2518 Order amending Rules 901, 1501, 1512, 1516, 1517 and 1541 and adopting new Rule 1770 of the Rules of Appellate Procedure; no. 221 appellate procedural rules doc.?
Title 210—APPELLATE PROCEDURE PART I. RULES OF APPELLATE PROCEDURE [ 210 PA. CODE CHS. 9, 15 AND 17 ] Order Amending Rules 901, 1501, 1512, 1516, 1517 and 1541 and Adopting New Rule 1770 of the Rules of Appellate Procedure; No. 221 Appellate Procedural Rules Doc. [42 Pa.B. 7813]
[Saturday, December 29, 2012]Order Per Curiam
And Now, this 10th day of December, 2012, upon the recommendation of the Appellate Court Procedural Rules Committee; the proposal having been published for public comment at 41 Pa.B. 3968 (July 23, 2011):
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rules 901, 1501, 1512, 1516, 1517 and 1541 are amended, and proposed new Rule 1770 of the Pennsylvania Rules of Appellate Procedure is adopted, in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and the amendments herein shall be effective in 60 days.
Annex A TITLE 210. APPELLATE PROCEDURE PART I. RULES OF APPELLATE PROCEDURE ARTICLE II. APPELLATE PROCEDURE CHAPTER 9. APPEALS FROM LOWER COURTS Rule 901. Scope of Chapter.
This chapter applies to all appeals from a trial court to an appellate court except:
(1) An appeal by allowance taken under 42 Pa.C.S. § 724 (allowance of appeals from Superior and Commonwealth Courts). See Rule 1112 (appeals by allowance).
(2) An appeal by permission taken under 42 Pa.C.S. § 702(b) (interlocutory appeals by permission). See Rule 1311 (interlocutory appeals by permission).
(3) An appeal which may be taken by petition for review pursuant to Rule 1762(b)(2), which governs applications relating to bail when no appeal is pending.
(4) An appeal which may be taken by petition for review pursuant to Rule 1770, which governs out of home placement in juvenile delinquency matters.
(5) Automatic review of sentences pursuant to 42 Pa.C.S. § 9711(h) (review of death sentence). See Rule 1941 (review of death sentences).
[(5)] (6) An appeal which may be taken by petition for review pursuant to Rule 3331 (review of special prosecutions or investigations).
CHAPTER 15. JUDICIAL REVIEW OF GOVERNMENTAL DETERMINATIONS IN GENERAL Rule 1501. Scope of Chapter.
* * * * * (d) Jurisdiction of courts unaffected.—This chapter does not enlarge or otherwise modify the jurisdiction and powers of the Commonwealth Court or any other court.
Official Note: This chapter applies to review of any ''determination'' of a ''government unit'' as defined in Rule 102 assuming, of course, that the subject matter of the case is within the jurisdiction of a court subject to these rules (see Subdivision (d) of this rule). A ''determination'' means ''action or inaction by a government unit which action or inaction is subject to judicial review by a court under Section 9 of Article V of the Constitution of Pennsylvania or otherwise. The term includes an order entered by a government unit.'' The term ''government unit'' is all inclusive and means ''the Governor and the departments, boards, commissions, officers, authorities and other agencies of the Commonwealth, including the General Assembly and its officers and agencies and any court or other officer or agency of the unified judicial system, and any political subdivision or municipal or other local authority or any officer or agency of any such political subdivision or local authority. The term includes a board of arbitrators whose determination is subject to review under 42 Pa.C.S. § 763(b) (awards of arbitrators).'' The term ''administrative agency'' is not defined in these rules, although the term is used in these rules as a result of its appearance in Section 9 of Article V of the Constitution of Pennsylvania.
Subdivision (a)(4) was added in 2004 to recognize the references in various appellate rules and accompanying notes to petition for review practice. For example, the Notes to Rules 341 and 1311 direct counsel to file a petition for review of a trial court or government agency order refusing to certify an interlocutory order for immediate appeal. Similarly, Rule 1762 directs the filing of a petition for review when a party seeks release on bail before judgment of sentence is rendered[. See], see Rule 1762(b), and Rule 1770 directs the filing of a petition for review when a juvenile seeks review of placement in a juvenile delinquency matter. A petition for review is also the proper method by which to seek judicial review pursuant to Rule 3321 (regarding legislative reapportionment commission) and Rule 3331 (regarding special prosecutions or investigations). The 2004 and 2012 amendments clarify the use of petitions for review in these special situations.
