THE COURTS
Title 210—APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
[ 210 PA. CODE CHS. 1, 9, 11, 13 AND 33 ]
Proposed Amendments to Pa.Rs.A.P. 120, 121, 907, 1112, 1311 and 3304
[44 Pa.B. 471]
[Saturday, January 25, 2014]The Appellate Court Procedural Rules Committee proposes to amend Pennsylvania Rules of Appellate Procedure 120, 121, 907, 1112, 1311, and 3304. 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 February 24, 2014 to:
Dean R. Phillips, Chief Counsel
D. Alicia Hickok, Deputy Counsel
Scot Withers, Deputy Counsel
Appellate Court Procedural Rules Committee
Pennsylvania Judicial Center
601 Commonwealth Ave., Suite 6200
P.O. Box 62635
Harrisburg, Pennsylvania 17106-2635
or Fax to
(717) 231-9551
or E-Mail to
appellaterules@pacourts.usAn Explanatory Comment precedes 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 CommitteeHONORABLE RENÉE COHN JUBELIRER,
Chair
Annex A
TITLE 210. APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
ARTICLE I. PRELIMINARY PROVISIONS
CHAPTER 1. GENERAL PROVISIONS
DOCUMENTS GENERALLY Rule 120. Entry of Appearance.
[(a) Filing.—]Any counsel filing papers required or permitted to be filed in an appellate court must enter an appearance with the prothonotary of the appellate court unless that counsel has been previously noted on the docket as counsel pursuant to Rules 907(b), 1112(f), 1311(d), or 1514(d). New counsel appearing for a party after docketing pursuant to Rules 907(b), 1112(f), 1311(d), or 1514(d) shall file an entry of appearance [simultaneous] simultaneously with or prior to the filing of any papers signed by new counsel. The entry of appearance shall specifically designate each party the attorney represents, and the attorney shall file a certificate of service pursuant to [Subdivision] paragraph (d) of Rule 121 and to Rule 122. Where new counsel enters an appearance on behalf of a party currently represented by counsel and there is no simultaneous withdrawal of appearance, new counsel shall serve the party that new counsel represents and all other counsel of record and file a certificate of service.
* * * * * 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. 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 that event 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.]
(b) Service of all papers required.—Copies of all papers filed by any party and not required by these rules to be served by the prothonotary shall, concurrently with their filing, be served by a party or person acting on behalf of that party or person on all other parties to the matter. Service on a party represented by counsel shall be made on counsel.
* * * * * (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.
(f) Pro se and hybrid representation.—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.
Where a litigant is represented by an attorney before the court but submits for filing pro se a petition, motion, brief or any other type of pleading in the matter, it shall not be docketed but shall instead be notated on the docket and forwarded to counsel of record; except that in the Superior Court a timely request to proceed pro se or for replacement counsel will be docketed as well as provided to counsel of record and will be referred to the trial court for a determination whether the appellant shall proceed pro se.
Official Note:
* * * * * 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. The amendments to Rules 903(b), 1113(b) and 1512(a)(2) clarified that subdivision (e) does apply to calculating the deadline for filing cross-appeals, cross-petitions for allowance of appeal and additional petitions for review.
Paragraph (f)—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). The rule on hybrid representation is premised on Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993) and is to be distinguished from litigants who are proceeding pro se. See Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032, 1044 (2011) (''Therefore, we reiterate that the proper response to any pro se pleading is to refer the pleading to counsel, and to take no further action on the pro se pleading unless counsel forwards a motion. Moreover, once the brief has been filed, any right to insist upon self-representation has expired.''). The right to proceed pro se at the trial level is grounded in the federal constitution, but it is triggered only when a timely and unequivocal request is made in the trial court. Commonwealth v. El, 602 Pa. 126, 135, 977 A.2d 1158, 1163 (2009). A court has discretion in responding to a conditional or untimely request in the trial court. Id. at 139, 977 A.2d at 1165 (after meaningful trial proceedings have begun, a request to proceed pro se is subject to the trial court's sound discretion); Commonwealth v. Brooks, 66 A.3d 352 (Pa. Super. 2013) (evaluating the trial court's decision to deny a conditional request to proceed pro se as an abuse of discretion). There is no comparable federal constitutional right to proceed pro se on appeal. Martinez v. Court of Appeal of California, 528 U.S. 152 (2000). At the least, an appellant's request to proceed pro se on appeal must precede the filing of a counseled brief. Jette, 611 Pa. at 186, 23 A.3d at 1044.
