THE COURTS
Title 210--APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
[210 PA. CODE CHS. 1, 9, 11, 13, 21, 25, 27, 31 AND 33]
Proposed Amendments to Rules 102, 121, 122, 123, 905, 909, 911, 1101, 1102, 1112, 1116, 1123, 1311, 1314, 1321, 1514, 2172, 2185, 2186, 2542, 2545, 2571, 2742, 3102, 3191, 3307 and 3309
[36 Pa.B. 5554]
[Saturday, September 2, 2006]The Appellate Court Procedural Rules Committee proposes to amend Pennsylvania Rules of Appellate Procedure 102, 121, 122, 123, 905, 909, 911, 1101, 1102, 1112, 1116, 1123, 1311, 1314, 1321, 1514, 2172, 2185, 2186, 2542, 2545, 2571, 2742, 3102, 3191, 3307 and 3309. The amendments are 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 bracketed and bold.
All communications in reference to the proposed amendment should be sent no later than October 23, 2006 to:
Dean R. Phillips, Chief Counsel
D. Alicia Hickok, Deputy Counsel
Appellate Court Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, PA 17055
or Fax to
717-795-2116
or E-Mail to
appellaterules@pacourts.usThe Explanatory Comment which appears in connection with the proposed amendments has been inserted by the 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 JANE CUTLER GREENSPAN,
Acting Chair
Annex A
TITLE 210. APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
ARTICLE I. PRELIMINARY PROVISIONS
CHAPTER 1. GENERAL PROVISIONS
IN GENERAL Rule 102. Definitions.
Subject to additional definitions contained in subsequent provisions of these rules which are applicable to specific provisions of these rules, the following words and phrases when used in these rules shall have, unless the context indicates otherwise, the meanings given them in this rule:
* * * * * [Paperbooks--Briefs and reproduced record. The term does not include applications for reconsideration of denial of allowance of appeal under Rule 1123(b) (reconsideration) or applications for reargument under Chapter 25 (post-submission proceedings).]
* * * * *
DOCUMENTS GENERALLY 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] Except as otherwise provided by these rules, 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. [Paperbooks shall be deemed filed on the day of mailing if first class mail is utilized.]
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 which event that]. 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.
* * * * * (c) Manner of service.--Service may be [personal, or by first class mail. Personal service under these rules includes delivery of the copy to a clerk or other responsible person at the office of the person served.]:
(1) Personal service, which includes delivery of the copy to a clerk or other responsible person at the office of the person served, but does not include inter-office mail.
(2) By first class, express, or priority United States Postal Service mail.
(3) By commercial carrier with delivery intended to be at least as expeditious as first class mail if the carrier can verify the date of delivery to it.
(4) By facsimile or e-mail with the agreement of the party being served as stated in the certificate of service.
Service by mail is complete on mailing.
* * * * * (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.
Official Note: As to prisoner filings, 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 (2004).
* * * * * Rule 122. Content and Form of Proof of Service.
* * * * * (b) Form.--Each name and address shall be separately set forth in the form of a mailing address, including applicable zip code, regardless of the actual method of service employed. The proof of service shall also show the telephone number, party represented, and, where applicable, e-mail or facsimile address. The name, address and telephone number of the serving party shall be similarly set forth, followed by the attorney's registration number. [The telephone number of each person served shall be noted next to the person's name.] A proof of service may be in substantially the following form:
I hereby certify that I am this day serving the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of Pa.R.A.P. 121:
Service by first class mail addressed as follows:
[Richard Row, Esquire (215) 555-1234
123 East Walnut Street
Philadelphia, Pa. 19175
(Counsel for XYZ Trucking Co.)]
Name Telephone number
Mailing address
(Party represented)Acceptance of service endorsed by the following:
[John Doe, Esquire (215) 555-5678
123 East Chestnut Street
Philadelphia, Pa. 19175
(Counsel for ABC Forwarding Co.)]Name, Telephone number
Mailing address
(Party represented)Service in person as follows:
[John Smith, Esquire
Counsel
Pennsylvania Public Utility Commission
Room 117
North Office Building
Harrisburg, Pa. 17120Hon. William Bradford (717) 787-3391
Attorney General of Pennsylvania
c/o Miss Mary Smith,
Secretary to the Attorney General
16th Floor Strawberry Square
Harrisburg, Pa. 17120John Jones, Esq.