* * * * * PETITION FOR REVIEW Rule 1512. Time for Petitioning for Review.
* * * * * (b) Special appellate provisions. A petition for review of:
(1) A determination of the Department of Community and Economic Development in any matter arising under the Local Government Unit Debt Act, 53 Pa.C.S. §§ 8001—8271, shall be filed within 15 days after entry of the order or the date the determination is deemed to have been made, when no order has been entered.
(2) A determination governed by Rule 1571 (determinations of the Board of Finance and Revenue) shall be filed within the appropriate period therein specified.
(3) A determination governed by Rule 3331 (review of special prosecutions or investigations) shall be filed within ten days after the entry of the order sought to be reviewed.
(4) A determination of a Commonwealth agency under section 1711.1(g) of the Commonwealth Procurement Code, 62 Pa.C.S. § 1711.1(g), shall be filed within 15 days of the mailing date of a final determination denying a protest.
(5) A determination governed by Rule 1770 (review of dispositional order for out of home placement in juvenile delinquency matters) shall be filed within ten days of the order sought to be reviewed.
(c) Original jurisdiction actions. A petition for review of a determination of a government unit not within the scope of Subdivisions (a) or (b) of this rule may be filed with the prothonotary of the appellate court within the time, if any, limited by law.
* * * * * Rule 1516. Other Pleadings Allowed.
(a) Appellate jurisdiction petitions for review. No answer or other pleading to an appellate jurisdiction petition for review is authorized, unless the petition for review is filed pursuant to the Notes to Rules 341 or 1311 (seeking review of a trial court or other government unit's refusal to certify an interlocutory order for immediate appeal), Rule 1762 (regarding release in criminal matters), Rule 1770 (regarding placement in juvenile delinquency matters), Rule 3321 (regarding appeals from decisions of the Legislative Reapportionment Commission) or Rule 3331 (regarding review of special prosecutions and investigations). Where an answer is authorized, the time for filing an answer shall be as stated in Rule 123(b).
(b) Original jurisdiction petitions for review. Where an action is commenced by filing a petition for review addressed to the appellate court's original jurisdiction, the pleadings are limited to the petition for review, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection, and an answer thereto. Every pleading filed after an original jurisdiction petition for review shall be filed within 30 days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading is endorsed with a notice to plead.
Official Note: The 2004 and 2012 amendments made clear that, with [five] six limited exceptions, no answer or other pleading to a petition for review addressed to an appellate court's appellate jurisdiction is proper. With regard to original jurisdiction proceedings, practice is patterned after Rules of Civil Procedure 1017(a) (Pleadings Allowed) and 1026 (Time for Filing. Notice to Plead). The ten additional days in which to file a subsequent pleading are in recognition of the time required for agency coordination where the Commonwealth is a party. See Rule 1762(b)(2) regarding bail applications. See Rule 1770 regarding placement in juvenile delinquency matters.
Rule 1517. Applicable Rules of Pleading.
Unless otherwise prescribed by these rules, the practice and procedure under this chapter relating to pleadings in original jurisdiction petition for review practice shall be in accordance with the appropriate Pennsylvania Rules of Civil Procedure, so far as they may be applied.
Official Note: See Rule 1762(b)(2) regarding bail applications. See Rule 1770 regarding placement in juvenile delinquency matters. See also Rule 3331 regarding Review of Special Prosecutions or Investigations.
Rule 1541. Certification of the Record.
Upon notice from the appellate court of the filing of a petition for review addressed to the appellate jurisdiction of an appellate court, the government unit shall prepare and transmit the record as provided by Chapter 19 (preparation and transmission of record and related matters).
Official Note: Rule 102 defines ''government unit'' to include ''any court or other officer or agency of the unified judicial system.'' Thus, if the order to be reviewed was filed by a trial court, that court shall certify the record. This occurs when the petition for review was filed pursuant to Rule 1762, 1770, 3321 or 3331, or the note to Rules 341 or 1311.
See Rule 3331 regarding Review of Special Prosecutions or Investigations.
CHAPTER 17. EFFECT OF APPEALS; SUPERSEDEAS AND STAYS REVIEW OF DISPOSITIONAL ORDER FOR OUT OF HOME PLACEMENT IN JUVENILE DELINQUENCY MATTERS (Editor's Note: The following rule is new and printed in regular type to enhance readability.)
