THE COURTS
Title 255—LOCAL
COURT RULES
LEHIGH COUNTY
Adoption of Criminal Rules 101.1, 103.1, 531.2 and 536.1 Relating to Bail; AD 3-2014
[44 Pa.B. 3759]
[Saturday, June 21, 2014]
Order And Now, this 30th day of May, 2014, It Is Ordered that the following Rules of Criminal Procedure, in and for the 31st Judicial District of Pennsylvania composed of Lehigh County, be, and the same are, promulgated herewith, to become effective ninety (90) days after their publication in the Pennsylvania Bulletin.
It Is Further Ordered that two (2) certified copies shall be filed with the Legislative Reference Bureau for publication in the Pennsylvania Bulletin; that one (1) certified copy shall be filed with the Criminal Rules Committee of the Supreme Court of Pennsylvania; that seven (7) certified copies shall be filed with the Administrative Offices of Pennsylvania Courts; and that one copy shall be filed with the Clerk of Judicial Records of Lehigh County.
By the Court
KELLY L. BANACH,
Administrative Judge
LEHIGH COUNTY BAIL RULES Rule 101.1. Construction of Rules; Consistency with Statewide Rules.
(a) All rules of construction adopted by the Supreme Court of Pennsylvania shall apply to local rules adopted by the Court of Common Pleas of Lehigh County that govern the practice and procedure in criminal matters.
(b) Any requirement imposed by these rules is in addition to, and not in lieu of, the requirements under the Pennsylvania Rules of Criminal Procedure.
(c) No pleading or other legal paper shall be refused for filing by the clerk of courts based upon a failure to comply with a requirement imposed by these rules. No case shall be dismissed nor request for relief granted or denied because of a failure to comply with such a requirement. If a party fails to comply with such a requirement, the court shall notify the party of the failure and provide a reasonable time for the party to comply with the requirement.
Rule 103.1. Definitions.
(a) Definitions contained in Pa.R.Crim.P. 103 shall apply to all local rules heretofore and hereafter adopted which govern practice and procedure in criminal matters.
(b) The following words and phrases, when used in any Lehigh County Rule of Criminal Procedure, shall have the following meanings:
Bail Enforcement Agent is an individual who performs services or takes action for the purpose of enforcing the terms and conditions of a defendant's release from custody on bail, including locating, apprehending and surrendering a defendant released from custody on bail who has failed to appear at a specified time and place pursuant to Order of Court. The term does not include police officers, sheriffs, court officers or law enforcement personnel who execute warrants of arrest for bail forfeitures pursuant to their official duties.
Clerk of Judicial Records, Criminal Division is the Chief Deputy of the Lehigh County Clerk of Judicial Records, Criminal Division.
Corporate Surety is a corporation, limited liability corporation, fidelity company or other legal entity which issues bail bonds through agencies and/or agents and is licensed by the Pennsylvania Department of Insurance to do business in the Commonwealth of Pennsylvania.
Corporate Surety Agency is an agency for a Corporate Surety which engages in the business of providing bail, providing or soliciting bail undertakings and/or providing or soliciting indemnity or counter-indemnity to others on bail undertakings and is licensed by the Pennsylvania Department of Insurance to do business in the Commonwealth of Pennsylvania.
Corporate Surety Agency Agent is an individual person who acts as an agent of a Corporate Surety Agency.
Department of Law is the Lehigh County Department of Law.
Pretrial Services is Lehigh Valley Pretrial Services, Inc.
President Judge is the President Judge of the Court of Common Pleas of Lehigh County.
Professional Bail Bondsman is an individual who, in strict compliance with the Pennsylvania Professional Bondsman Act, 42 Pa.C.S. §§ 5741—5749: (1) engages in the business of giving bail, giving or soliciting undertakings, or giving or soliciting indemnity or counter-indemnity to securities on undertakings; or (2) within a period of 30 days has become a surety, or has indemnified a surety, for the release on bail of a person, with or without a fee or compensation, or promise thereof; in three or more matters not arising out of the same transaction and is licensed by the Pennsylvania Department of Insurance to do business in the Commonwealth of Pennsylvania.
