CHAPTER 65. OPERATING PROCEDURES
OF THE SUPERIOR COURT

ADMINISTRATIVE OFFICES
AND STAFF

Sec.


65.0.    Introduction.
65.1.    Executive Administrator.
65.2.    Prothonotary.
65.3.    Reporter.
65.4.    Court Crier.
65.5.    Panels.
65.6.    Courts en banc.
65.7.    Central Legal Staff.
65.8.    Composition of Staff.
65.9.    Confidentiality Considerations.
65.10.    Disqualification Considerations.
65.11.    Practice of Law.
65.12.    Initial Review of Docketing Statements.
65.13.    Political Activity.
65.14.    Children’s Fast Track and Other Family Fast Track Appeals.

MOTIONS PRACTICE


65.21.    Motions Review Subject to Single Judge Disposition.
65.22.    Motions Review Subject to Motions Panel Disposition.
65.23.    Discontinuances.
65.24.    Hybrid Representation.
65.25.    Assignment of Judges to Motions Duty.
65.26.    Notices of Bankruptcy.

DECISIONAL PROCEDURES


65.31.    Argument Sessions and Submit Panels.
65.32.    Daily List.
65.33.    Reading of Briefs.
65.34.    Oral Argument.
65.35.    Oral Motions.
65.36.    Submitted Cases.
65.37.    Non-Precedential Decisions (formerly titled Unpublished Memoranda Decisions).
65.38.    Reconsideration, Reargument, and En Banc Review.
65.39.    Ancillary Orders Following Merits Panel Decisions.
65.40.    [Rescinded].
65.41.    Argument Before a Court En Banc.
65.42.    Circulation and Voting in Children’s Fast Track and Other Family Fast Track Appeals.
65.43.    [Rescinded].

WIRETAPS


65.51.    Introduction.
65.52.    Confidential Docket Number.
65.53.    Assignment to a Particular Judge.
65.54.    Submission of Application to Assigned Judge.
65.55.    Additional Testimony or Documentary Evidence.
65.56.    Request for Identity of Informant.
65.57.    Content of Application.
65.58.    Target Specific Wiretaps (18 Pa.C.S. §  5712.1).
65.59.    Mobile Communication Tracking, Pen Registers, Trap and Trace Devices, and Telecommunication Identification Interception Devices (18 Pa.C.S. § §  5771—5773).
65.60.    Content of Affidavit.
65.61.    Order: In General. Notice of Confidentiality.
65.62.    Order: Probable Cause Statement.
65.63.    Supplementary Target Specific Orders.
65.64.    Orders for Mobile Communication Tracking, Installation and Use of a Pen Register, Trap and Trace Device, and Telecommunication Identification Interception Device.
65.65.    Order: Factual Statement.
65.66.    Procedure Upon Signing the Order.
65.67.    Seal.
65.68.    Duplicate Original for Communications Common Carrier.
65.69.    Renewal or Extension Procedure.
65.70.    Verbal Authorization in General.
65.71.    Content of Verbal Application.
65.72.    Verbal Authorization Contingent Upon Written Application.
65.73.    Progress Reports.
65.74.    Content of Final Report.
65.75.    Motions for Unsealing Orders.
65.76.    Order of Court.
65.77.    Return of Documents to Court.
65.78.    Responsibility for Unsealed Documents.

Source

   The provisions of this Chapter 65 amended June 15, 1990, effective June 16, 1990, 20 Pa.B. 3147, unless otherwise noted. Immediately preceding text appears at serial pages (89345) to (89354) and (99803).

ADMINISTRATIVE OFFICES AND STAFF


§ 65.0. Introduction.

 These operating procedures are intended to implement Article V of the Constitution of Pennsylvania, statutory provisions, the Pennsylvania Rules of Appellate Procedure and the customs and traditions of this Court. No substantive or procedural rights are created, nor are any such rights diminished.

Source

   The provisions of this §  65.0 adopted September 19, 2012, effective immediately, 43 Pa.B. 298 as §  65.1; renumbered as §  65.0 as adopted by the Superior Court.

§ 65.1. Executive Administrator.

 The President Judge may appoint an Executive Administrator who shall be the administrative officer of the Superior Court and who shall report directly to the President Judge. The Executive Administrator shall carry out assignments necessary to the efficient operation of the court including:

   1. analyzing administrative operations;

   2. conducting independent research;

   3. preparing the budget and providing for expenditure control, financial accounting, procurement of supplies, facilities management, and telecommunications.

Source

   The provisions of this §  65.1 renumbered as §  65.1a September 19, 2012, effective immediately, 43 Pa.B. 298; reversed renumbering at request of Superior Court.

§ 65.2. Prothonotary.

 A.  The Prothonotary is an officer of the Superior Court who is charged with the clerical duties and responsibilities of the business of the Court. The duties and responsibilities of the Prothonotary include but are not limited to:

   1.  keeping the records and seal of the Court;

   2.  issuing, processing, and entering judgments and orders at the direction of the Court;

   3.  certifying copies from the records of the Court;

   4.  scheduling all hearings and arguments before the Court, preparing the calendar, and coordinating judicial schedules;

   5.  supervising the collection of all fees collected by the Court and ensuring the proper receipt and distribution of such fees;

   6.  overseeing the preparation of the Court’s official record of proceedings, attesting to their accuracy, and providing for distribution;

   7.  promptly securing all records wherein appeals have been filed and, where provided by Rule of Appellate Procedure, dismissing an appeal for failure to comply with the Rules or Order of the Court;

   8.  any other such duties as required by the Court.

 B. Opinions filed with the Prothonotary are to be made available to the parties and the public promptly thereafter.

§ 65.3. Reporter.

 A.  The Reporter shall be a member of the administrative staff of the Court whose duties and responsibilities include:

   1.  maintaining accurate journals and recording the votes and miscellaneous correspondence on all opinions, memoranda, and petitions for reargument for each case before the Court;

   2.  preparing statistical reports, in cooperation with the legal systems coordinator, which shall indicate the number of decisions rendered each year by the Court;

   3.  compiling assignment lists and records of the case assignments of the judges;

   4.  maintaining a record of all panels and compiling paperbooks which shall be kept until cases have been reported to the printer;

   5.  preparing and preserving for a reasonable period of time correspondence to and from the Superior Court printer.

Source

   The provisions of this §  65.3 amended November 20, 2003, effective immediately, 33 Pa.B. 5913. Immediately preceding text appears at serial page (216469).

§ 65.4. Court Crier.

 A.  Court Criers shall be responsible for courtroom operations including:

   1.  opening and adjourning the Court and maintaining order in the courtroom;

   2.  assembling and making proper distribution of case briefs and records;

   3.  preparing the journals of the Court and of the Prothonotary;

   4.  maintaining a list of the Cases Book, which shall contain the date of argument or hearing, the judges present, and the names of counsel for the parties;

   5.  coordinating security in the courtroom;

   6.  performing related work as required by the Court.

§ 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.

   4.  If a judge on a motions panel is unable to participate in the review of a particular motion, the motion may be decided by the two remaining judges. In the event that the two remaining judges are unable to agree on a disposition, they shall request the President Judge or his/her designee to assign another judge to sit in review of the motion.

 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).

Source

   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; amended June 14, 2017, effective immediately, 47 Pa.B. 6362. Immediately preceding text appears at serial pages (378610) to (378611).

§ 65.6. Courts en banc.

 A.  A Court en banc shall consist of not more than nine commissioned judges of the Superior Court.

 B.  The President Judge shall assign the judges to each en banc panel and shall designate the location, the time, and the date of each session. The presiding judge of a Court en banc shall be the commissioned judge highest in seniority, except where the Court en banc includes the President Judge, who shall then preside.

 C.  At the conclusion of each en banc session, the presiding judge shall forward to all judges, the Prothonotary, the Chief Staff Attorney, the administrative assistant to the President Judge, and the Reporter a record of all assignments and other action taken during the session.

Comment

   In accordance with Pa.R.A.P. 3103(a), the Court en banc shall consist of no more than nine active members of the Court. See also: §  65.41.

Source

   The provisions of this §  65.6 amended November 20, 2003, effective immediately, 33 Pa.B. 5913; amended September 15, 2010, effective immediately, 40 Pa.B. 6078. Immediately preceding text appears at serial pages (342596) to (342597).