ARTICLE II. APPELLATE PROCEDURE
CHAPTER 9. APPEALS FROM LOWER COURTS Rule 907. Docketing of Appeal.
* * * * * (b) Entry of appearance. Upon the docketing of the appeal the prothonotary of the appellate court shall note on the record as counsel for the appellant the name of counsel, if any, set forth in or endorsed upon the notice of appeal, and, as counsel for other parties, counsel, if any, named in the proof of service. [The] Unless that party is entitled by law to be represented by counsel on appeal, the prothonotary of the appellate court shall upon praecipe of [any such counsel for other parties] counsel, filed within 30 days after [filing] the docketing of the notice of appeal, strike off or correct the record of appearances. Thereafter, and at any time if a party is entitled by law to be represented by counsel on appeal, a counsel's appearance for a party may not be withdrawn without leave of court, unless another lawyer has entered or simultaneously enters an appearance for the party.
Official Note: The transmission of a photocopy of the notice of appeal, showing a stamped notation of filing and the appellate docket number assignment, without a letter of transmittal or other formalities, will constitute full compliance with the notice requirement of Subdivision (a) of this rule.
[With regard to subdivision (b) and withdrawal of appearance without leave of the appellate court, counsel may nonetheless be subject to trial court supervision pursuant to Pa.R.Crim.P. 904 (Entry of Appearance and Appointment of Counsel; In forma Pauperis).]
A party may be entitled to the representation of counsel on appeal by statute, by rule, or by case law. For example, the Rules of Criminal Procedure provide that counsel appointed in the trial court is to continue representation through direct appeal (Pa.R.Crim.P. 120(A)(4) and Pa.R.Crim.P. 122(B)(2)) and when appointed in a post-conviction proceeding (Pa.R.Crim.P. 904(F)(2) and Pa.R.Crim.P. 904(H)(2)(b)). The same is true when counsel enters an appearance on behalf of a juvenile in a delinquency matter or on behalf of a child or other party in a dependency matter. Pa.R.J.C.P. 150(B), 151, Pa.R.J.C.P. 1150(B), 1151(B), (E). Because the rule specifies that withdrawal by a simple praecipe is available only to parties other than an appellant, it would be rare for counsel in such cases to consider withdrawing by praecipe, but the 2014 amendment to the rule avoids any possibility of confusion by clarifying that withdrawal by praecipe is available only in matters that do not otherwise require court permission to withdraw in addition to being available only to parties other than the appellant.
If a party is entitled to representation on appeal, the appellate court will presume that counsel that represented the party in the trial court will also represent the party on appeal, and counsel will be entered on the appellate court docket. In order to withdraw in such cases, either (1) new counsel must enter an appearance in the appellate court prior to or at the time of withdrawal; (2) counsel must provide the appellate court with an order of the trial court authorizing withdrawal; or (3) counsel must petition the appellate court to withdraw as counsel. Counsel for parties entitled to representation on appeal are cautioned that if any critical filing in the appellate process is omitted because of an omission by counsel, and if the party ordinarily would lose appeal rights because of that omission, counsel may be subject to discipline.
With respect to appearances by new counsel following the initial docketing appearances pursuant to Subdivision (b) of this rule, please note the requirements of Rule 120.
CHAPTER 11. APPEALS FROM COMMONWEALTH COURT AND SUPERIOR COURT
PETITION FOR ALLOWANCE OF APPEAL Rule 1112. Appeals by Allowance.
