In Re: Order Amending Rule 201 of Pennsylvania Rules of Evidence

SUPREME COURT OF PENNSYLVANIA
COMMITTEE ON RULES OF EVIDENCE
ORPHANS’ COURT PROCEDURAL RULES COMMITTEE
CRIMINAL PROCEDURAL RULES COMMITTEE
JUVENILE COURT PROCEDURAL RULES COMMITTEE
MINOR COURT RULES COMMITTEE
ADOPTION REPORT
Amendment of Pa.R.E. 201
Adoption of Pa.R.O.C.P. 1.22, Pa.R.Crim.P. 102.1,
Pa.R.J.C.P. 138 and 1138, and Pa.R.Civ.P.M.D.J. 242
On February 13, 2023, the Supreme Court amended Pennsylvania Rule of
Evidence 201 and adopted Pennsylvania Rule of Orphans’ Court Procedure 1.22,
Pennsylvania Rule of Criminal Procedure 102.1, Pennsylvania Rules of Juvenile Court
Procedure 138 and 1138, and Pennsylvania Rule of Civil Procedure Before Magisterial
District Judges 242 to permit the parties and the court to cite non-precedential
intermediate appellate court opinions and single-judge opinions of the Commonwealth
Court in election law matters, in accordance with Pa.R.A.P. 126. The Rules Committees
have prepared this Adoption Report describing the rulemaking process. An Adoption
Report should not be confused with Comments to the rules. See Pa.R.J.A. 103, cmt. The
statements contained herein are those of the Committees, not the Court.
On January 5, 2022, the Court adopted a recommendation of the Civil Procedural
Rules Committee to permit the citation of authority in accordance with Pa.R.A.P. 126 in
civil proceedings. Thereafter, the Juvenile Court Procedural Rules Committee, the
Orphans’ Court Procedural Rules Committee, the Criminal Procedural Rules Committee,
and the Domestic Relations Procedural Rules Committee considered rules similar to
Pa.R.Civ.P. 242. The Committees collectively agreed that similar rules were warranted.
While in agreement, the Domestic Relations Procedural Rules Committee did not believe
that further rulemaking within the rules governing family court proceedings was necessary
given that those rules are presently contained within the Pennsylvania Rules of Civil
Procedure. Accordingly, Pa.R.J.C.P. 138 and 1138, Pa.R.O.C.P. 1.22, and
Pa.R.Crim.P. 102.1 have been adopted with language mirroring that of Pa.R.Civ.P. 242.
The Minor Court Rules Committee also saw merit in maintaining consistency
among the bodies of rules. That Committee observed that the rules governing procedure
in magisterial district courts neither address written briefs submitted by the parties nor
require written opinions to be issued by the magisterial district judge. Nonetheless, the
Committee interpreted “citation” to include a verbal reference to legal authority in
accordance with Pa.R.A.P. 126 during the parties’ arguments or by handing up an opinion
to the magisterial district judge who may then consider the authority in rendering a
decision. Accordingly, Pa.R.Civ.P.M.D.J. 242 has been adopted with language mirroring
that of Pa.R.Civ.P. 242.
The Committee on Rules of Evidence observed that the Comment to Pa.R.E. 201
discusses judicial notice of the law: “In determining the law applicable to a matter, the
judge is sometimes said to take judicial notice of the law.” Id. at ¶ 2. To aid readers in
understanding that Pennsylvania intermediate appellate court opinions may be cited, and
therefore taken judicial notice of, the Comment to Pa.R.E. 201 was amended to include
references to Pa.R.Civ.P. 242, Pa.R.J.C.P. 138 and 1138, Pa.R.O.C.P. 1.22,
Pa.R.Crim.P. 102.1, and Pa.R.Civ.P.M.D.J. 242. While Pa.R.A.P. 126 now appears
applicable to only appellate proceedings given the adoption of Pa.R.Civ.P. 242 and the
other rules, a reference to Pa.R.A.P. 126 was included to eliminate any potential
confusion with its omission.
The Committee also reviewed the current description of categories of adjudicative
facts in the second sentence in the second paragraph of the Comment to Pa.R.E. 201.
Presently, that sentence states: “Adjudicative facts are facts about the events, persons
and places relevant to the matter before the court. See 2 McCormick, Evidence § 328
(6th ed. 2006).”
That sentence was revised in two aspects. First, the Committee believed the
categories of adjudicative facts stated were too limited. See 1 West's Pa. Prac., Evidence
§ 201-2 (4th ed. 2021) (providing examples of categories that include nature,
mathematics, science, medicine, language, words, abbreviations, times, days, and
dates). Accordingly, the phrase, “or other subjects,” has been added to the current
description of the categories. Of course, this category, as well as the other categories,
must still be relevant to the case.
Second, the Committee observed that statements in the commentary should
reference the discussion of secondary sources of the Pennsylvania Rules of Evidence,
when available, rather than the Federal Rules of Evidence. Therefore, the reference to
McCormick on Evidence has been replaced with a reference to 1 West's Pa. Prac.,
Evidence §§ 201-1, 201-2 (4th ed. 2021).
The Committees did not publish these proposals for comment because of the Civil
Procedural Rules Committee’s prior publication and the Court’s adoption of that
Committee’s recommendation. See 51 Pa.B. 1002 (February 27, 2021) (proposed
Pa.R.Civ.P. 242 published for comment); 52 Pa.B. 440 (January 22, 2022) (adoption of
Pa.R.Civ.P. 242); Pa.R.J.A. 103(a)(3) (permitting adoption of rule without prior
publication).
These amendments become effective April 1, 2023.
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