THE COURTS
Title 234—RULES OF CRIMINAL PROCEDURE
[ 234 PA. CODE CH. 1 ]
Proposed Amendments to Pa.R.Crim.P. 114 (Orders and Court Notices: Filing; Service; and Docket Entries)
[40 Pa.B. 2517]
[Saturday, May 15, 2010]The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rule 114 to permit a party to consent generally to receive orders and notices electronically in all cases. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. Note that the Committee's Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.
The text of the proposed amendments to the rule precedes the Report. Additions are shown in bold; deletions are in bold and brackets.
We request that interested persons submit suggestions, comments or objections concerning this proposal in writing to the Committee through counsel,
Anne T. Panfil, Chief Staff Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
601 Commonwealth Avenue, Suite 6200
Harrisburg, PA 17106-2635
fax: (717) 231-9520
e-mail: criminal.rules@pacourts.usno later than Tuesday, June 22, 2010.
By the Criminal Procedural Rules Committee
RISA VETRI FERMAN,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES
PART A. Business of the Courts Rule 114. Orders and Court Notices: Filing; Service; and Docket Entries.
* * * * * (B) Service
* * * * * (3) Methods of Service
Except as otherwise provided in Chapter 5 concerning notice of the preliminary hearing, service shall be:
(a) in writing by
* * * * * (vi) sending a copy by facsimile transmission or other electronic means if the party's attorney, or the party if unrepresented, has filed a written request for this method of service [or has included a facsimile number or an electronic address on a prior legal paper filed in the case] as provided in paragraph (B)(3)(c); or
* * * * * (b) Orally in open court on the record.
(c) A party's attorney, or the party if unrepresented, may request to receive service of court orders or notices pursuant to this rule by facsimile transmission or other electronic means by
(i) filing a written request for this method of service in the case or including a facsimile number or an electronic address on a prior legal paper filed in the case; or
(ii) filing a written request for this method of service to be performed in all cases, specifying a facsimile number or an electronic address to which these orders and notices may be sent.
The request for electronic service in all cases filed pursuant to paragraph (ii) may be rescinded at any time by the party's attorney, or the party if unrepresented, by filing a written notice that service of orders and notices shall be accomplished as otherwise provided in this rule.
* * * * *
Comment * * * * * Although paragraph (B)(3)(a)(iv) permits the use of assigned mailboxes for service under this rule, the Attorney General's office never may be served by this method.
Paragraph (B)(3)(c) provides two methods for consenting to the receipt of orders and notices electronically. The first method, added to this rule in 2004, permits electronic service on a case-by-case basis with an authorization for such service required to be filed in each case. A facsimile number or an electronic address set forth on letterhead is not sufficient to authorize service by facsimile transmission or other electronic means under paragraph [(B)(3)(a)(vi)] (B)(3)(c)(i). The authorization for service by facsimile transmission or other electronic means under this rule is valid only for the duration of the case. A separate authorization must be filed in each case the party or attorney wants to receive documents by this method of service.
The second method was added in 2010 to provide the option of entering a ''blanket consent'' to electronic service in all cases. It is expected that this would be utilized by those offices that work frequently in the criminal justice system, such as a district attorney's office or public defender's office, or by a judicial district that has the capability, based upon the availability of local technological resources, to accept a general request from a party to receive court orders and notices electronically. For example, a judicial district may have a system for electronically scanning documents that are stored on the courthouse computer system. In such a situation, an office that is part of the system, such as the District Attorney's Office or the Public Defender's Officer, could consent to the receipt of all court orders and notices generally. As with service under paragraph (B)(3)(c)(i), a facsimile number or an electronic address set forth on letterhead is not sufficient to authorize service by facsimile transmission or other electronic means under paragraph (B)(3)(c)(ii). This consent may be rescinded as provided in paragraph (B)(3)(c)(iii).
* * * * * Official Note: Formerly Rule 9024, adopted October 21, 1983, effective January 1, 1984; amended March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; renumbered Rule 9025 and Comment revised June 2, 1994, effective September 1, 1994; renumbered Rule 114 and Comment revised March 1, 2000, effective April 1, 2001; amended March 3, 2004, effective July 1, 2004; amended August 24, 2004, effective August 1, 2005; amended July 20, 2006, effective September 1, 2006; Comment revised September 18, 2008, effective February 1, 2009; amended , 2010, effective , 2010.
Committee Explanatory Reports:
Final Report explaining the March 22, 1993 amendments published with the Court's Order at 23 Pa.B. 1685, 1699 (April 10, 1993).
Report explaining the June 2, 1994 rule changes published at 23 Pa.B. 5008, 5009 (October 23, 1993).
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. 1477, 1478 (March 18, 2000).
Final Report explaining the March 3, 2004 rule changes concerning filing and service, making docket entries, and orders and court notices published with the Court's Order at 34 Pa.B. 1547, 1561 (March 20, 2004).
Final Report explaining the August 24, 2004 changes concerning notice of preliminary hearing published with the Court's Order at 34 Pa.B. 5016, 5025 (September 11, 2004).
Final Report explaining the July 20, 2006 deletion of ''manner of service'' from paragraph (C)(2)(c) published with the Court's Order at 36 Pa.B. 4172, 4173 (August 5, 2006).
