Title 234--RULES OF CRIMINAL PROCEDURE [234 PA. CODE CH. 1] Order Amending Rule 105; No. 313 Criminal Procedural Rules; Doc. No. 2 [34 Pa.B. 5892] The Criminal Procedural Rules Committee has prepared a Final Report explaining the October 15, 2004 changes to Rule of Criminal Procedure 105 (Local Rules). The first amendment deletes the last phrase of paragraph (A) further clarifying the scope of the application of Rule 105. The second amendment is to paragraph (C)(3) and updates the rule requirements concerning the Legislative Reference Bureau's requirements for the submission of proposed local rules to the Pennsylvania Bulletin for publication. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 15th day of October, 2004, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3) in the interests of justice because it is perfunctory in nature, and a Final Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule of Criminal Procedure 105 is amended as follows.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective January 1, 2005.
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 105. Local Rules.
(A) For the purpose of this rule, the term ''local rule'' shall include every rule, regulation, directive, policy, custom, usage, form or order of general application, however labeled or promulgated, which is adopted or enforced by a court of common pleas to govern criminal practice and procedure[, which requires a party or party's attorney to do or refrain from doing something].
(B)(1) Local rules shall not be inconsistent with any general rule of the Supreme Court or any Act of Assembly.
(2) Local rules shall be given numbers that are keyed to the number of the general rules to which the local rules correspond.
(C) A local rule shall not become effective and enforceable until the adopting court has fully complied with all the following requirements:
(1) A local rule shall be in writing.
(2) Seven certified copies of the local rule shall be filed by the court promulgating the rule with the Administrative Office of Pennsylvania Courts.
(3) Two certified copies of the local rules and a computer diskette that complies with the requirements of 1 Pa. Code § 13.11(b) shall be distributed by the court promulgating the rule to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.
(4) One certified copy of the local rule shall be filed by the court promulgating the rule with the Criminal Procedural Rules Committee.
(5) The local rules shall be kept continuously available for public inspection and copying in the office of the prothonotary or clerk of court. Upon request and payment of reasonable costs of reproduction and mailing, the prothonotary or clerk shall furnish to any person a copy of any local rule.
(6) A local rule promulgated before the effective date of this rule shall be filed on or before that effective date with the prothonotary or clerk of court and shall be kept by the prothonotary or clerk for inspection, copying, and furnishing as provided in paragraph (C)(5).
(D) A local rule shall become effective not less than 30 days after the date of publication of the rule in the Pennsylvania Bulletin.
(E) No case shall be dismissed nor request for relief granted or denied because of failure to comply with a local rule. In any case of noncompliance with a local rule, the court shall alert the party to the specific provision at issue and provide a reasonable time for the attorney to comply with the local rule.
(F) The Criminal Procedural Rules Committee may at any time recommend that the Supreme Court suspend, vacate, or require amendment of a local rule and may suspend that local rule pending action by the Court on that recommendation.
Comment The policy of the Supreme Court as declared in the Order promulgating this rule is ''to implement the unified judicial system under the Constitution of 1968, to facilitate the statewide practice of law under this Court's general rules, and to promote the further policy that a general rule of criminal procedure normally preempts the subject covered.'' In accordance with the Court's policy, it is intended that local rules should not repeat general rules or statutory provisions verbatim or substantially verbatim nor should local rules make it difficult for attorneys to practice law in several counties.
The caption or other words used as a label or designation shall not determine whether something is or establishes a local rule; if the definition in paragraph (A) of this rule is satisfied the matter is a local rule regardless of what it may be called. The provisions of this rule are also intended to apply to any amendments to a ''local rule.'' Nothing in this rule is intended to apply to case-specific orders.
To simplify the use of local rules, local criminal rules are required to be given numbers that are keyed to the number of the general criminal rules to which the local rules correspond. This requirement is not intended to apply to local rules that govern the general business of the court and which do not correspond to a general criminal rule.
Paragraph (C) was amended in 2000 to emphasize that the adopting authority must comply with all the provisions of paragraph (C) before any local rule, or any amendments to local rules, will be effective and enforceable.
Paragraph (C)(3) requires the local rule to be published in the Pennsylvania Bulletin to be effective. Pursuant to 1 Pa. Code § 13.11(b), any documents that are submitted for publication must be accompanied by a diskette formatted in MS-DOS, ASCII, Microsoft Word, or WordPerfect. The diskette must be labeled with the court's name and address and the local rule's computer file name.