(Attorney Registration No. 00000)
123 East Chestnut Street
Philadelphia, Pa. 19175
Of counsel for ABC Railway Corporation
(215) 555-5555]Name, Telephone Number
Street Address
Mailing address
(Party Represented)Service by commercial carrier as follows:
Name of commercial carrier
Addressee's name, Telephone number
Street address,
Mailing Address
(Party represented)Service by e-mail at following:
E-mail address, with agreement of:
Name, Telephone number
Mailing address
(Party represented)Service by facsimile at following:
Fax Number with the agreement of:
Name, Telephone number
Mailing address
(Party represented)[Dated: May 26, 1975] Date
(S) _________________
Name, Telephone number
(Attorney Registration No. 00000)
Mailing address
(Party represented)Official Note: Under 18 Pa.C.S. § 4904 (unsworn falsification to authorities) a knowingly false proof of service constitutes a misdemeanor of the second degree. [Where a large number of persons are named in the proof of service the appellate prothonotary and other parties may cut up a photocopy of the proof of service to form mailing labels for docketing notices, mailing briefs, etc., without the need to retype the list.]
Rule 123. Application for Relief.
* * * * * (b) Answer.--Any party may file an answer to an application within 14 days after service of the application, but applications under Chapter 17 (effect of appeals; supersedeas and stays), or for delay in remand of the record, may be acted upon after reasonable notice, unless the exigency of the case is such as to impel the court to dispense with such notice. The court may shorten or extend the time for answering any application. Answers shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized.
* * * * *
ARTICLE II. APPELLATE PROCEDURE
CHAPTER 9. APPEALS FROM LOWER COURTS Rule 905. Filing of Notice of Appeal.
* * * * * Official Note: Insofar as the clerk or prothonotary of the lower court is concerned, the notice of appeal is for all intents and purposes a writ in the nature of certiorari in the usual form issued out of the appellate court named therein and returnable thereto within the time prescribed by Chapter 19 (preparation and transmission of record and related matters).
As to the procedures for preserving a filing date for filing appeals as of right from the Commonwealth Court, see Rule 1101(b).
* * * * * Rule 909. Appeals to the Supreme Court. Jurisdictional Statement. Sanctions.
* * * * * (b) [Brief in opposition] Answer. Within 14 days after service of a jurisdictional statement, an adverse party may file with the Prothonotary of the Supreme Court an original and eight copies of [a brief in opposition] an answer thereto in the form prescribed by Rule 911. The answer shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized. No separate motion to dismiss a jurisdictional statement will be received. A party entitled to file [a brief in opposition] an answer who does not intend to do so shall [file], within the time fixed by these rules for filing [the brief in opposition] an answer, file and serve a letter stating that [a brief in opposition] an answer to the jurisdictional statement will not be filed. The failure to file [a brief in opposition] an answer will not be construed as concurrence in the jurisdictional statement.
* * * * * Rule 911. [Brief in Opposition] Answer to Jurisdictional Statement. Content. Form.
[A brief in opposition] An answer to a jurisdictional statement shall set forth any procedural, substantive or other argument or ground why the order appealed from is not reviewable as of right and why the Supreme Court should not grant an appeal by allowance. The [brief] answer need not be set forth in numbered paragraphs in the manner of a pleading and shall not exceed five pages.
* * * * *
CHAPTER 11. APPEALS FROM COMMONWEALTH COURT AND SUPERIOR COURT
APPEALS FROM COMMONWEALTH COURT AND SUPERIOR COURT Rule 1101. Appeals as of Right from the Commonwealth Court.