* * * * * (f) Entry of appearance.—Upon the filing of the petition for allowance of appeal the Prothonotary of the Supreme Court shall note on the record as counsel for the petitioner the name of his or her counsel, if any, set forth in or endorsed upon the petition for allowance of appeal, and, as counsel for other parties, counsel, if any, named in the proof of service. [The] Unless that party is entitled by law to be represented by counsel on appeal, the Prothonotary shall upon praecipe of any such counsel for other parties, filed at any time within 30 days after filing of the petition, strike off or correct the record of appearance. [Thereafter a] If entry of appearance in the trial court extends through appeals counsel's appearance for a party may not be withdrawn without leave of court. Appearance cannot be withdrawn without leave of court for counsel who have not filed a praecipe to correct appearance within the first 30 days after the appeal is docketed, unless another lawyer has entered or simultaneously enters an appearance for the party.
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 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.
* * * * * [With regard to subdivision (f) and withdrawal of appearance without leave of the appellate court, counsel may nonetheless be subject to trial court supervision pursuant to Pa.R.Crim.P. 904 (Entry of Appearance and Appointment of Counsel; In Forma Pauperis).]
The Rules of Criminal Procedure provide that counsel appointed in the trial court is to con- tinue representation through direct appeal (Pa.R.Crim.P. 120(A)(4) and Pa.R.Crim.P. 122(B)(2)) and when appointed in a post-conviction proceeding (Pa.R.Crim.P. 904(F)(2) and Pa.R.Crim.P. 904(H)(2)(b)). The same is true when counsel enters an appearance on behalf of a juvenile in a delinquency matter or on behalf of a child or other party in a dependency matter. Pa.R.J.C.P. 150(B), 151, Pa.R.J.C.P. 1150(B), 1151(B), (E). Because the rule specifies that withdrawal by a simple praecipe is available only to parties other than an appellant, it would be rare for counsel in such cases to consider withdrawing by praecipe, but the 2014 amendment to the rule avoids any possibility of confusion by clarifying that withdrawal by praecipe is available only in matters that do not otherwise require court permission to withdraw in addition to being available only to parties other than the appellant.
With respect to appearances by new counsel following the initial docketing of appearances pursuant to Subdivision (f) of this rule, please note the requirements of Rule [1200] 120.
CHAPTER 13. INTERLOCUTORY APPEALS BY PERMISSION Rule 1311. Interlocutory Appeals by Permission.
* * * * * (d) Entry of appearance.—Upon the filing of the petition for permission to appeal the prothonotary of the appellate court shall note on the record as counsel for the petitioner the name of counsel, if any, set forth in or endorsed upon the petition for permission to appeal, and, as counsel for other parties, counsel, if any, named in the proof of service. [The] Unless that party is entitled by law to be represented by counsel on appeal, the prothonotary shall upon praecipe of any such counsel for other parties, filed at any time within 30 days after filing of the petition, strike off or correct the record of appearance. [Thereafter a] If entry of appearance in the trial court extends through appeals counsel's appearance for a party may not be withdrawn without leave of court. The court must also grant permission to withdraw for any other counsel who have not filed a praecipe to correct appearance within the first 30 days after the appeal is docketed, unless another lawyer has entered or simultaneously enters an appearance for the party.
Official Note: Based on 42 Pa.C.S. § 702(b) (interlocutory appeals by permission). See note to Rule 903 (time for appeal). Compare 42 Pa.C.S. § 5574 (effect of application for amendment to qualify for interlocutory appeal).
* * * * * [With regard to subdivision (d) and withdrawal of appearance without leave of the appellate court, counsel may nonetheless be subject to trial court supervision pursuant to Pa.R.Crim.P. 904 (Entry of Appearance and Appointment of Counsel; In Forma Pauperis).]
