Volume 35 Number 16 Saturday, April 16, 2005 Harrisburg, Pa. Pages

Transcription

1 Volume 35 Number 16 Saturday, April 16, 2005 Harrisburg, Pa. Pages Agencies in this issue: The Governor The General Assembly The Courts Department of Banking Department of Conservation and Natural Resources Department of Corrections Department of Education Department of Environmental Protection Department of General Services Department of Health Department of Labor and Industry Department of Revenue Department of Transportation Executive Board Game Commission Insurance Department Legislative Reference Bureau Milk Marketing Board Pennsylvania Public Utility Commission Philadelphia Regional Port Authority Public School Employees Retirement Board Securities Commission State Employees Retirement Board Detailed list of contents appears inside. PRINTED ON 100% RECYCLED PAPER

2 Latest Pennsylvania Code Reporter (Master Transmittal Sheet): No. 365, April 2005 PENNSYLVANIA Postmaster send address changes to: FRY COMMUNICATIONS Attn: Pennsylvania Bulletin 800 W. Church Rd. Mechanicsburg, Pennsylvania (717) ext (800) ext (toll free, out-of-state) (800) ext (toll free, in State) BULLETIN (ISSN ) published weekly by Fry Communications, Inc. for the Commonwealth of Pennsylvania, Legislative Reference Bureau, 647 Main Capitol Building, State & Third Streets, Harrisburg, Pa , under the policy supervision and direction of the Joint Committee on Documents pursuant to Part II of Title 45 of the Pennsylvania Consolidated Statutes (relating to publication and effectiveness of Commonwealth Documents). Subscription rate $82.00 per year, postpaid to points in the United States. Individual copies $2.50. Checks for subscriptions and individual copies should be made payable to Fry Communications, Inc. Periodicals postage paid at Harrisburg, Pennsylvania. Orders for subscriptions and other circulation matters should be sent to: Fry Communications, Inc. Attn: Pennsylvania Bulletin 800 W. Church Rd. Mechanicsburg, PA Copyright 2005 Commonwealth of Pennsylvania ISBN Editorial preparation, composition, printing and distribution of the Pennsylvania Bulletin is effected on behalf of the Commonwealth of Pennsylvania by FRY COMMUNICATIONS, Inc., 800 W. Church Road, Mechanicsburg, Pennsylvania

3 THE GOVERNOR Proclamations Proclamation of disaster emergency THE GENERAL ASSEMBLY COMMISSION ON SENTENCING Meetings scheduled THE COURTS ALLEGHENY COUNTY RULES Allegheny County Rules of the court of common pleas; no. 4 of 2005 rules doc Rules of the court of common pleas; no. 5 of 2005 rules doc JUDICIAL SYSTEM GENERAL PROVISIONS Amendment of rule 402 of the Pennsylvania bar admission rules; no. 363 Supreme Court rules; doc. no Amendment of Pennsylvania rule of disciplinary enforcement 209; no. 40 disciplinary doc. no JUVENILE RULES Order approving the rules of juvenile court procedure; no. 366 superior court rules; doc. no MINOR COURT CIVIL RULES Proposed amendments to rules 209, 301, , 307, , , and of the rules of conduct, office standards and civil procedure for magisterial district judges PHILADELPHIA RULES Philadelphia County Adoption of Philadelphia civil rule *1028.1; president judge general court regulation no RULES OF CRIMINAL PROCEDURE Order approving the revision of the comments to rules 100, 200, 400, 430, 431, 455, 456, 520 and 565; no. 317 criminal procedural rules; doc. no RULES OF EVIDENCE Order adopting revision of comment to rule of evidence 104; no. 362 Supreme Court rules; doc. no EXECUTIVE AGENCIES DEPARTMENT OF BANKING Notices Action on applications CONTENTS 2199 DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES Notices Conservation and Natural Resources Advisory Council meeting DEPARTMENT OF CORRECTIONS Rules and Regulations Administration, State correctional institutions and facilities and release and prerelease programs DEPARTMENT OF EDUCATION Notices Application of Troy University for approval to operate in this Commonwealth and to offer graduate degree programs and an undergraduate certificate program DEPARTMENT OF ENVIRONMENTAL PROTECTION Rules and Regulations Corrective amendment to 25 Pa. Code Notices Applications, actions and special notices Availability of technical guidance Extension of Pennsylvania general NPDES permit for concentrated animal feeding operations (PAG- 12) State water plan; public meetings and hearings schedule for May and August DEPARTMENT OF GENERAL SERVICES Notices State contracts information DEPARTMENT OF HEALTH Notices Applications for exception Altoona Surgery Center, LLC Brookville Hospital Central Montgomery Medical Center Frick Hospital HealthSouth Rehabilitation Hospital of Greater Pittsburgh Latrobe Area Hospital Millcreek Community Hospital Milton S. Hershey Medical Center Pocono Ambulatory Surgery Center Schuylkill Endoscopy Center, LLC UPMC Passavant Westmoreland Regional Hospital Requests for exception; long-term care nursing facilities Requests for exception to 28 Pa. Code (l) to perform ambulatory surgical procedures included on the list of Medicare approved ASC procedures DEPARTMENT OF LABOR AND INDUSTRY Notices Application for plan approval and permit for a liquefied petroleum gas facility Now Available Online at

