rules 1320, 1321, and 1330, which provide that the county agency may file a petition and any other person shall file an application to file a petition.
9) The Act of December 19, 1990, P. L. 1240, No. 206, § 2, 23 Pa.C.S. § 6339, which provides for the confidentiality of reports made pursuant to the Child Protective Services Law, 23 Pa.C.S. § 6301 et seq., is suspended only insofar as the Law is inconsistent with Rule 1340(B)(1)(e), which provides for the disclosure of such reports if the reports are going to be used as evidence in a hearing to prove dependency of a child.
10) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6335, which provides that a copy of the petition is to accompany a summons, is suspended only insofar as the Act is inconsistent with Rule 1360, which provides that the summons is to include a copy of the petition unless the petition has been previously served.
Comment The authority for suspension of Acts of Assembly is granted to the Supreme Court by Article V § 10(c) of the Pennsylvania Constitution. See also Rule 1102.
Official Note: Rule 1800 adopted August 21, 2006, effective February 1, 2007. Amended March 19, 2009, effective June 1, 2009.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 1800 published with the Court's Order at 36 Pa.B. 5599 (September 2, 2006).
Final Report explaining the amendments to Rule 1800 published with the Court's Order at 39 Pa.B. 1619 (April 4, 2009).
INTRODUCTION The Supreme Court of Pennsylvania has adopted the proposed changes to Rules 800, 1120, 1123, 1124, 1364, 1800, and new Rule 1140. The changes are effective June 1, 2009.
EXPLANATORY REPORT
MARCH 2009Rule 800. Suspensions of Acts of Assembly.
Rule 364 has been added to paragraph two, which suspends 42 Pa.C.S. § 6335(c) only insofar as the Act is inconsistent with the Rules. The Rules require that a summoned person must fail to appear for the hearing and the court must find the summoned person received sufficient notice.
Rule 1120. Definitions.
The definition of a child was modified by adding that the child is the subject of the dependency proceeding. This will help clarify the difference between a child and a minor.
A definition for an ''adult'' was added. An ''adult'' includes anyone eighteen years or older, except a child who has requested the court to retain jurisdiction while in the course of instruction or treatment.
A definition for a ''minor'' was added. A ''minor'' is a person under the age of eighteen. This definition includes a dependent child, a minor witness, or other minor party. Therefore, a ''child'' can be a ''minor'' but a ''minor'' is not a ''child'' because a ''child'' must also be the subject of the dependency proceeding.
Rule 1123. Subpoenas.
The Committee modified paragraph (D) because a master is not permitted to issue a bench warrant.
The Committee added paragraph (E) to Rule 1123. The Committee felt that it was important that the guardian of a minor witness receive a copy of the subpoena to impress upon their child the importance of a subpoena. It also allows the guardian to ensure his or her child is present for a hearing.
Rule 1124. Summons.
The Committee modified paragraph (D) because a master is not permitted to issue a bench warrant.
The additions in the Comment reference the rules for service of parties for a proceeding and the new Bench Warrant Rule.
Rule 1140. Bench Warrants.
This new rule provides for procedures when a bench warrant is issued for failing to appear for a hearing. There are separate procedures when the warrant is issued for a party to the proceedings and a witness to the proceeding.
Pursuant to paragraph (B)(1), if a party is arrested on a bench warrant, the party must be brought immediately to the judge who issued the warrant unless the judge specifically authorized detention in the warrant. Pursuant to paragraph (B)(2), if detention was authorized in the warrant, the party must have a hearing before the judge within seventy-two hours or the party must be released.
Pursuant to paragraph (B)(3), if a party is a minor and is arrested on a bench warrant, the guardian of the minor must be notified immediately of the minor's whereabouts and the reason for the issuance of the bench warrant. This provision ensures that the guardian is informed about the detention and the reasons for the detention.
Under paragraph (B)(4), if a party is arrested in another county, the party must be transported immediately back to the county of issuance. If transportation is not arranged immediately, the party must be taken to a judge of the county where the party is found. The judge must decide: 1) if the person is the subject of the warrant; 2) if detention of the party is warranted; and 3) what arrangements for transporting the party back to the county of issuance are necessary.
If a witness is arrested on a bench warrant pursuant to paragraph (C)(1), the witness must be brought to the judge immediately. If the witness is not brought before a judge, the witness must be released unless a motion to detain the witness has been filed. Pursuant to paragraph (C)(2), if a motion has been filed, the witness must appear before a judge no later than the next business day or must be released.
A motion to detain a witness can be filed by any party. The motion should aver the necessity of the witness's detention. This averment should be supported by facts leading to this necessity.
When the witness is brought before the judge, the judge must address the motion and the reasons for the necessity of the witness's detention. For example, the witness may be harmed if the witness is not taken into protective custody or the witness may flee the jurisdiction because of threats of bodily injury or fear of implication in a crime or delinquent act.
Pursuant to paragraph (C)(3), if a witness is a minor, the witness's guardian must be notified immediately of the witness's whereabouts and the reasons for the issuance of the bench warrant. This provision ensures that the guardian is told about the bench warrant and the place of detention.
Pursuant to paragraph (C)(4), if a bench warrant is executed in another county, the county of issuance must be notified immediately and the witness must be transported to the county of issuance. If transportation is not arranged immediately, the witness must be released unless a motion to detain the witness has been filed.
If a motion to detain the witness has been filed, the witness must appear before a judge within twenty-four hours or the next business day unless the witness can be brought before the judge who issued the bench warrant within this time. The out-of-county judge must determine: 1) if the witness is the subject of the warrant; 2) if detention is warranted; and 3) what arrangements for transporting the witness back to the county of issuance are necessary. The witness must not be kept in another county for more than seventy-two hours of the execution of the warrant under any circumstances.
Pursuant to paragraph (D), in all cases, the bench warrant must be executed without unnecessary delay. When the bench warrant is executed, the bench warrant must be returned to the issuing judge. Upon the return of the warrant, the judge must vacate the bench warrant. The bench warrant must be marked as executed in the system to ensure the subject of the warrant is not arrested again on the same warrant.
Rule 1364. Failure to Appear on the Summons.
A reference to the new Bench Warrant Rule 1140 was added to this Rule.
Rule 1800. Suspensions of Acts of Assembly.
The new Bench Warrant Rule 1140 and Rule 1364 have been added to paragraph one, which suspends 42 Pa.C.S. § 6335(c) only insofar as the Act is inconsistent with the Rules. The Rules require that a summoned person must fail to appear for the hearing and the court must find the summoned person received sufficient notice.
[Pa.B. Doc. No. 09-612. Filed for public inspection April 3, 2009, 9:00 a.m.]
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