Title 255—LOCAL COURT RULES
Adoption of Criminal Rules 103, 103.1, 528, 530, 531, 531.2, 535 and 536.1 Relating to Bail; AD-8-2018
[48 Pa.B. 4968]
[Saturday, August 18, 2018]
And Now, this 23rd day of July, 2018, It Is Ordered that the following Rules of Criminal Procedure, in and for the 31st Judicial District of Pennsylvania composed of Lehigh County, be, and the same are, promulgated herewith, to become effective thirty (30) days after their publication in the Pennsylvania Bulletin.
It Is Further Ordered that the District Court Administrator for the 31st Judicial District shall: distribute two (2) paper copies of the local rules to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin; distribute a copy of the local rules on a computer diskette, CD-ROM, or other agreed upon alternate format that complies with the requirements of 1 Pa. Code § 13.11(b) to the Legislative Reference Bureau; file one (1) copy of the local rules with the Administrative Offices of Pennsylvania Courts; and publish a copy of the local rules on the court's website.
By the Court
KELLY L. BANACH,
Leh.R.Cr.P. 103. Definitions.
Unless the context clearly indicates otherwise, the words and phrases used in any criminal rule adopted by the Court of Common Pleas of Lehigh County shall be given the same meaning as is given those words and phrases in the Pennsylvania Rules of Criminal Procedure with the following exceptions and additions: (1) ''Court'', means the Court of Common Pleas of Lehigh County; (2) ''Rule'', means any rule of criminal court adopted by the Court of Common Pleas of Lehigh County; (3) ''Clerk of Courts—Criminal'' means the Clerk of Courts—Criminal of the Court of Common Pleas of Lehigh County; and (4) ''except as otherwise provided'', means except as provided by statute, by the Pennsylvania Rules of Criminal Procedure, or by specific local criminal court rule.
Note: The language of this Rule was derived from Leh.R.C.P. 76.
Leh.R.Cr.P. 103.1. Definitions.
(a) Definitions contained in Pa.R.Crim.P. 103 shall apply to all local rules heretofore and hereafter adopted which govern practice and procedure in criminal matters.
(b) The following words and phrases, when used in any Lehigh County Rule of Criminal Procedure, shall have the following meanings:
Bail Bondsman is as defined at 42 Pa.C.S.A. § 5741.
Bail Enforcement Agent is an individual who performs services or takes action for the purpose of enforcing the terms and conditions of a defendant's release from custody on bail, including locating, apprehending and surrendering a defendant released from custody on bail who has failed to appear at a specified time and place pursuant to Order of Court. The term does not include police officers, sheriffs, court officers or law enforcement personnel who execute warrants of arrest for bail forfeitures pursuant to their official duties.
Clerk is the Lehigh County Clerk of Judicial Records, Criminal Division.
Department is as defined at 42 Pa.C.S.A. § 5741.
Insurer is as defined at 42 Pa.C.S.A. § 5741.
Surety is as defined at 42 Pa.C.S.A. § 5741.
Department of Law is the Lehigh County Department of Law.
Pretrial Services is Lehigh Valley Pretrial Services, Inc.
President Judge is the President Judge of the Court of Common Pleas of Lehigh County.
Leh.R.Cr.P. 528. Percentage Cash Bail System.
(1) Where percentage cash bail has been authorized by the bail authority, the Defendant for whom bail has been set (and any private third party surety/depositor acting on behalf of the Defendant) shall execute the bail bond and deposit with the issuing authority or the Clerk a sum of money equal to ten percent (10%) of the amount of bail set, but in no event less than Twenty-five ($25.00) Dollars. A Bail Bondsman is expressly prohibited from posting the deposit for the percentage cash bail system as provided in this Rule. However, where 10% cash bail is authorized, a Bail Bondsman may, nevertheless, post bond, provided they do so for the full amount of the bail.
(2) Prior to setting 10% cash bail, the bail authority shall generally seek and review the recommendations of the court designated bail agency.
(3) Where a third-party becomes the depositor of the 10% cash on behalf of a defendant, that third-party shall become a surety for the balance of the full amount of the bail, and shall execute the bond as a surety.
Note: This Rule was part of the original bail rules numbered 4006, 4006A, 4006B, 4006C and 4006D. They were adopted by an order dated March 23, 1984, and published at 14 Pa.B. 833 et seq. (March 17, 1984).