Surety Business is any Corporate Surety, Corporate Surety Agency or Professional Bail Bondsman.
Rule 531.2. Regulation of Surety Businesses, Corporate Sureties, Corporate Surety Agencies, Corporate Surety Agency Agents and Professional Bail Bondsmen.
(a) Requirements to Become Qualified. To become qualified to post bond in Lehigh County:
(1) Each Surety Business must fully comply with all laws, statutes, local rules and rules of court as may be established from time to time.
(2) Each Surety Business must Deliver to the Clerk of Judicial Records, Criminal Division satisfactory proof, on the approved form, that the Surety Business, is licensed by the Pennsylvania Department of Insurance to do business in the Commonwealth of Pennsylvania;
(3) Each Surety Business must Deliver satisfactory proof of the agency relationship between the Surety Business and its agents to the Clerk of Judicial Records, Criminal Division. The execution of any bail bond by such agents shall be a valid and binding obligation of the Surety Business;
(4) Each Surety Business must Deliver satisfactory proof to the Clerk of Judicial Records, Criminal Division that any agent designated to act on behalf of the Surety Business, is duly licensed by the Pennsylvania Department of Insurance;
(5) Each Surety Business must Deliver satisfactory proof to the Clerk of Judicial Records, Criminal Division that the Surety Business maintains an office in Lehigh County from which its business is conducted and where service of notices may be made. Every Surety Business, shall keep at its office in Lehigh County the usual and customary records pertaining to transactions authorized by its license and/or the license of any of its agents, including, but not limited to, such records of bail bonds executed or countersigned by the surety business, to enable the court to obtain all necessary information concerning such bail bonds for at least three (3) years after the liability of the surety has been terminated. Such records shall be open at all times to examination, inspection or copying by the Court or its representative. Any and all information shall be furnished in such manner or form as the Court requires;
(6) Each Surety Business must Certify to the Clerk of Judicial Records, Criminal Division that no owner, principal, officer or agent of the Surety Business has been convicted of any non-summary criminal offense. The certification must be based on a criminal history records check conducted by the Pennsylvania State Police for each employee and agent, and a copy of the search results must be attached to a list of employees and agents and certification submitted with the petition required by subsection (c) of this rule. Conviction of an agent or employee of a surety business will render the Surety Business ineligible to conduct business in the Thirty-first Judicial District;
(7) Each Corporate Surety Agency and Professional Bail Bondsman must post with the Clerk of Judicial Records, Criminal Division as security, in increments of $50,000 and no less than $50,000 in United States currency or unencumbered securities of the United States Government, which will entitle the Corporate Surety Agency or Professional Bail Bondsman, to post bond in an aggregate sum determined by multiplying the amount posted by a factor of six (6) (e.g., if a Corporate Surety Agency or Professional Bail Bondsman posts security of $50,000 that Corporate Surety Agency or Professional Bail Bondsman would be eligible to post bonds not to exceed the aggregate amount of $300,000; if a that Corporate Surety Agency or Professional Bail Bondsman posts security of $250,000, that that Corporate Surety Agency or Professional Bail Bondsman would be eligible to post bonds not to exceed the aggregate amount of $1,500,000), and by further posting the sum required for each individual bond or undertaking with the bail authority;
(8) Each Surety Business must provide to the Clerk of Judicial Records, Criminal Division a financial statement certified by a Certified Public Accountant which verifies that the Surety Business has sufficient assets to satisfy all bail obligations undertaken by or on behalf of the Surety Business in the Thirty-first Judicial District and in other jurisdictions in which the Surety Business conducts business. A current certified statement must be filed with the petition required in subsection (c) of this rule;
(9) Each Surety Business must certify to the Clerk of Judicial Records, Criminal Division that only the Surety Business which is approved by the President Judge upon petition as provided in this rule, may post bail for defendants, in the name exactly as it appears on the surety's license, and not in the name of any agent or other business entity;
(10) Each Surety Business must certify to the Clerk of Judicial Records, Criminal Division a schedule of the fees to be charged Criminal Division defendants for issuing the bail bond. Such fees may not change unless notice is given to the President Judge at least thirty (30) days prior to the effective date of the proposed revised fees (see 42 Pa.C.S.A. § 5748);
(11) Upon approval of the petition required in subsection (c) of this rule, each Corporate Surety shall register with the Clerk of Judicial Records, Criminal Division and pay to the Clerk of Judicial Records, Criminal Division an initial registration fee of $50.00, or such amount as may be established from time to time by the Clerk of Judicial Records, Criminal Division with the approval of the President Judge or his or her designee;
