THE COURTS
Title 246--MINOR COURT CIVIL RULES
PART I. GENERAL
[246 PA. CODE CH. 200]
Proposed Amendments to Rule 214 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges
[35 Pa.B. 5679] The Minor Court Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rule 214 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges to provide, in certain circumstances, for the issuance of subpoenas by attorneys. The Committee has not submitted this proposal for review by the Supreme Court of Pennsylvania.
The following explanatory Supplemental Report highlights the Committee's considerations in formulating this proposal. The Committee's Supplemental Report should not be confused with the Committee's Official Notes to the rules. The Supreme Court does not adopt the Committee's Official Notes or the contents of the explanatory reports.
The text of the proposed changes precedes the Supplemental Report. Additions are shown in bold; deletions are in bold and brackets.
We request that interested persons submit written suggestions, comments, or objections concerning this proposal to the Committee through counsel,
Michael F. Krimmel, Counsel
Supreme Court of Pennsylvania
Minor Court Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, PA 17055
Fax 717-795-2175
or e-mail to: minorrules@pacourts.us no later than Friday, November 18, 2005.
By the Minor Court Rules Committee
THOMAS E. MARTIN, Jr.,
Chair
Annex A
TITLE 246. MINOR COURT CIVIL RULES
PART I. GENERAL
CHAPTER 200. RULES OF CONSTRUCTION; GENERAL PROVISIONS Rule 214. Subpoena; Issuance; Service.
* * * * * B. (1) The attorney of record for a party, as an officer of the court, may issue a subpoena on behalf of the magisterial district court in which the hearing is pending.
(a) The subpoena must be in the form designated for use in magisterial district courts.
(b) The issuing attorney must complete the subpoena with the information required in paragraph B(3) before the subpoena is served. The subpoena also shall include notice to the individual subpoenaed to contact the issuing attorney with any questions about or challenges to the subpoena.
(c) A subpoena issued under this paragraph shall be signed by issuing attorney.
(d) The issuing attorney must file a copy of the subpoena in the magisterial district court in which the hearing is pending within 48 hours of service, and in no event later than the commencement of the hearing. Filing under this paragraph may be accomplished by sending a copy by facsimile transmission.
(2) Upon the request of a party proceeding pro se or an attorney of record who elects to proceed under this paragraph, the magisterial district judge may issue a subpoena [signed and under the seal of the magisterial district judge]. [The magisterial district judge shall specify in the subpoena the name and address for service of the person subpoenaed; the date, time, and place at which the person is to appear; and a description of the documents or things that the person is to produce, if any.]
(a) The party or attorney of record requesting the subpoena shall provide the magisterial district judge with the information required in paragraph B(3).
(b) If the subpoena is to be issued, the magisterial district judge shall fill in the information provided.
(c) A subpoena issued under this paragraph shall be signed by and under the seal of the magisterial district judge.
(3) In addition to the requirements of paragraphs (1) and (2), a subpoena shall specify:
(a) The name and address for service of the person being subpoenaed.
(b) The name of the party on whose behalf the person is being ordered to testify.
(c) The name, attorney identification number, address, and telephone number of the attorney of record, if any, who issued the subpoena under paragraph B(1) or applied for the subpoena under paragraph B(2).
(d) The date, time, and place at which the person is to appear.
(e) A description of the documents or things that the person is to produce, if any.
* * * * * D. The person making service of a subpoena must file a return of service in the same manner provided under Rule 314A in the magisterial district court in which the hearing is pending within 48 hours of service, and in no event later than the commencement of the hearing. Filing under this paragraph may be accomplished by sending a copy by facsimile transmission.
Official Note: See Rule 202 for definition of ''subpoena.'' Compare Pa.R.C.P. Nos. 234.2 and 402(a) and Pa.R.Crim.P. 107.
Paragraph (B)(1) authorizes an attorney of record for a party to complete, sign, and issue subpoenas under the authority of the court in all cases governed by these rules in the magisterial district courts. Subpoenas issued by an attorney on behalf of a magisterial district court must be on a designated form. An attorney may not use a blank subpoena form from the court of common pleas. It is intended that the magisterial district court blank subpoena forms will be readily available for use by attorneys.
There is no provision for the court to review or approve prior to issuance a subpoena issued by an attorney under paragraph B(1). The authority to issue subpoenas given to attorneys under this paragraph carries with it a responsibility to use good judgment and to make every effort to limit the scope of subpoenas to persons, documents, or things that are relevant to the cause of action before the magisterial district judge.
Nothing in this rule is intended to preclude the attorney from proceeding under paragraph B(2) and requesting that the magisterial district judge complete, sign, and issue the subpoena.
[The] When issuing a subpoena under paragraph B(2) the magisterial district judge has discretion to limit the scope of [subpoenas] the subpoena to persons, documents, or things that are relevant to the cause of action before the magisterial district judge.
[Magisterial district judges may not issue subpoenas in blank.]
The copy of the subpoena required to be filed under paragraph B(1)(d) and the return of service required to be filed under paragraph D may be filed simultaneously.