* * * * * (b) Procedure on appeal. An appeal within the scope of Subdivision (a) of this rule shall be taken to the Supreme Court in the manner prescribed in Chapter 9 (appeals from lower courts), except that if the notice of appeal is transmitted to the Prothonotary of the Commonwealth Court by means of first class, express, or priority United States Postal Service mail, the notice of appeal shall be deemed received by the [Prothonotary] prothonotary for the purposes of Rule 121(a) (filing) on the date deposited in the United States mail, as shown on a [U.S.] United States Postal Service Form 3817 certificate of mailing or other similar United States Postal Service form from which the date of deposit can be verified. The certificate of mailing or other similar Postal Service form from which the date of deposit can be verified shall be cancelled by the Postal Service, shall show the docket number of the matter in the Commonwealth Court and shall be either enclosed with the notice of appeal or separately mailed to the Prothonotary. Upon actual receipt of the notice of appeal the Prothonotary shall immediately stamp it with the date of actual receipt. That date, or the date of earlier deposit in the United States mail as prescribed in this subdivision, shall constitute the date when the appeal was taken, which date shall be shown on the docket.
Official Note:
* * * * * The [U.S.] United States Postal Service Form 3817 mentioned in Subdivision (b) is reproduced in the note to Rule 1112 (appeals by allowance).
Rule 1102. Improvident Appeals.
* * * * * Official Note: Based on 42 Pa.C.S. § 724(b) (improvident appeals). In a similar fashion, any motion to quash the appeal would be regarded as [a brief in opposition] an answer to the petition under Rule 1116 ([brief in opposition] answer to the petition for allowance of appeal).
PETITION FOR ALLOWANCE OF APPEAL Rule 1112. Appeals by Allowance.
* * * * * (c) Petition for allowance of appeal.--Allowance of an appeal from a final order of the Superior Court or the Commonwealth Court may be sought by filing a petition for allowance of appeal with the Prothonotary of the Supreme Court within the time allowed by Rule 1113 (time for petitioning for allowance of appeal), with proof of service on all other parties to the matter in the appellate court below. If the petition for allowance of appeal is transmitted to the Prothonotary of the Supreme Court by means of first class, express, or priority United States Postal Service mail, the petition shall be deemed received by the Prothonotary for the purposes of Rule 121(a) (filing) on the date deposited in the United States mail, as shown on a [U.S.] United States Postal Service Form 3817 certificate of mailing or other similar United States Postal Service form from which the date of deposit can be verified. The certificate of mailing or other similar United States Postal Service form from which the date of deposit can be verified shall be cancelled by the Postal Service, shall show the docket number of the matter in the appellate court below and shall be either enclosed with the petition or separately mailed to the Prothonotary. Upon actual receipt of the petition for allowance of appeal the Prothonotary of the Supreme Court shall immediately stamp it with the date of actual receipt. That date, or the date of earlier deposit in the United States mail as prescribed in this subdivision, shall constitute the date when allowance of appeal was sought, which date shall be shown on the docket. The Prothonotary of the Supreme Court shall immediately note the Supreme Court docket number upon the petition for allowance of appeal and give written notice of the docket number assignment in person or by first class mail to the prothonotary of the appellate court below who shall note on the docket that a petition for allowance of appeal has been filed to the petitioner and to the other persons named in the proof of service accompanying the petition.
* * * * * Official Note:
* * * * * The [U.S.] United States Postal Service [Form] form may be in substantially the following form:
* * * * * The transmittal should be taken unsealed to the Post Office, the Form 3817 certificate of mailing or other similar United States Postal Service form from which the date of deposit can be verified should be obtained, cancelled, and attached to the petition, and the envelope should only then be sealed. [Occasionally a postal clerk will refuse to cooperate; in such cases the Form 3817 may be withdrawn from the envelope, the envelope sealed, the Form 3817 pasted firmly to the outside of the envelope, and the entire package submitted to the postal clerk with instructions to execute the Form 3817 pasted on the envelope.] Alternately, the cancelled Form 3817 or other similar United States Postal Service form from which the date of deposit can be verified can be submitted to the prothonotary under separate cover with clear identification of the filing to which it relates.
It is recommended that the petitioner obtain a duplicate copy of the Form 3817 or other similar United States Postal Service form from which the date of deposit can be verified as evidence of mailing. Since the Post Office is technically the filing office for the purpose of this rule a petition which was mailed in accordance with this rule and which is subsequently lost in the mail will nevertheless toll the time for petitioning for allowance of appeal. However, counsel will be expected to follow up on a mail filing by telephone inquiry to the appellate prothonotary where written notice of the docket number assignment is not received in due course.
