In Re: Order Adopting New Rule 791 and Amending Rules 490 and 790 of the Pennsylvania Rules of Criminal Procedure

RULE 490. PROCEDURE FOR OBTAINING EXPUNGEMENT IN SUMMARY CASES;
EXPUNGEMENT ORDER.
(A) PETITION FOR EXPUNGEMENT
(1) Except as provided in Rule 320, an individual who satisfies the requirements
of 18 Pa.C.S. § 9122 for expungement of a summary case may request
expungement by filing a petition with the clerk of the courts of the judicial district
in which the charges were disposed.
(2) The petition shall set forth:
(a) the petitioner's name and any aliases that the petitioner has used,
address, date of birth, and social security number;
(b) the name and address of the issuing authority who accepted the guilty
plea or heard the case;
(c) the name and mailing address of the affiant as shown on the
complaint or citation, if available;
(d) the magisterial district court number;
(e) the docket number;
(f) the date on the citation or complaint, or the date of arrest, and, if
available, the criminal justice agency that made the arrest;
(g) the specific charges, as they appear on the charging document, to be
expunged;
(h) the disposition and, if the sentence includes a fine, costs, or
restitution, whether the amount due has been paid;
(i) the reason(s) for expungement; and
(j) a verification by the petitioner that facts set forth in the petition are true
and correct to the best of the petitioner's personal knowledge or
information and belief. The verification may be by a sworn affidavit or by
an unsworn written statement that the facts are verified subject to the
penalties for unsworn falsification to authorities under the Crimes Code §
4904, 18 Pa.C.S. § 4904.
Additional information shall not be required by local rule or practice.
(3) Unless the attorney for the Commonwealth agrees to waive this
requirement, [A] a current copy of the petitioner’s Pennsylvania State Police
criminal [record] history report shall be attached to the petition. The copy shall
be obtained from the Pennsylvania State Police within 60 days before filing the
petition. Absent a waiver by the attorney for the Commonwealth, the judge
shall not rule upon the petition until the Pennsylvania State Police criminal
history report is filed.
(4) A copy of the petition shall be served on the attorney for the Commonwealth
concurrently with filing.
(B) OBJECTIONS; HEARING
(1) Within 30 days after service of the petition, the attorney for the
Commonwealth shall file a consent or objection to the petition or take no action.
The attorney for the Commonwealth’s consent or objection shall be filed with the
clerk of courts, and copies shall be served on the petitioner's attorney, or the
petitioner if unrepresented.
(2) Upon receipt of the attorney for the Commonwealth’s response, or no later
than 14 days after the expiration of the 30-day period in paragraph (B)(1), the
judge shall grant or deny the petition or shall schedule a hearing.
(3) At the hearing, if any, the parties shall be afforded an opportunity to be
heard. Following the hearing, the judge promptly shall enter an order granting or
denying the petition.
(4) If the judge grants the petition for expungement, the judge shall enter an
order directing expungement.
(a) The order shall contain the information required in paragraph (C).
(b) Except when the attorney for the Commonwealth has filed a
consent to the petition pursuant to paragraph (B)(1), [T]the order shall
be stayed for 30 days pending an appeal. If a timely notice of appeal is
filed, the expungement order is stayed pending the disposition of the
appeal and further order of court.
(5) If the judge denies the petition for expungement, the judge shall enter an
order denying the petition and stating the reasons for the denial.
(C) ORDER
(1) Every order for expungement shall include:
2
(a) the petitioner's name and any aliases that the petitioner has used,
address, date of birth, and social security number;
(b) the name and address of the issuing authority who accepted the guilty
plea or heard the case;
(c) the name and mailing address of the affiant as shown on the
complaint or citation, if available;
(d) the magisterial district court number;
(e) the docket number;
(f) the date on the citation or complaint, or the date of arrest, and, if
available, the criminal justice agency that made the arrest;
(g) the specific charges, as they appear on the charging document, to be
expunged;
(h) the disposition and, if the sentence includes a fine, costs, or
restitution, whether the amount due has been paid;
(i) the reason(s) for expungement; and
(j) the criminal justice agencies upon which certified copies of the order
shall be served.
Additional information shall not be required by local rule or practice.
(2) The clerk of courts shall serve a certified copy of the Order to each criminal
justice agency identified in the court’s Order.
COMMENT: This rule, adopted in 2010, provides the
procedures for requesting and ordering expungement in
summary cases. Any case in which a summary offense is
filed with a misdemeanor, felony, or murder of the first,
second, or third degree is a court case (see Rule 103). The
petition for expungement of the summary offense in such a
case would proceed under Rule 790.
