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210 Pa. Code § 63.3. Decisional Procedures: Argued and Submitted Cases.

§ 63.3. Decisional Procedures: Argued and Submitted Cases.

 A.  Argued Cases.

   1.  Argument Session Schedule. Unless otherwise ordered by the Court, argument sessions shall be scheduled for one-week periods during the months of March, April, May, September, October and December. Daily arguments shall begin at 9:30 a.m. unless otherwise designated.

 2. Listing of Cases. The following cases shall be listed for oral argument upon completion of the briefing schedule or as soon as practicable:

     a.   Direct appeals from a judgment of sentence of death (‘‘capital direct appeals’’).

     b.   Cases in which allowance of appeal (‘‘allocatur’’) has been granted, unless the Court has ordered that the appeal be submitted on the briefs.

     c.   All other cases that have been designated by the Court as suitable for oral argument, including but not limited to non-capital direct appeals and Post Conviction Relief Act (‘‘PCRA’’) appeals.

   3. Assignments. Each day following oral argument the Court shall meet in conference to discuss the cases argued that day. The Chief Justice shall preside at the conference, lead the Court’s discussion, and call for a tentative vote on the decision of each case. The Justices shall vote in an inverse order of seniority.

 Argued cases, except for non-capital direct appeals, shall be assigned at conference by the senior Justice in the majority position in such a manner as to achieve equal distribution of assignments and to avoid delay in deciding cases. If it appears that due to illness of a Justice or for some other reason this purpose is not being served, the Chief Justice may, as a matter of his or her discretion, alter the assignment order.

 An argued non-capital direct appeal will be assigned to the Justice who prepared the disposition memorandum, unless after conference vote his or her position is not aligned with that of the majority, in which case the assignment shall be made by the senior member of the majority.

 If a Justice to whom a case has been assigned subsequently decides to change his or her position on the proper decision of the case and ceases to be aligned with the conference majority view, he or she shall provide a draft opinion or proposed order along with an explanation of the change of position.

 B.  Submitted Cases.

 When the Court has determined, either upon motion of the parties in advance of oral argument or sua sponte, that a case shall be decided on the submitted briefs, the Prothonotary shall direct the case to the Court for disposition upon completion of the briefing schedule or as soon as practicable. PCRA appeals shall be submitted on the briefs unless otherwise directed by the Court on its own motion or upon application, in accordance with Pa.R.A.P. 2311(b).

 The Chief Justice will assign submitted cases in a rotation schedule by seniority, except for non-capital direct appeals, which shall be assigned to the Justice who authored the disposition memorandum. Capital PCRA appeals shall be assigned in a separate rotation, to ensure an even distribution of responsibility in those appeals. If it appears that there is an unequal distribution of cases or a delay in deciding cases, the Chief Justice may, as a matter of his or her discretion, alter the assignment order.

 C. Per Curiam Orders.

   1.  A per curiam order may be issued

     a.   when the Court’s decision:

       (1)   does not establish a new rule of law;

       (2)   does not alter, modify, criticize or clarify an existing rule of law;

       (3)   does not apply an established rule of law to a novel fact situation;

       (4)   does not constitute the only binding precedent on a particular point of law;

       (5)   does not involve a legal issue of continuing public interest; or

     b.   whenever the Court decides such an order is appropriate.

   2.  A per curiam order reversing an order of the lower court must cite to controlling legal authority or provide a full explanation of the reasons for reversal.

   3.  In cases involving discretionary appeals, the Court may enter a per curiam order dismissing the appeal as improvidently granted.

   4.  A Justice may request that a per curiam order record that he or she voted for a different disposition.

   5.  A per curiam order shall indicate if a Justice did not participate in the consideration or decision of the matter.

   6.  Reconsideration Applications.

     a.   Assignment. The Prothonotary shall assign applications for reconsideration to the Justice who authored the per curiam order.

     b. Circulation and Disposition. The assigned Justice shall circulate to all members of the Court a recommended disposition within fourteen (14) days of the assignment or within seven (7) days of the date of assignment in Children’s Fast Track appeals.* A Justice who disagrees with the recommended disposition shall circulate a counter-recommendation within fourteen (14) days of the original recommendation or seven (7) days in Children’s Fast Track appeals. A vote of the majority is required to grant reconsideration. In any case in which reconsideration is denied, a Justice may request that the order record that he or she voted to grant reconsideration. The order shall indicate if a Justice did not participate in the consideration or decision of the matter.

 * ‘‘Children’s Fast Track appeal’’ is defined in Pa.R.A.P. 102. A ‘‘Children’s Fast Track case’’ is any case involving an order regarding dependency, termination of parental rights, adoptions, custody or paternity. See 42 Pa.C.S. § §  6301 et seq.; 23 Pa.C.S. § §  2511 et seq.; 23 Pa.C.S. § §  2101 et seq.; 23 Pa.C.S. § §  5321 et seq.; 23 Pa.C.S. § §  5102 et seq.

 D.  Oral Argument.

   1.  Guidelines for Oral Argument.

     a.   No fixed amount of time is reserved for each argument. Oral argument is at the discretion of the Court and proceeds to the extent necessary to answer any questions the Justices may have on the issue(s).

     b.   Since the Court does not use a clock or light system, counsel should be alert to indications from the Chief Justice that the Court is satisfied that all questions have been addressed.

     c.   The Court does not ordinarily permit rebuttal. Counsel are advised not to request rebuttal. However, when necessary and appropriate, the Court may in its discretion request to hear further from counsel.

     d.   The Court is familiar with the cases to be heard at oral argument. Accordingly, counsel should avoid a recitation of the facts and procedural history and focus on the issue(s) to be argued.

     e.   The Court recognizes that oral argument is only one part of appellate advocacy. Counsel for the appellant should be selective in the issues to be argued and may rely on their briefs for the remainder of the issues. Nothing is waived by this process. The appellee’s counsel should generally respond only to the issues argued by the appellant’s counsel.

     f.   In cases involving multiple parties represented by separate counsel, counsel should strive to avoid repetitive presentations.

     g.   If a party’s counsel fails to appear for argument, opposing counsel may be asked to submit the case on the briefs.

     h.   Counsel are advised not to use graphs and charts on easels. Instead, copies of such matters should be provided to the court crier for distribution to the Court. Counsel must also provide advance copies to opposing counsel.

   2.  Requests by Amicus Curiae. In cases where amicus curiae has filed a brief, requests by amicus to present oral argument shall be made by application and will be granted only in extraordinary circumstances. Applications to present oral argument are assigned to the Chief Justice, who will circulate a recommendation to the Court. A vote of the majority is required to grant the request.


   The provisions of this §  63.3 amended September 2, 2005, 35 Pa.B. 5092; amended January 9, 2013, effective in 30 days, 43 Pa.B. 514. Immediately preceding text appears at serial pages (358471) to (358472) and (357247).

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