Paragraphs B(1)(d) and D provide for filing by facsimile transmission. It is the intent of these rules that filing documents by facsimile transmission is permitted only when expressly provided for in the rules.
See Pa.C.S. § 1725.1 concerning costs to be charged by magisterial district courts.
For the scope of the contempt powers of magisterial district judges, see 42 Pa.C.S. § 4137. See also Pa.R.Crim.P. 140-142.
SUPPLEMENTAL REPORT
Proposed Amendments to Rule 214 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges
Issuance of Blank Subpoenas I. Background
The Minor Court Rules Committee (the Committee) undertook a review of the rules relating to subpoenas, and specifically the issue of whether magisterial district judges may issue subpoenas in blank, at the direction of the Supreme Court of Pennsylvania. In In Re: District Justice Sandra L. Stevanus, No. 60 WM 2003, the Supreme Court was asked to issue a writ of mandamus directing Judge Stevanus to issue blank subpoenas to a defense attorney in a criminal case that was pending in her court. Judge Stevanus refused to issue the blank subpoenas, contending that the party requesting a subpoena must provide the magisterial district court with the information needed to complete the subpoena before the subpoena is issued. In its November 12, 2003 order denying the petition for writ of mandamus, the Supreme Court ordered that ''[t]he Criminal Rules Committee, in consultation with the Minor Rules Committee, is hereby directed to study the question of whether District Justices may issue subpoenas in blank.''
Initially, the Committee published a proposal that would have required a magisterial district judge to issue a blank subpoena upon the request of an attorney of record for a party.1 Based on negative publication responses to that original proposal, the Committee has revised its proposal in an attempt to address the concerns raised in the publication responses. Upon further review of the relevant issues and authorities, and after additional consultation with the Criminal Procedural Rules Committee (CPRC), the Committee is again proposing that Rule 214 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges be amended to expressly allow, in certain circumstances described below, the issuance of subpoenas in blank.2
II. Discussion
Initially, prior to publication of the original proposal, the Committee had taken the position that magisterial district judges should not issue subpoenas in blank, at least in magisterial district court civil and landlord and tenant proceedings. The Committee noted that Pa. R.C.P.M.D.J. Nos. 213 and 214 were adopted by the Supreme Court September 3, 2003, effective January 1, 2004.3 Rule 214 specifies what information must be contained in the subpoena, including the name and service address of the person being subpoenaed; the date, time, and place at which the person is to appear; and a description of any documents or things the person is to produce. This procedure differs from the usual practice in the courts of common pleas in that the specified information must be contained in the subpoena at the time of issuance. To further reinforce this, the Official Note to Rule 214 makes clear that ''[m]agisterial district judges may not issue subpoenas in blank.''4 In drafting Rule 214, the Committee had thought it unadvisable that magisterial district judges issue subpoenas in blank because there is no pretrial motions practice in magisterial district court civil proceedings, and in particular, no procedural mechanism to quash a subpoena. Therefore, the Committee thought it important that, at the time of issuance, the magisterial district judge have ''discretion to limit the scope of subpoenas to persons, documents, or things that are relevant to the cause of action before the magisterial district judge.''5 The Committee's concerns centered around potential abuses if pro se parties are permitted to prepare and issue subpoenas without the court having any knowledge of who or what is being subpoenaed. For example, there were concerns that pro se parties may attempt to subpoena persons or things that are totally irrelevant to the proceedings, or may request such a large number of documents so as to make compliance with the subpoena extremely burdensome.
In discussions prior to formulating of the original proposal, the CPRC pointed out that in most criminal cases the concern about abuses by pro se litigants is less of an issue because there is a representative of the Commonwealth involved, and these individuals are less likely to abuse the subpoena process. For this and other reasons, the CPRC did not share the Committee's concerns about blank subpoenas. Recognizing that the two committees had somewhat different positions on this issue, the two committees formed a joint subcommittee to address the Supreme Court's directive.
When the joint subcommittee met for the first time, it became clear that the concerns about blank subpoenas in both civil and criminal cases centered almost exclusively around cases where no attorney is involved. After considerable discussion, the joint subcommittee agreed to a compromise proposal that would require a magisterial district judge to issue a blank subpoena when requested by an attorney. In cases in which a pro se party or a law enforcement officer requests a subpoena, however, the magisterial district judge will retain discretion whether to issue the subpoena, and the judge will fill in the contents of the subpoena before issuing it to the requesting party. This was the basis of the Committee's original proposal.
Upon publication of the original proposal, however, many correspondents expressed concerns about a magisterial district judge being required to issue a blank subpoena, which would contain the magisterial district judge's signature and seal, even if only to a member of the bar. The correspondents noted that with no ability for the court to review the content of these subpoenas prior to issuance, and no procedural mechanism in place to quash a subpoena, there was still potential for abuse. Of greatest concern was the possibility that a subpoenaed individual might get the impression that the magisterial district judge reviewed and approved an inappropriate subpoena prior to issuance, when in fact the judge would have had no opportunity to do so, and would have no knowledge of the contents of the subpoena.