§ 65.7. Central Legal Staff.

 Central Legal Staff is an office of the Court created for the purpose of assisting the Court in reviewing and processing motions, preparing memos for the Court as directed, screening cases, certifying cases to advise the Court of apparent conflicts, preparing a newsletter to inform the Court of recent Supreme and Superior Court decisions, and accepting such other responsibilities as may be assigned by the Court or the President Judge.

§ 65.8. Composition of Staff.

 A.  The Central Legal Staff is comprised of members of the Bar of the Commonwealth of Pennsylvania and serves the interests of the Court as a whole and assists the Judges in procedural and substantive matters under the direction of the President Judge.

 B.  The staff is supervised by the Chief Staff Attorney. The Chief Staff Attorney shall prepare and make available to the members of the Court written Internal Operating Procedures for all aspects of Central Legal Staff’s operations.

§ 65.9. Confidentiality Considerations.

 A member of staff owes a duty of confidentiality to the judges of the Superior Court. This duty extends to matters concerning any opinions, statements, or events with respect to the decision-making process of the Court. A staff member should avoid even informal contact with attorneys or litigants with respect to a matter pending before the Court. An attorney should refrain from discussions outside the Court, public or private, regarding the merits of pending proceedings. Matters involving the decision-making process are inappropriate for discussion outside the Court, including but not limited to the assignment of a case to a particular judge, the motions assignment judge, or the identity of the judge who may have signed an order in a case per curiam.

Source

   The provisions of this §  65.9 amended November 20, 2003, effective immediately, 33 Pa.B. 5913. Immediately preceding text appears at serial page (216471).

§ 65.10. Disqualification Considerations.

 A member of staff shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned.

§ 65.11. Practice of Law.

 Staff attorneys must be members of the Bar of the Commonwealth of Pennsylvania; however, they may not engage in the practice of law outside the Court. The prohibited practice of law, for the purpose of this rule, includes the acceptance of appointment to, or participation in the deliberations of, arbitration panels appointed pursuant to 42 Pa.C.S. § §  7361—7362. This prohibition, however, does not extend to the limited representation of relatives who may be in need of legal assistance.

§ 65.12. Initial Review of Docketing Statements.

 Staff is responsible for the screening of docketing statements filed pursuant to Pa.R.A.P. 3517. These statements are to be initially screened to determine if the appeal is jurisdictionally or procedurally defective. No appeal shall be subject to being quashed on the basis of the docketing statement review alone; rather, if a defect is apparent, a letter shall be addressed to counsel to verify same. Following notification to counsel, the appeal is subject to being quashed by the assigned monthly motions judge.

§ 65.13. Political Activity.

 Appointed judicial employees are not permitted to engage in partisan political activities.

Comment

   See Supreme Court Order of June 29, 1987, 82 Judicial Administration Docket No. 1., In re: Prohibition of Political Activities by Court-Appointed Employees.

§ 65.14. Children’s Fast Track and Other Family Fast Track Appeals.

 A.  In accordance with Pa.R.A.P. 102, revised in 2009, and in accordance with a program first established in this court in 2000, the court shall expedite handling of appeals involving parent-child relationships as follows:

   1.  Children’s Fast Track: All cases involving dependency, termination of parental rights, adoption, custody, or paternity shall be designated as Children’s Fast Track in the Superior Court.

   2.  Other Family Fast Track: Central Legal Staff in its discretion may expedite other appeals involving the parent-child relationship. Such cases shall be designated ‘‘Other Family Fast Track.’’

 B.  For all cases designated as Children’s Fast Track or Other Family Fast Track, primary responsibility for monitoring the receipt of the record shall rest with the Central Legal Staff.

   1.  Upon receipt of an appeal that has been designated Children’s Fast Track appeal by the trial court and/or the parties, the Prothonotary shall forward a letter from the President Judge of the Superior Court to the trial court judge, with copies to the clerk of the lower court, counsel for the parties or to the parties themselves if they are proceeding pro se, and Central Legal Staff. The letter shall stress the importance of the trial court’s duty to send the record to the Superior Court in a timely manner, and shall stress the Superior Court’s internal operating policy with respect to extensions of time for briefing, as set forth in §  65.21 B.2.

   2.  In all cases designated Other Family Fast Track by the Superior Court, the Central Legal Staff shall forward the letter from the President Judge as set forth in the preceding paragraph B.1.

   3.  Upon receipt of an appeal that has not been designated Children’s Fast Track by the trial court or the parties, the Prothonotary or Central Legal Staff may designate the appeal as a Children’s Fast Track appeal if the circumstances so warrant. In such a case, the procedures set forth in paragraph B.1. or B.2. above will apply.

Source

   The provisions of this §  65.14 adopted March 16, 2009, effective immediately, 39 Pa.B. 1613.

MOTIONS PRACTICE


§ 65.21. Motions Review Subject to Single Judge Disposition.

 A.  Except as otherwise provided in §  65.22, a single judge of this Court, whether commissioned or specially assigned, may entertain and may grant or deny any request for relief which under the Rules of Appellate Procedure may properly be sought. A party may file an answer to an application, Pa.R.A.P. 123(b); a speaking application shall be verified unless the interest of justice requires action without it, Pa.R.A.P. 123(c); oral argument will not be permitted unless otherwise ordered by the Court, Pa.R.A.P. 123(d). The action of a single judge may be reviewed by the Court.

Comment

   Section 65.21(A) merely reaffirms the procedure codified in Pa.R.A.P. 123. A single judge may grant or deny relief requested by a proper application, Pa.R.A.P. 123(e). However, the Court may by order or rule provide that an application or class of applications must be acted upon by the Court.

 B.  All petitions for extension of time shall be referred by the Prothonotary to the motions judge. Such petitions should be acted upon as soon as possible unless the motions judge feels an answer is necessary.

   1.  Petitions for extension shall be granted only on cause shown and in any event the filing of the brief is required, particularly in criminal cases, even though the right to argue is lost. However, if the petition for extension is accompanied by a substantive motion, such as a motion to quash, remand, or withdraw, Central Legal Staff shall review the motion in an expeditious manner pursuant to the procedures set forth in Section 65.21(D).

   2.  Notwithstanding any contrary procedures set forth above, all petitions for extension of time to file a brief in cases designated Children’s Fast Track or Other Family Fast Track, upon receipt by the Prothonotary, shall be sent to Central Legal Staff for processing. All such petitions shall be presented to a motions judge for disposition within three days of receipt of the petition by Central Legal Staff. Petitions for extension of time to file a brief in Children’s Fast Track or Other Family Fast Track cases shall be granted only upon a showing of good cause and extraordinary circumstances. Generalities such as the purpose of the motion is not for delay or that counsel is too busy will not constitute either good cause or extraordinary circumstances. Extensions for time should rarely be granted, and when granted should rarely be for a period in excess of seven days.

 C.  All other motions, petitions or applications for relief subject to this rule, shall, upon receipt by the Prothonotary, be transmitted to Central Legal Staff.

 D.  Central Legal Staff, upon receiving an application for relief pursuant to subsection C, shall review the application and prepare a recommendation and present the application and recommendation to the assigned motions judge at a time and place convenient to the motions judge. Central Legal Staff may also present recommendations for sua sponte orders deemed necessary to correct or clarify preliminary procedural matters.

 E.  The motions judge may decide the application on the basis of the application or may require the filing of an answer or briefs, or the motions judge may schedule a hearing thereon.

 F.  Unless ordered by the Court, oral argument will not be permitted.

 G.  It is within the discretion of a single judge to whom an application has been referred to decide the motion or to have it presented to a motions panel. Pa.R.A.P. 123(e).

 (As amended, effective 1/1/97)

 H.  Once a case is scheduled before a panel, all motions filed thereafter shall be referred to that panel.

 I.  Motions for continuance are to be referred to the presiding judge of the panel who alone may decide the motion, or who may obtain a vote of the other judges of the panel by letter or phone.

 J.  Any motions for mandamus, prohibition and writs of habeas corpus where no direct appeal is pending shall be referred by the Chief Staff Attorney to the assigned motions judge.