(12) Upon approval of the petition required in subsection (c) of this rule, each Corporate Surety Agency and Professional Bail Bondsman shall register with the Clerk of Judicial Records, Criminal Division and pay to the Clerk of Judicial Records, Criminal Division an initial registration fee of $500.00, or such amount as may be established from time to time by the Clerk of Judicial Records, Criminal Division with the approval of the President Judge;
(13) Upon approval of the petition required in subsection (c) of this rule, each Corporate Surety Agency Agent shall register with the Clerk of Judicial Records, Criminal Division and pay to the Clerk of Judicial Records, Criminal Division an initial registration fee of $50.00, or such amount as may be established from time to time by the Clerk of Judicial Records, Criminal Division with the approval of the President Judge;
(14) Each Surety Business must certify that the Surety Business will not represent itself, directly or indirectly, as an employee or agent of the Commonwealth of Pennsylvania or the County of Lehigh. Agents and employees of a Surety Business must not wear clothing or present badges or any other form of law enforcement credentials that create the impression of employment of the Commonwealth of Pennsylvania, the Thirty-first Judicial District or any of its units, including Pre-trial Services or the Lehigh County Sheriff's Department of the Thirty-first Judicial District or the County of Lehigh;
(b) Requirements to Remain Qualified. To remain qualified to post bond in Lehigh County:
(1) Each Surety Business must maintain compliance with the requirements specified in subsection (a) of this rule;
(2) Each Surety Business must provide quarterly statements certified by the Surety Business that it is in compliance with the security posting requirements specified in subsection (a)(7) of this rule to the Clerk of Judicial Records, Criminal Division as required by 42 Pa.C.S.A. § 5747;
(3) Each Surety Business must provide to the Clerk of Judicial Records, Criminal Division, on a quarterly basis, or as often as requested by the President Judge, a financial statement certified by a Certified Public Accountant which verifies that the Surety Business has sufficient assets to satisfy all bail obligations undertaken by the Surety Business in the Thirty-first Judicial District and in other jurisdictions in which the Surety Business conducts business;
(4) Each Surety Business must satisfy in full any forfeiture order entered against a defendant or the Surety Business for a defendant's violation of a bail bond within ninety (90) days of the issuance of the order. In the event the Surety Business fails to satisfy such forfeiture order, the order will be satisfied from the funds posted with the Clerk of Judicial Records, Criminal Division pursuant to subsection (a)(7) of this rule. In that event, the Surety Business will be prohibited from posting additional bail until such time as all forfeiture orders entered against the Surety Business are satisfied in full;
(5) Each Surety Business must immediately notify, in writing, the President Judge and the Department of Law if an owner, principal, officer or agent of a Surety Business has been charged with any non-summary criminal offense, or if the license of an agent or employee has been revoked, suspended or not renewed in the Commonwealth of Pennsylvania or any other jurisdiction;
(6) If the aggregate maximum amount of unsettled and outstanding bail forfeitures for a Corporate Surety Agency or Professional Bail Bondsman, as determined by the Clerk of Judicial Records, Criminal Division, equals or exceeds the actual amount of security posted by that Corporate Surety Agency or Professional Bail Bondsman under 531.2(a)(7), that Corporate Surety Agency or Professional Bail Bondsman must immediately cease posting bonds and the Clerk of Judicial Records, Criminal Division shall immediately cease accepting bonds by that Corporate Surety Agency or Professional Bail Bondsman as no further bonds by that Corporate Surety Agency or Professional Bail Bondsman are authorized or acceptable for posting in Lehigh County. The Clerk of Judicial Records, Criminal Division shall promptly notify the Department of Law of the occurrence of a Corporate Surety Agency or Professional Bail Bondsman having reached its maximum limit and the Department of Law shall immediately send written notice of that Corporate Surety Agency or Professional Bail Bondsman having reached this maximum limit to that Corporate Surety Agency or Professional Bail Bondsman, the President Judge, the District Attorney and the Magisterial District Judges of Lehigh County and provide a copy of the notification to the Clerk of Judicial Records, Criminal Division. Upon receipt of the notification from the Department of Law, the Magisterial District Judges of Lehigh County shall also immediately cease accepting bonds by that Corporate Surety Agency or Professional Bail Bondsman. When full financial settlement has been made of the outstanding bail forfeitures, the Clerk of Judicial Records, Criminal Division shall promptly notify the Department of Law and the Department of Law shall notify that Corporate Surety Agency or Professional Bail Bondsman, the President Judge, the District Attorney, the Magisterial District Judges of Lehigh County and the Clerk of Judicial Records, Criminal Division that the posting of bonds by that Corporate Surety Agency or Professional Bail Bondsman may resume.