4 2200 DEPARTMENT OF REVENUE Notices Pennsylvania Gold Rush 05 instant lottery game DEPARTMENT OF TRANSPORTATION Proposed Rulemaking Administrative practice and procedure Notices Ground penetrating radar bridge inspections; notice to bidders EXECUTIVE BOARD Statements of Policy Reorganization of the Department of Corrections GAME COMMISSION Rules and Regulations Special Permits: Bobcats Possession of deer accidentally killed by a motor vehicle Use of cable restraints for taking certain furbearers Proposed Rulemaking Big game harvest report requirement Deadline for purchasing a bear license Lands and buildings Middlecreek and Pymatuning waterfowl management areas; youth shooting day Seasons and bag limits INSURANCE DEPARTMENT Notices Blue Cross of Northeastern Pennsylvania: Non-group basic conversion and direct enrollment program; rate filing Non-group medigap hospitalization program (65 special); rate filing Non-group special care hospital program; rate filing Highmark Blue Shield; formulaic approach for small group base rate and factor development; rate filing LEGISLATIVE REFERENCE BUREAU Notices Documents filed but not published MILK MARKETING BOARD Notices Hearing and presubmission schedule for all milk marketing areas; over-order premium PENNSYLVANIA PUBLIC UTILITY COMMISSION Rules and Regulations Establishing local service provider abandonment process for jurisdictional telecommunications companies Notices Petition of Aqua Pennsylvania, Inc. for a statement of policy on water and wastewater system acquisitions; doc. no. P Purchase of stock Service of notice of motor carrier applications Transfer of interest in stock and assets Water PHILADELPHIA REGIONAL PORT AUTHORITY Notices Request for bids PUBLIC SCHOOL EMPLOYEES RETIREMENT BOARD Rules and Regulations Optional alternate retirement plans Notices Hearings scheduled (2 documents) , 2370 SECURITIES COMMISSION Rules and Regulations Investment advisors; exchange transactions STATE EMPLOYEES RETIREMENT BOARD Rules and Regulations Optional alternate retirement plans Notices Hearings scheduled

5 2201 READER S GUIDE TO THE PENNSYLVANIA BULLETIN AND PENNSYLVANIA CODE Pennsylvania Bulletin The Pennsylvania Bulletin is the official gazette of the Commonwealth of Pennsylvania. It is published every week and includes a table of contents. A cumulative subject matter index is published quarterly. The Pennsylvania Bulletin serves several purposes. First, it is the temporary supplement to the Pennsylvania Code, which is the official codification of agency rules and regulations and other statutorily authorized documents. Changes in the codified text, whether by adoption, amendment, repeal or emergency action must be published in the Pennsylvania Bulletin. Further, agencies proposing changes to the codified text do so in the Pennsylvania Bulletin. Second, the Pennsylvania Bulletin also publishes: Governor s Executive Orders; State Contract Notices; Summaries of Enacted Statutes; Statewide and Local Court Rules; Attorney General Opinions; Motor Carrier Applications before the Public Utility Commission; Applications and Actions before the Department of Environmental Protection; Orders of the Independent Regulatory Review Commission; and other documents authorized by law. The text of certain documents published in the Pennsylvania Bulletin is the only valid and enforceable text. Courts are required to take judicial notice of the Pennsylvania Bulletin. Adoption, Amendment or Repeal of Regulations Generally an agency wishing to adopt, amend or repeal regulations must first publish in the Pennsylvania Bulletin a Notice of Proposed Rulemaking. There are limited instances where the agency may omit the proposal step; they still must publish the adopted version. The Notice of Proposed Rulemaking contains the full text of the change, the agency contact person, a fiscal note required by law and background for the action. The agency then allows sufficient time for public comment before taking final action. An adopted proposal must be published in the Pennsylvania Bulletin before it can take effect. If the agency wishes to adopt changes to the Notice of Proposed Rulemaking to enlarge the scope, they must repropose. Citation to the Pennsylvania Bulletin Cite material in the Pennsylvania Bulletin by volume number and page number. Example: Volume 1, Pennsylvania Bulletin, page 801 (short form: 1 Pa.B. 801). Pennsylvania Code The Pennsylvania Code is the official codification of rules and regulations issued by Commonwealth agencies and other statutorily authorized documents. The Pennsylvania Bulletin is the temporary supplement to the Pennsylvania Code, printing changes as soon as they occur. These changes are then permanently codified by the Pennsylvania Code Reporter, a monthly, loose-leaf supplement. The Pennsylvania Code is cited by title number and section number. Example: Title 10 Pennsylvania Code, 1.1 (short form: 10 Pa.Code 1.1). Under the Pennsylvania Code codification system, each regulation is assigned a unique number by title and section. Titles roughly parallel the organization of Commonwealth government. Title 1 Pennsylvania Code lists every agency and its corresponding Code title location. How to Find Documents Search for your area of interest in the Pennsylvania Code. The Pennsylvania Code contains, as Finding Aids, subject indexes for the complete Code and for each individual title, a list of Statutes Used As Authority for Adopting Rules and a list of annotated cases. Source Notes give you the history of the documents. To see if there have been recent changes, not yet codified, check the List of Pennsylvania Code Chapters Affected in the most recent issue of the Pennsylvania Bulletin. The Pennsylvania Bulletin also publishes a quarterly List of Pennsylvania Code Sections Affected which lists the regulations in numerical order, followed by the citation to the Pennsylvania Bulletin in which the change occurred. SUBSCRIPTION INFORMATION: (717) GENERAL INFORMATION AND FINDING AIDS: (717)