In light of the negative responses to the original proposal, the Committee and the CPRC reconvened the joint subcommittee. In the joint subcommittee's second meeting, it focused on the sensitive issues involved with a magisterial district judge's signature appearing on a subpoena without the judge having had any opportunity to review or approve the content of the subpoena, and attempted to formulate a revised proposal that would still provide for the issuance of blank subpoenas to attorneys, but that would address the concerns of the correspondents. After considerable discussion, the joint subcommittee centered its attention on the idea of adopting a procedure similar to federal civil practice, where attorneys, as officers of the court, are given authority to sign and issue subpoenas on behalf of the court, but without the judge's signature or any indication that the subpoena has been reviewed or approved by the court.6 The judge's signature or seal does not appear on these federal attorney-issued subpoenas.
Adopting a subpoena procedure similar to the federal procedure was thought to be a reasonable compromise since attorneys would still have the ability to issue subpoenas without having to request the court to do so, but it would be clear that the subpoena was issued by an attorney, and not by the court.
III. Proposed Rule Changes
To implement the solution discussed above, the Committee is proposing that Pa. R.C.P.M.D.J. No. 214 be amended to establish different procedures when a subpoena is issued by an attorney of record for a party on behalf the court, and when a pro se party or an attorney requests that the court issue a subpoena. Specifically, Rule 214B would be divided into four subparagraphs. Paragraph B(1) would permit an attorney of record for a party, as an officer of the court, to sign and issue a subpoena, and would make clear that the attorney is to fill in the contents of the subpoena before service. This paragraph would also require the attorney to file a copy of the subpoena with the court within 48 hours of service, and in no event later than the commencement of the hearing. The Official Note would make clear that the authority ''given to attorneys under this paragraph carries with it a responsibility to use good judgment and to make every effort to limit the scope of subpoenas to persons, documents, or things that are relevant to the cause of action before the magisterial district judge.''
Paragraph B(2) would provide the procedure for issuing a subpoena to a pro se party or to an attorney of record who chooses to proceed under this paragraph. This provision would give the magisterial district judge discretion to issue the subpoena, and would require the court to fill in the contents of the subpoena before issuance.
Paragraph B(3) would list the required contents of all subpoenas. A new paragraph D would require the person serving a subpoena to file a return of service in the same manner provided under Rule 314A (relating to return of service after service of a complaint) within 48 hours of service, and in no event later than the commencement of the hearing.
Paragraphs B(1)(d) and D provide for filing of the copy and return of service by facsimile transmission. The Official Note to the rule makes clear that filing documents by facsimile transmission is permitted only when expressly provided for in the rules.
Paragraphs A and C would not be amended under this proposal.
[Pa.B. Doc. No. 05-1896. Filed for public inspection October 14, 2005, 9:00 a.m.] _______
1 The Committee's original proposal and explanatory Report was published at 35 Pa.B. 1560 (March 5, 2005).
2 Like the original proposal, this revised proposal is being published for public comment in conjunction with a proposal from the CPRC to make similar amendments to the Rules of Criminal Procedure.
3 Recommendation No. 4 Minor Court Rules 2003, approved by Supreme Court of Pennsylvania Order No. 204, Magisterial Docket No. 1 (September 3, 2003), published along with the Committee's explanatory Final Report at 33 Pa.B. 4663 (September 20, 2003).
4 Pa. R.C.P.M.D.J. No. 214, Official Note. The Supreme Court of Pennsylvania does not adopt the contents of the Committee's Official Notes to the rules.
5 Id.
6 See Fed. R. Civ. P. 45, which provides in part, ''[a]n attorney as officer of the court may also issue and sign a subpoena on behalf of (A) a court in which the attorney is authorized to practice.'' Fed. R. Civ. P. 45(a)(3), 28 U.S.C.A., FRCP Rule 45. See also Practice Commentaries, section C45-5, by David D. Siegel, which provides in part, ''[n]o court order is necessary for the issuance of a subpoena, and under the 1991 amendment no request for a subpoena need even be made of the clerk: a significant achievement of the 1991 amendment is that it allows the attorney to issue the subpoena, without even a pro forma application to the court. Subdivision (a)(3). This merely carries to fruition a practice that had taken place for years in all but form. Under old Rule 45, it had to be the clerk that issued the subpoena, but the clerk would issue it ''in blank'' just about for the asking. The attorney would then fill it in and arrange for its service. Hence it was the attorney who was doing everything, with the clerk doing nothing more than furnishing the form. The 1991 amendment recognizes this by relieving the clerk of the issuance duty altogether, at least when the party seeking the subpoena has an attorney. . . . The attorney must ''sign'' the subpoena, but the seal of the court is no longer required. Under the mere signature of the attorney the subpoena acts as process of the court, fully backed by the sanction provisions of Rule 45, including the ultimate sanction of contempt now found in subdivision (e).'' David D. Siegel, Practice Commentaries, section C45-5, available at Westlaw, Fed. Rules Civ. Proc. Rule 45, 28 U.S.C.A., FRCP Rule 45.
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