* * * * * Rule 1116. [Brief in Opposition] Answer to Petition for Allowance of Appeal.
Within 14 days after service of a petition for allowance of appeal an adverse party may file [a brief in opposition] an answer. The answer shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized. The [brief in opposition] answer need not be set forth in numbered paragraphs in the manner of a pleading, shall set forth any procedural, substantive or other argument or ground why the order involved should not be reviewed by the Supreme Court and shall comply with Rule 1115(a)(7) (content of petition for allowance of appeal). No separate motion to dismiss a petition for allowance of appeal will be received. A party entitled to file [a brief in opposition] an answer under this rule who does not intend to do so shall, within the time fixed by these rules for filing [a brief in opposition] an answer, file and serve a letter stating that [a brief in opposition] an answer to the petition for allowance of appeal will not be filed. The failure to file [a brief in opposition] an answer will not be construed as concurrence in the request for allowance of appeal.
Official Note: [Based on former Supreme Court Rule 62 and makes no change in substance except as follows: The time for opposition is increased from ten to 17 days (where service is by mail).] This rule and Rule 1115 contemplate that the petition and [brief impostion] answer will address themselves to the heart of the issue, i.e., whether the Supreme Court ought to exercise its discretion to allow an appeal, without the need to comply with the formalistic pattern of numbered averments in the petition and correspondingly numbered admissions and denials in the response. While such a formalistic format is appropriate when factual issues are being framed in a trial court (as in the petition for review under Chapter 15) such a format interferes with the clear narrative exposition necessary to outline succinctly the case for the Supreme Court in the allocatur context.
Rule 1123. Denial of Appeal; Reconsideration.
* * * * * (c) Manner of filing. If the application for reconsideration is transmitted to the prothonotary of the appellate court by means of first class, express, or priority United States Postal Service mail, the application shall be deemed received by the prothonotary for the purposes of Rule 121(a) (filing) on the date deposited in the United States mail as shown on a United States Postal Service Form 3817 Certificate of Mailing, or other similar United States Postal Service form from which the date of deposit can be verified. The certificate of mailing or other similar Postal Service form from which the date of deposit can be verified shall be cancelled by the Postal Service, shall show the docket number of the matter in the court in which reconsideration is sought and shall be enclosed with the application or separately mailed to the prothonotary. Upon actual receipt of the application, the prothonotary shall immediately stamp it with the date of actual receipt. That date, or the date of earlier deposit in the United States mail as prescribed in this subdivision, shall constitute the date when application was sought, which date shall be shown on the docket.
[Official Note: The 1996 amendment to subdivision (b) lengthens the time for filing an application for reconsideration from seven days after service of notice of entry of the order denying a petition for allowance of appeal to fourteen days after entry of the order. The 1996 amendment adding subdivision (c) provides that an application shall be deemed received on the date deposited in the United States mail as shown on a United States Postal Service Form 3817--certificate of mailing. These amendments conform reconsideration practice under Rule 1123 to reargument practice under Rule 2542.]
CHAPTER 13. INTERLOCUTORY APPEALS BY PERMISSION Rule 1311. Interlocutory Appeals by Permission.
