Tuesday, June 18, 2013

UC - vol. quit - taking leave w/o following established protocol

Dike v. UCBR – Cmwlth. Court – June 18, 2013


Claimant is not eligible under sec. 402(b) – vol. quit – where employer notified him that he had to follow an established procedure for requesting an excused absence for family reasons (funeral) and that if he did not, it would be considered a voluntary quit.  Claimant's conduct in taking the leave w/o following protocol when he was aware that it would result in termination evidenced an intention to voluntarily leave his work

UC - "substance abuse" include alcohol - UC Law sec. 402 (e.1)

Dillon v. UCBR – Cmwlth Court – June 18, 2013


Employer discharged Claimant fortesting positive for alcohol in violation of its substance abuse policy. Claimant petitions for review of an order of the UCBR that affirmed, as modified, the decision of a referee and denied him unemployment compensation benefits under Section 402(e) of the UC Law, the general willful misconduct provision, instead of Section 402(e.1),  the specific willful misconduct provision pertaining to an employee’s failure to submit to and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy.

By way of background, the UC Service Center and the referee initially determined Claimant’s eligibility for benefits under Section 402(e.1), but the Board on appeal remanded the matter to place Section 402(e) at issue, concluding that alcohol testing was outside the purview of Section 402(e.1).  Because Claimant’s eligibility should have been analyzed under Section 402(e.1), we conclude that the Board erred in remanding this matter. Nonetheless, we affirm its order denying Claimant benefits.

Claimant signed a last-chance agreement subjecting him to post-rehabilitation testing for twelve months and advising him that another positive BAC test would result in disciplinary action up to and including discharge from employment.  In September 2011, Claimant tested positive for a BAC in excess of 0.02%. The following month, Employer discharged him for violating its substance abuse policy.

The court reiterated its prior holdings that the proper provision under which to analyze discharges where an employee fails to submit to and/or pass a drug test is Section 402(e.1) and not Section 402(e). Architectural Testing, Inc. v. UCBR, 940 A.2d 1277, 1280-81 (Pa. Cmwlth. 2008); Turner v. UCBR, 899 A.2d 381, 384 (Pa. Cmwlth. 2006); UGI Utils., Inc. v. UCBR, 851 A.2d 240, 245 (Pa. Cmwlth. 2004). Most notably, in Brannigan v. UCBR, 887 A.2d 841 (Pa. Cmwlth. 2005), the Court analyzed an alcohol-related violation of a substance abuse policy under Section 402(e.1). Notwithstanding these previous decisions, however, the Board suggests that the legislature did not intend to include alcohol within the purview of Section 402(e.1) because it makes no specific reference to alcohol in that provision.  The court rejected that position.

Section 402(e.1) provides that that an employee shall be ineligible for compensation for any week

[i]n which his unemployment is due to discharge or temporary suspension from work due to failure to submit and/or pass a drug test conducted pursuant to an employer’s established substance abuse policy, provided that the drug test is not requested or implemented in violation of the law or of a collective bargaining agreement.
While it is true that the legislature did not include the word alcohol in Section 402(e.1), the court concluded that interpreting that provision to exclude alcohol would render an unreasonable result, fail to give effect to all of the words therein and fail to promote the public interest contrary to the edicts of Sections 1922(1), (2) and (5) of the Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1922(1), (2) and (5).   Interpreting Section 402(e.1) to exclude alcohol would render an unreasonable result because many employers when crafting their substance abuse policies equate alcohol with drugs as a substance that employees can abuse to the detriment of other employees, the company and the public at large.  Giving effect to all of the words in Section 402(e.1), including the phrase “substance abuse,” the court concluded that the legislature intended to include alcohol as a substance that is subject to abuse within the meaning of that provision. 1 Pa. C.S. § 1922(2) (presumption that legislature intends entire statute to be effective and certain).

The record supports the Board’s finding that Employer had an established substance abuse policy and that, pursuant thereto, Claimant was operating under a last-chance agreement. Specifically at issue, therefore, is whether Employer proved that Claimant violated that policy.  The court found that that Employer met its burden.

Monday, June 17, 2013

Housing - Sec. 8 - possession of drug paraphernalia is not "drug-related criminal activity"




 The Housing Authority of the City of Pittsburgh (Housing Authority) appealed from the September 28, 2012, order of the Court of Common Pleas of Allegheny County, which reversed the decision of a hearing officer terminating Sharon Degelman’s housing assistance benefits received pursuant to Section 8 of the United States Housing Act of 1937 (Act), as amended, 42 U.S.C. §1437f, because the hearing officer capriciously disregarded substantial evidence.  The Commonwealth Court affirmed, but on different grounds – because possession of drug paraphernalia is not "drug-related criminal activity." 