See also Rule 320 for the procedures for expungement
following the successful completion of an ARD program in a
3
summary case and Rule 790 for court case expungement
procedures.
This rule sets forth the only information that is to be
included in every expungement petition and order.
Paragraph (A)(3) requires the petitioner to attach a copy of
his or her criminal [record] history report to the petition.
The attorney for the Commonwealth may waive the
requirement that the criminal history report be
attached to the petition. The Commonwealth’s
agreement to the waiver may be made orally or in
writing, or averred in the petition.
[A form petition is to be designed and published by
the Administrative Office of Pennsylvania Courts in
consultation with the Committee as provided in Rule
104.]
A form petition and form order of expungement has
been created by the Administrative Office of
Pennsylvania Courts, in consultation with the
Committee, and is available at the following website:
http://www.pacourts.us/forms/for-the-public.
“Petition,” as used in this rule, is a “motion” for purposes of
Rules 575, 576, and 577.
The "reason for expungement" in paragraph (A)(2)(i) and
(C)(1)(i) means, for example, acquittal, arrest or
prosecution free for five years following the conviction for
that summary offense, or age.
For the procedures for filing and service of petitions, see
Rule 576.
For the procedures for filing and service of orders, see Rule
114.
For purposes of this rule, "criminal justice agency"
includes police departments, county detectives, and other
law enforcement agencies. See also 18 Pa.C.S. § 9102.
Concerning standing, see In Re Administrative Order No. 1-
MD-2003, [594 Pa. 346,] 936 A.2d 1 (Pa. 2007);
4
Commonwealth v. J.H., [563 Pa. 248,] 759 A.2d 1269 (Pa.
2000).
NOTE: Adopted September 22, 2010 effective in 90 days [.]
; amended November 9, 2016, effective November 14,
2016.
* * * * * *
COMMITTEE EXPLANATORY REPORTS:
Final Report explaining the September 22, 2010 promulgation of new
Rule 490 providing the procedures for expungements in summary
cases published with the Court’s Order at 40 Pa.B. 5737 (October 9,
2010).
Final Report explaining the November 9 , 2016 amendment regarding
the stay of expungement when the Commonwealth has consented
and petition and order forms published for comment at 46 Pa.B.
( , 2016).
5
RULE 790. PROCEDURE FOR OBTAINING EXPUNGEMENT IN COURT CASES;
EXPUNGEMENT ORDER.
(A) PETITION FOR EXPUNGEMENT
(1) Except as provided in Rule 320 and 35 P.S. § 780-119, an individual who
satisfies the requirements for expungement may request expungement by filing a
petition with the clerk of the courts of the judicial district in which the charges
were disposed.
(2) The petition shall set forth:
(a) the petitioner's name and any aliases that the petitioner has used,
address, date of birth, and social security number;
(b) the name and address of the judge of the court of common pleas who
accepted the guilty plea or heard the case;
(c) the name and mailing address of the affiant as shown on the
complaint, if available;
(d) the Philadelphia Municipal Court docket number or the court of
common pleas docket number, whichever applies;
(e) the offense tracking number (OTN);
(f) the date on the complaint, or the date of arrest, and, if available, the
criminal justice agency that made the arrest;
(g) the specific charges, as they appear on the charging document, to be
expunged;
(h) the disposition and, if the sentence includes a fine, costs, or
restitution, whether the amount due has been paid;
(i) the reason(s) for expungement; and
(j) a verification by the petitioner that facts set forth in the petition are true
and correct to the best of the petitioner's personal knowledge or
information and belief. The verification may be by a sworn affidavit or by
an unsworn written statement that the facts are verified subject to the
penalties for unsworn falsification to authorities under the Crimes Code §
4904, 18 Pa.C.S. § 4904.
6
Additional information shall not be required by local rule or practice.
(3) Unless the attorney for the Commonwealth agrees to waive this
requirement, [A] a current copy of the petitioner’s Pennsylvania State Police
criminal [record] history report shall be attached to the petition. The copy shall
be obtained from the Pennsylvania State Police within 60 days before filing the
petition. Absent a waiver by the attorney for the Commonwealth, the judge
shall not rule upon the petition until the Pennsylvania State Police criminal
history report is filed.
(4) A copy of the petition shall be served on the attorney for the Commonwealth
concurrently with filing.