(7) If the aggregate maximum amount of unsettled and outstanding bail forfeitures of a Corporate Surety Agency Agent, as determined by the Clerk of Judicial Records, Criminal Division, equals or exceeds $100,000, the Corporate Surety Agency Agent must immediately cease posting bonds and the Clerk of Judicial Records, Criminal Division shall immediately cease accepting bonds by the Corporate Surety Agency Agent as no further bonds by the Corporate Surety Agency Agent are authorized or acceptable for posting in Lehigh County. The Clerk of Judicial Records, Criminal Division shall promptly notify the Department of Law of the occurrence of a Corporate Surety Agency Agent having reached its maximum limit of $100,000 and the Department of Law shall immediately send written notice of the Corporate Surety Agency Agent having reached this maximum limit to the Corporate Surety Agency Agent, the President Judge, the District Attorney and the Magisterial District Judges of Lehigh County and provide a copy of the notification to the Clerk of Judicial Records, Criminal Division. Upon receipt of the notification from the Department of Law, the Magisterial District Judges of Lehigh County shall also immediately cease accepting bonds by the Corporate Surety Agency Agent. When full financial settlement has been made of the outstanding bail forfeitures, the Clerk of Judicial Records, Criminal Division shall promptly notify the Department of Law and the Department of Law shall notify the Corporate Surety Agency Agent, the President Judge, the District Attorney, the Magisterial District Judges of Lehigh County and the Clerk of Judicial Records, Criminal Division that the posting of bonds by the Corporate Surety Agency Agent may resume.
(8) Each Surety Business must not represent or identify itself, directly or indirectly, as employees or agents of the Commonwealth of Pennsylvania or Thirty-first Judicial District or the County of Lehigh. The agents and employees of a Surety Business must not wear clothing or present badges or any other form of law enforcement credentials that create the impression of employment by the Commonwealth of Pennsylvania, the Thirty-first Judicial District or any of its units, including Pre-trial Services or the Lehigh County Sheriff's Department or the County of Lehigh;
(9) Each Corporate Surety must annually renew their registration with the Thirty-first Judicial District, provide all certifications required by this rule and pay to the Clerk of Judicial Records, Criminal Division an annual renewal registration fee of $50.00, or such amount as may be established from time to time by the Clerk of Judicial Records, Criminal Division with the approval of the President Judge;
(10) Each Corporate Surety Agency and Professional Bail Bondsman must annually renew their registration with the Thirty-first Judicial District, provide all certifications required by this rule and pay to the Clerk of Judicial Records, Criminal Division an annual renewal registration fee of $100.00, or such amount as may be established from time to time by the Clerk of Judicial Records, Criminal Division with the approval of the President Judge;
(11) Each Corporate Surety Agency Agent shall annually renew their registration with the Thirty-first Judicial District, provide all certifications required by this rule and pay to the Clerk of Judicial Records, Criminal Division an annual renewal registration fee of $50.00, or such amount as may be established from time to time by the Clerk of Judicial Records, Criminal Division with the approval of the President Judge;
(12) Each Surety Business and Corporate Surety Agency Agent must fully comply with all laws, statutes, local rules, rules of court and procedures as may be established from time to time.