Leh.R.Cr.P. 530. Designation of Local Court Bail Agency.
(1) Lehigh Valley Pretrial Services, Inc., is designated as the bail agency to monitor and assist defendants released on bail in criminal cases instituted in Lehigh County. This agency shall perform the duties and have the powers set forth in Pa.R.Crim.P. 530(A).
(2) When a Defendant is released on any of the types of bail set forth in Pa.R.Crim.P. 524(C)(1) through (4), or on 10% cash bail pursuant to Pa.Rs.C.P. 524(C)(5) and 528(D)(1), and the bail agency has been designated by the bail authority to act as surety or supervising agency for the defendant, the defendant shall then become subject to the rules and regulations of the bail agency. The bail agency shall not be required to sign the bail bond.
(3) Whenever a defendant who is supervised by the bail agency fails to comply with the conditions of his or her release, or the rules and regulations of the bail agency, a bail piece may issue pursuant to Pa.R.Crim.P. 536(B) to the bail agency, and the defendant may be brought before the court to determine if additional bail shall be set or bail revoked.
Note: This Rule was part of the original bail rules numbered 4006, 4006A, 4006B, 4006C and 4006D. They were adopted by an order dated March 23, 1984, and published at 14 Pa.B. 833 et seq. (March 17, 1984). The Rule was later amended to reflect the reorganization and renaming of the bail agency.
Leh.R.Cr.P. 531. Qualifications of Bail Bondsmen and Insurers in Lehigh County.
1. Every Insurer duly authorized to do business in Pennsylvania and who appoints a bail bondsman to serve as a surety on any bail bond may be qualified by the Lehigh County Court of Common Pleas provided that it files with the Clerk shall file a current Certificate of Authority issued to it by the Department, and a current annual financial statement, in a form and manner prescribed by these rules. All Insurers approved by the Court of Common Pleas have a continuing obligation to remain qualified in Lehigh County and no bond shall be issued by any Bail Bondsman appointed by an Insurer after May 15 of any year unless the Insurer has filed a current Certificate of Authority issued after March 31 of the same year and a current annual financial statement with the Clerk.
2. An Insurer is precluded from insuring bonds under any circumstance where they have any outstanding and unpaid bail forfeitures, as determined by the Department of Law, in violation of 42 Pa.C.S.A. § 5747.1 or these local rules. In circumstances where the Insurer has any outstanding and unpaid forfeitures, any and all Bail Bondsman who are appointed by that Insurer in Lehigh County shall be precluded from serving as surety on any bail bond until such time as appropriate financial settlement has been made. The Department of Law shall immediately notify the Clerk, the District Attorney, the Magisterial District Judges of Lehigh County, the Court of Common Pleas—Criminal Division, any Bail Bondsman who is appointed by the Insurer and the Insurer when the Insurer is precluded from insuring any bonds due to a violation of the terms of 42 Pa.C.S. 5747.1 or these local rules. The Clerk and the Magisterial District Judges shall immediately cease accepting bonds from the Insurer and any of its appointed Bail Bondsmen. When the forfeitures have been paid in full or appropriate financial settlement has been made with the County of Lehigh, the Department of Law shall notify the Clerk and Magisterial District Judges that execution of bonds by the Insurer and its appointed Bail Bondsmen may resume.
B. BAIL BONDSMEN
1. A Bail Bondsman authorized to conduct business in Pennsylvania pursuant to 42 Pa.C.S. §§ 5742—5743.1 may be qualified to serve as surety on any bail bond filed in the criminal courts of Lehigh County provided that he or she file with the Clerk a Qualifying Power of Attorney issued by an Insurer by whom the Bail Bondsman has been appointed setting forth the maximum limit of liability per bond, and a copy of their license issued by the Department, in form and manner prescribed by these rules. No bond shall be executed by any Bail Bondsman after the expiration of such Qualifying Power of Attorney until a new Qualifying Power of Attorney has been filed with the Clerk.