6 2202 Printing Format Material proposed to be added to an existing rule or regulation is printed in bold face and material proposed to be deleted from such a rule or regulation is enclosed in brackets [ ] and printed in bold face. Asterisks indicate ellipsis of Pennsylvania Code text retained without change. Proposed new or additional regulations are printed in ordinary style face. Fiscal Notes Section 612 of The Administrative Code of 1929 (71 P. S. 232) requires that the Office of Budget prepare a fiscal note for regulatory actions and administrative procedures of the administrative departments, boards, commissions or authorities receiving money from the State Treasury stating whether the proposed action or procedure causes a loss of revenue or an increase in the cost of programs for the Commonwealth or its political subdivisions; that the fiscal note be published in the Pennsylvania Bulletin at the same time as the proposed change is advertised; and that the fiscal note shall provide the following information: (1) the designation of the fund out of which the appropriation providing for expenditures under the action or procedure shall be made; (2) the probable cost for the fiscal year the program is implemented; (3) projected cost estimate of the program for each of the five succeeding fiscal years; (4) fiscal history of the program for which expenditures are to be made; (5) probable loss of revenue for the fiscal year of its implementation; (6) projected loss of revenue from the program for each of the five succeeding fiscal years; (7) line item, if any, of the General Appropriation Act or other appropriation act out of which expenditures or losses of Commonwealth funds shall occur as a result of the action or procedures; (8) recommendation, if any, of the Secretary of the Budget and the reasons therefor. The required information is published in the foregoing order immediately following the proposed change to which it relates; the omission of an item indicates that the agency text of the fiscal note states that there is no information available with respect thereto. In items (3) and (6) information is set forth for the first through fifth fiscal years; in that order, following the year the program is implemented, which is stated. In item (4) information is set forth for the current and two immediately preceding years, in that order. In item (8) the recommendation, if any, made by the Secretary of Budget is published with the fiscal note. See 4 Pa. Code et seq. Where no fiscal impact is published, the statement means no additional cost or revenue loss to the Commonwealth or its local political subdivision is intended. Reproduction, Dissemination or Publication of Information Third parties may not take information from the Pennsylvania Code and Pennsylvania Bulletin and reproduce, disseminate or publish such information except as provided by 1 Pa. Code Pa. Code 3.44 reads as follows: General permission to reproduce content of Code and Bulletin. Information published under this part, which information includes, but is not limited to, cross references, tables of cases, notes of decisions, tables of contents, indexes, source notes, authority notes, numerical lists and codification guides, other than the actual text of rules or regulations may be reproduced only with the written consent of the Bureau. The information which appears on the same leaf with the text of a rule or regulation, however, may be incidentally reproduced in connection with the reproduction of the rule or regulation, if the reproduction is for the private use of a subscriber and not for resale. There are no other restrictions on the reproduction of information published under this part, and the Commonwealth hereby consents to a reproduction.

7 List of Pa. Code Chapters Affected 2203 The following numerical guide is a list of the chapters of each title of the Pennsylvania Code affected by documents published in the Pennsylvania Bulletin during Pa. Code (Administration) Adopted Rules Statements of Policy , , 1223, 1584, 1775, Pa. Code (Agriculture) Proposed Rules 130b Pa. Code (Education) Adopted Rules Pa. Code (Environmental Protection) Adopted Rules (with correction) , 1762, Proposed Rules Statements of Policy , Pa. Code (Health and Safety) Adopted Rules Pa. Code (Law) Adopted Rules Pa. Code (Liquor) Proposed Rules Pa. Code (Professional and Vocational Standards) Adopted Rules Proposed Rules Pa. Code (Public Utilities) Adopted Rules Proposed Rules Pa. Code (Public Welfare) Adopted Rules Pa. Code (Recreation) Adopted Rules , , 356, 357, 2305, 2306 Proposed Rulemaking , , , Pa. Code (Revenue) Adopted Rules Pa. Code (Securities) Adopted Rules Pa. Code (Transportation) Proposed Rules Pa. Code (Judicial System General Provisions) Adopted Rules , , 497, ,

8 Proposed Rules Pa. Code (Appellate Procedures) Adopted Rules Pa. Code (Rules of Evidence) Adopted Rules I VIII... 8 Proposed Rules VI Pa. Code (Rules of Civil Procedure) Adopted Rules , Proposed Rules Pa. Code (Rules of Criminal Procedure) Adopted Rules , Proposed Rules Pa. Code (Juvenile Rules) Adopted Rules Pa. Code (Minor Court Civil Rules) Adopted Rules Proposed Rules Proposed Rules Pa. Code (Philadelphia Rules) Unclassified , 1880, 1975, 1977, 2096, Pa. Code (Allegheny County Rules) Unclassified , Pa. Code (Local Court Rules) Unclassified...12, 246, 247, 350, 501, 505, 647, 654,736, 1190, 1196, 1334, 1417, 1419, 1561, 1566, 1759, 1882, 1883, 1978, 1979, 2097, 2099

9 THE GOVERNOR GOVERNOR S OFFICE Proclamation of Disaster Emergency 2205 April 3, 2005 Whereas, Investigations made at my direction have disclosed that severe storms occurred on April 2 and 3, 2005, and caused widespread flooding and severe, unseasonable winter storm conditions across large regions of Pennsylvania; and Whereas, the flooding conditions resulted in extensive damage to roads and streets, private homes, businesses, and caused other adverse impacts upon the general population in Bradford, Bucks, Columbia, Luzerne, Monroe, Northampton, Pike, Wayne, and Wyoming Counties; and Whereas, severe, unseasonable winter conditions in Erie County caused widespread road closures, stranded motorists, and disrupted public safety services; and Whereas, the serious impact of these storms on both the immediate and long-term economy of these regions and the state represents a major hardship requiring a comprehensive federal, state, and local partnership for effective recovery; and Whereas, the emergency situation has been of such magnitude and severity as to render essential the Commonwealth s supplementation of county and municipal efforts and resources and the activation of all applicable state, county, and municipal emergency response plans; and Now Therefore, pursuant to the provisions of Subsection 7301(c) of the Emergency Management Services Code (35 Pa.C.S. Section 7101 et seq.), I do hereby proclaim the existence of a disaster emergency in the affected areas of Bradford, Bucks, Columbia, Erie, Luzerne, Monroe, Northampton, Pike, Wayne, and Wyoming Counties and, in accordance with the State Emergency Operations Plans, I direct all Commonwealth departments and agencies to utilize all available resources and personnel as is deemed necessary to cope with the magnitude and severity of this emergency situation. Further, I hereby transfer up to $1,000,000 in unused appropriated funds to the Pennsylvania Emergency Management Agency. The aforementioned funds shall be used for disaster-related expenses incurred by various state agencies and departments. These funds shall be credited to a special account established by the Office of the Budget. All Commonwealth agencies purchasing supplies or services in response to this emergency are authorized to utilize the emergency procurement procedures set forth in Section 516 of the Commonwealth Procurement Code, Act of May 15, 1998, P. L. 358, No. 57, 516. This Proclamation shall serve as the written determination of the basis for the emergency under Section 516; and Further, I hereby authorize the Secretary of Transportation to use all available equipment, resources, and personnel of the Department, in whatever manner that he deems necessary, to ensure that all state highways in the disaster affected areas are cleared of debris and any other obstructions resulting from these severe storms and to ensure that highways, bridges, roadbeds, and related facilities and structures, including federal-aid highways, that have sustained damage in the disaster affected area are immediately repaired, maintained, reconstructed, or replaced or that new construction is undertaken where necessary. In addition, I hereby waive any laws or regulations that would restrict the application and use of the Department s equipment, resources, and personnel to assist local jurisdictions in the repairs and clearing and removal of debris and other types of obstructions from non-state-owned highways. This assistance to local jurisdictions may be provided solely at the discretion of the Secretary

