Title 210—APPELLATE PROCEDURE PART I. RULES OF APPELLATE PROCEDURE [ 210 PA. CODE CHS. 19 AND 25 ] Proposed Amendments to Pa.R.A.P. 1972 and 2542 [43 Pa.B. 5393]
[Saturday, September 7, 2013]The Appellate Court Procedural Rules Committee proposes to recommend amendments to Pa.R.A.P. 1972 and 2542. This proposal is being submitted for public comments, suggestions, and concerns prior to submission to the Supreme Court.
Proposed new material is in bold face type and deleted material is bracketed and in bold face type.
All communications in reference to the proposed amendment should be sent no later than October 16, 2013 to:
Appellate Court Procedural Rules Committee
Pennsylvania Judicial Center
601 Commonwealth Ave., Suite 6200
P. O. Box 62635
Harrisburg, Pennsylvania 17106-2635
or Fax to
(717) 231-9551
or E-Mail to
appellaterules@pacourts.usAn 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 CommitteeHONORABLE RENÉE COHN JUBELIRER,
ChairAnnex A TITLE 210. APPELLATE PROCEDURE PART I. RULES OF APPELLATE PROCEDURE ARTICLE II. APPELLATE PROCEDURE CHAPTER 19. PREPARATION AND TRANSMISSION OF RECORD AND RELATED MATTERS DISPOSITION WITHOUT REACHING THE MERITS Rule 1972. Dispositions on Motion.
* * * * * Official Note: [Based on former Supreme Court Rule 33 and former Superior Court Rule 25.
As to Paragraph (6), see, e.g. Commonwealth v. Galloway, 460 Pa. 309, 333 A.2d 741 (1975) (continuing generally), Commonwealth v. Barron, 237 Pa. Super. 369, 352 A.2d 84 (1975) (quashing).]
If an appellate court dismisses a criminal appeal under Pa.R.A.P. 1972(a)(6), the fugitive forfeits rather than simply waives the right to assert errors the fugitive might otherwise have raised on direct appeal, and the fugitive may not raise those errors on collateral review. Commonwealth v. Judge, 797 A.2d 250, 255, 258-60 (Pa. 2002); Commonwealth v. Doty, 48 A.3d 451 (Pa. Super. 2012) (on PCRA); 997 A.2d 1184 (Pa. Super. 2010) (on direct appeal). Forfeiture under this Rule does not limit any review under 42 Pa.C.S. § 9711(h) or Pa.R.A.P. 1941 (Review of Death Sentences).
[Rule 1933 (record for preliminary hearing in appellate court)] Pa.R.A.P. 1933 makes clear the right of a moving party to obtain immediate transmission of as much of the record as may be necessary for the purposes of a motion under this rule. See [Rule 123(c) (speaking applications)] Pa.R.A.P. 123(c).
CHAPTER 25. POST-SUBMISSION PROCEEDINGS APPLICATION FOR REARGUMENT Rule 2542. Time for Application for Reargument[.], Reconsideration or Rehearing; Manner of Filing.
(a) Time.
(1) General rule.—Except as otherwise prescribed by this rule or by Pa.R.A.P. 1123(b) or Pa.R.A.P. 3814, an application for reargument or for reconsideration of a dispositive order shall be filed with the prothonotary within [14] 30 days after entry of the judgment or other order involved.
(2) Children's fast track appeals.—In a children's fast track appeal, an application for reargument or for reconsideration of a dispositive order shall be filed with the prothonotary within 7 days after entry of the judgment or other order involved.
* * * * * Official Note: [Former Supreme Court Rule 64, former Superior Court Rules 55 and 58 and former Commonwealth Court Rule 113A required the application for reargument to be filed within ten days of the entry of the order. Under Rule 105(b) (enlargement of time) the time for seeking reargument may be enlarged by order, but no order of the Superior Court or of the Commonwealth Court, other than an actual grant of reargument meeting the requirements of Rule 1701(b)(3) (authority of lower court or agency after appeal), will have the effect of postponing the finality of the order involved under Rule 1113 (time for petitioning for allowance of appeal).
The 1986 amendment provided that an application shall be deemed received on the date deposited in the United States mail as shown on a United States Postal Service Form 3817 Certificate of Mailing.
The 2008 amendment provides that an application shall be deemed received on the date deposited in the United States mail as shown on a United States Postal Service Form 3817 Certificate of Mailing or other similar United States Postal Service form from which the date of deposit can be verified.]
This does not affect the 14-day requirement for reconsideration of a petition for allowance of appeal under Pa.R.A.P. 1123(b) or under the Abortion Control Act.
Explanatory Comment Proposed Amendment to Note to Pa.R.A.P. 1972
Pa.R.A.P. 1972 addresses appeals that may be dismissed on motion. Paragraph (a)(6) of the rule allows a motion to continue or dismiss because the appellant is a fugitive.
The purpose of the proposed amendment to the note to this rule pertains to paragraph (a)(6) and is to conform the note to reflect more recent case law holding that, although dismissal pursuant to a motion under paragraph (a)(6) or sua sponte is not a per se rule, a returning fugitive returns to the case in the posture in which it stands at the time of the fugitive's return and with the consequences attendant to that return.
The proposed amendment to the note also explains that, if an appeal is dismissed, appellate rights—except for those guaranteed by 42 Pa.C.S. § 9711(h)—are forfeited, not simply waived, and errors that would have been raised on direct appeal cannot be reviewed collaterally.
Proposed Amendment to Pa.R.A.P. 2542 and Note
Pa.R.A.P 2542 addresses the time for reargument, reconsideration or rehearing and makes it consistent with the 30-day statutory time for reconsideration under 42 Pa.C.S. § 5505, except in limited circumstances, such as children's fast track (must be filed within seven days); or under Pa.R.A.P. 1123 or 3814.
The proposed amendment to the note to Pa.R.A.P. 2542 explains that, the amendment to the rule extending the time limit generally does not affect the 14-day requirement for reconsideration of a petition for allowance of appeal under Pa.R.A.P. 1123(b) or under the Abortion Control Act.
The remaining proposed amendments to the note to Pa.R.A.P. 2542 eliminate unnecessary language and are ministerial in nature.
[Pa.B. Doc. No. 13-1638. Filed for public inspection September 6, 2013, 9:00 a.m.]