Comment

   See Municipal Publications v. Court of Common Pleas of Philadelphia County, 507 Pa. 194, 489 A.2d 1286 (1985).

Source

   The provisions of this §  65.21 amended November 11, 1994, effective September 29, 1994, 24 Pa.B. 5651; amended November 20, 2003, effective immediately, 33 Pa.B. 5913; amended January 16, 2004, effective December 24, 2003, 34 Pa.B. 379; amended March 16, 2009, effective immediately, 39 Pa.B. 1613; amended August 25, 2014, effective August 25, 2014, 44 Pa.B. 6223. Immediately preceding text appears at serial pages (342599) to (342601).

§ 65.22. Motions Review Subject to Motions Panel Disposition.

 A.  Motions to Quash or Dismiss Appeals, Petitions for Permission to Appeal pursuant to Pa.R.A.P. 312, 1301—1323 and 42 Pa.C.S. §  702(b), and Petitions for Review pursuant to Pa.R.A.P. 1501 et seq. shall be subject to review and disposition by a panel of three judges.

 B.  After a motion subject to this Rule has been filed with the Prothonotary’s office, the Prothonotary shall forward the motion to Central Legal Staff which shall prepare and circulate to the motions panel a legal memorandum and recommendation.

   1.  Votes thereon shall be due three weeks from the date on which the motion and accompanying documents are sent by Central Legal Staff, unless the case has been designated Children’s Fast Track or Other Family Fast Track.

   2.  Votes on cases which have been identified as Children’s Fast Track or Other Family Fast Track shall be due two weeks from the date on which the motion and accompanying documents are sent by Central Legal Staff.

 C.  If, in reviewing motions to be referred to a motions panel, Central Legal Staff determines that the motion is patently defective or the appeal is clearly defective or can be disposed of based upon established case law, the motion may be presented to the assigned motions judge.

 D.  Where a motions panel denied a motion to quash or dismiss, it shall be denied without prejudice to the moving party’s right to again raise the issue(s) presented by the motion before the merits panel by refiling the original motion in writing or preserving the issue in the written brief.

Source

   The provisions of this §  65.22 amended November 11, 1994, effective September 29, 1994, 24 Pa.B. 5651; amended December 27, 1996, effective January 1, 1997, 26 Pa.B. 6180; amended February 7, 1997, effective February 10, 1997, 27 Pa.B. 715; amended November 20, 2003, effective immediately, 33 Pa.B. 5913; amended October 25, 2007, effective immediately, 37 Pa.B. 6200; amended March 16, 2009, effective immediately, 39 Pa.B. 1613; amended June 14, 2017, effective immediately, 47 Pa.B. 6362. Immediately preceding text appears at serial pages (378615) to (378616).

§ 65.23. Discontinuances.

 A.  Discontinuances shall be reviewed pursuant to Pa.R.A.P. 1973.

 B.  Fugitive appeals will be quashed rather than discontinued on motion of the District Attorney or sua sponte by the Court. See Pa.R.A.P. 1972(6), Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984).

Source

   The provisions of this §  65.23 amended November 20, 2003, effective immediately, 33 Pa.B. 5913; amended August 25, 2014, effective August 25, 2014, 44 Pa.B. 6223. Immediately preceding text appears at serial pages (342601) to (342602).

§ 65.24. Hybrid Representation.

 Where a litigant is represented by an attorney before the Court and the litigant submits for filing a petition, motion, brief or other type of pleading in the matter, it shall not be accepted for filing, but noted on the docket and forwarded to counsel of record.

   Exceptions:

   1.  A pro se notice of appeal received from the trial court shall be docketed, even in instances where the pro se was represented by counsel in the trial court.

   2.  A motion by the pro se for appointment of new counsel, for reasons such as abandonment by counsel, or to proceed pro se shall be docketed and referred to Central Legal Staff, or the merits panel if constituted, for review and further action by the Court.

   3.  A pro se brief or writing filed in response to counsel’s petition to withdraw from representation.

Source

   The provisions of this §  65.24 amended August 25, 2014, effective August 25, 2014, 44 Pa.B. 6223. Immediately preceding text appears at serial page (342602).

§ 65.25. Assignment of Judges to Motions Duty.

 A.  The President Judge shall be responsible for assigning the Commissioned, Senior and specially assigned Judges of the Court to Motions Duty in the Western, Middle and Eastern Districts. All motions shall be presented to the judge assigned motions duty unless otherwise provided in these Rules or in exigent circumstances.

 B.  The President Judge shall set the motions panel. Each motions panel shall consist of three judges and shall serve for a period of two months. During each two-month period, the motions panel shall consider all Section 65.22 motions ready for disposition during the two-month period.

Source

   The provisions of this §  65.25 amended November 20, 2003, effective immediately, 33 Pa.B. 5913; amended October 25, 2007, effective immediately, 37 Pa.B. 6200. Immediately preceding text appears at serial pages (302214) and (301501).

§ 65.26. Notices of Bankruptcy.

 A party that has initiated bankruptcy proceedings and has obtained an automatic stay pursuant to the United States Bankruptcy Code shall file a Notice of Bankruptcy with the Prothonotary of this Court. The Notice must include: (1) the federal court that entered the stay, including the court’s district, if applicable; (2) the federal court case number; (3) the date of entry of the automatic stay; and (4) the Superior Court docket number. The party shall also include federal filings relevant to the stay including, but not limited to, the Notice of Bankruptcy Case Filing issued by the federal court. The parties shall provide written updates to the Court every six months as to the status of the bankruptcy proceedings.

Source

   The provisions of this §  65.26 adopted September 12, 2017, effective immediately, 47 Pa.B. 6362; amended September 13, 2018, effective September 13, 2018, 48 Pa.B. 7306. Immediately preceding text appears at serial page (388607).

DECISIONAL PROCEDURES


§ 65.31. Argument Sessions and Submit Panels.

 A.  Argument sessions shall be held in the cities of Harrisburg, Philadelphia, and Pittsburgh. Special argument sessions may be scheduled in other locations by decision of the President Judge. Argument sessions shall begin at 9:30 a.m. unless otherwise designated.

 B.  Submit panels shall be governed by §  65.36.

 C.  The Prothonotary shall give Children’s Fast Track and Other Family Fast Track cases priority in listing before argued and submit panels, and may schedule special sessions of the court at any time that the unlisted and eligible number of Children’s Fast Track plus Other Family Fast Track cases which cannot be listed before a scheduled argued or submitted panel within thirty days exceeds six in any district.

Source

   The provisions of this §  65.31 amended March 16, 2009, effective immediately, 39 Pa.B. 1613. The immediately preceding text appears at serial page (331673).

§ 65.32. Daily List.

 A.  The Prothonotary shall periodically prepare daily lists of cases for assignment to specific panels of the Court from those cases which are ready for oral argument.

 B.  A case shall be ready and available for assignment to a daily list on the date on which the appellee’s brief is due, regardless of whether the brief has been filed, unless the case has been designated Children’s Fast Track or Other Family Fast Track. Cases designated as Children’s Fast Track or Other Family Fast Track shall be eligible for listing before an argument panel at the time that the brief for the appellant is filed.

 C.  The daily list for each panel shall include cases filed in the district in which the panel is scheduled to sit. Ordinarily, cases will be assigned only to a daily list for an argument session which is to be held in the district in which the appeal was filed. The Court, on motion of a party for good cause shown, or on its own motion, may assign cases to a daily list for a panel sitting in a district other than the one in which the appeal was filed.

 D.  As soon as practical after a case has been assigned to a daily list, the Prothonotary shall notify the parties of the date, time, and location of the argument. Ready cases shall be assigned to a daily list four to six weeks before the scheduled argument date, except in exceptional circumstances upon request of the parties for cause shown and except for expedited matters which may be assigned to a daily list until one (1) week before the argument date.

Source

   The provisions of this §  65.32 amended March 16, 2009, effective immediately, 39 Pa.B. 1613. Immediately preceding text appears at serial page (331673).

§ 65.33. Reading of Briefs.

 Counsel should prepare for oral argument in a manner consistent with the policy of the Court that judges participating in a panel or en banc argument have read the briefs in advance of oral argument.

§ 65.34. Oral Argument.