(13) Each Surety Business, its owners, principals, officers and agents, must not engage in Prohibited Conduct as set forth in 531.2(e) hereunder.
(c) Seeking Approval as a Surety Business. Any Surety Business which is licensed by the Pennsylvania Department of Insurance may seek approval to post bail in the Thirty-first Judicial District by filing a petition with the Clerk of Judicial Records, Criminal Division. The petition must provide the information, documents and certifications set forth in subsection (a) of this rule. Upon filing, the petition will be assigned to a Judge for determination.
(d) Opportunity to be Heard. A Surety Business whose petition seeking approval to post bail in the Thirty-first Judicial District is denied will be provided an opportunity to be heard and to contest the denial. Any Surety Business seeking to contest the denial of its petition for approval to post bail in the the Thirty-first Judicial District must file a petition with the Clerk of Judicial Records, Criminal Division and serve the Department of Law within thirty (30) days of the date of denial of its initial petition, and set forth the relief requested and the factual basis therefor. Similarly, a Surety Business which has received approval to post bail in the Thirty-first Judicial District as provided in this rule but which has been subsequently prohibited from posting additional bail, whose right to post bail has been revoked under 531.2(f), or is otherwise ineligible to post bail in the Thirty-first Judicial District, will be provided an opportunity to be heard. Any Surety Business, seeking to contest that it has been prohibited from posting additional bail, that its right to post bail has been revoked under 531.2(f), or that it is otherwise ineligible to post bail in the Thirty-first Judicial District must file a petition with the Clerk of Judicial Records, Criminal Division and serve the Department of Law within thirty (30) days of the date of the prohibition, revocation or determination of ineligibility, and set forth the relief requested and the factual basis therefor.
(e) Prohibited Conduct. A Surety Business, and its owners, principals, officers and agents, may not engage in prohibited conduct, which includes the violation of any applicable laws, statutes, local rules, rules of court, or the commission of any of the following acts:
(1) having a license as a Surety Business revoked in this or any other state;
(2) being involved in any transaction which shows unfitness to act in a fiduciary capacity or a failure to maintain the standards of fairness and honesty required of a fiduciary;
(3) having any judgment entered which would reduce the Surety Business' net worth below the minimum required for licensure;
(4) being convicted of any non-summary criminal offense with the exception of misdemeanors under the Pennsylvania Vehicle Code;
(5) failing to promptly advise the Clerk of Judicial Records, Criminal Division of any change in circumstances which would materially affect any of the statements, information or certifications required by this rule;
(6) using an unregistered agent to post bail or provide any bail undertaking on behalf of the Surety Business;
(7) using an individual or entity not contracted and appointed by the Surety Business to post bail or provide bail undertaking on behalf of the Surety Business;
(8) signing, executing or issuing bonds by a person or entity which is not registered as an agent of the Surety Business and/or for which there is no satisfactory proof of an agency relationship with the Surety Business;
(9) executing a bond without the appropriate counter signature by a licensed and/or authorized agent at time of issue;
(10) failing to account for or pay any premiums held in a fiduciary capacity;
(11) misstating or misrepresenting any material fact in the initial petition or any subsequent petitioners, required by this rule, or in any of the statements, information or certifications required by this rule;
(12) failing to preserve, and to retain separately, any collateral obtained as security on any bond;
(13) failing to return collateral taken as security on any bond to the depositor of such collateral, or the depositor's designee, within ten (10) business days of having been notified of the exoneration of the bond and upon payment of all fees owed to the Surety Business, whichever is later;
(14) offering or providing any consideration or gratuity to any person employed by, or incarcerated in, a jail facility, any person who has the power to arrest or to hold any person in custody, or to any court officers and attorneys to obtain or secure business;
(15) failing to deliver to the defendant, and any person providing collateral on the defendant's behalf, prior to the time the defendant is released from jail, a one-page disclosure form which, at a minimum, must include:
(A) the amount of the bail;
(B) the amount of the surety's fee, including bail bond premium, preparation fees, and credit transaction fees;
(C) the collateral that will be held by the surety;
(D) the defendant's obligations to the surety and the court;