10 2206 THE GOVERNOR of Transportation. This assistance, however, does not apply to privately owned highways, roads, streets, or other types of real property; and Further, pursuant to the powers vested in me by the Constitution and laws of this Commonwealth, I hereby authorize the Adjutant General of Pennsylvania to place on state active duty for the duration of the emergency/disaster proclamation, such individuals and units of the Pennsylvania National Guard, as requested by the Pennsylvania Emergency Management Agency, to alleviate the potential danger to public health and safety caused by the aforementioned emergency; and Further, I hereby authorize the Secretary of Environmental Protection to use all available equipment, resources, and personnel of the Department, in whatever manner that she deems necessary, to protect public health and safety or the environment by ensuring that any possible petroleum spills, hazardous materials, and contaminated debris that may be released into the environment as a result of the flooding be remediated; and Further, I have directed that the emergency response and recovery aspects of all the Commonwealth departments and agencies and all applicable county, municipal, and other disaster emergency response and recovery plans be activated and that all state, county, and municipal actions taken to implement those plans be coordinated through the Pennsylvania Emergency Management Agency; and Still Further, I hereby urge the governing bodies and executive officers of all political subdivisions affected by this emergency to act as necessary to meet the current exigencies as legally authorized under this proclamation, namely: by the employment of temporary workers; by the rental of equipment; and by entering into such contracts and agreements as may be required to meet the emergency, all without regard to those time-consuming procedures and formalities normally prescribed by law, mandatory constitutional requirements excepted. Given under my hand and the Seal of the Governor, in the City of Harrisburg, on this third day of April in the year of our Lord two thousand and five and of the Commonwealth the two hundred and twenty-ninth. [Pa.B. Doc. No Filed for public inspection April 15, 2005, 9:00 a.m.] Governor

11 THE GENERAL ASSEMBLY COMMISSION ON SENTENCING Meetings Scheduled 2207 The Commission on Sentencing announces the following public meetings to be held at The Harrisburg Hilton and Towers Hotel, One North Second Street, Harrisburg, PA 17101: Tuesday, May 10, :30 p.m. Work Session Wednesday, May 11, a.m. The Leland Room Quarterly Commission Meeting MARK H. BERGSTROM, Executive Director [Pa.B. Doc. No Filed for public inspection April 15, 2005, 9:00 a.m.]

12 2208 Title 204 JUDICIAL SYSTEM GENERAL PROVISIONS PART IV. ADMISSION TO PRACTICE OF LAW [204 PA. CODE CH. 71] Amendment of Rule 402 of the Pennsylvania Bar Admission Rules; No. 363 Supreme Court Rules; Doc. No. 1 Order Per Curiam: And Now, this 30th day of March, 2005, Rule 402 of the Pennsylvania Bar Admission Rules is amended to read as follows. To the extent that notice of proposed rulemaking would be required by Pennsylvania Rule of Judicial Administration No. 103 or otherwise, the immediate amendment of Pa.B.A.R. 402 is hereby found to be required in the interest of justice and efficient administration. This Order shall be processed in accordance with Pennsylvania Rule of Judicial Administration No. 103(b) and shall be effective immediately. Annex A TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS PART IV. ADMISSION TO PRACTICE OF LAW CHAPTER 71. PENNSYLVANIA BAR ADMISSION RULES Subchapter D. MISCELLANEOUS PROVISIONS Rule 402. Confidentiality. (a) General Rule. Except as otherwise prescribed in these rules, the actions and records of the Board are confidential and shall not be disclosed or open to inspection by the public. (b) Permitted Disclosure. The Board may, however[, ]: (1) publish a list of the names of applicants who successfully completed the bar examination administered by the Board [ and may: ]; [ (1) ] (2) upon request from the dean of a law school, furnish the law school with the names of applicants from the law school who did not successfully complete the bar examination, provided the law school has agreed to only use such information internally within the law school and not to disclose the names of students who failed the bar examination to any person or organization outside of the law school[,and]; [ (2) ] (3) upon written request from a state or county bar association located within this commonwealth, furnish such bar association with the names and addresses of those applicants who have successfully completed the bar examination administered by the [ board ] Board and who have not objected to the release of such information, provided the bar association has agreed to only use such information for purposes of offering applicants membership in and services provided by or through the bar association[. ]; THE COURTS (4) release information with respect to an applicant upon a written request from a bar admission authority in another jurisdiction, provided the admission authority agrees to use the information only for bar admission purposes and has a rule or policy that guarantees the confidentiality of bar admission materials and records to the same extent required by this rule; (5) release information with respect to an applicant upon a written request from the Disciplinary Board of this Commonwealth or from a lawyer disciplinary authority in another jurisdiction, provided the disciplinary authority agrees to use the information only for attorney disciplinary matters and has a rule or policy that guarantees the confidentiality of its disciplinary materials and records to the same extent required by this rule; (6) release information with respect to an applicant when necessary in defending litigation brought against the Court, the Board, its members or staff arising out of or related to the bar admission process; (7) release a copy of the bar admission application submitted by an applicant upon receipt of a properly executed written authorization and release from the applicant; (8) release information with respect to an applicant pursuant to a court order; (9) release to the National Conference of Bar Examiners, the name and the date of birth of individuals who have applied to take the bar examination or be admitted to the bar of this Commonwealth; and (10) publish the contents of responses submitted to a question on the bar examination by an applicant as a representative sample of a good answer, provided the identity of the applicant is not disclosed. (c) Limitation. Nothing set forth in this rule shall prohibit the Board from refusing to provide information relating to an applicant, when the writer or provider of the information has requested that the information be kept confidential or when the Board deems it imprudent to disclose such information. * * * * * [Pa.B. Doc. No Filed for public inspection April 15, 2005, 9:00 a.m.] PART V. PROFESSIONAL ETHICS AND CONDUCT [204 PA. CODE CH. 83] Amendment of Pennsylvania Rule of Disciplinary Enforcement 209; No. 40 Disciplinary Doc. No. 1 Order Per Curiam: And Now, this 1st day of April, 2005, it is ordered, pursuant to Article V, Section 10 of the Constitution of Pennsylvania, that:

13 THE COURTS Rule 209 of the Pennsylvania Rules of Disciplinary Enforcement is amended as set forth in Annex A. 2. This Order shall be processed in accordance with Rule 103(b) of the Pennsylvania Rules of Judicial Administration. To the extent that publication of a notice of proposed rulemaking would otherwise be required with respect to the amendments adopted by this Order, such publication is hereby found to be unnecessary because the immediate adoption of this Order is required in the interests of justice. 3. The amendments to the Pennsylvania Rules of Disciplinary Enforcement shall take effect upon publication of this Order in the Pennsylvania Bulletin. Annex A TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS PART V. PROFESSIONAL ETHICS AND CONDUCT Subpart B. DISCIPLINARY ENFORCEMENT CHAPTER 83. PENNSYLVANIA RULES OF DISCIPLINARY ENFORCEMENT Subchapter B. MISCONDUCT Rule 209. Immunity. * * * * * (b) Complaints against members of the Board involving alleged violations of the Disciplinary Rules or these rules shall be [ submitted directly to the Supreme Court ] handled in the same manner as other complaints, except that if action is required by the Board the Secretary shall notify the Supreme Court which shall appoint an Ad Hoc Disciplinary Board comprised of five former members of the Board who shall discharge the functions of the Board and have all the powers of the Board with respect to that one matter only. (c) Complaints against Disciplinary Counsel involving alleged violations of the Disciplinary Rules or these rules shall be submitted directly to the Board and assigned to a reviewing member of the Board for disposition. * * * * * [Pa.B. Doc. No Filed for public inspection April 15, 2005, 9:00 a.m.] Title 225 RULES OF EVIDENCE [225 PA. CODE ART. I] Order Adopting Revision of to Rule of Evidence 104; No. 362 Supreme Court Rules; Doc. No. 1 Order Per Curiam: Now, this 29th day of March, 2005, upon the recommendation of the Committee on Rules of Evidence, this proposal having been published before adoption at 34 Pa.B (May 22, 2004) and a Final Report to be published with this Order: It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the revision of comment is hereby amended as set forth in Annex A. This Order shall be processed immediately in accordance with Pa.R.J.A. 103(b), and shall be effective May 2, Annex A TITLE 225. RULES OF EVIDENCE ARTICLE I. GENERAL PROVISIONS Rule 104. Preliminary Questions. * * * * * * * * * * The second sentence of paragraph 104(c) is identical to the second sentence of F.R.E. 104(c). Paragraph 104(c) [ indicates ] says that hearings on other preliminary matters, both criminal and civil, shall be conducted outside the jury s presence when required by the interests of justice. Certainly, the court should conduct [ the ] a hearing outside the presence of the jury when the court believes that it is necessary to prevent the jury from hearing prejudicial information. [ The right of an accused to have his or her testimony on a preliminary matter taken outside the presence of the jury does not appear to have been discussed in Pennsylvania law. ] In Commonwealth v. Washington, 722 A.2d 643 (Pa. 1998), a case involving child witnesses, the Supreme Court created a per se error rule requiring competency hearings to be conducted outside the presence of the jury. In Commonwealth v. Delbridge, 855 A.2d 27 (Pa. 2003), the Supreme Court held that a competency hearing is the appropriate way to explore an allegation that the testimony of a child has been impaired or tainted by suggestive interview techniques, and that the burden is on a party alleging testimonial incompetency by reason of taint to prove it by clear and convincing evidence. The right of an accused to have his or her testimony on a preliminary matter taken outside the presence of the jury, a right that the rule expressly recognizes, does not appear to have been discussed in prior Pennsylvania case law. FINAL REPORT REVISING Revising Pa.R.E. 104 COMMENT CHANGES Some significant changes have occurred in the conduct of child competency hearings. The of Pa.R.E. 104 has been revised to alert the Bench and Bar to these developments. In Commonwealth v. Washington, 722 A.2d 643 (Pa. 1998), the Supreme Court created a rule requiring that the competency hearing of a child witness be conducted outside the presence of the jury. In Commonwealth v. Delbridge, 855 A.2d 27 (Pa. 2003), the Supreme Court held that a competency hearing is the appropriate way to explore allegations that the testimony of the child has been impaired or tainted by suggestive