 A.  Except in unusual circumstances, oral argument shall not exceed a total of fifteen (15) minutes for appellant and a total of fifteen (15) minutes for appellee. Where there are two or more appeals from the same order raising different or unrelated issues and in joint appeals, counsel addressing the court for each side shall be allowed ten (10) minutes to present argument. The total time allowed any side shall not exceed thirty (30) minutes. At the discretion of the presiding judge, the amount of time for argument may be increased or decreased.

 B.  Counsel filing briefs late shall not be permitted to argue but shall be available to answer any questions the Court may ask.

 C.  Counsel may use exhibits and graphic aids during argument. Copies of all such exhibits must be appended to the presenting party’s brief in compliance with the requirements of Pa.R.A.P. 2134. Arrangements must be made by counsel with the Court Crier prior to argument for use of a blackboard or easel.

 D.  Pro se arguments, except from parties then incarcerated, shall be heard in the same manner and on the same basis as arguments of counsel.

 E.  The use of laptops, tablets, and phones by attendees at argument sessions, in a non-disruptive manner, is permitted in the courtroom, except that they are disallowed for oral communication, photography, or audio- or video-recording purposes.

   1.  The Court does not provide Internet connectivity.

   2.  All electronic devices must be on a silent or vibrate mode.

   3.  Parties presenting oral argument may, without seeking permission of the panel, utilize laptops, tablets, or phones for data, reading, and reference purposes only, so long as usage of the device will not be disruptive to the oral argument.

Source

   The provisions of this §  65.34 amended June 14, 2017, effective immediately, 47 Pa.B. 6362. Immediately preceding text appears at serial page (378618).

§ 65.35. Oral Motions.

 A.  Oral motions raising again an issue previously denied without prejudice must first be re-raised, in writing by refiling the original motion or preserving the issue in the written brief, before the scheduled argument date.

 B.  When oral motions are considered by the Court at oral argument, or when the Court issues an order sua sponte at oral argument, the presiding judge shall inform the Deputy Prothonotary and shall convey to him/her the substance of an appropriate order. The Deputy Prothonotary will then direct the preparation and docketing of the corresponding written order.

Source

   The provisions of this §  65.35 amended June 14, 2017, effective immediately, 47 Pa.B. 6362; amended September 13, 2018, effective September 13, 2018, 48 Pa.B. 7306. Immediately preceding text appears at serial page (388609).

§ 65.36. Submitted Cases.

 A.  All post-conviction hearing cases shall be submitted on the briefs and record unless otherwise directed by the Court upon its own motion or upon application of a party.

 B.  On a weekly basis, the Prothonotary shall assign to the next available submit panel cases filed in all three districts which are to be submitted and which are ready to be assigned. A case is ready to be assigned to a submit panel as of the date that appellee’s brief is due, regardless of whether the brief has been filed. As submitted cases are assigned to a panel, the briefs and reproduced records shall be sent to the panel. At the same time as the panel receives notification of assignment of a case, the parties shall receive notice that the case has been submitted for consideration on the briefs.

Comment

   See Pa.R.A.P. 2311(a) and (b).

Source

   The provisions of this §  65.36 amended June 28, 2002, effective June 6, 2002, 32 Pa.B. 3076. Immediately preceding text appears at serial page (279444).

§ 65.37. Non-Precedential Decisions (formerly titled Unpublished Memoranda Decisions).

 A.  For purposes of these operating procedures, ‘‘non-precedential decision’’ refers to an unpublished, non-precedential, memorandum decision of the Superior Court filed after May 1, 2019. All references to a memorandum decision filed after May 1, 2019, within these operating procedures shall be analogous to ‘‘non-precedential decision’’ for purposes of Pa.R.A.P. 126(b).

Comment

   The title to this O.P. was changed to reflect the Amendments enacted by the Supreme Court to Pa.R.A.P. 126, effective May 1, 2019. See 278 Appellate Procedural Rules Docket (order amending Pa.R.A.P. 126) (Pa. 2019).

 B.  Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b). An unpublished memorandum decision filed prior to May 2, 2019, shall not be relied upon or cited by a Court or a party in any other action or proceeding, except that such a memorandum decision may be relied upon or cited (1) when it is relevant under the doctrine of law of the case, res judicata, or collateral estoppel, and (2) when the memorandum is relevant to a criminal action or proceeding because it recites issues raised and reasons for a decision affecting the same defendant in a prior action or proceeding. When an unpublished memorandum filed prior to May 2, 2019, is relied upon pursuant to this rule, a copy of the memorandum must be furnished to the other party and to the Court.

 C.  After an unpublished memorandum decision has been filed, the panel may sua sponte, or on the motion of any party to the appeal, or on request by the trial judge, convert the memorandum to a published opinion. In the case of a motion of any party to the appeal or a request from the trial judge, such motion or request must be filed with the Prothonotary within 14 days after the entry of the judgment or other order involved. The decision to publish is solely within the discretion of the panel.

Source

   The provisions of this §  65.37 amended and effective May 11, 1992, 23 Pa.B. 1939; amended July 7, 2000, effective July 1, 2000, 30 Pa.B. 3429; amended April 20, 2001, effective July 21, 2001, 31 Pa.B. 2108; amended October 10, 2003, effective November 24, 2003, 33 Pa.B. 5075; amended November 20, 2003, effective immediately, 33 Pa.B. 5913; amended April 16, 2019, effective April 16, 2019, 49 Pa.B. 2218. Immediately preceding text appears at serial page (394674).

§ 65.38. Reconsideration, Reargument, and En Banc Review.

 A.  All applications, motions, or petitions requesting reconsideration of the final decision of a merits panel, shall be recognized as Applications for Reargu-ment pursuant to Pa.R.A.P. 2541 et seq., and shall be subject to all the rules and limitations otherwise applicable to Applications for Reargument.

 B.  All such applications described in subsection A shall first be submitted to the merits panel that issued the decision in question, i.e., the original merits panel, for consideration by that panel.

 C.  The members of the merits panel may vote to grant panel reconsideration, grant en banc reargument, or deny any such application.

   1.  If the merits panel recommends en banc reargument, Central Legal Staff shall circulate the application, motion, or petition, along with any relevant filings, original decision(s), and/or summaries, to the commissioned judges for votes.

   2.  If a majority of the merits panel does not vote to grant reconsideration, Central Legal Staff shall forward all relevant reconsideration submissions to the commissioned judges as an Application for Reargument before a court en banc.

   3.  A party’s request that the case be reargued before a court en banc shall not foreclose a merits panel’s ability to reconsider the decision that prompted the underlying application.

 D.  Reargument before a court en banc is not a matter of right, but of sound judicial discretion. An Application for Reargument will be denied unless there are compelling reasons therefor. Such reasons include, but are not limited to, the following:

   1.  It appears that a decision of a merits panel may be inconsistent with a decision of a different panel of the court;

   2.  It appears that a merits panel may have overlooked relevant precedent, statute, or rule of court;

   3.  It appears that a merits panel may have overlooked or misapprehended one or more material facts of record;

   4.  It appears a merits panel relied upon legal authority relevant to the decision that has been reversed, modified, overruled, discredited, or materially altered during the pendency of the appeal; and

   5.  It appears the issues have potential for a significant impact upon developing law or public policy.

 E.  Reargument before a court en banc will be granted only if a majority of the commissioned judges of the court vote to grant reargument.

 F.  The court will not entertain an application, motion, or petition for reconsideration of a decision rendered by a court en banc.

Source

   The provisions of this §  65.38 amended and effective May 11, 1992, 23 Pa.B. 1939; amended August 25, 2014, effective August 25, 2014, 44 Pa.B. 6223; amended September 12, 2017, effective immediately, 47 Pa.B. 6362. Immediately preceding text appears at serial page (378620).

§ 65.39. Ancillary Orders Following Merits Panel Decisions.

 A.  If a timely Application for Reargument is filed, the merits panel shall retain jurisdiction over the appeal until such time as the application is decided.

 B.  Following a decision by the merits panel, applications, motions, or petitions requesting clarification, award of costs or sanctions, publication pursuant to §  65.37, or extension of time to file an application for reargument, will be referred to the merits panel for review and disposition.