(B) OBJECTIONS; HEARING
(1) Within 60 days after service of the petition, the attorney for the
Commonwealth shall file a consent or objection to the petition or take no action.
The attorney for the Commonwealth’s consent or objection shall be filed with the
clerk of courts, and copies shall be served on the petitioner's attorney, or the
petitioner if unrepresented.
(2) Upon receipt of the attorney for the Commonwealth’s response, or no later
than 14 days after the expiration of the 60-day period in paragraph (B)(1), the
judge shall grant or deny the petition or shall schedule a hearing.
(3) At the hearing, if any, the parties shall be afforded an opportunity to be
heard. Following the hearing, the judge promptly shall enter an order granting or
denying the petition.
(4) If the judge grants the petition for expungement, the judge shall enter an
order directing expungement.
(a) The order shall contain the information required in paragraph (C).
(b) Except when the attorney for the Commonwealth has filed a
consent to the petition pursuant to paragraph (B)(1), [T]the order shall
be stayed for 30 days pending an appeal. If a timely notice of appeal is
filed, the expungement order is stayed pending the disposition of the
appeal and further order of court.
(5) If the judge denies the petition for expungement, the judge shall enter an
order denying the petition and stating the reasons for the denial.
7
(C) ORDER
(1) Every order for expungement shall include:
(a) the petitioner's name and any aliases that the petitioner has used,
address, date of birth, and social security number;
(b) the name and address of the judge of the court of common pleas who
accepted the guilty plea or heard the case;
(c) the name and mailing address of the affiant as shown on the
complaint, if available;
(d) the Philadelphia Municipal Court docket number or the court of
common pleas docket number, whichever applies;
(e) the offense tracking number (OTN);
(f) the date on the complaint, or the date of arrest, and, if available, the
criminal justice agency that made the arrest;
(g) the specific charges, as they appear on the charging document, to be
expunged;
(h) the disposition and, if the sentence includes a fine, costs, or
restitution, whether the amount due has been paid;
(i) the reason(s) for expungement; and
(j) the criminal justice agencies upon which certified copies of the order
shall be served.
Additional information shall not be required by local rule or practice.
(2) The clerk of courts shall serve a certified copy of the Order to each criminal
justice agency identified in the court’s Order.
COMMENT: This rule, adopted in 2010, provides the
procedures for requesting and ordering expungement in
court cases. Any case in which a summary offense is filed
with a misdemeanor, felony, or murder of the first, second, or
third degree is a court case (see Rule 103). The petition for
expungement of the summary offense in such a case would
8
proceed under this rule.
See also Rule 320 for the procedures for expungement
following the successful completion of an ARD program in a
court case, Rule 490 for summary case expungement
procedures, and 35 P.S. § 780-119 for expungement
procedures under the Controlled Substance, Drug, Device,
and Cosmetic Act.
This rule sets forth the only information that must be
included in every expungement petition and order.
Paragraph (A)(3) requires the petitioner to attach a copy of
his or her criminal [record] history report to the petition.
The attorney for the Commonwealth may waive the
requirement that the criminal history report be
attached to the petition. The Commonwealth’s
agreement to the waiver may be made orally or in
writing, or averred in the petition.
An order for expungement under the Controlled
Substance, Drug, Device, and Cosmetic Act, 35 P.S. §
780-119, also must include the information in paragraph
(C).
[A form petition is to be designed and published by
the Administrative Office of Pennsylvania Courts in
consultation with the Committee as provided in Rule
104.]
A form petition and form order of expungement has
been created by the Administrative Office of
Pennsylvania Courts, in consultation with the
Committee, and is available at the following website:
http://www.pacourts.us/forms/for-the-public.
“Petition” as used in this rule is a “motion” for purposes of
Rules 575, 576, and 577.
The "reason for expungement" in paragraph (A)(2)(i) and
(C)(1)(i) means, for example, acquittal or age.
For the procedures for filing and service of petitions, see
Rule 576.
9
For the procedures for filing and service of orders, see Rule
114.
When a summons instead of an arrest warrant is issued
pursuant to Rule 519, the date of the summons constitutes
the "date of arrest" for purposes of paragraph (A)(2)(f).
For purposes of this rule, "criminal justice agency"
includes police departments, county detectives, and other
law enforcement agencies. See also 18 Pa.C.S. § 9102.
Concerning standing, see In Re Administrative Order No. 1-
MD-2003, [594 Pa. 346,] 936 A.2d 1 (Pa. 2007);
Commonwealth v. J.H., [563 Pa. 248,] 759 A.2d 1269 (Pa.