2. A Bail Bondsman is precluded from acting as surety on any bail bond under any circumstance where they have any outstanding and unpaid bail forfeitures as determined by the Department of Law in violation of 42 Pa.C.S. § 5747.1, these local rules or the Insurer who has issued the Power of Attorney is precluded from issuing bonds for any reason. The Department of Law shall immediately notify the Clerk, the District Attorney and the Magisterial District Judges, the Court of Common Pleas—Criminal Division, the Insurer who has appointed the Bail Bondsman and the Bail Bondsman when the Bail Bondsman is precluded from acting as surety on a bail bond due to a violation of the terms of 42 Pa.C.S. 5747.1, these local rules or that the Insurer who has issued their Power of Attorney is precluded from insuring bonds. The Clerk and Magisterial District Judges shall immediately cease accepting bonds by the Bail Bondsman upon such notice. When appropriate financial settlement has been made with the County of Lehigh, the Department of Law shall notify the Clerk, the District Attorney, the Magisterial District Judges, the Court of Common Pleas—Criminal Division, the Insurer, and the Bail Bondsman that execution of bonds by the Bail Bondsman may resume.
Note: This Rule in substantially the same form was adopted as CR 4011, by Order dated November 7, 1995, and published at 25 Pa.B. 5238 et seq. (November 25, 1995).
Leh.R.Cr.P. 531.2. Approval and Regulation of Bail Bondsmen and Insurers in Lehigh County.
(a) Seeking Approval as Insurer or Bail Bondsman. A Bail Bondsman, or an Insurer on behalf of a Bail Bondsman, may seek approval to serve as surety on any bail in the Thirty-first Judicial District by filing a petition with the Clerk. The petition must provide the information and have attached as exhibits any documents and certifications required in subsection (b) herein. Upon filing, the petition will be assigned to a Judge for determination.
(b) Requirements to Become Qualified. To become qualified to post bond in Lehigh County:
(1) Each petition must state that the Bail Bondsman and Insurer is in compliance with all laws, statutes, local and state rules of court as may be established from time to time;
(2) Each petition must include as an attachment a current and valid Certificate of Authority issued by the Department showing that the Insurer is authorized under 40 P.S. § 382(1) shall be attached to the petition seeking approval to operate as a Bail Bondsman;
(3) Each petition must include as an attachment a current and valid Appointment Form showing that the Bail Bondsman has been appointed as a producer for the Insurer with the Department shall attached to the petition. The execution of any bail bond by any Bail Bondsman appointed by the Insurer shall create a valid and binding obligation of the Insurer;
(4) Each petition must include as an attachment a copy of the license of the Bail Bondsmen issued by the Department;
(5) In the event that a Bail Bondsman is acting as an agency, who employs or contracts with more than one individual person who serves as a Bail Bondsman, that agency must attach to the petition a list of all individuals who are licensed and appointed with an Insurer to act as a duly appointed Bail Bondsman who are authorized to act on its behalf of the agency;
(6) Each Insurer and Bail Bondsman must attach to the petition a Statement of Official Address which shall provide an address to which service of correspondence, notices, orders and other legal communications shall be made. The mailing by any Lehigh County governmental entity, including but not limited to the Lehigh County Court of Common Pleas, the Lehigh County Clerk of Courts and the Lehigh County Department of Law, of correspondence, notices, orders and other communications by first class mail to said address shall be deemed presumptive proof of service of same and no objection shall be made by any party that the mailing was sent to an improper or incorrect address, provided that no statute or Pennsylvania Rule of Criminal Procedure requires alternative method of service. In the event that statute or Pennsylvania Rule of Criminal Procedure specifically sets forth a means of service, service shall be made in accordance with the relevant statute or Pennsylvania Rule of Criminal Procedure;
(7) Every Bail Bondsman, who conducts any business in Lehigh County shall keep at its office the usual and customary records pertaining to bail bonds posted in Lehigh County, including, but not limited to, such records of bail bonds executed or countersigned by the Insurer or Bail Bondsman, to enable the court to obtain all relevant information concerning such bail bonds for at least three (3) years after the liability of the Insurer has been terminated. Such records of bail bonds posted shall be subject to immediate examination, inspection or copying by the Court or its representative at the Bail Bondsman's place of business or, upon request, a copy will be made available to the Court at its place of business or as otherwise directed. Any and all information shall be furnished in such manner or form as the Court requires;