Paragraph (C)(5) requires that a separate consolidated set of local rules be maintained in the prothonotary's or clerk's office.
The Administrative Office of the Pennsylvania Courts maintains a webpage containing the texts of local rules. That webpage is located at:
http://www.courts.state.pa.us/judicial-council/local-rules/index.htm
Although under paragraph (D) a local rule shall not be effective until at least 30 days after the date of publication in the Pennsylvania Bulletin, when a situation arises that requires immediate action, the local court may act by specific orders governing particular cases in the interim before an applicable local rule becomes effective.
The purpose of paragraph (E) is to prevent the dismissal of cases, or the grant or denial of requested relief, because a party has failed to comply with a local rule. In addition, paragraph (E) requires that the party be alerted to the local rule, and be given a reasonable amount of time to comply with the local rule.
After the court has alerted the party to the local rule pursuant to paragraph (E), the court may impose a sanction for subsequent noncompliance either on counsel or the defendant if proceeding pro se, but may not dismiss the case, or grant or deny relief because of non-compliance.
Official Note: Rule 6 adopted January 28, 1983, effective July 1, 1983; amended May 19, 1987, effective July 1, 1987; renumbered Rule 105 and amended March 1, 2000, effective April 1, 2001; amended October 24, 2000, effective January 1, 2001; Comment revised June 8, 2001, effective immediately; amended October 15, 2004, effective January 1, 2005.
Committee Explanatory Reports:
* * * * * Final Report explaining the October 15, 2004 amendment to paragraph (A), and to paragraph (C)(3) concerning the Legislative Reference Bureau publication requirements, published with the Court's Order at 34 Pa.B. 5893 (October 30, 2004).
FINAL REPORT1 Pa.R.Crim.P. 105 Amendments Local Rule Procedures On October 15, 2004, effective January 1, 2005, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rule of Criminal Procedure 105 (Local Rules). The first amendment deletes the last phrase of paragraph (A) further clarifying the scope of the application of Rule 105. The second amendment is to paragraph (C)(3) and updates the rule requirements concerning the Legislative Reference Bureau's requirements for the submission of proposed local rules to the Pennsylvania Bulletin for publication.
I. PARAGRAPH (A) CHANGES
As part of our continuing efforts to assist the Common Pleas Criminal Court Case Management System (CPCMS) staff, the Committee has been addressing issues that are arising with the compilation of all local rules for availability through CPCMS. During one of the meetings between the Committee's Staff and Staff from the Administrative Offices of Pennsylvania Courts (AOPC), the Committee learned that, notwithstanding the 2000 changes to Rule 105 that were intended to strengthen the definition of local rule and clarify its application to most locally enacted procedures that govern criminal practice and procedure,2 some judicial districts continue to enact local procedures that are in conflict with the Criminal Rules or without complying with Rule 105. When the AOPC Staff questioned some of these judicial districts about their non-compliance, several indicated that the local rules in question did not ''require a party or party's attorney to do or refrain from doing something,'' and therefore were not ''local rules'' within the definition of Rule 105(A).
Because the intent and purpose of Rule 105 always has been to apply to all local procedures that affect criminal practice and procedure, not only as to parties and parties' attorneys, but also as to the court system as a whole in each judicial district, the Committee reviewed the history of the development of Rule 105, formerly Rule 6. The provision in question was added at the request of Professor John Cannon, Staff Attorney to the Local Rules Subcommittee of the Supreme Court's Judicial Council, when the Criminal Rules Committee developed the 2000 amendments to Rule 105. Time and experience now have shown that the language is mischievous, and, far from being helpful in bringing judicial districts into compliance with Rule 105, the language is being used as support for not complying. In view of our findings, and to aid the Committee's ongoing efforts to have Rule 105 followed by all judicial districts, as well as the AOPC's efforts to capture all local rules on the CPCMS, the language has been deleted from paragraph (A).
PARAGRAPH (C)(3)
The paragraph (C)(3) amendment, which was developed at the request of the AOPC, conforms the Rule 105(C)(3) requirements for submitting local rules to the Pennsylvania Bulletin with the diskette requirements set forth in 1 Pa. Code § 13.11(b) by incorporating the diskette requirement into paragraph (C)(3), and adding to the Rule 105 Comment a summary of the Pa. Code requirements.
[Pa.B. Doc. No. 04-1953. Filed for public inspection October 29, 2004, 9:00 a.m.] _______
