THE COURTS

Title 210—APPELLATE PROCEDURE

PART I. RULES OF APPELLATE PROCEDURE

[ 210 PA. CODE CH. 19 ]

Proposed Amendment to Rule 1931

[40 Pa.B. 2741]
[Saturday, May 29, 2010]

 The Appellate Court Procedural Rules Committee (Committee) proposes to amend Pennsylvania Rule of Appellate Procedure 1931. The amendment is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court.

 Proposed new material is bold while deleted material is bold and bracketed.

 All communications in reference to the proposed amendment should be sent no later than July 13, 2010, to:

 Dean R. Phillips, Counsel
D. Alicia Hickok, Deputy Counsel
Scot Withers, Deputy Counsel
Appellate Court Procedural Rules Committee
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 6200
P. O. Box 62635
Harrisburg, PA 17106-2635
 
or Fax to: (717) 231-9551
or E-mail to: appellaterules@pacourts.us

 An Explanatory Comment follows the proposed amendment and has been inserted by this Committee for the convenience of the bench and bar. It will not constitute part of the rule nor will it be officially adopted or promulgated.

By the Appellate Court Procedural Rules Committee

HONORABLE MAUREEN LALLY-GREEN, 
Chair

Annex A

TITLE 210. APPELLATE PROCEDURE

PART I. RULES OF APPELLATE PROCEDURE

ARTICLE II. APPELLATE PROCEDURE

CHAPTER 19. PREPARATION AND TRANSMISSION OF RECORD AND RELATED MATTERS

RECORD ON APPEAL FROM LOWER COURT

Rule 1931. Transmission of the Record.

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 (c) Duty of clerk to transmit the record.—When the record is complete for purposes of the appeal, the clerk of the lower court shall transmit it to the prothonotary of the appellate court. The clerk of the lower court shall number the documents comprising the record and shall transmit with the record a list of the documents correspondingly numbered and identified with [reasonable definiteness] sufficient specificity to allow the parties on appeal to identify each document and to determine whether the record on appeal is complete. Documents of unusual bulk or weight and physical exhibits other than documents shall not be transmitted by the clerk unless he or she is directed to do so by a party or by the prothonotary of the appellate court. A party must make advance arrangements with the clerk for the transportation and receipt of exhibits of unusual bulk or weight. Transmission of the record is effected when the clerk of the lower court mails or otherwise forwards the record to the prothonotary of the appellate court. The clerk of the lower court shall indicate, by endorsement on the face of the record or otherwise, the date upon which the record is transmitted to the appellate court.

 (d) Service of the list of record documents.—The clerk of the lower court shall, at the time of the transmittal of the record to the appellate court, mail a copy of the list of record documents to all counsel of record, or if unrepresented by counsel, to the parties at the address they have provided to the clerk. The clerk shall note on the docket the giving of such notice. Should the clerk fail to transmit to the appellate court any document specifically identified or fairly subsumed within the list of record documents, the absence of such document shall not be a basis for the appellate court not to consider the document. Upon discovery of the omission from the record of any document specifically identified or fairly subsumed within the list of record documents, the record shall promptly be corrected pursuant to the Pa.R.A.P. 1926.

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Explanatory Comment

 The Rules of Appellate Procedure and case law place a burden on the appellant to make sure that a full and complete record is forwarded to the appellate court. The Appellate Court Procedural Rules Committee undertook a review of the rules to assist appellant in determining what, in fact, was sent by the trial court to the appellate court which led to the adoption in 2004 to the adoption of subdivision (d)—a requirement that the clerk or prothonotary send the appellant the list of recorded documents. However, the appellant's ability to determine what was included or subsumed in the list is hindered if the list is not sufficiently specific. Also, in many cases, items included in the list were not actually transmitted to the appellate court.

 The Appellate Court Procedural Rules Committee recommends that the Supreme Court amend subdivision (c) to deal with lack of specificity in the lists. The proposed amendment to subdivision (c) provides that the list be sufficiently specific ''to allow the parties on appeal to identify each document and to determine whether the record on appeal is complete.''

 The Appellate Court Procedural Rules Committee recommends that the Supreme Court amend subdivision (d) to permit appellant to rely on the content of the list without having to physically examine the record transmitted to the appellate court. The proposed amendment to subdivision (d) provides that:

 Should the clerk fail to transmit to the appellate court any document specifically identified or fairly subsumed within the list of record documents, the absence of such document shall not be a basis for the appellate court not to consider the document. Upon discovery of the omission from the record of any document specifically identified or fairly subsumed within the list of record documents, the record shall promptly be corrected pursuant to the Pa.R.A.P. 1926.

[Pa.B. Doc. No. 10-978. Filed for public inspection May 28, 2010, 9:00 a.m.]

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