2000).
NOTE: Adopted September 22, 2010 effective in 90 days [.]
; amended November 9, 2016, effective November 14,
2016.
* * * * * *
COMMITTEE EXPLANATORY REPORTS:
Final Report explaining the September 22, 2010 promulgation of new
Rule 790 providing the procedures for expungements in court cases
published with the Court’s Order at 40 Pa.B. 5737 (October 9, 2010).
Final Report explaining the November 9, 2016 amendment regarding
the stay of expungement when the Commonwealth has consented
and petition and order forms published with the Court’s Order at 46
Pa.B. ( , 2016).
10
(This is an entirely new rule.)
RULE 791. PROCEDURE FOR OBTAINING ORDER FOR LIMITED ACCESS IN
COURT CASES; ORDER FOR LIMITED ACCESS.
(A) PETITION FOR ORDER FOR LIMITED ACCESS
(1) Pursuant to 18 Pa.C.S. § 9122.1, an individual who satisfies the
statutory requirements for obtaining an order for limited access may request an
order that limits the dissemination of his or her criminal history record information
by filing a petition with the clerk of the courts of the judicial district in which the
charges were disposed.
(2) The petition shall set forth:
(a) the petitioner's name and any aliases that the petitioner has used,
address, date of birth, and social security number;
(b) the name and address of the judge of the court of common pleas,
magisterial district judge, or Philadelphia Municipal Court judge who
accepted the guilty plea or heard the case;
(c) the name and mailing address of the affiant as shown on the
complaint, if available;
(d) the court of common pleas docket number, magisterial district court
docket number, or the Philadelphia Municipal Court docket number,
whichever applies;
(e) the offense tracking number (OTN);
(f) the date on the complaint, or the date of arrest, and, if available, the
criminal justice agency that made the arrest;
(g) the specific charges, as they appear on the charging document, to be
subject to limited access;
(h) the disposition and, if the sentence includes a fine, costs, or
restitution, whether the amount due has been paid;
(i) the reason(s) for the order for limited access;
(j) a statement that the case qualifies for a limited access order and none
of the exceptions under 18 Pa.C.S. § 9122.1(b) are applicable; and
11
(k) a verification by the petitioner that facts set forth in the petition are true
and correct to the best of the petitioner's personal knowledge or
information and belief. The verification may be by a sworn affidavit or by
an unsworn written statement that the facts are verified subject to the
penalties for unsworn falsification to authorities under the Crimes Code §
4904, 18 Pa.C.S. § 4904.
Additional information shall not be required by local rule or practice.
(3) Unless the attorney for the Commonwealth agrees to waive this requirement,
a current copy of the petitioner’s Pennsylvania State Police criminal history report
shall be attached to the petition. The copy shall be obtained from the
Pennsylvania State Police within 60 days before filing the petition. Absent a
waiver by the attorney for the Commonwealth, the court shall not rule upon the
petition until the Pennsylvania State Police criminal history report is filed.
(4) A copy of the petition shall be served on the attorney for the Commonwealth
concurrently with filing.
(B) OBJECTIONS; HEARING
(1) Within 30 days after service of the petition, the attorney for the
Commonwealth shall file a consent or objection to the petition or take no action.
The attorney for the Commonwealth’s consent or objection shall be filed with the
clerk of courts, and copies shall be served on the petitioner's attorney, or the
petitioner if unrepresented.
(2) Upon receipt of the attorney for the Commonwealth’s response, or no later
than 14 days after the expiration of the 30-day period in paragraph (B)(1), the
judge of the court of common pleas shall grant or deny the petition or shall
schedule a hearing.
(3) At the hearing, if any, the parties shall be afforded an opportunity to be
heard. Following the hearing, the judge promptly shall enter an order granting or
denying the petition.
(4) If the judge grants the petition for limited access, the judge shall enter an
order directing that the petitioner’s criminal record history information that is
subject to the limited access order shall not be disseminated to an individual, a
noncriminal justice agency, or an internet website and that dissemination of the
petitioner’s criminal record history be limited only to a criminal justice agency or
government agency as provided in 18 Pa.C.S. § 9122.1.
(a) The order shall contain the information required in paragraph (C).
12
(b) Except when the attorney for the Commonwealth has filed a consent
to the petition pursuant to paragraph (B)(1), the order shall be stayed for
30 days pending an appeal. If a timely notice of appeal is filed, the order
for limited access is stayed pending the disposition of the appeal and
further order of court.