Source

   The provisions of this §  65.39 amended September 12, 2017, effective immediately, 47 Pa.B. 6362. Immediately preceding text appears at serial pages (378620) to (378621).

§ 65.40. [Rescinded].


Source

   The provisions of this §  65.40 rescinded and effective April 29, 1992, 23 Pa.B. 1939. Immediately preceding text appears at serial page (149384).

§ 65.41. Argument Before a Court En Banc.

 A.  When argument before an en banc Court is granted, the President Judge shall direct the Prothonotary to schedule such argument at the next available session. The judges to hear argument shall be selected by the President Judge and shall include, insofar as practicable, the author of the panel opinion, the author of a dissenting opinion, and, where appropriate, the author of a prior opinion which is being reconsidered. Assignments to the Court en banc as far as possible shall be equalized during the course of each year. The presiding judge shall be the commissioned judge highest in seniority except when the Court en banc includes the President Judge, who shall then be the presiding judge.

 B.  Where en banc argument is limited to one or more but less than all issues raised by an appellant, counsel shall be notified regarding the specific issues on which the Court en banc desires to hear argument.

 C.  Before or after argument before the Court en banc, the Court may vote that en banc consideration was improvidently granted. In such event, the previous panel decision in the matter shall be reinstated or, if there is no previous panel decision in the matter, the case shall be listed before the next available panel of this Court.

 D.  In the event that a party seeks to remove en banc status and reinstate a panel’s decision, such request must be made by motion and is subject to full court review.

Source

   The provisions of this §  65.41 amended and effective May 30, 1991, 23 Pa.B. 1939; amended June 14, 2017, effective immediately, 47 Pa.B. 6362. Immediately preceding text appears at serial page (378621).

§ 65.42. Circulation and Voting in Children’s Fast Track and Other Family Fast Track Appeals.

 Notwithstanding any contrary procedures set forth above, panels shall give priority in both circulation of and voting on proposed decisions, first in Children’s Fast Track cases, and then in Other Family Fast Track cases.

Source

   The provisions of this §  65.42 adopted March 16, 2009, effective immediately, 39 Pa.B. 1613.

§ 65.43. [Rescinded].


Source

   The provisions of this §  65.43 adopted September 15, 2010, effective immediately, 40 Pa.B. 6078; rescinded June 1, 2012, effective immediately, 43 Pa.B. 298. Immediately preceding text appears at serial pages (353591) to (353592).

WIRETAPS


§ 65.51. Introduction.

 Government officials are advised to consult the applicable provisions of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §  5701 et seq. (‘‘Wiretap Act’’). Any Operating Procedure inconsistent with the Wiretap Act is preempted by the statute.

Source

   The provisions of this §  65.51 rescinded September 15, 2010, effective immediately, 40 Pa.B. 6078; amended June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906. Immediately preceding text appears at serial page (373769).

§ 65.52. Confidential Docket Number.

 The applicant for the interception of wire, electronic or oral communication is to call the Prothonotary for a confidential docket number. The confidential docket number is to be written on the envelope containing the application for interception which will subsequently be sealed. All applications, affidavits, progress reports, and orders shall utilize the confidential docket number assigned to the matter.

Source

   The provisions of this §  65.52 amended June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906. Immediately preceding text appears at serial page (373769).

§ 65.53. Assignment to a Particular Judge.

 After receiving an assigned docket number from the Prothonotary, the applicant is to call the Supervising Judge designated by the President Judge to make assignments, and request assignment of a judge to entertain the application. The Supervising Judge, after first ascertaining the locale of the proposed interception from the applicant, shall then determine the availability of a judge. The Supervising Judge then shall assign a judge of the Court with due consideration of the nature and location of the proposed interception and the offense being investigated and inform the applicant of the assigned judge.

Source

   The provisons of this §  65.53 amended June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906. Immediately preceding text appears at serial page (373770).

§ 65.54. Submission of Application to Assigned Judge.

 The applicant should submit the application, affidavit and proposed order to the assigned judge in chambers. This ex parte proceeding need not be on the record if all the necessary information required by the judge is contained within the four corners of the application. However, any additional testimony or explanation, if supplied orally, must be made of record. A tape recorder or court reporter may be utilized and must be provided by the applicant. The judge should be requested to direct the court reporter to transcribe the proceedings as expeditiously as possible and to submit the stenographic notes and original transcript to the Court for sealing at the earliest possible moment. The Court should instruct all present concerning the need for confidentiality.

Comment

   It is up to the issuing judge whether to simply conduct the entire proceeding on the record. If a tape recorder is utilized, at the close of the hearing, the tape is to be sealed with the application. Further, the judge may require that all additional information be in writing instead of the taking of any oral testimony.

Source

   The provisions of this §  65.54 amended June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906. Immediately preceding text appears at serial page (373770).

§ 65.55. Additional Testimony or Documentary Evidence.

 In the event the Judge requires the applicant to provide additional testimony or documentary evidence, such additional matters must be presented by the Attorney General or the District Attorney or their designee.

§ 65.56. Request for Identity of Informant.

 Where, pursuant to §  5710(b) of the Wiretapping and Electronic Surveillance Control Act, the Judge requests the identity of an informant, such proceedings must be on the record save for any information that could lead to the identification of the informant.

Comment

   The request of the judge for information concerning the informant should be on the record; however, the actual name of the informant must remain confidential.

§ 65.57. Content of Application.

 An application under §  5709 must be made upon the personal oath or affirmation of the Attorney General (or a deputy attorney general designated in writing by the Attorney General) or the District Attorney (or an assistant district attorney designated in writing by the District Attorney) of the county wherein the interception is to be made and must contain the following:

 A.  A statement of the applicant’s authority to make the application. 18 Pa.C.S. §  5709(1).

 B.  A statement of the identity, State Police certification number and qualifications of the investigative or law enforcement officer who will supervise the conduct of the interception and the identity of the agency which will conduct the interception. 18 Pa.C.S. §  5709(2).

 C.  A sworn statement, i.e., affidavit, by the investigative or law enforcement officer who has knowledge of relevant information justifying the application, see 18 Pa.C.S. 5709(3), including a statement that the applicant seeks authorization to intercept wire, oral, or electronic communications of the subject(s) of the investigation concerning one or more of the offenses listed in 18 Pa.C.S. §  5708.

 D.  A statement that applicant has discussed all of the above circumstances of the offenses with the officer who has conducted the investigation to date and has examined the officer’s affidavit (which is attached and incorporated by reference).

 E.  A complete statement of the facts concerning all previous applications known to the applicant made to any court for authorization to intercept a wire, electronic, or oral communication involving any of the same facilities or places specified in the application, or involving any person whose communication is to be intercepted, and the action taken by the court on each such application.

 F.  Where the application is for the renewal or extension of an order, a particular statement of facts showing the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.

 G.  A request that, based on the facts and circumstances set forth in the application and the attached affidavit, the Court issue an order pursuant to §  5710 of the Act authorizing the designated officers to intercept wire, electronic, or oral communications to and from, or on, the described devices or at the described premises until the earlier of:

   1.  communications are intercepted which reveal:

     (a)   the manner in which the subject(s) and others unknown have participated, are participating, or will participate in the commission of the enumerated offenses,

     (b)   the identities of their confederates, and

     (c)   the nature of their operation or criminal enterprise; or

   2.  a period of thirty (30) days or less.

 H.  The application should request that, pursuant to §  5712(f) of the Act, the order direct the communication service provider to furnish the applicant forthwith with all information, facilities and technical assistance (including in-progress traces) to accomplish the interception unobtrusively and with a minimum of interference with the services being afforded by the company to the subject(s) and that the company be compensated by the applicant at the prevailing rates.

 I.  The applicant should state whether, in order to accomplish the purposes of the Act, it is reasonably necessary that law enforcement officers enter the described premises for the purpose of installing, maintaining or removing intercepting devices. If so, the applicant should request that, pursuant to §  5712(g) of the Act, the Court should authorize the entry of the described premises or facilities by the designated officers as often as necessary solely for the purpose of installing, maintaining, or removing intercepting devices. Prior to such entry, the judge issuing the order must, if practical, be notified—preferably in writing—of the time and method of each such entry. If prior notice is impractical, the judge must nevertheless be notified within 48 hours of entry.

