Section 65.5. Panels

A. Except as otherwise provided by these rules, all appeals, whether argued or submitted, shall be assigned to and decided by panels consisting of three judges. A panel may make any order or render any judgment therein. Every such order made or judgment rendered by a panel shall be made and given effect as an order or judgment of the Court and shall be so entered by the clerk.

B. The President Judge shall appoint the panels, assign cases to the panels, and designate the time, date, and place in which the panels shall sit.

C. 1. After the Prothonotary has listed the cases for an argument panel, but before the actual argument of the cases: (a) if a member of a panel becomes unable to participate in the disposition of a particular case, the presiding judge of that panel shall notify the President Judge or his/her designee, and the President Judge or his/her designee shall secure another judge to sit on that case; (b) if a member of a panel becomes unable to participate in a particular panel, the President Judge or his/her designee shall designate and assign another judge to sit on the panel.

2. After the Prothonotary has listed the cases for a submitted panel: (a) if a member of a panel becomes unable to participate in the disposition of a particular case, the case may be decided by the two remaining judges if they agree on the entire disposition of the case; if the two remaining judges are unable to agree on the entire disposition of the case, the panel shall proceed in accordance with § 65.5F.; (b) if a member becomes unable to participate in a particular panel, the President Judge or his/her designee shall designate and assign another judge to the panel.

3. If, after oral argument on a case, a judge becomes unable to participate in the disposition of a particular case, the case may be decided by the two remaining judges if they agree on the entire disposition of the case. If the two remaining judges are unable to agree on the entire disposition of the case, the panel shall proceed in accordance with § 65.5F.

D. The presiding judge of each panel shall be the commissioned judge highest in seniority, except where the panel includes the President Judge who shall then be the presiding judge. The presiding judge shall preside at all panel sessions, assign the cases, and record the assignment of cases. The presiding judge shall transmit to the members of the panel and the Reporter a record of all assignments and/or other actions taken by the panel.

E. All discussions, votes, and drafts of decisions prior to the filing of the final decision shall remain confidential.

F. If, following argument or submission, a member of the three judge panel assigned to decide an appeal becomes unavailable, and the remaining two judges are unable to decide the appeal, they shall request the President Judge or his/her designee to either reassign the appeal for reargument or submission before another panel, or they may request that the appeal be reargued before a court en banc. If the full court shall decline to accept the appeal for reargument before a court en banc, the President Judge or his/her designee shall reassign the same to another three judge panel for reargument or submission and decision.

G. Cases remanded to this Court from the Supreme Court for further disposition shall be returned to the panel originally assigned to the case. In the event that the original panel cannot be reconstituted, for instance as a result of retirement from the court, the president judge, in consultation with any remaining members of the merits panel, will create a new argument or submission panel depending on the nature of the remand. If an en banc case is remanded, the president judge will determine if the case can be submitted or argued to the same members of the original en banc court or whether the case should be reargued or submitted to a new en banc court which would include as many members of the original en banc panel as feasible.

Comment

In accordance with Pa.R.A.P. 3102(a), a panel of three judges constitutes a quorum of the Court. 42 Pa.C.S. § 325(e)(1) authorizes the President Judge to make assignments. Subdivision (C) and (D) of this rule do not alter the effect of Pa.R.A.P. 3102(b).

The provisions of this § 65.5 amended November 20, 2003, effective immediately, 33 Pa.B. 5913; amended December 23, 2003, effective immediately, 34 Pa.B. 379; amended September 15, 2010, effective immediately, 40 Pa.B. 6078; amended September 11, 2013, effective September 11, 2013, 44 Pa.B. 6223. Immediately preceding text appears at serial pages (353585) to (353587).