2452 Order amending rule 114 of the rules of criminal procedure; no. 395 criminal procedural rules doc.?
Title 234—RULES OF CRIMINAL PROCEDURE [ 234 PA. CODE CH. 1 ] Order Amending Rule 114 of the Rules of Criminal Procedure; No. 395 Criminal Procedural Rules Doc. [40 Pa.B. 7336]
[Saturday, December 25, 2010]Order Per Curiam
And Now, this 6th day of December 2010, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 40 Pa.B. 2517 (May 15, 2010), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 968), 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 Pennsylvania Rule of Criminal Procedure 114 is amended in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective February 1, 2011.
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
(vii) delivery to the party's attorney, or the party if unrepresented, by carrier service; 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The request for electronic service in all cases filed pursuant to paragraph (ii) may be rescinded at any time by the party's attorney, or the party if unrepresented, by filing a written notice that service of orders and notices shall be accomplished as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 * * * * * 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 Office, 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).
Nothing in this rule is intended to preclude the use of automated or other electronic means for the transmission of the orders or court notices between the judge, court administrator, and clerk of courts, or for time stamping or making docket entries.
* * * * * 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 December 6, 2010, effective February 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the December 6, 2010 amendment concerning consent to electronic service published with the Court's Order at 40 Pa.B. 7336 (December 25, 2010).
FINAL REPORT1 Amendments to Pa.R.Crim.P. 114 Electronic Distribution of Orders and Court Notices On December 6, 2010, effective February 1, 2011, upon the recommendation of the Criminal Procedural Rules Committee, the Court adopted the amendment of Rule 114 (Orders and Court Notices) to permit a party to consent generally to receive orders and notices electronically in all cases.
This issue was first raised with the Committee by the Clerk of Courts for a county 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. The Clerk asked 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.2
The problem arose 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 2004.3 The Final Report to that amendment specifically discusses the rationale for the allowance for electronic service on a case-by-case basis:
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.
In reviewing this rule history, it became clear that the case-by-case requirement was due to concerns that electronic distribution would not be as effective as more traditional means of serving these orders and 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 noted, however, that this requirement was established six years ago when the electronic service of documents was 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 concluded that many of the concerns about problems with the technology have proven unfounded. Therefore, permitting ''blanket consent'' for electronic service would be efficient and practical. The Committee also believed 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.
To accomplish this change, a new paragraph (B)(3)(c) has been 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) retains the case-by-case method of the present rule while new paragraph (B)(3)(c)(ii) provides for the general, non-case-specific consent. Language also has been 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.
The Committee considered a publication response that suggested the amendments address certain technical details, such as the electronic format in which the orders would be sent. As the amendments are intended to provide general permission where local technology permits with such details to be worked out based on local capabilities, the Committee concluded that such details would need to be worked out at the local level and, therefore, such specifics should not be mandated in the statewide rules.
[Pa.B. Doc. No. 10-2452. Filed for public inspection December 23, 2010, 9:00 a.m.] _______