 J.  Any legal applications and all subsequent motions or petitions relating to an application must be presented to the Court by an attorney-at-law.

Source

   The provisions of this §  65.57 amended June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906. Immediately preceding text appears at serial pages (373770) to (373771).

§ 65.58. Target Specific Wiretaps (18 Pa.C.S. §  5712.1).

 Section 5712.1 of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §  5712.1, provides that an investigative or law enforcement officer may seek a target specific order. An application for a target specific wiretap must meet the requirements of an application under §  5709 and §  5712, except §  5712(a)(3) and §  5709(3)(iv) and (v), shall not apply if:

 A.  In the case of oral communications:

     i.   a full and complete statement as to why specification is not practical and identifies the person committing the offense and whose communications are to be intercepted. The judge must find that the specification is not practical. See 18 Pa.C.S. §  5712.1(a)(1).

 B.  In the case of wire or electronic communications:

     i.   the identity of the person believed to be committing the offense and whose communications are to be intercepted, and the applicant shows that there is probable cause to believe that the person’s actions could have the effect of thwarting interception by changing facilities or devices. The judge must find that the purpose for the target specific order has been adequately shown. See 18 Pa.C.S. §  5712.1(a)(2).

 C.  In the event the affiant seeks a supplementary order for a target specific wiretap, such application shall contain:

   1.  The identity of the investigative or law enforcement officers or agency to whom the authority to intercept wire, electronic, or oral communication is given, and the name and official identity of the person who made the application. See 18 Pa.C.S. §  5712.1(c)(1).

   2.  The identity of or a particular description of the person, if known, whose communications are to be intercepted. See 18 Pa.C.S. §  5712.1(c)(2).

   3.  The period of time during which the interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained. See 18 Pa.C.S. 5712.1(c)(3).

   4.  A showing of reasonable suspicion that the target of the original order has in fact changed communications devices or facilities. See 18 Pa.C.S. §  5712.1(c)(4).

   5.  A showing of reasonable suspicion that the target of the original order is likely to use the additional facility or device or place for criminal purposes similar to or related to those specified in the original order. See 18 Pa.C.S. §  5712.1(c)(5).

 D.  A supplementary order shall not act as an extension of the time limit identified in §  5712(b). See 18 Pa.C.S. §  5712.1(d).

Source

   The provisions of this §  65.58 adopted June 28, 1996, effective June 29, 1996, 26 Pa.B. 2985; rescinded June 28, 2002, effective June 6, 2002, 32 Pa.B. 3076; amended June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906. Immediately preceding text appears at serial page (373771).

§ 65.59. Mobile Communication Tracking, Pen Registers, Trap and Trace Devices, and Telecommunication Identification Interception Devices (18 Pa.C.S. § §  5771—5773).

 Sections 5771—5773 of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § §  5771—5773, authorize the installation and usage of pen registers, trap and trace devices, telecommunication identification interception devices and the disclosure or production of mobile communication tracking information upon a showing of probable cause. An applicant may seek such an order from the Superior Court when an application for an order authorizing interception of communications is or has been made for the targeted telephone or another application for interception under the Wiretap Act has been made involving the same investigation. See 18 Pa.C.S. §  5772(a). An application for such an order shall contain:

 A.  The identity and authority of the attorney making the application and the identity of the investigative or law enforcement agency conducting the investigation. 18 Pa.C.S. §  5772(b)(1).

 B.  A certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency. 18 Pa.C.S. §  5772(b)(2).

 C.  An affidavit by an investigative or law enforcement officer which establishes probable cause for the issuance of an order or extension of an order under section 5773. 18 Pa.C.S. §  5772(b)(3).

Source

   The provisions of this §  65.59 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.

§ 65.60. Content of Affidavit.

 Section 5709(3) of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §  5709(3), provides that the investigative or law enforcement officer shall execute an affidavit setting forth information justifying the application for an order authorizing interception of wire, electronic, or oral communications. The affidavit should contain the following:

 A.  The affiant’s title, pertinent employment history, authority to conduct investigations, and experience in conducting investigations of similar offenses. See 18 Pa.C.S. §  5709(2).

 B.  The name, qualifications, and State Police certification number of the officers who will supervise and conduct the interception of the communications as well as the agency which will conduct the interception. See 18 Pa.C.S. §  5709(2).

 C.  A statement by the affiant setting forth facts which, when viewed in light of the totality of the underlying circumstances, establish their intrinsic reliability.

Comment

   See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983).

 D.  The identity of the person or persons, if known, who are believed to be committing one or more of the crimes in 18 Pa.C.S. §  5708, and whose communications will be intercepted. See 18 Pa.C.S. §  5709(3)(i).

 E.  The particular type of communication to be intercepted; e.g., in gambling case, transmittal and acceptance of wagers placed on the outcome of sporting events and horse race results, line information, etc. See 18 Pa.C.S. §  5709(3)(iii).

 F.  The character and location of the particular wire or electronic communication facilities involved or the particular place where the oral communications will be intercepted, see 18 Pa.C.S. §  5709(3)(v), except where target specific orders pursuant to 18 Pa.C.S. §  5712.1 are sought.

 G.  Where 18 Pa.C.S. §  5712.1, governing target specific wiretaps does not apply, a detailed statement of the facts and circumstances establishing probable cause to believe that:

   1.  The subject(s) has committed, is committing or will commit one of the crimes enumerated in 18 Pa.C.S. §  5708;

   2.  The particular wire, electronic, or oral communications of the subject(s) concerning those offenses may be obtained through the proposed interception;

   3.  The facilities from which, or the place where, the wire, electronic, or oral communications are to be intercepted, are, have been, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name(s) of, or commonly used by such subject(s).

 H.  The period of time (not to exceed thirty (30) days) for which the interception will be needed, and if the character of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular statement of facts establishing probable cause to believe that additional communications of the same type will occur and should be intercepted thereafter.

 I.  A particular statement of facts showing that other normal investigative procedures with respect to the offense have been tried and failed or reasonably appear unlikely to succeed if tried or are too dangerous to employ, e.g., normal investigative procedures would include standard visual or aural surveillance techniques, questioning of subject under an immunity grant or use of search warrants.

 J.  The basic probable cause in the affidavit should, whenever practical, be no more than twenty-one (21) days old.

 K.  In the event a pen register, mobile communications tracking information, trap and trace device, or telecommunication identification interception device has been or is being utilized to support the affidavit under this Rule, the Attorney General, District Attorney, or designee shall, as part of the application, certify that the authority for the use of the pen register, mobile communications tracking information, trap and trace device, or telecommunication identification interception device which was or is being utilized was obtained pursuant to probable cause. See Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989); 18 Pa.C.S. §  5772(b)(3); 18 Pa.C.S. §  5773. A copy of the affidavit of probable cause submitted in support of the application for the pen register, mobile communications tracking information, trap and trace device, or telecommunication identification must accompany the application for the wiretap.

Source

   The provisions of this §  65.60 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.

§ 65.61. Order: In General. Notice of Confidentiality.

 Section 5710 of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §  5710 provides that upon consideration of the application, the Court may enter an ex parte order authorizing interception anywhere in the Commonwealth.

 All proposed orders shall include, on the first page, the following notice of confidentiality to third parties:

WIRETAP CONFIDENTIALITY NOTICE

 You have been served with an intercept order pursuant to Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § §  5701—5781 (the ‘‘Wiretap Act’’).

 In order to implement wiretaps and electronic surveillance authorized by intercept orders, the assistance of third parties, those outside of law enforcement, is often required. You have been made aware of an intercept order because your assistance is required to facilitate wiretapping or other surveillance in an on-going criminal investigation.

 This is a very serious and highly confidential matter and must be treated with the utmost care and discretion. Except as specifically authorized under the Wiretap Act, IT IS A CRIME TO WILLFULLY USE OR DISCLOSE THE EXISTENCE OF AN INTERCEPT ORDER. SUCH USE OR DISCLOSURE IS PUNISHABLE BY IMPRISONMENT OF UP TO 2 YEARS, AND A FINE OF UP TO $5,000.

