Rule 1910.13-1. Failure or Refusal to Appear Pursuant to Order of Court. Bench Warrant.
(a) If a party fails to appear at a conference and/or hearing as directed by order of court, the court may issue a bench warrant for the arrest of the party if it finds
(1) following a hearing on the record that the party had actual notice that the party was ordered to attend the conference and/or hearing, or
(2) upon the affidavit of a hearing officer or conference officer that
(i) the order of court scheduling the conference and/or hearing was served by ordinary mail with the return address of the domestic relations section appearing thereon, that the mail was not returned to the domestic relations section within fifteen days after mailing, and that, at a date after the order of court was mailed, the domestic relations section has verified through the U.S. Postal Service or by electronic means that mail for the party was being delivered at the address to which the court order was mailed; or
(ii) the party signed a receipt indicating acceptance of a copy of the court order; or
(iii) an employee of the court handed a copy of the order to the party; or
(iv) a competent adult handed a copy of the court order to the party, and filed an affidavit of service.
Official Note
See Rule 76 for the definition of ‘‘competent adult.’’
The support statute, at 23 Pa.C.S.A. § 4353(a), requires parties to a support proceeding to notify the domestic relations section within seven days of a change of personal address. Pursuant to 23 Pa.C.S.A. § 4353(a.1), the court may deem due process service requirements to have been met upon delivery of written notice to the most recent address the party filed with the domestic relations section.
(b) The request for a bench warrant shall be made by the domestic relations office within sixty days following the party’s failure to appear. The request shall be in the form provided by Rule 1910.13-2(b), and shall include the hearing officer or conference officer’s certification that the party has not appeared for any domestic relations matter involving the same parties since the date the party failed to appear.
(c) Upon appearance in court by a party on the matter underlying the bench warrant, the bench warrant shall be vacated forthwith and the notice shall be given to all computer networks into which the bench warrant has been entered.
(d) When a bench warrant is executed, the case is to proceed in accordance with the following procedures.
(1) When an individual is arrested pursuant to a bench warrant, he or she shall be taken without unnecessary delay for a hearing on the bench warrant. The hearing shall be conducted by the judicial officer who issued the bench warrant, or, another judicial officer designated by the president judge or by the president judge’s designee to conduct bench warrant hearings. As used in this rule, ‘‘judicial officer’’ is limited to the common pleas court judge who issued the bench warrant, or common pleas court judge designated by the president judge or by the president judge’s designee to conduct bench warrant hearings.
(2) In the discretion of the judicial officer, the bench warrant hearing may be conducted using two-way simultaneous audio-visual communication.
(3) When the individual is arrested in the county of issuance, and the bench warrant hearing cannot be conducted promptly after the arrest, the individual shall be lodged in the county jail pending the hearing. The authority in charge of the county jail promptly shall notify the sheriff’s office and the director of the domestic relations section that the individual is being held pursuant to the bench warrant.
(4) When the individual is arrested outside the county of issuance, the authority in charge of the county jail in the arresting county promptly shall notify the proper authorities in the county of issuance that the individual is being held pursuant to the bench warrant.
(5) The bench warrant hearing shall be conducted without unnecessary delay after the individual is lodged in the jail of the county of issuance of that bench warrant. The individual shall not be detained without a hearing on the bench warrant longer than 72 hours, or the close of the next business day if the 72 hours expires on a non-business day.
(6) At the conclusion of the bench warrant hearing following the disposition of the matter, the judicial officer immediately shall vacate the bench warrant.
(7) If a bench warrant hearing is not held within the time limits in paragraph (d)(5), the bench warrant shall expire by operation of law.
Explanatory Comment—1994 In 1988, Section 4342 of the Domestic Relations Code, 23 Pa.C.S. § 4342, was amended to require establishment of procedures for expedited contempt in support. Those procedures are set forth in new Rules 1910.13-1, 1910.13-2, and 1910.21-1 through 1910.21-7.
Former Rule 1910.13 provided for the issuance of a bench warrant for failure of a person to obey a court order other than an order for support. It is replaced with new Rule 1910.13-1 which sets forth detailed procedures for the issuance of a bench warrant, and new Rule 1910.13-2 which provides the associated forms. The new rules apply only to a party who fails to appear at a support conference or hearing as directed by an order of court.
An individual arrested pursuant to a bench warrant can be incarcerated for a period not to exceed seventy-two hours prior to hearing as set forth in new Rule 1910.13-1(d). Under the old rules, if the court was unavailable at the time of arrest, the individual could not be held. Therefore, law enforcement officials were unable to execute bench warrants in the evenings or on weekends, when their efforts were most likely to be successful. By limiting the possible period of incarceration to seventy-two hours, new Rule 1910.13-1(d) balances the need to bring parties before the court with the desire to avoid lengthy pre-hearing detention. Bail can be set by the court where appropriate, providing additional protection for the respondent.
Explanatory Comment—1999 The rules of civil procedure governing service of original process and other legal papers have used the term ‘‘competent adult.’’ In certain circumstances, the term has been used with the restrictive language ‘‘who is not a party to the action.’’
The Supreme Court of Pennsylvania has amended Definition Rule 76 by adding the following definition: ‘‘‘competent adult’ means an individual eighteen years of age or older who is neither a party to the action nor an employee or a relative of a party.’’ In view of this new definition, the rules of civil procedure which used the term ‘‘competent adult who is not a party to the action’’ have been amended by deleting as unnecessary the restrictive language ‘‘who is not a party to the action.’’ These rules using the term ‘‘competent adult’’ will be governed by the new definition. The rules which used the term ‘‘competent adult’’ without the restrictive language have been amended by deleting the word ‘‘competent,’’ thus continuing to permit service by an adult without further restriction.
Explanatory Comment—2006 Beginning in 2006, bench warrants issued for failure to obey a court order to appear in a support matter will be available through the Judicial Network (‘‘JNET’’) system. JNET expands the capacity of law enforcement officers throughout the commonwealth to be informed of outstanding bench warrants issued by both the criminal and civil courts. The Supreme Court of Pennsylvania has promulgated new Pa.R.Crim.P. 150, effective August 1, 2006, which sets forth the procedure related to criminal bench warrants. The amendments to Rules 1910.13-1 and 1910.13-2 track the new criminal procedural rule so that bench warrant procedures will be uniform throughout the commonwealth. For additional information see the Criminal Procedural Rules Committee’s Final Report explaining new Pa.R.Crim.P. 150, published with the promulgation order at 36 Pa.B. 184 (January 14, 2006).
Source The provisions of this Rule 1910.13-1 adopted March 30, 1994, effective July 1, 1994, 24 Pa.B. 1949; amended May 14, 1999, effective July 1, 1999, 29 Pa.B. 2767; amended November 8, 2006, effective February 6, 2007, 36 Pa.B. 7110; amended July 30, 2010, effective immediately, 40 Pa.B. 4634. Immediately preceding text appears at serial pages (324680) to (324682)
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