 On April 6, 2008, a police officer searched Degelman’s apartment pursuant to a search warrant. The search yielded six empty heroin stamp bags, a rubber tie band, nine cotton balls, two crack pipes, and used hypodermic needles. Degelman pled guilty to a charge of disorderly conduct.

 On May 1, 2008, the Housing Authority issued a notice to Degelman terminating her housing assistance benefits pursuant to 24 C.F.R. §982.553(b)(1)(ii) because she had engaged in drug-related criminal activity in violation of 24 C.F.R. §982.551(l). Degelman requested an informal grievance hearing.
In Romagna v. Housing Authority of Indiana County (Pa. Cmwlth., No. 1648 C.D. 2011, July 13, 2012), not reported in A.3d, 2012 WL 3026386, the court summarized the applicable federal regulations and determined that possession of drug paraphernalia is not “drug-related criminal activity.” In Romagna, the court stated that [t]he Housing Authority’s definition of drug-related criminal activity does not specify that drug paraphernalia is “drug-related.” Nor does it use language broad enough to sweep possession of paraphernalia into the phrase “drug-related criminal activity.” In Romagna v. Housing Authority of Indiana County), the court summarized the applicable federal regulations and determined that possession of drug paraphernalia is not “drug-relate

Here, a dispute exists about the extent of drug paraphernalia found at the property and whether the drug paraphernalia belonged to Degelman or was left behind by intruders. However, under the applicable federal regulations, a “drug-related criminal activity” requires the actual use or possession of a drug, not drug paraphernalia. Thus, a disorderly conduct conviction related to drug paraphernalia being found at the Property provides insufficient cause to terminate Degelman’s housing assistance benefits under 24 C.F.R. §982.553(b)(1)(iii). Given our determination, we need not address the Housing Authority’s contention that the trial court erroneously applied the capricious disregard standard.

Wednesday, June 12, 2013

Open Records - DPW

Barnett v. DPW -  Cmwlth. Court – June 12, 2013


Requester filed the Request with DPW seeking access to information about data on phone calls to the County Assistance Office(s), Statewide Customer Service Center(s) or the Philadelphia Customer Service Center, including but not limited to, caller wait times, calls answered, calls unanswered due to system overflow, calls not able to be placed into a queue, and calls rerouted…and similar information.

Our Supreme Court recently reaffirmed its holding “that the objective of the RTKL ‘is to empower citizens by affording them access to information concerning the activities of their government.’” Levy v. Senate of Pennsylvania, ___ Pa. ___, ___, ___ A.3d ___, ___ (No. 44 MAP 2012, filed April 24, 2013), slip op. at 32.  (quoting SWB Yankees LLC v. Wintermantel, ___ Pa. ___, ___, 45 A.3d 1029, 1042 (2012)). Our Supreme Court has also held that the significant changes to the RTKL enacted in 2008 “demonstrate a legislative purpose of expanded government transparency through public access to documents.” Id. at ___, ___ A.3d at ___, slip op. at 33. “[C]ourts should liberally construe the RTKL to effectuate its purpose of promoting ‘access to official government information in order to prohibit secrets, scrutinize actions of public officials, and make public officials accountable for their actions.’” Id. (quoting Allegheny County Department of Administrative Services v. A Second Chance, Inc., 13 A.3d 1025, 1034 (Pa. Cmwlth. 2011) (citation omitted)).

Among the sections of the RTKL that have been cited “as supporting a legislative intent for broader public access” is the section at issue in this matter, Section 1101(a), 65 P.S. § 67.1101(a), which authorizes a requester to appeal an agency denial to the OOR.  Section 1101(a)(1) provides that, if “a written request for access to a record is denied or deemed denied, the requester may file an appeal with the [OOR] . . . within 15 business days.” 65 P.S. § 67.1101(a)(1). “The appeal shall state the grounds upon which the requester asserts that the record is a public record . . . and shall address any grounds stated by the agency for . . . denying the request.” Id. (emphasis added).

In Department of Corrections, this Court examined “the clear and unambiguous language chosen by the General Assembly in Section 1101(a) of the RTKL” and held that it is “statutorily required that a requester specify in [an] appeal to [OOR] the particular defects in an agency’s stated reasons for denying a RTKL request.”6 Department of Corrections, 18 A.3d at 434. We held further that “[b]y concluding that this requirement is mandatory we are not requiring a requester to prove anything; the provision merely places a burden on a requester to identify flaws in an agency’s decision denying a request.” Id. (emphasis in original).