Rule 1770. Review of Out of Home Placement in Juvenile Delinquency Matters.
(a) General rule. If a court under the Juvenile Act, 42 Pa.C.S. § 6301 et seq., enters an order after an adjudication of delinquency of a juvenile pursuant to Rules of Juvenile Court Procedure 409(A)(2) and 515, which places the juvenile in an out of home overnight placement in any agency or institution that shall provide care, treatment, supervision or rehabilitation of the juvenile (''Out of Home Placement''), the juvenile may seek review of that order pursuant to a petition for review under Chapter 15 (judicial review of governmental determinations). The petition shall be filed within ten days of the said order.
(b) Content. A petition for review under subdivision (a) shall contain: (i) a specific description of any determinations made by the juvenile court; (ii) the matters complained of; (iii) a concise statement of the reasons why the juvenile court abused its discretion in ordering the Out of Home Placement; (iv) the proposed terms and conditions of an alternative disposition for the juvenile; and (v) a request that the official court reporter for the juvenile court transcribe the notes of testimony as required by subdivision (g) of this Rule. Any order(s) and opinion(s) relating to the Out of Home Placement and the transcript of the juvenile court's findings shall be attached as appendices. The petition shall be supported by a certificate of counsel to the effect that it is presented in good faith and not for delay.
(c) Objection to specific agency or institution, or underlying adjudication of delinquency, is not permitted.
(1) A petition for review under subdivision (a) shall not challenge the specific agency or specific institution that is the site of the Out of Home Placement and instead shall be limited to the Out of Home Placement itself.
(2) A petition for review under subdivision (a) shall not challenge the underlying adjudication of delinquency.
(d) Answer. Any answer shall be filed within ten days of service of the petition, and no other pleading is authorized. Rule 1517 (applicable rules of pleading) and Rule 1531 (intervention) through 1551 (scope of review) shall not be applicable to a petition for review filed under subdivision (a).
(e) Service. A copy of the petition for review and any answer thereto shall be served on the judge of the juvenile court and the official court reporter for the juvenile court. All parties in the juvenile court shall be served in accordance with Rule 121(b) (service of all papers required). The Attorney General of Pennsylvania need not be served in accordance with Rule 1514(c) (service), unless the Attorney General is a party in the juvenile court.
(f) Opinion of juvenile court. Upon receipt of a copy of a petition for review under subdivision (a), if the judge who made the disposition of the Out of Home Placement did not state the reasons for such placement on the record at the time of disposition pursuant to Rule of Juvenile Court Procedure 512 (D), the judge shall file of record a brief statement of the reasons for the determination or where in the record such reasons may be found, within five days of service of the petition for review.
(g) Transcription of Notes of Testimony. Upon receipt of a copy of a petition for review under subdivision (a), the court reporter shall transcribe the notes of testimony and deliver the transcript to the juvenile court within five business days. If the transcript is not prepared and delivered in a timely fashion, the juvenile court shall order the court reporter to transcribe the notes and deliver the notes to the juvenile court, and may impose sanctions for violation of such an order. If the juvenile is proceeding in forma pauperis, the juvenile shall not be charged for the cost of the transcript. Chapter 19 of the Rules of Appellate Procedure shall not otherwise apply to petitions for review filed under this Rule.
(h) Non-waiver of objection to placement. A failure to seek review under this rule of the Out of Home Placement shall not constitute a waiver of the juvenile's right to seek review of the placement in a notice of appeal filed by the juvenile from a disposition after an adjudication of delinquency.
Official Note: This Rule provides a mechanism for the expedited review of an order of Out of Home Placement entered pursuant to Rule of Juvenile Court Procedure 515. Rule of Juvenile Court Procedure 512(D) requires the judge who made the disposition of an Out of Home Placement to place the reasons for an Out of Home Placement on the record at the time of the disposition, and subdivision (f) of this Rule is only applicable in the exceptional circumstance where the judge who made the disposition of an Out of Home Placement fails to comply with Rule of Juvenile Court Procedure 512(D). The Juvenile Act, 42 Pa.C.S. § 6352, sets forth the considerations for a dispositional order following an adjudication of delinquency and the alternatives for disposition. The standard for review of a dispositional order is an abuse of discretion. See In the Interest of A.D., 771 A.2d 45 (Pa. Super. 2001) (en banc).
[Pa.B. Doc. No. 12-2518. Filed for public inspection December 28, 2012, 9:00 a.m.]