* * * * * (b) Petition for permission to appeal.--Permission to appeal from an interlocutory order containing the statement prescribed by 42 Pa.C.S. § 702(b) may be sought by filing a petition for permission to appeal with the prothonotary of the appellate court within 30 days after entry of such order in the lower court or other government unit with proof of service on all other parties to the matter in the lower court or other government unit and on the government unit or clerk of the lower court, who shall file the petition of record in such lower court. An application for an amendment of an interlocutory order to set forth expressly the statement specified in 42 Pa.C.S. § 702(b) shall be filed with the lower court or other government unit within 30 days after the entry of such interlocutory order and permission to appeal may be sought within 30 days after entry of the order as amended. Unless the trial court or other governmental unit acts on the application within 30 days after it is filed, the trial court or other governmental unit shall no longer consider the application and it shall be deemed denied. If the petition for permission to appeal is transmitted to the prothonotary of the appellate court by means of first class, express, or priority United States Postal Service mail, the petition shall be deemed received by the prothonotary for the purposes of Rule 121(a) (filing) on the date deposited in the United States mail, as shown on a [U.S.] United States Postal Service Form 3817 certificate of mailing, or other similar United States Postal Service form from which the date of deposit can be verified. The certificate of mailing or other similar Postal Service form from which the date of deposit can be verified shall be cancelled by the Postal Service, shall show the docket number of the matter in the lower court or other government unit and shall be either enclosed with the petition or separately mailed to the prothonotary. Upon actual receipt of the petition for permission to appeal the prothonotary of the appellate court shall immediately stamp it with the date of actual receipt. That date, or the date of earlier deposit in the United States mail as prescribed in this subdivision, shall constitute the date when permission to appeal was sought, which date shall be shown on the docket. The prothonotary of the appellate court shall immediately note the appellate docket number assignment upon the petition for permission to appeal and give written notice of the docket number assignment in person or by first class mail to the government unit or clerk of the lower court, to the petitioner and to the other persons named in the proof of service accompanying the petition.
* * * * * Official Note:
* * * * * See the note to Rule 1112 (appeals by allowance) for an explanation of the [procedure] procedures when Form 3817 or other similar United States Postal Service form from which the date of deposit can be verified is used.
* * * * * Rule 1314. [Brief in Opposition] Answer to Petition for Permission to Appeal.
Within 14 days after service of a petition for permission to appeal an adverse party may file [a brief in opposition] an answer. The answer shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized. The [brief in oppostion] answer need not be set forth in numbered paragraphs in the manner of a pleading, shall set forth any procedural, substantive or other argument or ground why the interlocutory order involved should not be reviewed by the appellate court and shall comply with Rule 1312(a)(7) (content of petition for permission to appeal). No separate motion to dismiss a petition for permission to appeal will be received. A party entitled to file [a brief in opposition under this rule] an answer who does not intend to do so shall, within the time fixed by these rules for filing [a brief in opposition ] an answer, file and serve a letter stating that [a brief in opposition] an answer to the petition for permission to appeal will not be filed. The failure to file [a brief in opposition] an answer will not be construed as concurrence in the request for permission to appeal.
Rule 1321. Transmission of Papers to and Action by the Court.
Upon receipt of the [brief in opposition] answer to the petition for permission to appeal, or a letter stating that no [brief in opposition] answer will be filed, from each party entitled to file such, the petition and the [brief in opposition] answer, if any, shall be distributed by the prothonotary to the appellate court for its consideration. Permission to appeal may be limited to one or more of the questions presented in the petition, in which case the order granting permission to appeal shall specify the question or questions which will be considered by the court.
CHAPTER 15. JUDICIAL REVIEW OF GOVERNMENTAL DETERMINATIONS
PETITION FOR REVIEW Rule 1514. Filing and Service of the Petition for Review.
(a) Filing with the prothonotary. The petition for review, with proof of service required by Subdivision (c) of this rule, shall be filed with the prothonotary of the appellate court in person or by first class [or certified], express, or priority United States Postal Service mail.
If the petition for review is filed by first class, [or certified] express, or priority United States Postal Service mail, the petition shall be deemed received by the prothonotary for the purposes of Rule 121(a) (filing) on the date deposited in the United States mail, as [stamped by post office personnel on a U. S.] shown on a United States Postal Service Form 3817, certificate of mailing, or [U. S. Postal Service Form 3800] other similar United States Postal Service form from which the date of deposit can be verified. The certificate of mailing or other similar Postal Service form from which the date of deposit can be verified shall be cancelled by the Postal Service and shall show the docket number of the matter in the government unit, and shall be either enclosed with the petition or separately mailed to the prothonotary.
* * * * * Official Note: See the note to Rule 1112 (appeals by allowance) for an explanation of the procedure when Form 3817 or other similar United States Postal Service form from which the date of deposit can be verified is used.
* * * * *
CHAPTER 21. BRIEFS AND REPRODUCED RECORD
FORM OF BRIEFS AND REPRODUCED RECORD Rule 2172. Covers.