With the foregoing in mind, we now turn to the issue of whether Requester’s written OOR Appeal in this case is deficient for failing to address grounds stated by DPW for denying Requester’s RTKL Request.  The OOR erred by summarily dismissing Requester’s OOR Appeal on the basis that it did not address DPW’s reasons for denying the Request. As shown by Requester’s OOR Appeal does address the reasons given by DPW in denying his RTKL Request, and includes his arguments as to why those reasons are flawed.. . . Although Requester does not discuss any specific subsections of Section 708(b) of the RTKL, this does not render the OOR Appeal deficient. Requester’s statement in his OOR Appeal that the records are public records that “do not qualify for any exemptions under [S]ection 708, are not protected by privilege, and are not exempted under any Federal or State law or regulation,” is sufficient under these circumstances. (OOR Appeal at 2, R.R. at 2a.)

Requester also adequately challenges DPW’s conclusion that the information sought does not fall within the meaning of the RTKL’s definition of “aggregated data.” Requester alleges that the “ticket reports” he seeks are a compilation of information contained in the “trouble tickets,” and that the records are not client-specific but, instead, constitute “aggregated data.”  To the extent Requester is correct, the omission of any discussion of the legal authorities set forth in Attachment A to DPW’s Response, which describe exemptions for individuals’ information, rather than aggregated data, does not render his OOR Appeal deficient.

Finally, Requester’s failure to address DPW’s “Omnibus Responses” or the various state and federal statutes or regulations listed in DPW’s Response to paragraph 1 of the Request does not render Requester’s OOR Appeal deficient. DPW included the “Omnibus Responses” and these other legal authorities because this Court “has held that, if an agency fails to raise a defense in its final response letter, the agency has waived its opportunity to do so and is barred from raising a new defense at the time of an appeal.”  As DPW only included its “Omnibus Responses” and these additional legal authorities as a precaution against waiver, we will not deem Requester’s OOR Appeal deficient for not addressing these precautionary grounds for denial. To hold otherwise would thwart the mandate that we are to liberally construe the RTKL in order to effectuate its purpose. Levy, ___ at ___, ___ A.3d at ___, slip op. at 33.

Accordingly, we vacate the OOR’s August 7, 2012 Final Determination and remand this matter to the OOR to consider Requester’s appeal and DPW’s reasons for denying Requester’s RTKL Request.

Friday, June 07, 2013

admin. law - appeal - agency duty to provide info. to calculate appeal period

Schmader v. Cranberry Township – Cmwlth. Cour – June 7, 2013


When the appeal period is triggered by administrative action, the administrative agency has a duty to provide to the recipient information essential to calculating the appeal period. See Schmidt v. Commonwealth, 495 Pa. 238, 241, 433 A.2d 456, 458 (1981). Without such information, the recipient has no reliable basis for knowing the number of days remaining in which to file a petition for review. Id.

In Schmidt, the Pennsylvania Supreme Court found that, under the applicable statute, the department had a duty to inform the taxpayer of the mailing date of its reassessment decision because, without such information, the taxpayer had no way of knowing how much time he had to file an appeal. 495 Pa. 238, 242, 433 A.2d 456, 458. The Supreme Court held that the first notice was inadequate to trigger the appeal period, and found the appeal to be timely since the Department’s failure to provide the requisite notice of the decision’s mailing date justified the taxpayer’s reliance on the date of the second notice of reassessment as the commencement of the period for appeal. Id. The Supreme Court rejected the contention that a postmark on an envelope carrying an agency decision could serve as notice of the date of mailing. Id.

The Schmidt line of cases remains viable and is controlling here. Because of the Board’s failure, Appellant was justified in filing his appeal within 30 days of receipt of the Board’s decision.

sec. 1983 - special relationship - school liability for student abuse/bullying


Morrow v. Belaski – 3d Cir. – June 5, 2013


 As is so often the case, the issues in this appeal arise from unsettling facts presented by sympathetic plaintiffs.1 We are asked to decide whether public schools have a constitutional duty to protect students from abuse inflicted by fellow students under the circumstances alleged here.