(E) the conditions upon which the bond may be revoked;
(F) any additional charges or interest that may accrue;
(G) any co-signors or indemnitors that will be required; and
(H) the conditions under which the bond may be exonerated and the collateral returned;
(16) failing to provide to the Clerk of Judicial Records, Criminal Division the fully executed one-page disclosure form required by subsection (e)(15) of this rule at the time bond is posted;
(17) charging excessive fees or other unauthorized charges;
(18) requiring unreasonable collateral as security;
(19) failing to provide an itemized statement of any and all expenses deducted from collateral, if any;
(20) advising, requiring or suggesting that, as a condition of posting a bail bond by a surety business, a defendant engage the services of a particular law firm or attorney;
(21) preparing or issuing a fraudulent or forged bail bond, power of attorney or other document;
(22) signing, executing, issuing or posting bail bonds by an unlicensed person;
(23) knowingly violating, advising, encouraging, aiding, abetting or assisting the violation of any applicable law, statute, local rule or rule of court;
(24) soliciting or procuring sexual favors as a condition of obtaining, maintaining or exonerating a bail bond, regardless of the identity of the person who performs such favors;
(25) providing legal advice or a legal opinion in any form;
(26) failing to enforce bail conditions;
(27) holding themselves out by their manner of dress as being a public official; and
(28) engaging in verbal or other abusive behavior and/or unprofessional conduct, including but not limited to the use of profanity, directed toward a County employee.
(f) Any violation of or failure to comply with the rules set forth herein may, upon petition by the Department of Law and after hearing thereon, result in the revocation by the Court of Common Pleas of Lehigh County of the bail posting privileges of a Surety Business or Corporate Surety Agency Agent including but not limited to approval granted under 531.2(c) herein.
Rule 536.1. Forfeitures and Bail Pieces.
(a) Forfeitures.
(1) If a bail bond is ordered to be forfeited pursuant to Pa.R.Crim.P. 536, execution of the order shall be delayed until ninety (90) days from the date of the filing of the forfeiture order.
(2) If a defendant whose bail has been ordered forfeited surrenders within ninety (90) days of the date of the entry of the order, the Judge or a designee may set aside the forfeiture order and either reinstate bail or set a new bail without the necessity of the filing of a petition as hereinafter provided.
(3) Unless the forfeiture order has been set aside as provided for in subsection (2), in order for a surety to have the forfeiture order set aside or remitted in whole or in part, the party seeking remission, set aside or exoneration shall present a petition to the Judge, file the petition with the Clerk of Judicial Records, Criminal Division, and serve a copy thereof upon the Department of Law. The petition shall set forth in detail the reasons for seeking the set aside, remission or exoneration. In order to facilitate the assessment and investigation of petitions requesting remittance, the surety is required to delineate within the petition the following:
(A) A recitation of the history of the case including the charges, the date the bond was set, the amount of the bond, and the name and district of the issuing authority;
(B) The date of forfeiture and nature of the proceeding at which forfeiture occurred;
(C) A statement establishing the fact that the defendant was apprehended including the date of apprehension and the agency responsible for the apprehension;
(D) A detailed summary of all efforts by the petitioner to apprehend the defendant including the name, phone number and address of all agents hired or assigned to effectuate the apprehension, and all times, dates, and locations searched;
(E) A declaration that the apprehension or return of the defendant was effected by the efforts of the surety or that those efforts at least had a substantial impact on the defendant's apprehension; and
(F) A clear and specific factual recitation in support of the above declaration.
(4) A Surety Business or Corporate Surety Agency Agent which files with the Court of Common Pleas of Lehigh County a petition for bail relief, including but not limited to a petition to vacate bail forfeiture or a petition to exonerate surety, shall be responsible for the payment of court costs and/or filing fees as determined by the Clerk of Judicial Records, Criminal Division and may be amended from time to time.
(b) Bail Pieces. After a bail piece is issued pursuant to Pa.R.Crim.P. 536 and the defendant is apprehended by or on behalf of the surety, the defendant must be brought before the Judge or a designee in accordance with Pa.R.Crim.P. 150. Bail pieces shall not be utilized to exonerate the surety.
[Pa.B. Doc. No. 14-1303. Filed for public inspection June 20, 2014, 9:00 a.m.]
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