(a) Briefs.--On the front cover of the brief there shall appear the following:
* * * * * (4) Title of the filing, such as ''Brief for Appellant,'' [or] ''Brief for Petitioner,'' ''Brief for Appellee,'' or[, if] ''Brief for Respondent.'' If the reproduced record is bound with the brief, the title shall be ''Brief for Appellant and Reproduced Record,'' or [''Brief for Appellee and Supplemental Reproduced Record,''], such as the case may be[, or if the matter involves proceedings on petition for allowance of or for permission to appeal, ''Petition for Allowance of Appeal,'' ''Petition for Permission to Appeal'' or ''Brief in Opposition,'' as the case may be, or if the matter is pending in the appellate court on petition for review, ''Brief for Petitioner,'' ''Brief for Petitioner and Reproduced Record,'' ''Brief for Respondent,'' or ''Respondent and Supplemental Reproduced Record,'' as the case may be].
(5) Designation of the order appealed from as ''Appeal from the Order of'' the court from which the appeal is taken, with the docket number therein, [or, if the matter involves proceedings on petition for allowance of or for permission to appeal, ''Petition for Allowance of Appeal from the Order of'' or ''Petition for Permission to Appeal from the Order of'' the court or other government unit from which the appeal is sought to be taken, with the docket number therein,] or, if the matter is pending in the appellate court on petition for review, ''Petition for Review of'' the determination sought to be reviewed of the government unit involved, with any docket number therein. On appeals from the Superior Court or the Commonwealth Court its docket number shall be given, followed by a statement as to whether it affirmed, reversed or modified the order of the court or tribunal of first instance, giving also the name of the latter and the docket number, if any, of the case therein.
* * * * *
FILING AND SERVICE Rule 2185. [Time for Serving] Service and Filing of Briefs.
(a) General Rule.--The appellant shall serve and file appellant's brief not later than the date fixed pursuant to Subdivision (b) of this rule, or within 40 days after the date on which the record is filed, if no other date is so fixed. The appellee shall serve and file appellee's brief within 30 days after service of appellant's brief and reproduced record if proceeding under Rule 2154(a). A party may serve and file a reply brief permitted by these rules within 14 days after service of the preceding brief but, except for good cause shown, a reply brief must be served and filed so as to be received at least three days before argument. In cross appeals, the second brief of the deemed or designated appellant shall be served and filed within 30 days of service of the deemed or designated appellee's first brief. Except as prescribed by Rule 2187(b) (advance text of briefs), each brief shall be filed not later than the last day fixed by or pursuant to this rule for its service. Briefs shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized.
(b) Notice of deferred briefing schedule. When the record is filed the prothonotary of the appellate court shall estimate the date on which the matter will be argued before or submitted to the court, having regard for the nature of the case and the status of the calendar of the court. If the prothonotary determines that the matter will probably not be reached by the court for argument or submission within 30 days after the latest date on which the last [paperbook] brief could be filed under the usual briefing schedule established by these rules, the prothonotary shall fix a specific calendar date as the last date for the filing of the brief of the appellant in the matter, and shall give notice thereof as required by these rules. The date so fixed by the prothonotary shall be such that the latest date on which the last [paperbook] brief in the matter could be filed under these rules will fall approximately 30 days before the probable date of argument or submission of the matter.
* * * * * Official Note: [Unlike the provision for filing other papers, Rule 121(a) provides ''paperbooks shall be deemed filed on the day of mailing if first class mail is utilized.'' ''Paperbooks'' are defined in Rule 102 as briefs and reproduced records, but ''the term does not include applications for reconsideration of denial of allowance of appeal under Rule 1123(b) (reconsideration) or applications for reargument under Chapter 25 (post-submission proceedings).'']
* * * * * Rule 2186. [Time for Serving] Service and Filing of Reproduced Record.
(a) General rule.--The reproduced record shall be served and filed not later than:
(1) the date of service of the brief; or
(2) 21 days from the date of service of the appellee's brief in advance form, if the record is being reproduced pursuant to Rule 2154(b) (large records).
Reproduced records shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized.
* * * * *
CHAPTER 25. POST-SUBMISSION PROCEEDINGS
APPLICATION FOR REARGUMENT Rule 2542. Time for Application for Reargument. Manner of Filing.