Final Report explaining the September 18, 2008 revision of the Comment concerning the United States Postal Service's return receipt electronic option published with the Court's Order at 38 Pa.B. 5425, 5428 (October 4, 2008).
Report explaining the proposed amendment concerning consent to electronic service published at 40 Pa.B. 2517, 2518 (May 15, 2010).
REPORT
Proposed Amendments to Pa.R.Crim.P. 114
Electronic Distribution of Orders As part of its duty of reviewing the impact of technology on criminal practice, the Committee examined the possibility of broadening the methods for consent to be served court orders and notices electronically. This issue was first raised to the Committee by a judicial district that has a document scanning function in their local computer system that provides immediate distribution of documents to users when an order is scanned into the system. They raised the question of whether frequent users, such as the District Attorney's Office or Public Defender's Office, could avoid the requirement to provide consent to electronic service in each case by providing a general consent.1
The problem arises from the language in Rule 114(B)(3)(a)(vi) that permits the distribution of orders ''by facsimile transmission or other electronic means'' but only if the party or counsel for the party files a written request for this method of service in each case or ''has included a facsimile number or an electronic address on a prior legal paper filed in the case . . . '' Additionally, the Comment to Rule 113 states, ''In those cases in which the attorney has authorized receiving service by facsimile transmission or electronic means, the docket entry required in paragraph (C)(2) must include the facsimile number or electronic address.''
The Committee examined the history of the Rule 114 requirement for case-by-case consent. The language regarding electronic service of orders was added to Rule 114 in 2004.2 The Final Report to that amendment specifically discusses the rationale for the allowance for electronic service:
In addition, the Committee discussed service by electronic means. We noted both that Pa.R.Civ.P. 236(d) permits service of orders by facsimile or electronic transmission, and that the use of electronic technology for transmitting documents is proliferating. However, the Committee expressed concern about issues such as proof of service and signatures that arise with the various means of electronically transmitting documents. Following several meetings at which this issue was debated at length, the Committee ultimately concluded there is nothing in Civil Rule 236(d) that is contrary to the purposes of service in criminal cases and having uniform means of service in civil and criminal cases is a salutary purpose. Accordingly, Rule 114(B)(3)(a)(vi), modeled on Civil Rule 236(d), permits this method of service. To alleviate the members' concerns about service by electronic means, the new provision incorporates two safeguard provisions. First, the paragraph permits the use of electronic means of service, but only if counsel or, the defendant if unrepresented, requests this method of service either by filing a specific request or including the facsimile number or an electronic address on a prior legal paper filed in the case. The Comment includes a paragraph clarifying that the facsimile number or electronic address on letterhead is not sufficient to authorize service by facsimile. Second, the paragraph requires the authorization for the use of electronic means for service by the court to be on a case-by-case basis. A Comment provision explains this, and notes a new authorization must be made for each case of the attorney or defendant.As indicated in the report, the electronic service provision was based on Civil Rule 236(d) that reads:
(d) The prothonotary may give he notice required by subdivision (a) or notice of other matters by facsimile transmission or other electronic means if the party to whom notice is to be given or the party's attorney has filed a written request for such method of notification or has included a facsimile or other electronic means if the prothonotary chooses to use such a method.A Note3 to Rule 236(d) contains language identical to that contained in the Rule 114 Comment that a fax number or electronic address on letterhead is insufficient to authorize electronic service.
In reviewing the Committee's earlier discussion that lead to the inclusion of this provision in the amendment to Rule 114, it became clear that the case-by-case requirement was due to a concern that electronic distribution would not be as effective as more traditional means of serving these orders. It was felt that an electronic message could more easily fall astray due to a technical glitch or that a party could more easily claim never to have received the transmission.
The Committee concluded that this requirement was established 5 year ago when the electronic service of documents was a still a relative novelty. In the intervening time, electronic service of documents, usually as part of a larger electronic filing system, has become more routine. Based on a review of the practice of the electronic transfer of documents in a number of jurisdictions, the Federal system being a foremost example, the Committee believes that many of the concerns about problems with the technology have proven unfounded. The Committee therefore concluded that permitting ''blanket consent'' for electronic service would be efficient and practical.
The Committee also concluded that, if a method of providing consent that was not case specific were added to the rule, some mechanism for rescinding such consent should be included as well.
Therefore, a new paragraph (B)(3)(c) would be added to Rule 114 that provides the two methods of consent to receive orders electronically as well as the method for rescinding the general consent. Paragraph (B)(3)(c)(i) would retain the case-by-case method of the present rule while paragraph (B)(3)(c)(ii) would provide for the general, non-case-specific consent. Language also would be added to the Comment to indicate that the practice of providing a general consent is not mandatory and should be utilized only in those judicial districts where existing technology makes this practical.
[Pa.B. Doc. No. 10-862. Filed for public inspection May 14, 2010, 9:00 a.m.] _______
1 This proposal applies only to the service of court orders and notices by the court and does not apply to service by the parties.
2 See 34 PaB. 1547 (March 20, 2004).
3 The Civil Rules are structured differently than the Criminal Rules. The Civil Rules contain annotations that are titled ''Notes'' scattered through the particular rule providing information similar to that contained in the Criminal Rules' Comments.
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