§ 65.38. Reconsideration, Reargument, and En Banc Review.
A. All applications, motions, or petitions requesting reconsideration of the final decision of a merits panel, shall be recognized as Applications for Reargument pursuant to Pa.R.A.P. 2541 et seq., and shall be subject to all the rules and limitations otherwise applicable to Applications for Reargument.
B. All such applications described in subsection A shall first be submitted to the merits panel that issued the decision in question, i.e., the original merits panel, for consideration by that panel.
C. The members of the merits panel may vote to grant panel reconsideration, grant en banc reargument, or deny any such application.
1. If the merits panel recommends en banc reargument, Central Legal Staff shall circulate the application, motion, or petition, along with any relevant filings, original decision(s), and/or summaries, to the commissioned judges for votes.
2. If a majority of the merits panel does not vote to grant reconsideration, Central Legal Staff shall forward all relevant reconsideration submissions to the commissioned judges as an Application for Reargument before a court en banc.
3. A party’s request that the case be reargued before a court en banc shall not foreclose a merits panel’s ability to reconsider the decision that prompted the underlying application.
D. Reargument before a court en banc is not a matter of right, but of sound judicial discretion. An Application for Reargument will be denied unless there are compelling reasons therefor. Such reasons include, but are not limited to, the following:
1. It appears that a decision of a merits panel may be inconsistent with a decision of a different panel of the court;
2. It appears that a merits panel may have overlooked relevant precedent, statute, or rule of court;
3. It appears that a merits panel may have overlooked or misapprehended one or more material facts of record;
4. It appears a merits panel relied upon legal authority relevant to the decision that has been reversed, modified, overruled, discredited, or materially altered during the pendency of the appeal; and
5. It appears the issues have potential for a significant impact upon developing law or public policy.
E. Reargument before a court en banc will be granted only if at least half of the available commissioned judges of the court vote to grant reargument. A judge’s vote of ‘‘Did Not Participate’’ or ‘‘Recuse’’ shall constitute a reduction in the count of available judges.
F. The court will not entertain an application, motion, or petition for reconsideration of a decision rendered by a court en banc.
Source The provisions of this § 65.38 amended and effective May 11, 1992, 23 Pa.B. 1939; amended August 25, 2014, effective August 25, 2014, 44 Pa.B. 6223; amended September 12, 2017, effective immediately, 47 Pa.B. 6362; amended October 26, 2022, effective immediately, 52 Pa.B. 6959. Immediately preceding text appears at serial pages (405041) to (405042).
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