* * * * * (b) Manner of Filing.--If the application for reargument is transmitted to the prothonotary of the appellate court by means of first class, express, or priority United States Postal Service mail, the application shall be deemed received by the prothonotary for the purposes of Rule 121(a) (filing) on the date deposited in the United States mail as shown on a [U.S.] United States Postal Service Form 3817 Certificate of Mailing or other similar United States Postal Service form from which the date of deposit can be verified. The certificate of mailing or similar Postal Service form from which the date of deposit can be verified shall be cancelled by the Postal Service, shall show the docket number of the matter in the court in which reargument is sought and shall be enclosed with the application or separately mailed to the prothonotary. Upon actual receipt of the application, the prothonotary shall immediately stamp it with the date of actual receipt. That date, or the date of earlier deposit in the United States mail as prescribed in this subdivision, shall constitute the date when application was sought, which date shall be shown on the docket.
Official Note:
* * * * * The 1986 amendment [provides] provided that an application shall be deemed received on the date deposited in the United States mail as shown on a [U.S.] United States Postal Service Form 3817 [certificate of mailing] Certificate of Mailing.
The 2006 amendment provides that an application shall be deemed received on the date deposited in the United States mail as shown on a United States Postal Service Form 3817 Certificate of Mailing or other similar United States Postal Service form from which the date of deposit can be verified.
Rule 2545. Answer [in Opposition] to Application for Reargument.
Within 14 days after service of an application for reargument, an adverse party may file an answer [in opposition]. The answer shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized. The answer need not be set forth in numbered paragraphs in the manner of a pleading. The answer shall set forth any procedural, substantive or other argument or ground why the court should not grant reargument. No separate motion to dismiss an application for reargument will be received. A party entitled to file an answer [in opposition] under this rule who does not intend to do so shall, within the time fixed by these rules for filing an answer [in opposition], file and serve a letter stating that an answer [in opposition] to the application for reargument will not be filed. The failure to file an answer [in opposition] will not be construed as concurrence in the request for reargument.
REMAND OF RECORD Rule 2571. Content of Remanded Record.
* * * * * (b) [Paperbooks] Briefs.--The prothonotary of an appellate court shall not forward any [paperbook] brief in a matter to the lower court either prior to or in connection with the remand of the record. The lower court on remand may direct any party to the appeal to file of record in the lower court and serve on the trial judge a copy of any [paperbook] brief filed in the appeal.
* * * * *
CHAPTER 27. FEES AND COSTS IN APPELLATE COURTS AND ON APPEAL
COSTS Rule 2742. Costs of [Paperbooks] Briefs and Reproduced Records.
* * * * *
ARTICLE III. MISCELLANEOUS PROVISIONS
CHAPTER 31. BUSINESS OF THE COURTS GENERALLY
IN GENERAL Rule 3102. Quorum and Action.
* * * * * (b) Absence from panel. If less than three members of a panel attend a session of the panel, another judge or judges shall be designated to complete the panel if reasonably possible, and if it is not reasonably possible to do so the presiding judge with the consent of the parties present may direct that the matter be heard and determined by a panel of two judges. If the two judges who so heard the matter are unable to agree upon the disposition thereof, the president judge of the court may direct either that the matter be submitted on the [paperbooks] briefs to a third judge, or that the matter be reargued before a full panel.
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[PAPERBOOKS] BRIEFS Rule 3191. Distribution of [Paperbooks] Briefs.
The following entities shall be entitled to receive distribution of [paperbooks] briefs filed in an appellate court:
* * * * * Official Note: Based on former Supreme Court Rule 59 and former Superior Court Rule 49. The whole subject of the distribution of [paperbooks] briefs to the court and others is an administrative matter, but the existence of the rule will continue the free distribution of the Pennsylvania Consolidated Statutes, the Pennsylvania Code, the Pennsylvania Bulletin and local government codes to the entities named in the rule by reason of 1 Pa.C.S. § 501 (publication and distribution) 45 Pa.C.S. § 730(3) (pricing and distribution of published documents) and act of May 29, 1935 (P. L. 244, No. 102), § 2.1(b)(4) (46 P. S. § 431.2a(b)(4)).
