Com. v. Baker

• Court: Pennsylvania Supreme Court
• Writing for the Court: Before FLAHERTY; CAPPY
• Citation: Com. v. Baker, 690 A.2d 164, 547 Pa. 214 (Pa. 1997)
• Decision Date: 12 February 1997
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Robert S. BAKER, Appellant.

Page 164

690 A.2d 164

547 Pa. 214

COMMONWEALTH of Pennsylvania, Appellee v. Robert S. BAKER, Appellant.

Supreme Court of Pennsylvania.

Argued Sept. 18, 1996.

Decided Feb. 12, 1997.

Michael J. Rudinski, Williamsport, Robert S. Baker, Erie, for Appellant.

David P. Wingert, Bradford H. Charles, Lebanon, for Appellee.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, and NEWMAN, JJ.

OPINION

CAPPY, Justice.

Robert Baker (hereinafter "Appellant") appeals from the order of the Superior Court which affirmed the order of the trial court sentencing him to, inter alia, ninety days imprisonment. We reverse for the reasons stated below.

On September 28, 1993, Appellant was cited by a Lebanon City Police officer for driving under a suspended license, D.U.I. related, 75 Pa.C.S.A. § 1543(b). On February 15, 1994, Appellant was found guilty by a District Justice. On March 17, 1994, Appellant, acting as his own counsel, filed a notice of appeal for a de novo trial in the Court of Common Pleas of Lebanon County. That court originally scheduled the trial for May 25, 1994. On May 24, 1994, Appellant, still acting as his own counsel, filed a written motion for continuance of the trial. Appellant failed to comply with the Lebanon County local rule of court ¹ which required that he provide a self-addressed stamped envelope so that he could receive a copy of the court's signed order granting or denying the motion. ² The motion for continuance was granted and the hearing was rescheduled to June 29, 1994. Appellant, having received no copy of the order indicating the rescheduled date, failed to appear on June 29, 1994 and was found guilty in absentia. Subsequently, the trial court found as a fact that Appellant did not provide a self-addressed stamped envelope.

Appellant filed an appeal to the Superior Court, claiming that his right of procedural due process had been violated because he had not been given notice of the rescheduled hearing. The Superior Court denied Appellant any relief and affirmed on the basis of the trial court opinion which reasoned that Appellant's failure to comply with the Lebanon County court local rule caused Appellant's lack of notice, and, as such, Appellant cannot be heard to complain of his lack of notice.

Before this court, Appellant claims that the Lebanon County court local rule and its procedure is unconstitutional as violative of procedural due process in that it denied Appellant notice of the hearing. However, because we find that the Lebanon County Clerk of Courts failed to fulfill its obligation under Pa.R.Crim.P. 9025, we find it unnecessary to reach the constitutional issue. See Commonwealth v. Dillworth, 431 Pa. 479, 483, 246 A.2d 859, 861 (1968). See also In re Fiori, 543 Pa. 592, 600, 673 A.2d 905, 909 (1996); Commonwealth v. Tarbert, 517 Pa. 277, 301-02, 535 A.2d 1035, 1047 (1987) (Papadakos, J., concurring); Commonwealth v. Richman, 458 Pa. 167, 187, 320 A.2d 351, 357 (1974)(Pomeroy, J., concurring)("Our court has a well-founded reluctance to decide issues of constitutional law when disposition can be had on some other adequate ground.").

In his brief to this court, Appellant does raise an issue of the proper interpretation of Pa.R.Crim.P. 9025 and what it requires. Appellant essentially suggests that the Lebanon County court local rule is inconsistent with Pa.R.Crim.P. 9025. ³ Appellant states:

Notwithstanding, the due process issue, there is statutory [sic] guidance in the Pennsylvania Rule[s] of Criminal Procedure. Under Pa.R.Crim. Rule [sic] 9025, formerly Pa.R.Crim.P. Rule 9024, the Rule states the following:

"Upon receipt of an Order from a Judge, the Clerk of Courts shall immediately docket the Order and record in the docket the date it was made. The Clerk shall forthwith furnish a copy of the Order, by mail or personal delivery, to each party or attorney, and shall record in the docket the time and manner thereof."

Prior to January 1, 1994 there was a provision in this Rule that said "except as may be provided by local Rules". This was deleted for all cases commencing after January 1, 1994. This provision may leave the notice requirement ambiguous from the period of January 1, 1994 until September 1, 1994 when new Amendments were introduced into the Rules of Criminal Procedure.

Appellant's Brief at 9-10.

Pa.R.Crim.P. 9025 currently reads as follows:

Upon receipt of an order from a judge, the clerk of courts shall immediately docket the order and record in the docket the date it was made. The clerk shall forthwith furnish a copy of the order, by mail or personal delivery, to each party or attorney and shall record in the docket the time and manner thereof.