Appellants, Brittany and Emily Morrow, and their parents, Bradley and Diedre Morrow, brought this action against Blackhawk School District and Blackhawk High Schools Assistant Principal, Barry Balaski.    The Morrows claim that Brittany and her sister Emily were subjected to bullying in the form of a series of threats, assaults, and acts of racial intimidation at the hands of a fellow student and her accomplice. Unable to obtain help from school officials, the Morrows were ultimately compelled to remove their children from their school. Thereafter, the Morrows brought suit alleging that school officials denied them substantive due process under the Fourteenth Amendment by not protecting Brittany and Emily. The Third Amended Complaint (the “Complaint”) asserted a cause of action under 42 U.S.C. § 1983 and a supplemental state law claim for “negligence and/or gross or willful misconduct.”

The District Court dismissed the Complaint based on our decision in D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364 (3d Cir. 1992) (en banc). There, we concluded that the school did not have a “special relationship” with students that would give rise to a constitutional duty to protect them from harm from other students given the alleged facts. See id. at 1372 (finding that “no special relationship based upon a restraint of liberty exists here”). The District Court also held that the injury the Morrows complained of was not the result of any affirmative action by the Defendants. Accordingly, the court held that the Defendants are not liable under the “state-created danger” doctrine. The District Court therefore dismissed the Morrows Complaint, and this appeal followed. The appeal was initially argued before a panel of this Court. Thereafter, we granted en banc review to reexamine the very important questions raised by the allegations in the Complaint.

We now affirm the judgment of the District Court and hold that the allegations do not establish the special relationship or the state-created danger that must exist before a constitutional duty to protect arises under the Fourteenth Amendment.

Monday, June 03, 2013

Appeals - PRAP 1114 - Standard governing allowance of appeals


Pa. Supreme Court – June 3, 2013

 


 

 

Rule 1114. [Considerations] Standards Governing Allowance of Appeal.

 

(a) General Rule. Except as prescribed in [Rule] Pa.R.A.P. 1101 (appeals as of right from the Commonwealth Court), review of a final order of the Superior Court or the Commonwealth Court is not a matter of right, but of sound judicial discretion, and an appeal will be allowed only when there are special and important reasons therefor.

 

(b) Standards. A petition for allowance of appeal may be granted for any of the following reasons:

 

(1) the holding of the intermediate appellate court conflicts with another intermediate appellate court opinion;

(2) the holding of the intermediate appellate court conflicts with a holdinof the Pennsylvania Supreme Court or the United States Supreme Court on the same legal question;

(3) the question presented is one of first impression;

(4) the question presented is one of such substantial public importance as to require prompt and definitive resolution by the Pennsylvania Supreme Court;

(5) the issue involves the constitutionality of a statute of the Commonwealth;

(6) the intermediate appellate court has so far departed from accepted judicial practices or so abused its discretion as to call for the exercise of the Pennsylvania Supreme Court’s supervisory authority; or

(7) the intermediate appellate court has erroneously entered an order quashing or dismissing an appeal.

 

 

Official Note

The petition for allowance of appeal is synonymous with a petition for allocatur. Pa.R.A.P. 1114(b)(7) supersedes the practice described in Vaccone v. Syken, 587 Pa. 380, 384 n.2, 899 A.2d 1103, 1106 n.2 (2006). [Based in part on U.S. Supreme Court Rule 10. The following, while neither controlling nor fully measuring the discretion of the Supreme Court, indicate the character of the reasons which will be considered:

(1) the holding of the intermediate appellate court conflicts with another

intermediate appellate court opinion;

(2) the holding of the intermediate appellate court conflicts with a holding

of the Pennsylvania Supreme Court or the United States Supreme Court on the

same legal question;

(3) the question presented is one of first impression;

2

(4) the question presented is of such substantial public importance as to

require prompt and definitive resolution by the Pennsylvania Supreme Court;

(5) the issue involves the constitutionality of a statute of this

Commonwealth;

(6) the intermediate appellate court has so far departed from accepted

judicial practices or so abused its discretion as to call for the exercise of the

Pennsylvania Supreme Court’s supervisory authority; or

(7) an intermediate appellate court has erroneously entered an order

quashing or dismissing an appeal.

Prior to the 2011 amendment to the Official Note to this Rule, the procedural

mechanism to seek the Pennsylvania Supreme Court’s review of an intermediate

appellate court order quashing or dismissing an appeal was by petition for

review. See Vaccone v. Syken, 587 Pa. 380, 382 n.2, 899 A.2d 1103, 1104 n.2

(2006). The current amendments now provide that such appeals should be

pursued by the petition for allowance of appeal process. The 2011 amendment

adds Reason (7) to the Official Note, which provides a basis for seeking review of

intermediate appellate court quashals and dismissals through the Chapter 11

petition for allowance of appeal procedure, rather than the Chapter 15 petition for

review procedure.]