 The Wiretap Act provides as follows:

  §  5719. Unlawful use or disclosure of existence of order concerning intercepted communication

  Except as specifically authorized pursuant to this subchapter any person who willfully uses or discloses the existence of an order authorizing interception of a wire, electronic or oral communication is guilty of a misdemeanor of the second degree.

 (A misdemeanor of the second degree is punishable by imprisonment of up to two years, 18 Pa.C.S. §  1104, and a fine of up to $5,000, id. §  1101.)

 See also 18 Pa.C.S. § §  5725, 5726 and 5717.

Source

   The provisions of this §  65.59 adopted August 23, 2002, effective September 3, 2002, 32 Pa.B. 4122; renumbered as §  65.61 and amended June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906. Immediately preceding text appears at serial pages (373771) to (373772).

§ 65.62. Order: Probable Cause Statement.

 A proposed order, except those pertaining to supplementary target specific orders or orders under § §  5771—5773, should be submitted by the applicant to the Court, and it should state that based on the application, the Court finds probable cause to believe the following:

 A.  The person(s) whose communication is to be intercepted is committing, has committed, or is about to commit the offense(s) set forth in the application.

 B.  Particular communications concerning such offense(s) may be obtained through such interception.

 C.  Normal investigative procedures with respect to such offense(s) have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ.

 D.  The facilities from which (or the place where) the wire, electronic or oral communications are to be intercepted, are, have been, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by, the subject(s).

 E.  The investigative or law enforcement officers or agency to be authorized to do the interception are qualified by training and experience to execute the interception sought and are certified under §  5724 of the Act.

 F.  The application is based on new evidence or information different from and in addition to the evidence or information offered to support any prior order for interception (other than a renewal or extension of an existing order).

Source

   The provisions of this §  65.62 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.

§ 65.63. Supplementary Target Specific Orders.

 A proposed order for a supplementary target specific wiretap should be submitted to the Court, and it should state that based on the application, the Court finds reasonable suspicion that:

 A.  The target of the original target specific wiretap has in fact changed communication devices or facilities or is presently using additional communication devices, communications facilities or places. See 18 Pa.C.S. §  5712.1(b)(1).

 B.  The target of the original target specific wiretap is likely to use the specified communications device or facility for criminal purposes similar to or related to those specified in the original order. See 18 Pa.C.S. §  5712.1(b)(2).

 C.  The Attorney General or the District Attorney, or their designees, shall be responsible for the supervision of the interception. See 18 Pa.C.S. 5712.1(e).

Source

   The provisions of this §  65.63 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.

§ 65.64. Orders for Mobile Communication Tracking, Installation and Use of a Pen Register, Trap and Trace Device, and Telecommunication Identification Interception Device.

 A proposed order for mobile communication tracking, installation and use of a pen register, trap and trace device or a telecommunication identification interception device should be submitted to the Court, and it should state:

 A.  There is probable cause to believe that information relevant to an ongoing criminal investigation will be obtained from the targeted telephone. 18 Pa.C.S. §  5773(b)(i).

 B.  The identity, if known, of the person to whom is leased or in whose name is listed the targeted telephone, or, in the case of the use of a telecommunication identification interception device, the identity, if known, of the person or persons using the targeted telephone. 18 Pa.C.S. §  5773(b)(ii).

 C.  The identity, if known, of the person who is the subject of the criminal investigation. 18 Pa.C.S. §  5773(b)(iii).

 D.  In the use of pen registers and trap and trace devices only, the physical location of the targeted telephone. 18 Pa.C.S. §  5773(b)(iv).

 E.  A statement of the offense to which the information likely to be obtained by the pen register, trap and trace device or the telecommunication identification interception device relates. 18 Pa.C.S. §  5773(b)(v).

 F.  Direct, upon the request of the applicant, the furnishing of information, facilities and technical assistance necessary to accomplish the installation of the pen register under section 5771 (relating to general prohibition on use of certain devices and exception). 18 Pa.C.S. §  5773(b)(2).

 G.  In the case of a telecommunication identification interception device, direct that all interceptions be recorded and monitored in accordance with section 5714(a)(1) and (2) and (b) (relating to recording of intercepted communications). 18 Pa.C.S. §  5773(b)(3).

 H.  The order authorizes the disclosure or production of mobile communication tracking information or installation and use of a pen register, trap and trace device, or a telecommunication identification interception device for a period not to exceed 60 days. See 18 Pa.C.S. §  5773(c) (this statutory subsection provision omits reference to mobile communication tracking and therefore the sixty day period is not specifically referenced for mobile communication tracking).

 I.  Extensions of such an order may be granted but only upon an application for an order under §  5772 and upon the judicial finding required by §  5772(a). The period of each extension shall be for a period not to exceed 30 days.

 J.  The order be sealed until otherwise ordered by the Court.

 K.  The person owning or leasing the targeted telephone, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the mobile communication tracking, pen register, trap and trace device, or telecommunication identification interception device, or the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the Court.

Comment

   The targeted telephone number, if known, should be included in the proposed order.

Source

   The provisions of this §  65.64 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.

§ 65.65. Order: Factual Statement.

 After reciting the relevant facts, the order must set for the following:

 A.  The identity of the investigative or law enforcement officers or agency to whom authority to intercept is given (i.e., the Supervising Officer named in the application along with ‘‘all qualified members’’ of the named agency).

 B.  The identity of the person who made application for authority to intercept. Since only the District Attorney or the Attorney General may swear to the application form, he must be identified along with any designee who actually submits the application to the Court.

 C.  The identity of, or a particular description of, the person(s), if known, whose communications are to be intercepted.

 D.  The character and location of the particular communication facilities as to which, or the particular place as to which, authority to intercept is granted, except where a target specific order is at issue.

 E.  A particular description of the type of communication to be intercepted and a statement of the particular offense(s) to which it relates.

 F.  The period of time during which such interception is authorized not to exceed thirty (30) days, or sixty (60) days in the cases of orders authorizing production or disclosure of mobile communication tracking,1 the installation and use of pen registers, trap and trace devices, or telecommunication identification interception devices, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained. The order shall state that such interception or tracking is authorized only for that period of time necessary under the circumstances to accomplish the objectives of the interception or tracking. The order shall require that the interception or tracking begin and terminate as soon as practicable and that the interception be conducted in such a manner as to minimize or eliminate interception of communications not otherwise subject to interception under the Act and require reasonable efforts, whenever possible, to reduce the hours of interception.

 G.  The order shall require the Attorney General or the District Attorney or their designees to supervise the interception or tracking.

 H.  The order should require periodic progress reports to the issuing judge indicating the progress made toward achieving the objective of the interception or tracking and the need for continued interception.

   



   1 The sixty day period is not specified by statute for mobile communication tracking in 18 Pa.C.S. §  5773(c). This appears to have been a legislative oversight.

 I.  If requested by the applicant, the order shall direct the pertinent communications common carrier to furnish the applicant with all information, facilities and technical assistance necessary to accomplish the interception or tracking unobtrusively and with a minimum of interference with the services being afforded to the subject(s) of the interception. The order shall provide that the common carrier shall be compensated at prevailing rates.

 J.  If requested by the applicant, the order shall authorize the entry of the subject premises or facilities (or other premises necessary to gain entry into the subject premises) by the law enforcement officers previously authorized in the order to conduct the interception as often as necessary solely for the purpose of installing, maintaining or removing an interception device. The order shall further provide that such entry is found to be reasonably necessary to accomplish the purposes of the Act and shall require that the issuing (authorizing) judge be notified of the time and method of each such entry in advance, if practical, and in any event, within forty-eight (48) hours of entry.

Source

   The provisions of this §  65.65 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.

§ 65.66. Procedure Upon Signing the Order.

 The judge should note on the order the date and time at which it was signed. The original application, affidavit and order should be placed in an envelope and sealed by the judge. The seal should be in the form of an order signed by the judge and affixed to the envelope by the judge in such a manner as to prevent the removal of the contents without physically disturbing the seal. The confidential docket number should be placed on the envelope.

Source

   The provisions of this §  65.66 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.

§ 65.67. Seal.

 The seal should set forth the following:

   1.  Contents of the envelope;

   2.  The location at which custody of the sealed item should be maintained;

   3.  Date, time and location of the signing of the sealing order;

   4.  Signature of the judge.

Comment

   Neither the targeted telephone number nor any other identifying information should be included on the sealing order.