(8) Each Bail Bondsman shall file an Affidavit with the Clerk of Judicial Records, Criminal Division, disclosing any convictions for non-summary criminal offenses, with the exception of misdemeanors under the Pennsylvania Vehicle Code, by Bail Bondsman or, if the Bail Bondsman is an agency, by any owner, officer, director of the Bail Bondsman. The Affidavit must attach a copy of a criminal history records check conducted by the Pennsylvania State Police or, for persons residing in another state, the comparable document for that state, for each such person. A conviction may render the Bail Bondsman or, if the Bail Bondsman is an agency, by any owner, officer, director of the Bail Bondsman ineligible to conduct business in the Thirty-first Judicial District as determined by the Lehigh County Court of Common Pleas in its sole discretion;
(9) Each petition for approval shall be filed in the name of the Bail Bondsman who is seeking approval to serve as a surety on bail in Lehigh County. The name of the Bail Bondsman shall appear on the petition identically to the name of the Bail Bondsman on the license and appointment forms attached to the petition. Any Bail Bondsman who is authorized by law and approved to serve as surety on bail in Lehigh County shall only do so in the Bail Bondsman's name as it appears on the petition. The Bail Bondsman shall only use the approved name on any bail bond form or surety information page submitted to the Clerk on bail bonds issued by that Bail Bondsman. Any petitions, correspondence, court appearances or similar activities may only be filed in the name of the Bail Bondsman as approved by the Court and appointed by the Insurer who is obligated through the Bail Bondsman to insure bail bonds. No third party has standing to participate in any petitions correspondence, court appearances or similar activities on behalf of the Bail Bondsman or Insurer;
(10) A copy of the rates to be charged by the Bail Bondsman as an appointed producer of the Insurer and approved by the Department shall be attached to the petition;
(11) Each Bail Bondsman must attach to the petition a schedule of the fees, in addition to the rates filed by the Insurer, to be charged for issuing the bail bond in the event that the Bail Bondsman charges such fees;
(12) Upon approval of a petition required in subsection (a) of this rule, each Bail Bondsman shall pay to the Clerk an initial registration fee of $500.00, or such amount as may be established from time to time by the Clerk; and
(c) Requirements to Remain Qualified. To remain qualified to post bond in Lehigh County:
(1) Each Insurer and Bail Bondsman must fully comply with all laws, statutes, local rules, rules of court and procedures as may be established from time to time;
(2) Each Insurer and Bail Bondsman must maintain compliance with the requirements specified in subsection (b) of this rule to the extent applicable to each;
(3) Each Bail Bondsman must annually update the documents required in subsection (b) of this rule by filing a Praecipe with the Clerk and attaching the relevant documents to that Praecipe;
(4) Each Bail Bondsman must, within 30 days, notify, in writing, the President Judge and the Department of Law if the Bail Bondsman has been charged with any non-summary criminal offense with the exception of misdemeanors under the Pennsylvania Vehicle Code, or if the license submitted with the petition for approval has been revoked, suspended or not renewed in any jurisdiction;
(5) No Bail Bondsman or any employees and/or agents thereof may represent or identify itself, directly or indirectly, as employees or agents of the Commonwealth of Pennsylvania or Thirty-first Judicial District or the County of Lehigh. Bail Bondsman or any employees or agents thereof shall not wear clothing or present badges or any other form of law enforcement credentials that create the impression of employment by the Commonwealth of Pennsylvania, the Thirty-first Judicial District or any of its units, including Pre-trial Services or the Lehigh County Sheriff's Department or the County of Lehigh;
(6) Each Bail Bondsman must renew the required registration with the Thirty-first Judicial District, provide all certifications required by this rule and pay to the Clerk an annual renewal fee of $100.00, or such amount as may be established from time to time by the Clerk with the approval of the President Judge; and
(7) No Bail Bondsman, or its agents and employees, may engage in Prohibited Conduct as set forth in § 531.2(e) hereunder.