Rule 1702. Stay Ancillary to Appeal

* * * * *

[(d) Stay of execution.—When a trial court enters an order granting or denying a

stay of execution in a capital case, such order may be reviewed by the Supreme

Court upon application pursuant to Rule 123. No appeal or petition for review

need be filed in connection with an application for review of a stay order in a

capital case.]

* * * * *

 

[This is an entirely new rule.]

Rule 1704. Application in a Capital Case for a Stay of Execution or for Review of

an Order Granting or Denying a Stay of Execution.

Prior notice of the intent to file an application in a capital case for a stay or review

of an order granting or denying a stay of execution shall be provided to the Prothonotary

of the Pennsylvania Supreme Court, if prior notice is practicable.

The application for stay or review shall set forth the following:

1. The date the warrant issued; the date and nature of the order that

prompted the issuance of the warrant; and the date the execution is scheduled, if a date

has been set;

2. Whether any direct or collateral challenges to the underlying conviction

are pending, and, if so, in what court(s) or tribunal(s);

3. Whether any other applications for a stay of the pending execution have

been filed, and, if so, in what court(s) or tribunal(s), when, and the status of the

application(s);

4. The grounds for relief and the showing made to the trial court of

entitlement to a stay under 42 Pa.C.S. § 9545(c), if applicable;

5. A statement certifying that emergency action is required and setting forth a

description of the emergency.

All dockets, pleadings, and orders that are referred to in 1-5 above must be

attached to the application. If any of the information provided in the application changes

while the motion is pending, the party seeking the stay or review must file with the

Pennsylvania Supreme Court written notice of the change within 24 hours.

No notice of appeal or petition for review needs to be filed in order to file an

application under this rule.

Rule 3316. Review of Stay of Execution Orders in Capital Cases.

When a trial court has entered an order granting or denying a stay of execution in

a capital case, such order may be reviewed by the Supreme Court in the manner

prescribed in [Rule 1702(d)] Pa.R.A.P. 1704.

* * * *

4

[This is an entirely new rule.]

Rule 3341. Petitions for Certification of Questions of Pennsylvania Law

(a) General Rule.—On the motion of a party or sua sponte, any of the following courts

may file a petition for certification with the Prothonotary of the Supreme Court:

(1) The United States Supreme Court; or

(2) Any United States Court of Appeals.

(b) Content of the Petition for Certification.—A petition for certification need not be

set forth in numbered paragraphs in the manner of a pleading, and shall contain the

following (which shall, insofar as practicable, be set forth in the order stated):

(1) A brief statement of the nature and stage of the proceedings in the petitioning

court;

(2) A brief statement of the material facts of the case;

(3) A statement of the question or questions of Pennsylvania law to be determined;

(4) A statement of the particular reasons why the Supreme Court should accept

certification; and

(5) A recommendation about which party should be designated Appellant and

which Appellee in subsequent pleadings filed with the Supreme Court.

There shall be appended to the petition for certification copies of any papers filed by

the parties regarding certification, e.g., a motion for certification, a response thereto, a

stipulation of facts, etc.

(c) Standards.—The Supreme Court shall not accept certification unless all facts

material to the question of law to be determined are undisputed, and the question of law is

one that the petitioning court has not previously decided. The Supreme Court may accept

certification of a question of Pennsylvania law only where there are special and important

reasons therefor, including, but not limited to, any of the following:

(1) The question of law is one of first impression and is of such substantial public

importance as to require prompt and definitive resolution by the Supreme Court;

(2) The question of law is one with respect to which there are conflicting decisions

in other courts; or

(3) The question of law concerns an unsettled issue of the constitutionality,

construction, or application of a statute of this Commonwealth.

Pa. Supreme Court - petition for allowance of appeal - internal operating procedures



 

Internal Operating Procedures of the Supreme Court

1. Introduction.

2. Preamble.

3. Decisional Procedures: Argued and Submitted Cases.

4. Opinions.

5. Non-Capital Direct Appeals.

6. [Allocaturs] Allowance of Appeal.

7. Motions, Miscellaneous Petitions and Applications for Relief.

8. Certification of Questions of Law.

9. Photographing, Recording and Broadcasting of Supreme Court Proceedings by

the Pennsylvania Cable Network (“PCN”).

