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PA Bulletin, Doc. No. 96-474




[210 PA. CODE CH. 17]

Proposed Amendment to the Official Note to Pa.R.A.P. 1701; Recommendation No. 30

[26 Pa.B. 1342]

   The Appellate Court Rules Committee proposes to amend the Official Note to Rule 1701 of the Pennsylvania Rules of Appellate Procedure. The amendment is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court.

   All communications in reference to the proposed amendment should be sent not later than May 30, 1996 to Dean R. Phillips, Esquire, Counsel, Appellate Court Rules Committee, Exton Office Court, 300-F North Pottstown Pike, Exton, PA 19341.

   The 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 rules nor will it be officially adopted or promulgated by the Court.


Annex A






Rule 1701. Effect of Appeal Generally.

*      *      *      *      *

   Official note: The following statutory provisions relate to supersedeas generally:

*      *      *      *      *

   [Rule 5102 of these rules saves the provisions of the last sentence of Section 423 of the Public Welfare Code (62 P. S. § 423), which provides that an appeal operates as a supersedeas in certain public assistance matters and Section 9 of the Pennsylvania Human Relations Act (43 P. S. § 959), which provides that an appeal from an order of the Commission operates as a supersedeas.]

   Subdivision (b)(3) is intended to handle the troublesome question of the effect of application for reconsideration on the appeal process. The rule (1) permits the trial court or other government unit to grant reconsideration if action is taken during the applicable appeal period, which is not intended to include the appeal period for cross appeals, or, during any shorter applicable reconsideration period under the practice below, and (2) eliminates the possibility that the power to grant reconsideration could be foreclosed by the taking of a ''snap'' appeal. The better procedure under this rule will be for a party seeking reconsideration to file an application for reconsideration below and a notice of appeal, etc. If the application lacks merit the trial court or other government unit may deny the application by the entry of an order to that effect or by inaction. The prior appeal paper will remain in effect, and appeal will have been taken without the necessity to watch the calendar for the running of the appeal period. If the trial court or other government unit fails to enter an order ''expressly granting reconsideration'' (an order that ''all proceedings shall stay'' will not suffice) within the time prescribed by these rules for seeking review, Subdivision (a) becomes applicable and the power of the trial court or other government unit to act on the application for reconsideration is lost.

   Subdivision (b)(3) provides that: ''(W)here a timely order of reconsideration is entered under this paragraph, the time for filing a notice of appeal or petition for review begins to run anew after entry of the decision on reconsideration.'' Pursuant to Pa.R.C.P. 1930.2, effective July 1, 1994, where reconsideration from a domestic relations order has been timely granted, a reconsidered decision or an order directing additional testimony must be entered within 120 days of the entry of the order granting reconsideration or the motion shall be deemed denied. See Pa.R.C.P. 1930.2(c), (d) and (e). The date from which the appeal period will be measured following a reconsidered decision in a domestic relations matter is governed by Pa.R.C.P. 1930.2(d) and (e).

   Under the 1996 amendments to the Rules of Criminal Procedure governing post-sentence practice, see Pa.Rs.Crim.P. 1410 and 1411, reconsideration of a decision on a defendant's post-sentence motion or on a Commonwealth motion to modify sentence must take place within the time limits set by those rules, and the judge may not vacate sentence or ''grant reconsideration'' pursuant to subdivision (b)(3) in order to extend the time limits for disposition of those motions. The amendments to Pa.R.Crim.P. 1410 and new Pa.Crim.P. 1411 resolve questions raised about the interplay between this subdivision and post-trial criminal practice. See, e.g., Commonwealth v. Corson, 444 A.2d 170 (Pa. Super, 1982).

   [Subdivision (b)(4) is based on the act of March 26, 1827 (P. L. 131, No. 61) (9 Sm.L. 308, Ch. 5936) (28 P. S. §§ 2 and 3), which is suspended absolutely by these rules.

   Subdivision (c) is based on the last sentence of act of May 19, 1897 (P. L. 67, No. 53), § 176 (12 P. S. § 1154), which is suspended absolutely by these rules, and makes no change in substance.

   See Pa.R.Crim.P. 1410 regarding motion to modify sentence and comment thereto containing an alert that the sentencing court is likely to have only thirty days from the imposition of sentence within which to act to modify the sentence.]

Explanatory Comment

   New paragraph seven of the proposed note regarding 1701(b)(3) addresses the unique practice on reconsideration for matters pursuant to Pa.R.C.P. 1930.2.

   New paragraph eight of the proposed note addresses the proposed 1996 amendment to Pa.R. Crim.P. 1410 (Post Sentence Procedures; Appeal) and proposed new Pa.R. Crim.P. 1411 (Procedures for Commonwealth Challenges to Sentence; Sentencing Appeals) and explains that the trial judge may not vacate sentence or grant reconsideration pursuant subparagraph (b)(3) in order to extend that absolute time limits in present Rule 1410 and the proposed absolute time limits in Rule 1411.

   Paragraph six of the old note referring to section 423 of the Public Welfare Code, 62 P. S. § 423 is deleted as obsolete.

   Paragraphs eight and nine of the old note are deleted as obsolete. The statutes cited were repealed by the Judiciary Repealer Act, 42 P. S. § 20002(a)[107], [820].

   Paragraph ten of the old note is deleted. This is a moot reference to the former Pa.R.Crim.P. 1410 (motion to modify sentences) rescinded March 22, 1993, effective as to cases in which determination of guilt occurs on or after January 1, 1994.

[Pa.B. Doc. No. 96-474. Filed for public inspection March 29, 1996, 9:00 a.m.]

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