The Rules of Criminal Procedure provide that counsel appointed in the trial court is to con- tinue representation through direct appeal (Pa.R.Crim.P. 120(A)(4) and Pa.R.Crim.P. 122(B)(2)) and when appointed in a post-conviction proceeding (Pa.R.Crim.P. 904(F)(2) and Pa.R.Crim.P. 904(H)(2)(b)). The same is true when counsel enters an appearance in a delinquency matter or on behalf of a child in a dependency matter. Pa.R.J.C.P. 150(B), 151, Pa.R.J.C.P. 1150(B), 1151(B), (E). Because the rule specifies that withdrawal by a simple praecipe is available only to parties other than an appellant, it would be rare for counsel in such cases to consider withdrawing by praecipe, but the 2014 amendment to the rule avoids any possibility of confusion by clarifying that withdrawal by praecipe is available only in matters that do not otherwise require court permission to withdraw in addition to being available only to parties other than the appellant.
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.
ARTICLE III. MISCELLANEOUS PROVISIONS
CHAPTER 33. BUSINESS OF THE SUPREME COURT
IN GENERAL Rule 3304. [Hybrid Representation] (Reserved).
[Where a litigant is represented by an attorney before the Court and the litigant submits for filing a petition, motion, brief or any other type of pleading in the manner, it shall not be docketed but forwarded to counsel of record.
Official Note: The present rule is premised on Commonwealth v. Ellis, 534 A.2d 176, 626 A.2d 1137 (1993) and is to be distinguished from litigants who are pro se in litigation.]
* * * * *
Explanatory Comment The Appellate Court Procedural Rules Committee proposes to amend Rules of Appellate Procedure 120, 121, 907, 1112, 1311, and 3304 to clarify several procedural points relative to the representation of parties—and particularly criminal defendants and Post-Conviction Relief Act (''PCRA'') petitioners—on appeal. Some of the principles apply more broadly, however.
Pa.R.Crim.P. 576(A)(4) and Pa.R.A.P. 3304 proscribe hybrid representation, but the appellate rule is included in a chapter governing the Business of the Supreme Court, which by its terms does not apply to matters in the intermediate appellate courts. Hybrid representation is prohibited in the intermediate appellate courts, just as it is in the Supreme Court, however. See Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137, 1139 (1993); Commonwealth v. Cooper, 611 Pa. 437, 447 n.9, 27 A.3d 994, 1000 n.9 (2011). To make it clear that the prohibition against hybrid representation applies to all appellate courts, the Committee proposes to move the text of current Pa.R.A.P. 3304 into a new paragraph of Pa.R.A.P. 121, and to move the current discussion of pro se representation from Pa.R.A.P. 121(a) to Pa.R.A.P. 121(f).
In addition, the Committee recommends revising the language in Pa.R.A.P. 907, 1112, and 1311 and their notes to avoid any confusion about when an attorney has an obligation to continue to represent a party on appeal. Currently, Pa.R.A.P. 907, 1112, and 1311 provide attorneys with an option to praecipe for withdrawal within thirty days after the docketing of an appeal or the filing of a petition for allowance of appeal or for permission to take an interlocutory appeal. Counsel appointed at the trial level who are obligated to continue the representation through appeal, see, e.g., Pa.R.Crim.P. 120(A)(4) and 122(B)(2), cannot withdraw by just filing a praecipe in an appellate court, however. Instead, counsel must file a motion to withdraw in the appellate court which can either grant or deny the motion or refer it to the trial court to grant or deny. The clarifying language in the notes of those rules (that ''counsel may nonetheless be subject to trial court supervision pursuant to Pa.R.Crim.P. 904'') is overly narrow and non-specific. Pa.R.Crim.P. 904 discusses representation only on PCRA, even though counsel appointed to represent a criminal defendant is likewise required to continue the representation through direct appeal, and even though there are other proceedings (such as delinquency and dependency), in which counsel are similarly appointed through appeal. Moreover, the note fails to state that an attorney that has been appointed cannot withdraw by praecipe. And, although appellate courts frequently request that trial courts assist with issues arising during appeal concerning representation, the trial court does not as a general matter retain supervision over counsel while a case is on appeal. The proposed recommendation that follows addresses these concerns.
[Pa.B. Doc. No. 14-173. Filed for public inspection January 24, 2014, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