10. Communications to the Court in Pending Cases.

11. Quorum.

12. Suspension of Procedures.

 

* * *

§ 6. [Allocaturs]Allowance of Appeal.

 

A. [Standards. Petitions for allowance of appeal (‘‘allocaturs’’) may be granted for any of the following reasons:

1. the holding of the intermediate appellate court conflicts with another intermediate appellate court opinion;

2. the holding of the intermediate appellate court conflicts with a holding of this Court or the United States Supreme Court on the same legal question;

3. the question presented is one of first impression;

4. the question presented is one of such substantial public importance as to require prompt and definitive resolution by this Court;

5. the issue involves the constitutionality of a statute of this Commonwealth;

6. the intermediate appellate court has so far departed from accepted judicial practices or so abused its discretion as to call for the exercise of this Court's supervisory authority; or

7. the intermediate appellate court has erroneously entered an order quashing or dismissing an appeal.

 

B.] Assignment. The Prothonotary shall initially screen [allocatur] petitions for allowance of appeal for compliance with the applicable appellate rules. Untimely petitions may be refused for filing by the Prothonotary without further action of the Court.

 

Petitions for allowance of appeal shall be assigned to individual Justices by the Prothonotary on a rotating basis by seniority for preparation of an [allocatur]allowance of appeal report. Petitions from the same district presenting the same question shall be consolidated; petitions from different districts that present the same question may be consolidated at the discretion of

the Court.

 

[C.]B. Circulation and Disposition. [Allocatur]Allowance of appeal reports shall be circulated within ninety (90) days of the receipt of such an assignment. The proposed disposition date shall not be greater than sixty (60) days from the date of circulation. Holds may be placed on [allocatur] petitions for allowance of appeal only upon written notice to the members of the Court as to the reasons for the hold, e.g., the existence of another petition from another district presenting the same question. No hold may be placed on a petition without the existence of a terminus, e.g., the issuance of an opinion on a petition presenting the same question. Where a hold results from the existence of another petition presenting the same issue, the parties shall be notified of the hold and the case that will determine the issue. A hold for the purpose of preparing a counter-report shall not exceed thirty (30) days; only by vote of the majority may a hold be

extended beyond thirty (30) days, but in no event shall a hold for such purpose exceed ninety (90) days.

 

Notwithstanding any contrary procedures set forth above, [allocatur]allowance of appeal reports in Children’s Fast Track appeals are to be circulated within thirty (30) days of the receipt of the assignment, and the proposed disposition date shall not be greater than thirty (30) days from the date of circulation. A hold for purposes of preparing a counter-report in a Children’s Fast Track appeal shall not exceed fifteen (15) days; only by vote of the majority may a hold be extended beyond fifteen (15) days, but in no event shall a hold exceed forty-five (45) days.

 

Upon the affirmative vote of three or more Justices, [allocatur]allowance of appeal will be granted and the case will be listed for oral argument, unless the order indicates that the matter will be submitted on the briefs. An order granting an [allocatur] petition for allowance of appeal shall specify the issues upon which [allocatur]allowance of appeal was granted.

A per curiam order granting [allocatur]allowance of appeal and reversing an order of the lower court must cite to controlling legal authority or provide a full explanation of the reasons for reversal.

 

A Justice may request that the order resolving the [allocatur] petition for allowance of appeal record that he or she voted for a different disposition. All orders shall indicate if a Justice did not participate in the consideration or decision of the matter.

 

[D.]C. Reconsideration Applications.

1. Assignment. The Prothonotary shall direct applications for reconsideration to the Justice who authored the [allocatur]allowance of appeal report.

2. Circulation and Disposition. The assigned Justice shall circulate to the Court a recommended disposition within fourteen (14) days of the date of the assignment, or within seven (7) days of the date of assignment in Children’s Fast Track appeals. A Justice who disagrees with the recommended disposition shall circulate a counter-recommendation within fourteen (14) days of the original recommendation, or within seven (7) days of the date of the original recommendation in Children’s Fast Track appeals. A vote of the majority is required to grant reconsideration. In

any case in which reconsideration has been denied, a Justice may request that the order record that he or she voted to grant reconsideration. All orders shall indicate if a Justice did not participate in the consideration or decision of the matter.

 

§ 7. Motions, Miscellaneous Petitions, and Applications for Relief.