14 2210 THE COURTS interview techniques. In such a hearing, the burden is on a party alleging testimonial incompetency by reason of taint to prove it by clear and convincing evidence. [Pa.B. Doc. No Filed for public inspection April 15, 2005, 9:00 a.m.] Title 234 RULES OF CRIMINAL PROCEDURE [234 PA. CODE CHS. 1, 2, 4 AND 5] Order Approving the Revision of the s to Rules 100, 200, 400, 430, 431, 455, 456, 520, and 565; No. 317 Criminal Procedural Rules; Doc. No. 2 The Criminal Procedural Rules Committee has prepared a Final Report explaining the April 1, 2005 revisions to the s to Rules of Criminal Procedure 100, 200, 400, 430, 431, 455, 456, 520, and 565. These changes conform the Criminal Rules with the Rules of Juvenile Court Procedure and clarify the interplay between the two sets of rules. The Final Report follows the Court s Order. Order Per Curiam: Now, this 1st day of April, 2005, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3) in the interests of justice and efficient administration, and a Final Report to be published with this Order: It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the revision of the s to Rules of Criminal Procedure 100, 200, 400, 430, 431, 455, 456, 520, and 565 are approved in the following form. This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective Annex A TITLE 234. RULES OF CRIMINAL PROCEDURE CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES Rule 100. Scope of Rules. * * * * * * * * * * These rules apply to proceedings involving juveniles only to the extent that the Juvenile Act does not vest jurisdiction in the Juvenile Court, and as provided in the Rules of Juvenile Court Procedure. See, e.g., Juvenile Act [ , 6355 ], 42 Pa.C.S , 6355 [ (1982) ]; Vehicle Code, 75 Pa.C.S [ (1977) ], and Rules of Juvenile Court Procedure 105 (Search Warrants), 395 (Procedure to Initiate Criminal Information), and 396 (Bail). Official Note: Prior rule suspended effective May 1, Present Rule 1 adopted January 31, 1970, effective May 1, 1970; amended April 26, 1972, effective immediately; amended June 28, 1974, effective July 1, 1974; amended January 28, 1983, effective July 1, 1983; revised July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; renumbered Rule 100 and amended March 1, 2000, effective April 1, 2001; revised April 1, 2005, effective October 1, Committee Explanatory Reports: Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court s Order at 30 Pa.B. [ 1477 ] 1478 (March 18, 2000). Final Report explaining the April 1, 2005 revision concerning Rules of Juvenile Court Procedure published with the Court s Order at 35 Pa.B (April 16, 2005). CHAPTER 2. INVESTIGATIONS PART A. Search Warrant Rule 200. Who May Issue. * * * * * This rule formally authorizes [ district justices ] magisterial district judges, Philadelphia bail commissioners, and judges of the Municipal, Common Pleas, Commonwealth, Superior, and Supreme Courts to issue search warrants. This is not a departure from existing practice. See, e.g., Sections 1123(a)(5) and 1515(a)(4) of the Judicial Code, 42 Pa.C.S. 1123(a)(5), 1515(a)(4). See also the Rules of Juvenile Court Procedure, Rule 105 (Search Warrants). Any judicial officer who is authorized to issue a search warrant and who issues a warrant is considered an issuing authority for purposes of this rule. The authority of a [ district justice ] magisterial district judge to issue a search warrant outside of the magisterial district but within the judicial district is recognized in Commonwealth v. Ryan, 400 A.2d 1264 (Pa. 1979). * * * * * Official Note: Prior Rules 2000 and 2001 were suspended by former Rule 323, effective February 3, Present Rule 2001 adopted March 28, 1973, effective 60 days hence; amended July 1, 1980, effective August 1, 1980; revised September 3, 1993, effective January 1, 1994; renumbered Rule 200 and revised March 1, 2000, effective April 1, 2001; revised April 1, 2005, effective Committee Explanatory Reports: * * * * * Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court s Order at 30 Pa.B. [ 1477 ] 1478 (March 18, 2000). Final Report explaining the April 1, 2005 revision concerning Rules of Juvenile Court Procedure published with the Court s Order at 35 Pa.B (April 16, 2005). CHAPTER 4. PROCEDURES IN SUMMARY CASES PART A. Instituting Proceedings Rule 400. Means of Instituting Proceedings In Summary Cases. * * * * * * * * * *

15 THE COURTS 2211 Summary cases are cases in which all the offenses charged are either summary offenses, as defined in the Crimes Code, 18 Pa.C.S. 106(c), or violations of ordinances for which imprisonment may be imposed upon conviction or upon failure to pay a fine or penalty. See Rule 103. Criminal proceedings in summary cases are to be brought under this chapter of the rules. If one or more of the offenses charged is a misdemeanor, felony, or murder, the case is a court case (see Rule 103) and proceeds under Chapter 5 of the rules. Any summary offenses in such a case, if known at the time, must be charged in the same complaint as the higher offenses and must be disposed of as part of the court case. See Crimes Code 110, 18 Pa.C.S. 110, and Commonwealth v. Campana, 304 A.2d 432 (Pa. 1973), vacated and remanded, 414 U.S. 808 (1973), on remand, 314 A.2d 854 (Pa. 1974). But see Commonwealth v. Beatty, 455 A.2d 1194 (Pa. 1983); Commonwealth v. Taylor, 522 A.2d 37 (Pa. 1987); and Commonwealth v. Kresge, 464 A.2d 384 (Pa. Super. Ct. 1983) (no Section 110 violation when separate prosecutions involve offenses not within the jurisdiction of a single court ). See also Commonwealth v. Geyer, 687 A.2d 815 (Pa. 1996) (Section 110 applies to separate prosecution of two summary offenses within the jurisdiction of a single court). * * * * * The Rules of Criminal Procedure generally do not apply to juvenile proceedings[, but these rules ]. But see the Rules of Juvenile Court Procedure 105 (Search Warrants) and 396 (Bail). The Criminal Rules do apply to proceedings in summary cases involving defendants under 18 years of age to the extent that the Juvenile Act does not apply to such proceedings. See, e.g., Juvenile Act, 42 Pa.C.S. 6302, 6303, and 6326, Vehicle Code, 75 Pa.C.S See also 42 Pa.C.S. 1515(a)(1) and 6303(a)(5) concerning jurisdiction of summary offenses arising out of the same episode or transaction involving a delinquent act for which a petition alleging delinquency is filed. * * * * * Official Note: Previous Rule 51 adopted January 23, 1975, effective September 1, 1975; revised January 28, 1983, effective July 1, 1983; revised December 15, 1983, effective January 1, 1984; rescinded July 12, 1985, effective January 1, 1986; and replaced by present Rules 3, 51, 52, 55, 60, 65, 70, 75, and 95. Present Rule 51 adopted July 12, 1985, effective January 1, The January 1, 1986 effective dates all are extended to July 1, 1986; revised February 1, 1989, effective July 1, 1989; revised January 31, 1991, effective July 1, 1991; revised January 16, 1996, effective immediately; revised June 6, 1997, effective immediately; renumbered Rule 400 and amended March 1, 2000, effective April 1, 2001; revised February 6, 2003, effective July 1, 2003; revised August 7, 2003, effective July 1, 2004; revised April 1, 2005, effective October 1, Committee Explanatory Reports: * * * * * Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court s Order at 30 Pa.B. [ 1477 ] 1478 (March 18, 2000). * * * * * Final Report explaining the April 1, 2005 revision concerning Rules of Juvenile Court Procedure published with the Court s Order at 35 Pa.B (April 16, 2005). PART D. Arrest Procedures in Summary Cases PART D(1). Arrests With a Warrant Rule 430. Issuance of Arrest Warrant. * * * * * * * * * * If the defendant is under 18 years of age and has not paid the fine and costs, the issuing authority must issue the notice required by paragraph (D) to the defendant and the defendant s parents, guardian, or other custodian informing the defendant and defendant s parents, guardian, or other custodian that, if payment is not received or the defendant does not appear within the 10-day time period, the issuing authority will certify notice of the failure to pay to the court of common pleas as required by the Juvenile Act, 42 Pa.C.S. 6302, definition of delinquent act, paragraph (2)(iv). Thereafter, the case will proceed pursuant to the Rules of Juvenile Court Procedure and the Juvenile Act instead of these rules. * * * * * Official Note: Rule 75 adopted July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended January 31, 1991, effective July 1, 1991; amended April 18, 1997, effective July 1, 1997; amended October 1, 1997, effective October 1, 1998; amended July 2, 1999, effective August 1, 1999; renumbered Rule 430 and amended March 1, 2000, effective April 1, 2001; amended February 28, 2003, effective July 1, 2003; revised August 7, 2003, effective July 1, 2004; revised April 1, 2005, effective October 1, Committee Explanatory Reports: * * * * * Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court s Order at 30 Pa.B. [ 1477 ] 1478 (March 18, 2000). * * * * * Final Report explaining the April 1, 2005 revision concerning application of the Juvenile Court Procedural Rules published with the Court s Order at 35 Pa.B (April 16, 2005). Rule 431. Procedure When Defendant Arrested With Warrant. * * * * * * * * * * In cases in which a defendant who is under 18 years of age has failed to comply with a lawful sentence imposed by the issuing authority, the Juvenile Act requires the issuing authority to certify notice of the failure to comply to the court of common pleas. See the definition of delinquent act, paragraph (2)(iv), in 42 Pa.C.S Following the certification, the case is to proceed pursuant to the Rules of Juvenile Court Procedure and the Juvenile Act instead of these rules. * * * * * Official Note: Rule 76 adopted July 12, 1985, effective January 1, 1986; revised September 23, 1985, effective January 1, 1986; January 1, 1986 effective dates

