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
Tuesday, June 18, 2013
UC - vol. quit - taking leave w/o following established protocol
Dike v. UCBR – Cmwlth. Court – June 18,
2013
UC - "substance abuse" include alcohol - UC Law sec. 402 (e.1)
Dillon
v. UCBR – Cmwlth Court – June 18, 2013
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).
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.
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."
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
Appellants,
Brittany and Emily Morrow, and their parents, Bradley and Diedre Morrow,
brought this action against Blackhawk School District and Blackhawk High School‟s 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:
7
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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