The predecessor of Pa.R.Crim.P. 9025 was the former Pa.R.Crim.P. 9024 and read as follows:

Upon receipt of an order from a judge, the clerk of court shall immediately docket the order and record in the docket the date it was made. Except as may be provided by local rules, the clerk shall forthwith furnish a copy of the order, by mail or personal delivery, to each party or attorney, and shall record in the docket the time and manner thereof.

(Emphasis added). The emphasized words appearing in the former Pa.R.Crim.P. 9024 permitted local rules to provide otherwise than the statewide rule. Those precise words were dropped from the successor rule, presently Pa.R.Crim.P. 9025. Thus, under current Rule 9025, local rules may not deviate from the practice provided for in the statewide rule. Accordingly, depending upon which version of the statewide rule is applicable to this case, the local rule may either deviate from the statewide rule or it may not.

Appellant suggests that Pa.R.Crim.P. 9025 as revised is clearly inconsistent with the local rule as interpreted by the lower courts. Appellant seems unsure, however, as to whether the newer version of the statewide rule as presently embodied in Pa.R.Crim.P. 9025 applies or whether the earlier version of the rule as embodied in former Pa.R.Crim.P. 9024 applies.

The Commonwealth does not share Appellant's uncertainty. The Commonwealth asserts that the earlier version of the rule as embodied in former Rule 9024 applies. The Commonwealth argues that the "final form of the [revised] Rules was not effective until September 1, 1994, after Appellant had been determined to be guilty of the offense and after Appellant's sentencing in this matter." Commonwealth's Brief at 9.

The "Note" following present Rule 9025 provides guidance as to which version of the statewide rule is applicable herein. The Note reads as follows:

NOTE: Formerly Rule 9024, adopted October 21, 1983, effective January 1, 1984; amended March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; renumbered Rule 9025 and Comment revised June 2, 1994, effective September 1, 1994.

(emphasis added). As the emphasized language indicates, the revised Rule 9025 (i.e., the Rule without the language "Except as may be provided by local rules") was applicable to cases in which the determination of guilt occurred on or after January 1, 1994. As Appellant herein was first found guilty on February 15, 1994, the revised Rule 9025 applies. Therefore, the Lebanon County court local rules may not provide otherwise than the statewide rule.

The apparent source of confusion for the litigants as to which version of the statewide rule applied arose because of the language in the Note which provided that former Pa.R.Crim.P. 9024 was renumbered to the present Pa.R.Crim.P. 9025 effective September 1, 1994. Although the renumbering of the Criminal Procedural rules did not take effect until September 1, 1994, the linguistic revisions (which excised the language "Except as may be provided by local rules") clearly became applicable to cases where guilt was determined on or after January 1, 1994. Having decided which version of the statewide rule applies, we must now determine what Rule 9025 means as applied to this case.

Pa.R.Crim.P. 9025 provides that the Clerk "shall forthwith furnish a copy of the Order." (emphasis added) We note that the Rules of Criminal Procedure are to be construed in accordance with the rules of statutory construction. Commonwealth v. Reeb, 406 Pa.Super. 28, 593 A.2d 853 (1991), alloc. den., 530 Pa. 665, 610 A.2d 45 (1992). Cf. Pa.R.A.P. 107. With this principle in mind we recall that "[t]he word 'shall' as used in a statute is generally regarded as mandatory, i.e., imposing a duty upon the party to whom the statute is directed." Commonwealth v. Sojourner, 513 Pa. 36, 41-42, 518 A.2d 1145, 1148 (1986) (citations omitted). Though this is a rule of statutory construction, it is applicable as well in the context of procedural rules. Notwithstanding the general rule that "shall" is mandatory, we are aware that the word "shall" has also been interpreted to mean "may" or as being merely directory as opposed to mandatory. See e.g., Commonwealth ex rel. Bell v. Powell, 249 Pa. 144, 94 A. 746 (1915) (interpreting "shall" as "may"); Fishkin v. Hi-Acres, Inc., 462 Pa. 309, 341 A.2d 95 (1975)(interpreting "shall" to be merely directory as opposed to mandatory). In observing that the word "shall" can be ambiguous given that it may be interpreted in at least one of two ways, we have stated that

[e]xcept when relating to the time of doing something, statutory provisions containing the word "shall" are usually considered to be mandatory, but it is the intent of the legislature which governs, and this intent is to be ascertained from a consideration of the entire act, its nature, its object, and the consequences that would result from construing it one way or the other.

Francis v. Corleto, 418 Pa. 417, 428, 211 A.2d 503, 509 (1965) quoting, Pleasant Hills Borough v. Carroll, 182 Pa.Super. 102, 106, 125 A.2d 466, 468 (1956). When there is ambiguity in the procedural rules promulgated by the Pennsylvania Supreme Court, the intent of the Supreme Court is...