Source

   The provisions of this §  65.67 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.

§ 65.68. Duplicate Original for Communications Common Carrier.

 At the time the original order is signed, a duplicate original should also be signed for presentation to the communications common carrier.

Source

   The provisions of this §  65.68 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.

§ 65.69. Renewal or Extension Procedure.

 A.  Section 5712(b) of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §  5712(b), provides that an interception order may be renewed or extended for a period up to thirty (30) days beyond the expiration date of the original order. To obtain such an extension, it is necessary that an application, affidavit and proposed extension order be submitted to the Court. The application must have all of the features contained in the original application and, pursuant to §  5709(4) of the Act, must also contain a particular statement of facts showing the results obtained to date from the interception or a reasonable explanation of the failure to obtain such results.

 B.  The procedure for obtaining an extension should in all other respects be the same as that used in obtaining the original order.

Source

   The provisions of this §  65.69 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.

§ 65.70. Verbal Authorization in General.

 Section 5713 of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §  5713, provides that, in certain emergency situations, verbal authorization to intercept wire, electronic, or oral communications may be given by the Court. Similarly, 18 Pa.C.S. §  5773, governing orders for pen registers, mobile communication tracking devices, trap and trace devices, and telecommunication identification interception devices allows verbal authorization under exigent circumstances. Application for such authorization should be made in camera, under oath and on the record. When, due to time limitations, an application cannot be made in person, the application may be made by telephone. Moreover, whenever the application proceedings cannot be recorded stenographically, by a court reporter provided by the applicant, the applicant should, with the permission of all speaking parties, tape record the proceedings.

Comment

   The requirement for an under oath and on the record in camera proceeding, as well as the recording of the matter is not covered by statute.

Source

   The provisions of this §  65.70 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.

§ 65.71. Content of Verbal Application.

 The verbal application should include as many of the elements of a written application and affidavit, supra, as can be provided under the emergency conditions. In any event, the verbal application must include sufficient facts for the Court to find the following:

 A.  An emergency situation exists with respect to the investigation of an offense designated in §  5708 of the Act.

 B.  The investigation involves conspiratorial activities characteristic of organized crime; or

 C.  A substantial danger to life or limb exists.

 D.  As a result of (A) and (B) or (C), authorization for immediate interception of wire, electronic or oral communications is needed before a written application could, with due diligence, be submitted and acted upon by the Court.

Source

   The provisions of this §  65.71 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.

§ 65.72. Verbal Authorization Contingent Upon Written Application.

 Based on these findings, the Court may verbally authorize interception, pursuant to §  5713, conditioned upon the filing within forty-eight (48) hours of a written application for an interception order. Such written application and affidavit should be in the form previously described and should, along with the written order, include the following:

 A.  A recitation of the date, time, place and circumstances of the verbal authorization.

 B.  The written authorization conferred by the Court is retroactive to the time of the verbal authorization.

 C.  The authorized interception shall terminate immediately when the communication sought is obtained. Section 5713 of the Act provides that if the subsequent written application is not made, any interception conducted pursuant to verbal authorization will be illegal.

 D.  Pursuant to 18 Pa.C.S. §  5773, if exigent circumstances exist, the Court may verbally authorize the installation and use of a pen register, trap and trace device, telecommunications identification interception device, or permit mobile communication tracking. However, a written order authorizing the disclosure must be entered within 72 hours of the oral authorization.

Source

   The provisions of this §  65.72 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.

§ 65.73. Progress Reports.

 Section 5712(c) of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §  5712(c), requires that the Attorney General or District Attorney or designee supervise the interception. Pursuant to §  5712(d) of the Act, this Supervising Attorney may be required under the terms of the order to submit periodic progress reports to the Court during the course of the interception. These reports should explain to the Court the progress being made toward achieving the objectives of the interception and should explain why continued interception is necessary. Progress reports shall be sealed and filed in the same manner as applications.

Comment

   The judge may establish the time period for these reports within his or her order. A period of seven (7) days has proven to be practical.

Source

   The provisions of this §  65.73 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.

§ 65.74. Content of Final Report.

 Pursuant to §  5712(e) of the Act, at the termination of the interception, the Supervising Attorney must submit a final report consisting of a complete written list of names of persons intercepted (if known) and evidence of offenses discovered, including those offenses not set forth in the application or order. Where communications relating to offenses other than those specified in the application or order are intercepted, the contents of those communications and any evidence derived therefrom must be included in the final report.

Source

   The provisions of this §  65.74 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.

§ 65.75. Motions for Unsealing Orders.

 A motion by an interested party to unseal an application, report, order, or other document previously placed under seal shall be in writing, shall state specifically the reason for the unsealing order and the use to be made of the unsealed application, report, order, or other document, and, when possible, shall be presented to the judge who ordered the same sealed. The Court, upon good cause shown, may order an application, report, order, or other document within the Prothonotary’s file to be unsealed and may impose such conditions or limitations thereon as may be necessary to safeguard the confidentiality of such information.

 When a motion to unseal is granted, the Prothonotary, within ten (10) days, shall deliver to the requesting party a certified copy of the document(s) unsealed. The Prothonotary, without express written permission from the Court, shall not surrender original documents constituting a part of his or her file.

 The motion should identify the following:

 A.  The specific application, report, order or other contents sought to be unsealed. The application, report, order or other contents sought to be unsealed shall be limited and described with particularity.

 B.  The purpose for which the order is sought.

   1.  Trial or Other Criminal Proceeding.

 If the application, report, order or other contents under seal is/are sought for a trial or other criminal proceeding, the motion shall state the type of proceeding, court docket number(s), the name(s) of the party(ies) involved, the forum, the date(s) and approximate length of time for which such application, report, order or other contents will be utilized and name(s) and designation(s) of the person(s) having access to the unsealed application, report, order, or other contents.

   2.  Criminal Investigation.

 If the application, report, order, or other contents under seal is/are sought for the purpose of disclosure to law enforcement or investigative officers in connection with a criminal investigation, the name(s) of the investigative or law enforcement officer(s) shall be set forth together with his/her/their designation(s), his/her/their authority to conduct said investigation, the purpose of the investigation and the approximate date(s) and length of time for which such application, report, order or other contents are sought.

Source

   The provisions of this §  65.75 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.

§ 65.76. Order of Court.

 The Court may, upon due cause shown by the said motion, order unsealed the application, report, order, or other contents which is/are the subject of the motion for the purpose(s) set forth therein. If the motion to unseal is granted, the order authorizing unsealing shall be limited to the application, report, order, or other contents which is/are the subject of the motion. The unsealing order shall be valid for a period not to exceed twenty (20) days or the length of the trial or other criminal proceeding or investigation, whichever period is shorter.

Source

   The provisions of this §  65.76 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.

§ 65.77. Return of Documents to Court.

 The application, report, or order or other contents subject to the unsealing or any extension(s) thereof shall be returned to the Court within forty-eight (48) hours of the expiration of the life of the unsealing order or any extension(s) thereof or within forty-eight (48) hours of the termination of the trial or other criminal proceeding or investigation, whichever event occurs sooner, unless a timely motion to extend the life of the unsealing order or to extend the scope of a previously granted unsealing order has been filed and granted.

Source

   The provisions of this §  65.77 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.

§ 65.78. Responsibility for Unsealed Documents.

 After a motion for an unsealing order or any extension(s) therefor has/have been granted and the application, report, order or other contents which was/were the subject of the said motion or any extensions(s) therefor granted has/have been turned over to the custody of the investigative or law enforcement officer(s) designated in the motion or any extensions therefor and Order(s) granting same to receive the said application, order, report or other contents for the purpose(s) set forth in the said motion or any extension(s) therefor and Order(s) granting same, the said investigative or law enforcement officer(s) shall assume complete responsibility for and the safekeeping of such application, order, report or other contents for the entire duration of the time set forth in the said unsealing Order or any extension(s) thereof in which said application, order, report or other contents remain in his/her/their custody for the purpose(s) set forth in the said motion or any extension(s) therefor and Order(s) granting same and, further, shall assume responsibility for the safe return of such application, order, report or other contents to the Court pursuant to §  65.77.

Source

   The provisions of this §  65.78 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.



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