A. Duties of Prothonotary. All assignments of motions, miscellaneous petitions and applications for relief, including emergency motions and those requesting the exercise of King's Bench powers, extraordinary jurisdiction and original jurisdiction, shall originate in the Prothonotary's office. No motions, petitions or applications will be considered which were not first filed in the Prothonotary’s office and thence assigned. Documents may be filed in paper format, or by electronic or facsimile transmission. Once received, motions, petitions and applications will be monitored by the Prothonotary’s office for compliance with applicable appellate rules. Proposed filings that are not in compliance will not be docketed. Proposed filings that are in compliance will be docketed and a response will be allowed. At the expiration of the response period the documents will be forwarded to the Court.

 

Procedural motions (e.g., requests for extension of time, requests to exceed page limits, and requests to proceed in forma pauperis) may be resolved by the Prothonotary without further action of the Court. Note: Time periods for responses*

 

FILING RULE RESPONSE PERIOD

APPLICATION FOR RELIEF (EXTENSIONS) 123 14 DAYS

JURISDICTIONAL STATEMENT 909(b) 14 DAYS

PETITION FOR [ALLOCATUR]ALLOWANCE OF APPEAL 1116 14 DAYS

PETITION FOR [ALLOCATUR]ALLOWANCE OF APPEAL

CHILDREN’S FAST TRACK CASES 1116(b) 10 DAYS

RECONSIDERATION 1123 NO ANSWER PERMITTED

PETITION FOR PERM. TO APPEAL 1314 14 DAYS

PETITION FOR REVIEW 1516(c) 30 DAYS

N.B. NO ANSWER REQUIRED UNLESS PETITION CONTAINS NOTICE TO PLEAD

APPLICATION FOR RELEASE (BAIL) 1762 14 DAYS

REARGUMENT 2545 14 DAYS

ORIGINAL PROCESS

(e.g., HABEAS, MANDAMUS) 3307 14 DAYS

EXTRAORDINARY RELIEF 3309 14 DAYS

* MAY BE SHORTER IN STAY OR SUPERSEDEAS APPLICATIONS WHEN CIRCUMSTANCES

REQUIRE, OR BY COURT ORDER

 

B. Assignment, Circulation and Disposition. All motions, petitions and applications will be assigned to the Chief Justice, except for emergency motions, motions addressed to a single Justice, and applications for stay of execution in capital cases. In matters assigned to the Chief Justice, the Chief Justice will prepare a memorandum setting forth the positions of the parties and a recommended disposition. Recommendations should be circulated within sixty (60) days from the date the answer is filed or is due to be filed, whichever occurs first, and

should contain a proposed disposition date no greater than thirty (30) days from the date of circulation, except in Children’s Fast Track cases, in which recommendations shall be circulated within fifteen (15) days from the date the answer is filed or due to be filed, whichever occurs first, and the proposed disposition date shall be no greater than fifteen (15) days from the date of

circulation. A vote of the majority is required to implement the proposed disposition.

 

Every motion, petition or application shall be decided within sixty (60) days, or within thirty (30) days in Children’s Fast Track cases. A Justice may request that the order record that he or she voted for a different disposition. Orders disposing of motions, petitions and applications shall indicate if a Justice did not participate in the consideration or decision of the matter.

 

C. Emergency Motions.

1. Assignment. On or before the first Monday in January, the Chief Justice shall publish a calendar of duty assignments for the handling of emergency motions. Two Justices will be assigned by the Chief Justice on a monthly rotating basis to review emergency motions for the Eastern and Western Districts. Cases filed in the Middle District will be assigned alternately between the Eastern and Western District duty Justices.

 

2. Circulation and Disposition. Any motion assigned to the duty Justice may  at the discretion of that Justice be referred to the full Court for consideration, with or without the entry of an interim order.

 

D. Motions Directed to a Single Justice.

A Justice may entertain and may grant or deny any request for relief which may under Pa.R.A.P. 123 or 3315 properly be sought by motion, except that a single Justice may not dismiss or otherwise

determine an appeal or other proceeding.

 

 E. Applications for Stay of Execution in a Capital Case or for Review of an Order Granting or Denying a Stay of Execution.

1. [Contents of application. The applicant shall set forth the procedural history of the case, certify that the matter involves an emergency, and specify any other applications for stay of execution that have been or will be filed, including those in federal courts. The application shall include any relevant orders and trial court docket

entries. Whenever possible, applicants shall give the Prothonotary advance notice of the anticipated filing of an application for a stay of

execution.

2.] Assignment. The application [for stay of execution] will be assigned to the duty Justice.

 

[3.]2. Circulation and Disposition. The assigned Justice shall promptly circulate a proposed disposition and the application shall be resolved according to the vote of the majority.

