1215 Proposed amendments to rules of appellate procedure 901, 1501, 1512, 1516, 1517, 1541 and 1561 and proposed new rule of appellate procedure 1770

Title 210—APPELLATE PROCEDURE

PART I. RULES OF APPELLATE PROCEDURE

[ 210 PA. CODE CHS. 9, 15 AND 17 ]

Proposed Amendments to Rules of Appellate Procedure 901, 1501, 1512, 1516, 1517, 1541 and 1561 and Proposed New Rule of Appellate Procedure 1770

[41 Pa.B. 3968]
[Saturday, July 23, 2011]

 The Appellate Court Procedural Rules Committee proposes to amend Pennsylvania Rules of Appellate Procedure 901, 1501, 1512, 1516, 1517, 1541 and 1561, and proposes new rule, Pa.R.A.P. 1770. These amendments and new rule are being submitted for public comments and suggestions prior to their submission to the Supreme Court.

 Proposed additions are bold while deleted material is bold and bracketed.

 All communications in reference to the proposed amendment should be sent no later than September 9, 2011 to:

Dean R. Phillips, Counsel
D. Alicia Hickok, Deputy Counsel
Scot R. Withers, Deputy Counsel
Appellate Court Procedural Rules Committee
Pennsylvania Judicial Center
601 Commonwealth Ave., Suite 6200
PO Box 62635
Harrisburg, PA 17106-2635
 
or Fax to 717-231-9551
or E-Mail to [e-mail]

 An Explanatory Comment precedes the proposed amendment and has been inserted by this Committee for the convenience of the bench and bar. It will not constitute part of the rule nor will it be officially adopted or promulgated.

By the Appellate Court
Procedural Rules Committee

HONORABLE RENEE COHN JUBELIRER, 
Chair

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:

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 (4) An appeal which may be taken by petition for review pursuant to Rule 1770, which governs 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.

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 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 2011 amendments clarify the use of petitions for review in these special situations.

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PETITION FOR REVIEW

Rule 1512. Time for Petitioning for Review.

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 (b) Special appellate provisions.—A petition for review of:

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 (5) A determination governed by Rule 1770 (review of dispositional order for out of home place-ment in juvenile delinquency matters) shall be filed within ten days of the order sought to be reviewed.

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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).

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 Official Note: The 2004 and 2011 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.

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 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.

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 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.

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Rule 1561. Disposition of Petition for Review.

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 (d) Review of detention and placement of a juvenile.—Except as prescribed by Rule 1762(b)(2), which governs applications relating to bail when no appeal is pending, by Rule 1770, which governs placement in juvenile delinquency matters, or by Rule 3331 (review of special prosecutions or investigations), review in the nature of criminal habeas corpus or post conviction relief may not be granted under this chapter.

 Official Note: Subdivision (a) is based on 42 Pa.C.S. § 706 (disposition of appeals).

*  *  *  *  *

 See Rule 1762(b)(2) regarding bail applications. See Rule 1770 regarding placement in juvenile delinquency matters.

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) Answer. Any answer shall be filed within ten day 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 subsection (a).

 (c) 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 the juvenile court abused its discretion in ordering the Out of Home Placement; and (iv) the proposed terms and conditions of an alternative disposition for the juvenile. 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.

 (d) Objection to specific agency or institution, or underlying adjudication, 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.

 (e) Service. A copy of the petition for review and any answer thereto shall be served on the judge of 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) Non-waiver of objection to placement. Where the juvenile declines to seek review under this rule of the Out of Home Placement that 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. This expedited review is the same expedited review available in Rule 1762 from an order under 42 Pa.C.S. § 6322 granting or denying a juvenile's motion to transfer from a criminal proceeding to a juvenile proceeding, or an order under 42 Pa.C.S. § 6355 granting or denying the Commonwealth's motion to transfer from a juvenile proceeding to a criminal proceeding. See 42 Pa.C.S. § 6322(c) (''Expedited Review of Transfer Orders''). Rule of Juvenile Court Procedure 512(D) requires the juvenile court judge to place the reasons for an Out of Home Placement on the record at the time of the disposition. 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).

EXPLANATORY COMMENT

 The Interbranch Commission on Juvenile Justice was created in 2009 by an act of the General Assembly with the support of the Governor and the Supreme Court. Its purpose was to investigate circumstances that led to corruption in the juvenile court of Luzerne County resulting in federal criminal charges against two judges; to restore public confidence in the administration of justice, and to prevent similar events from occurring there or elsewhere in the Commonwealth.

 The Interbranch Commission issued its Final Report on May 31, 2010. The Interbranch Commission made certain recommendations regarding appellate rights and appellate review, which are found at pp. 55-56 of the Commission's Final Report. The Recommendation of the Appellate Court Procedural Rules Committee is the Committee's response to those Recommendations.

 The Recommendation proposes amendments to Pa.R.A.P. 901, 1501, 1512, 1516, 1517, 1541, 1561 and a new Rule, Pa.R.A.P. 1770 (''Review of Out of Home Placements in Juvenile Matters''). New Rule 1770 provides a mechanism for the expedited review of an order of out of home placement entered pursuant to the Rules of Juvenile Court Procedure. In juvenile matters, out of home placements can evade effective appellate review, especially when the placement is shorter than the time period to process an ordinary appeal. The Interbranch Commission has recommended an expedited appeal procedure for out of home placements. Proposed new Rule 1770 would permit the juvenile to use a petition for review as the procedural vehicle for limited expedited appellate review of the out of home placement only. The amendments to existing rules are proposed to conform those rules to new Rule 1770.

[Pa.B. Doc. No. 11-1215. Filed for public inspection July 22, 2011, 9:00 a.m.]