16 2212 THE COURTS extended to July 1, 1986; revised January 31, 1991, effective July 1, 1991; amended August 9, 1994, effective January 1, 1995; amended October 1, 1997, effective October 1, 1998; amended July 2, 1999, effective August 1, 1999; renumbered Rule 431 and amended March 1, 2000, effective April 1, 2001; amended August 7, 2003, effective July 1, 2004; revised April 1, 2005, effective Committee Explanatory Reports: * * * * * Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court s Order at 30 Pa.B. [ 1477 ] 1478 (March 18, 2000). * * * * * Final Report explaining the April 1, 2005 revision concerning application of the Juvenile Court Procedural Rules published with the Court s Order at 35 Pa.B (April 15, 2005). PART E. General Procedures in Summary Cases Rule 455. Trial in Defendant s Absence. * * * * * * * * * * If the defendant is under 18 years of age, the notice in paragraph (D) must inform the defendant and defendant s parents, guardian, or other custodian that, if payment is not received or the defendant does not appear within the 10-day time period, the issuing authority will certify notice of the failure to pay to the court of common pleas as required by the Juvenile Act, 42 Pa.C.S. 6302, definition of delinquent act, paragraph (2)(iv), and the case will proceed pursuant to the Rules of Juvenile Court Procedure and the Juvenile Act instead of these rules. * * * * * Official Note: Rule 84 adopted July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; amended February 1, 1989, effective July 1, 1989; amended April 18, 1997, effective July 1, 1997; amended October 1, 1997, effective October 1, 1998; renumbered Rule 455 and revised March 1, 2000, effective April 1, 2001; revised August 7, 2003, effective July 1, 2004; revised April 1, 2005, effective Committee Explanatory Reports: * * * * * Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court s Order at 30 Pa.B. [ 1477 ] 1478 (March 18, 2000). * * * * * Final Report explaining the April 1, 2005 revision concerning application of the Juvenile Court Procedural Rules published with the Court s Order at 35 Pa.B (April 16, 2005). Rule 456. Default Procedures: Restitution, Fines, and Costs. * * * * * * * * * * If the defendant is under 18 years of age, the notice in paragraph (B) must inform the defendant and the defendant s parents, guardian, or other custodian that, if payment is not received or the defendant does not appear within the 10-day time period, the issuing authority will certify notice of the failure to pay to the court of common pleas as required by the Juvenile Act, 42 Pa.C.S. 6302, definition of delinquent act, paragraph (2)(iv), and the case will proceed pursuant to the Rules of Juvenile Court Procedure and the Juvenile Act instead of these rules. * * * * * Official Note: Adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986; January 1, 1986 effective dates extended to July 1, 1986; revised February 1, 1989, effective July 1, 1989; rescinded October 1, 1997, effective October 1, New Rule 85 adopted October 1, 1997, effective October 1, 1998; amended July 2, 1999, effective August 1, 1999; renumbered Rule 456 and amended March 1, 2000, effective April 1, 2001; revised August 7, 2003, effective July 1, 2004; amended March 3, 2004, effective July 1, 2004; revised April 1, 2005, effective Committee Explanatory Reports: * * * * * Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court s Order at 30 Pa.B. [ 1477 ] 1478 (March 18, 2000). * * * * * Final Report explaining the April 1, 2005 revision concerning application of the Juvenile Court Procedural Rules published with the Court s Order at 35 Pa.B (April 16, 2005). CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES PART C. Bail Rule 520. Bail Before Verdict. * * * * * * * * * * See Pa.R.J.C.P. 396, which provides that, at the conclusion of a transfer hearing, the juvenile court judge is to determine bail pursuant to these bail rules for a juvenile whose case is ordered transferred to criminal proceedings. See Commonwealth v. Truesdale, 296 A.2d 829 (Pa. 1972), concerning the bail authority s discretion to refuse bail under paragraph (A). * * * * * Official Note: Former Rule 4001 adopted July 23, 1973, effective 60 days hence, replacing prior Rule 4002; amended January 28, 1983, effective July 1, 1983; revised September 23, 1985, effective January 1, 1986; rescinded September 13, 1995, effective January 1, 1996, and replaced by present Rule 520. Present Rule 4001 adopted September 13, 1995, effective January 1, The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; revised September 3, 1999, effective immediately; renumbered Rule 520 and revised March 1, 2000, effective April 1, 2001; revised April 1, 2005, effective