 

F. Reconsideration Applications.

 

1. Assignment. The Prothonotary shall direct applications for reconsideration to the Justice who entered the order resolving the application.

 

2. Circulation and Disposition. The assigned Justice shall circulate to the Court a recommended disposition within fourteen (14) days of the date of the assignment, within seven (7) days of the date of assignment in Children’s Fast Track appeals, or as soon as practicable in emergency and stay of execution matters. A Justice who disagrees with the recommended disposition shall circulate a counter-recommendation within fourteen (14) days of the original recommendation, within seven (7) days of the date of the original recommendation in Children’s Fast Track

appeals, or as soon as practicable in emergency and stay of execution matters. A vote of the majority is required to grant reconsideration. In any case in which reconsideration has been denied, a Justice may request that the order record that he or she voted to grant reconsideration. All orders shall indicate if a Justice did not participate in the consideration or

decision of the matter.

 

§ 8. Certification of Questions of Law.

 

A. Court Limitation. This Court will accept Certification Petitions from the United States Supreme Court or any United States Court of Appeals.

 

B. [Contents of Certification Petition. A court may file a Certification Petition either on the motion of a party or sua sponte.

A Certification Petition shall  contain the following:

1. A brief statement of the nature and stage of the proceedings in the petitioning court;

2. A brief statement of the material facts of the case;

3. A statement of the question or questions of Pennsylvania law to be determined;

4. A statement of the particular reasons why this Court should accept certification; and

5. A recommendation as to which party should be designated as the appellant and which should be designated as the appellee in

subsequent pleadings filed with this Court.

 

The petitioning court shall attach to the Certification Petition copies of any papers filed by the parties regarding certification, e.g., a Motion for Certification, a response thereto and a Stipulation of Facts.

 

C. Standards for Acceptance.

Acceptance of certification is a matter of judicial discretion. The Court may accept certification of a question of Pennsylvania law only when there are special and important reasons therefor, including, but not limited to, any of the following:

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1. The question of law is one of first impression and is of such substantial public importance as to require prompt and definitive resolution by this Court;

2. The question of law is one with respect to which there are conflicting decisions in other courts; or

3. The question of law concerns an unsettled issue of the constitutionality, construction, or application of a statute of this Commonwealth.

 

The Court shall not accept certification unless all facts material to the question of law to be determined are undisputed, and the question of law is one that the petitioning court has not previously decided. The Court shall decide whether to accept or decline certification without hearing oral argument.

 

D.] Assignment, Circulation and Disposition. The Prothonotary shall refer Certification Petitions to the Chief Justice, who will prepare a memorandum setting forth the positions of the parties and a recommended disposition. Acceptance of certification is a matter of judicial discretion. The Court shall decide whether to accept or decline certification without hearing oral argument. The recommendation should be circulated within thirty (30) days from the date of assignment, and should contain a proposed disposition date no greater than thirty (30) days from the date of circulation. Every Certification Petition should be decided within sixty (60) days. A vote of the majority is required to implement the proposed disposition. A Justice may request that the order record that he or she voted for a different disposition. Orders disposing of Certification Petitions shall indicate if a Justice did not participate in the consideration or decision of the matter. Upon acceptance of certification by the Court, the Prothonotary shall (1) issue an order accepting certification, which shall specify the questions of law for which

certification was accepted, and whether the case is to be submitted on the briefs or heard at an argument session; (2) establish a briefing schedule; (3) list the matter for oral argument if oral argument has been granted; and (4) take such further action as the Court directs.

 

[E.]C. Amicus curiae briefs. After the Court accepts certification, amicus curiae briefs may be submitted without prior leave of Court. Such briefs shall be filed and served in the manner and within the time directed by the Prothonotary.

 

[F.]D. Reconsideration Applications.

 

1. Assignment. Upon receipt of an application for reconsideration following an order resolving a Certification Petition, the Prothonotary shall direct the reconsideration application to the Chief Justice for assignment.

2. Circulation and Disposition. The assigned Justice shall circulate to the Court a recommended disposition within fourteen (14) days of the date of

the assignment. A Justice who disagrees with the recommended disposition shall circulate a counter-recommendation within fourteen (14)  days of the original recommendation. A vote of the majority is required to grant reconsideration. In any case in which reconsideration has been denied, a Justice may request that the order record that he or she voted to grant reconsideration. All orders shall indicate if a Justice did not participate in the consideration or decision of the matter.

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This  summary is also posted at the PLAN Legal Update http://planupdate.blogspot.com/, which is searchable  and can be accessed without a password.