CHAPTER 33. BUSINESS OF THE SUPREME COURT
ORIGINAL MATTERS Rule 3307. Applications for Leave to File Original Process.
* * * * * (b) General rule.--The initial pleading in any original action or proceeding shall be prefaced by an application for leave to file such pleading, showing service upon all parties to such action or proceeding. The matter will be docketed when the application for leave to file is filed with the Prothonotary of the Supreme Court. The application shall be deemed filed on the date received by the prothonotary unless it was on an earlier date deposited in the United States mail and sent by first class, express, or priority United States Postal Service mail as shown on a United States Postal Service Form 3817 certificate of mailing or other similar United States Postal Service form from which the date of deposit can be verified. The certificate of mailing or similar postal service form from which the date of deposit can be verified shall be cancelled by the Postal Service, shall show the docket number of the matter if known and shall be either enclosed with the application or separately mailed to the prothonotary. Appearances shall be filed as in other original actions. An adverse party may file an answer no later than 14 days after service of the application. The answer shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized. An adverse party who does not intend to file an answer to the application shall, within the time fixed by these rules for the filing of an answer, file and serve a letter stating that an answer to the application will not be filed. Upon receipt of the answer to the application, or a letter stating that no answer will be filed, from each party entitled to file such, the application, pleadings and answer to the application, if any, shall be distributed by the Prothonotary to the Supreme Court for its consideration.
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KING'S BENCH MATTERS Rule 3309. Applications for Extraordinary Relief
(a) General rule.--An application for relief under 42 Pa.C.S. § 726 (extraordinary jurisdiction), or under the powers reserved by the first sentence of Section 1 of the Schedule to the Judiciary Article, shall show service upon all persons who may be affected thereby, or their representatives, and upon the clerk of any court in which the subject matter of the application may be pending. The application shall be deemed filed on the date received by the prothonotary unless it was on an earlier date deposited in the United States mail and sent by first class, express or priority United States Postal Service mail as shown on a United States Postal Service Form 3817 certificate of mailing or other similar United States Postal Service form from which the date of deposit can be verified. The certificate of mailing or similar postal service form from which the date of deposit can be verified shall be cancelled by the Postal Service, shall show the docket number of the matter if known and shall be either enclosed with the application or separately mailed to the prothonotary. Appearances shall be governed by Rule 1112 (entry of appearance) unless no appearances have been entered below, in which case appearances shall be filed as in original actions.
(b) Answer.--An adverse party may file an answer no later than fourteen days after service of the application. The answer shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized. An adverse party who does not intend to file an answer to the application shall, within the time fixed by these rules for the filing of an answer, file and serve a letter stating that an answer will not be filed.
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EXPLANATORY REPORT These proposed amendments address aspects of filing and service of documents.
Filing--Documents are filed when received by the court. Presently receipt by the U. S. Postal Service may be deemed the date of filing if first class mail is used and, if required, there is proper documentation of the mailing date. This amendment would recognize the date of mailing a document as the date of filing if the document was sent by first class, express, or priority United States Postal Service mail, and when documentation of that is required, use of not only U. S. Postal Form 3817 certificate of mailing, but also any other similar United States Postal Service form from which the date of deposit can be verified. In addition, if a document may be deemed received when mailed, then any answer to that document may be deemed received when similarly mailed. There is also a separate amendment to recognize that prisoners' legal documents will be deemed received when such documents are delivered to the prison authorities.
Service--Delivery to opposing counsel in person or by mail is currently authorized. Pa.R.A.P. 121. These amendments would also allow service by commercial carrier if service is intended to be as expeditious as first class mail or by electronic methods, that is, facsimile and e-mail, if such service method is expressly agreed to by the parties. Such agreement would have to be indicated in the certificate of service. A new form for a certificate of service is also proposed.
A consequence of these proposed amendments would be the elimination of the term ''paperbooks'' in favor of the more common ''briefs and reproduced records,'' and elimination of the term ''brief in opposition to'' in favor of the more descriptive ''answer'' when responding to jurisdictional statements, petitions for allowance of appeal and petitions for permission to appeal.
[Pa.B. Doc. No. 06-1718. Filed for public inspection September 1, 2006, 9:00 a.m.]
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