17 THE COURTS 2213 Committee Explanatory Reports: * * * * * Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court s Order at 30 Pa.B. [ 1477 ] 1478 (March 18, 2000). Final Report explaining the April 1, 2005 revision concerning Rules of Juvenile Court Procedure published with the Court s Order at 35 Pa.B (April 16, 2005). PART E. Informations Rule 565. Presentation of Information Without Preliminary Hearing. * * * * * * * * * * Under the Rules of Juvenile Court Procedure and the Juvenile Act, a juvenile is entitled to substantially the same rights at a transfer hearing as a defendant would be at a preliminary hearing. See Rules of Juvenile Court Procedure 394 and 395 and Juvenile Act, 42 Pa.C.S Therefore, to avoid duplicative proceedings, this rule permits the attorney for the Commonwealth to bypass the preliminary hearing when a juvenile has been transferred for prosecution as an adult. * * * * * Official Note: Rule 231 adopted February 15, 1974, effective immediately; amended April 26, 1979, effective July 1, 1979; amended August 12, 1993, effective September 1, 1993; renumbered Rule 565 and amended March 1, 2000, effective April 1, 2001; revised August 24, 2004, effective August 1, 2005; revised April 1, 2005, effective Committee Explanatory Reports: * * * * * Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court s Order at 30 Pa.B. [ 1477 ] 1478 (March 18, 2000). * * * * * Final Report explaining the April 1, 2005 revision concerning Rules of Juvenile Court Procedure published with the Court s Order at 35 Pa.B (April 16, 2005). FINAL REPORT 1 Revisions of the s to Pa.Rs.Crim.P. 100, 200, 400, 430, 431, 455, 456, 520, and 565 Changes Necessitated by the New Rules of Juvenile Court Procedure On April 1, 2005, effective October 1, 2005, upon the recommendation of the Criminal Procedural Rules Committee, the Court approved the revisions of the s to Pa.Rs.Crim.P. 100, 200, 400, 430, 431, 455, 456, 520, and 565. Introduction On April 1, 2005, the Court adopted the new Juvenile Court Procedural Rules ( Juvenile Rules ). Included in these new rules are Juvenile Rules 105 (Search Warrants) and 396 (Bail) that defer to the procedures in the Rules of 1 The Committee s Final Reports should not be confused with the official Committee s to the rules. Also note that the Supreme Court does not adopt the Committee s s or the contents of the Committee s explanatory Final Reports. Criminal Procedure ( Criminal Rules ) for search warrant procedures in all juvenile cases and for bail procedures in cases in which a transfer has been ordered. In addition, Juvenile Rule 395 (Procedure to Initiate Criminal Information) includes a cross-reference to the Criminal Rules in general and to Criminal Rule 565 specifically for the procedures following a transfer from Juvenile Court. In view of these new Juvenile Rules, the Committee concluded some minor correlative changes to the Criminal Rules are necessary to conform the Criminal Rules with the Juvenile Rules, clarify the interplay between the two sets of rules, and alert the bench and bar to the two specific deferrals to the Criminal Rules and to the cross-reference to the Criminal Rules. Discussion The s to both Criminal Rule 100 (Scope of Rules) and Criminal Rule 400 (Means of Instituting Proceedings in Summary Cases) currently include provisions that explain that the Criminal Rules only apply to proceedings involving juveniles to the extent that the Juvenile Act does not vest jurisdiction in the Juvenile Court. 2 With the adoption of the new Juvenile Rules, the Criminal Rules have been made applicable to search warrants in juvenile matters, Juvenile Rule 105, and to the setting of bail at the conclusion of a transfer hearing when transfer to criminal proceedings is ordered, Juvenile Rule 396. To accommodate this expansion, the s to Criminal Rules 100 and 400 have been revised to include references to Juvenile Rules 105 and 396. In addition, the s to Criminal Rules 200 (Who May Issue) and 520 (Bail Before Verdict) have been revised by the addition of cross-references to Juvenile Rules 105 and 396 respectively. These cross-references are important as additional flags to alert the bench and bar to the application of the Criminal Rules concerning search warrants and bail to proceedings under the Juvenile Rules. Similarly, the to Criminal Rule 565 (Presentation of Information without Preliminary Hearing) has been revised. Prior to this revision, the second paragraph of the Criminal Rule 565 explained, inter alia, that the procedures for a transfer hearing under Section 6355 of the Juvenile Act, 42 Pa.C.S. 6355, serve the same purpose as the preliminary hearing. New Juvenile Rule 394 (Transfer Hearing), which incorporates much of Section 6355, provides procedures comparable to the preliminary hearing. In addition, the Juvenile Rule 395 makes specific reference to Criminal Rule 565 concerning bypassing the preliminary hearing in these cases when filing an information. The revision of the Criminal Rule 565 adding a cross-reference to the Juvenile Rules to the existing cross-reference to the Juvenile Act makes it clear that both the Rules of Juvenile Court Procedure and the Juvenile Act provide the basis for the preliminary hearing bypass process in the Criminal Rules in transfer cases. Finally, prior to these 2005 changes, the s to Rules 430 (Issuance of Arrest Warrant), 431 (Procedure When Defendant Arrested With Warrant), 455 (Trial in Defendant s Absence), 456 (Default Procedures: Restitution, Fines, and Costs) included the explanation that when a summary case involves a juvenile who has failed to comply with a sentence, the issuing authority is to certify the case to the Juvenile Court and the case is to proceed pursuant to the Juvenile Act instead of these rules. These references to the Juvenile Act have been 2 These proceedings are summary case proceedings and the specific court case proceedings exempted by the Juvenile Act from the definition of juvenile act, as well as any cases ordered transferred to criminal court.