(d) Opportunity to be Heard. A Bail Bondsman whose petition seeking approval to post bail in the Thirty-first Judicial District is denied will be provided an opportunity to be heard and to contest the denial. Any Bail Bondsman seeking to contest the denial of its petition for approval to post bail in the Thirty-first Judicial District must file a petition with the Clerk of Judicial Records, Criminal Division and serve the Department of Law within thirty (30) days of the date of denial of its initial petition, and set forth the relief requested and the factual basis therefor. Similarly, a Bail Bondsman which has received approval to post bail in the Thirty-first Judicial District as provided in this rule but which has been subsequently prohibited from posting additional bail, whose right to post bail has been revoked or is otherwise ineligible to post bail in the Thirty-first Judicial District, will be provided an opportunity to be heard, unless the revocation is due to unpaid forfeitures at which the opportunity to be heard shall be governed by 42 Pa.C.S.A. § 5741.1. Any Bail Bondsman seeking to contest prohibition from posting additional bail, that its right to post bail has been revoked, or that it is otherwise ineligible to post bail in the Thirty-first Judicial District must file a petition with the Clerk of Judicial Records, Criminal Division and serve the Department of Law within thirty (30) days of the date of the prohibition, revocation or determination of ineligibility, and set forth the relief requested and the factual basis therefor.
(e) Prohibited Conduct. Each Bail Bondsman, or any, employee and/or agents thereof, may not engage in prohibited conduct as set forth below. The following constitutes prohibited conduct:
(1) violating any laws, statutes, local rules or rules of court related to the bail business;
(2) violating any of the rules herein;
(3) having a license as Bail Bondsman revoked in the Commonwealth;
(4) being involved in any transaction which shows unfitness to act in a fiduciary capacity or a failure to maintain the standards of fairness and honesty required of a fiduciary;
(5) being convicted of any non-summary criminal offense with the exception of misdemeanors under the Pennsylvania Vehicle Code;
(6) failing to advise the Clerk within fourteen (14) days (or such other time period as may be specifically set forth) of any change in circumstances which would materially affect any of the statements, information or certifications required by 531.2(b) or (c) herein;
(7) using an unregistered or unlicensed agent on behalf of an Insurer or Bail Bondsman;
(8) using an individual or entity not appointed by the Insurer who has issued a Power of Attorney for the Bail Bondsman to serve as surety on bail;
(9) signing, executing or issuing bail bonds by a person or entity who or which is not the Bail Bondsman on the bond;
(10) executing a bond without the appropriate counter signature by a licensed and/or authorized Bail Bondsman at time of issue;
(11) failing to account for or pay any premiums held as a Bail Bondsman on behalf of an Insurer;
(12) misstating or misrepresenting any material fact in the initial petition or any subsequent filings, including but not limited to certifications, required by these rules, or in any of the statements, information or certifications required by these rules;
(13) failing to preserve, and to retain separately, any movable tangible collateral, including cash and cash equivalent, obtained as security on any bond;
(14) failing to return collateral taken as security on any bond to the depositor of such collateral, or the depositor's designee, within forty-five (45) business days following the conclusion of the case as defined by the Pennsylvania Rules of Criminal Procedure;
(15) offering or providing any consideration or gratuity to any person employed by, or incarcerated in, a jail facility, any person who has the power to arrest or to hold any person in custody, or to any court officers and attorneys to obtain or secure business;
(16) failing to deliver to the defendant, and any person providing collateral on the defendant's behalf, prior to the time the defendant is released from jail, a one-page disclosure form which, at a minimum, must include:
(A) the amount of the bail;
(B) the defendant's bail obligations;
(C) the conditions upon which the bond may be revoked; and
(D) the conditions under which the bond may be exonerated.
(17) failing to provide to the Clerk the fully completed one-page disclosure form required at the time bond is posted;
(18) charging excessive fees not authorized by law or rule of court;
(19) failing to provide an itemized statement of any and all expenses deducted from collateral to the owner thereof, if any;
(20) requiring that, as a condition for posting a bail, a defendant engage the services of a particular law firm or attorney;
(21) preparing or issuing a fraudulent or forged bail bond, power of attorney or other document;
(22) knowingly violating, advising, encouraging, aiding, abetting or assisting the violation of any applicable law, statute, local rule or rule of court;
(23) soliciting, procuring or demanding sexual favors as a condition of or compensation for obtaining, maintaining or exonerating a bail bond, regardless of the identity of the person who performs such favors;
(24) providing legal advice or a legal opinion in any form;
(25) failing to notify and inform law enforcement and the Court that the defendant has committed an act subject to or referenced in 42 Pa.C.S.A. § 5750;
(26) holding oneself out by manner of dress as being a public official including wearing clothing or presenting badges or any other form of law enforcement credentials that might create the impression of employment of the Commonwealth of Pennsylvania, the County of Lehigh, the Thirty-first Judicial District or any of its units, including Pre-trial Services or the Lehigh County Sheriff's Department of the Thirty-first Judicial District or the County of Lehigh; and
(27) engaging in verbal or other abusive behavior and/or unprofessional conduct, including but not limited to the use of profanity, directed toward a County employee.