(5) If the judge denies the petition for an order of limited access, the judge shall
enter an order denying the petition and stating the reasons for the denial.
(6) If the judge grants the petition for an order of limited access, the petition and
order are subject to limited access.
(C) ORDER
(1) Every order for limited access shall include:
(a) the petitioner's name and any aliases that the petitioner has used,
address, date of birth, and social security number;
(b) the name and address of the judge of the court of common pleas,
magisterial district judge, or Philadelphia Municipal Court judge who
accepted the guilty plea or heard the case;
(c) the name and mailing address of the affiant as shown on the
complaint, if available;
(d) the court of common pleas docket number, magisterial district court
docket number, or the Philadelphia Municipal Court docket number,
whichever applies;
(e) the offense tracking number (OTN);
(f) the date on the complaint, or the date of arrest, and, if available, the
criminal justice agency that made the arrest;
(g) the specific charges, as they appear on the charging document, to be
subject to limited access;
(h) the disposition and, if the sentence includes a fine, costs, or
restitution, whether the amount due has been paid;
(i) the reason(s) for the order for limited access;
13
(j) a statement that the case qualifies for a limited access order and none
of the exceptions under 18 Pa.C.S. § 9122.1(b) are applicable; and
(k) the criminal justice agencies upon which certified copies of the order
shall be served.
Additional information shall not be required by local rule or practice.
(2) The clerk of courts shall serve a certified copy of the Order to each criminal
justice agency identified in the court’s Order.
COMMENT: Section 9122.1 of the Criminal Code provides
for an order limiting dissemination of a record of a criminal
conviction for a misdemeanor of the second degree, a
misdemeanor of the third degree, or an ungraded
misdemeanor which carries a maximum penalty of no more
than two years only to a criminal justice agency or
government agency. This rule, adopted in 2016, provides
the procedures for requesting and ordering an order for
limited access as provided in the statute.
This rule sets forth the only information that must be
included in every petition and order for limited access.
The petition must be filed with the clerk of courts of the
judicial district in which the charges that are the subject of
the petition were disposed. The petition must be decided
by a judge of the court of common pleas, even if the
charges that are the subject of the petition were disposed
by a magisterial district judge or Philadelphia Municipal
Court judge.
Paragraph (A)(3) requires the petitioner to attach a copy of
his or her criminal history report to the petition. The
attorney for the Commonwealth may waive the
requirement that the criminal history report be attached to
the petition. The Commonwealth’s agreement to the
waiver may be made orally or in writing, or averred in the
petition.
A form petition and form order for limited access has been
created by the Administrative Office of Pennsylvania Courts,
in consultation with the Committee, and is available at the
14
following website: http://www.pacourts.us/forms/for-the-
public.
“Petition” as used in this rule is a “motion” for purposes of
Rules 575, 576, and 577.
The "reason for the order for limited access" in paragraph
(A)(2)(i) and (C)(1)(i) means, for example, the defendant’s
freedom from arrest or prosecution for 10 years.
For the procedures for filing and service of petitions, see
Rule 576.
For the procedures for filing and service of orders, see Rule
114.
When a summons instead of an arrest warrant is issued
pursuant to Rule 519, the date of the summons constitutes
the "date of arrest" for purposes of paragraph (A)(2)(f).
For purposes of this rule, "criminal justice agency"
includes police departments, county detectives, and other
law enforcement agencies. See also 18 Pa.C.S. § 9102.
For the definition of “government agency,” see 18 Pa.C.S.
§ 9121(b.1) and (b.2).
Nothing in this rule is intended to alter procedures regarding
expungement. See Rule 320 for the procedures for
expungement following the successful completion of an ARD
program in a court case, Rule 490 for summary case
expungement procedures, Rule 790 for court case
expungement, and 35 P.S. § 780-119 for expungement
procedures under the Controlled Substance, Drug, Device,
and Cosmetic Act.
Concerning standing, see In Re Administrative Order No. 1-
MD-2003, 936 A.2d 1 (Pa. 2007); Commonwealth v. J.H.,
759 A.2d 1269 (Pa. 2000).
NOTE: Adopted November 9, 2016, effective November ,
2016.
15
* * * * * *
COMMITTEE EXPLANATORY REPORTS:
Final Report explaining new Rule 791 providing the procedures for
orders for limited access in court cases published with the Court’s
Order at 46 Pa.B. ( , 2016).
16