(f) Any violation of or failure to comply with the rules set forth herein may, upon petition by the Department of Law and after hearing thereon, result in the revocation by the Court of Common Pleas of Lehigh County of the bail posting privileges of the Bail Bondsman.
Leh.R.Cr.P. 535. Return of Cash Deposits. Charges.
Upon full and final disposition of the case, the issuing authority or the Clerk of Courts—Criminal shall retain thirty percent (30%) of the amount deposited, but in no event less than Ten ($10.00) Dollars, as administrative costs, which includes the Clerk's poundage fee for the percentage cash bail program and shall return the balance to the depositor, unless the depositor at the time the balance is to be returned otherwise agrees in writing. The thirty percent (30%) to be retained shall be considered as earned at the time the bail undertaking is executed and the cash is deposited by the defendant or the third party surety.
Comment: Nothing in this Rule is intended to preclude the application of the seventy percent (70%) cash balance being applied to fines, costs, restitution, or, if funds remain after payment of fines, costs and restitution, to fees due the Defendant's attorney of record, if agreed to in writing by the depositor at the time the money would otherwise be returned to the depositor. See Pa.R.Crim.P. 535, the Comment to that Rule, and the Report of the Criminal Procedural Rules Committee, 33 Pa.B. 6409 (December 27, 2003).
Note: This Rule was part of the original bail rules numbered 4006, 4006A, 4006B, 4006C and 4006D. They were adopted by an order dated March 23, 1984, and published at 14 Pa.B. 833 et seq. (March 17, 1984).
Rule 536.1. Forfeitures and Bail Pieces.
(1) A bail that is revoked shall be deemed forfeited pursuant to Pa.C.S. § 5747.1, and shall be paid to the Clerk by any surety by close of business on the 91st day following the entry of the order revoking the bail pursuant to the terms of Pa.C.S. § 5747.1, or unless otherwise extended or set aside by Order of Court.
(2) In order for a surety to seek to have the forfeiture order set aside or remitted in whole or in part, the party seeking remission, set aside or exoneration shall present a petition to the Court, and serve a copy thereof upon the Department of Law. The petition shall set forth in detail the reasons for seeking the set aside, remission or exoneration. In order to facilitate the assessment and investigation of petitions requesting remittance, the surety is required to delineate within the petition the following insofar as applicable:
(A) a recitation of the history of the case including the charges, the date the bond was set, the amount of the bond, and the name and district of the issuing authority;
(B) the date of forfeiture and nature of the proceeding at which forfeiture occurred;
(C) a statement establishing the fact that the defendant was apprehended including the date of apprehension and the agency responsible for the apprehension;
(D) a detailed summary of all efforts by the petitioner to apprehend the defendant including the name, phone number and address of all agents hired or assigned to effectuate the apprehension, and all times, dates, and locations searched;
(E) a declaration that the apprehension or return of the defendant was affected by the efforts of the surety or that those efforts at least had a substantial impact on the defendant's apprehension; and
(F) clear and specific factual recitation in support of the above declaration.
(3) Any Bail Bondsman or Insurer who files with the Court of Common Pleas of Lehigh County a petition for bail relief, including but not limited to a petition to vacate bail forfeiture or a petition to exonerate surety, shall be responsible for the payment of court costs and/or filing fees as determined by the Clerk of Judicial Records, Criminal Division and may be amended from time to time.
(b) Bail Pieces. After a bail piece is issued pursuant to Pa.R.Crim.P. 536 and the defendant is apprehended by or on behalf of the surety, the defendant must be brought before the Judge or a designee in accordance with Pa.R.Crim.P. 150. Bail pieces shall not be utilized to exonerate the surety.
[Pa.B. Doc. No. 18-1262. Filed for public inspection August 17, 2018, 9:00 a.m.]
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