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In re Order Amending Rule 234.1 of Pennsylvania Rules of Civil Procedure

Supreme Court of Pennsylvania

March 9, 2015

IN RE: ORDER AMENDING RULE 234.1 OF THE PENNSYLVANIA RULES OF CIVIL PROCEDURE

CIVIL PROCEDURAL RULES DOCKET

ORDER

PER CURIAM

AND NOW, this 9th day of March, 2015, upon the recommendation of the Civil Procedural Rules Committee; the proposal having been published for public comment at 44 Pa.B. 475 (January 25, 2014):

IT IS ORDERED pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule 234.1 of the Pennsylvania Rules of Civil Procedure is amended in the attached form.

This ORDER shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective April 8, 2015.

Rule 234.1. Subpoena to Attend and Testify

(a) A subpoena is an order of the court commanding a person to attend and testify at a particular time and place. It may also require the person to produce documents or things which are under the possession, custody or control of that person.

Note: See Discovery Rule 4009.1 et seq. for a request upon a party and a subpoena upon a person not a party for the production of documents and things other than at a deposition or a trial.
The twenty-day notice requirement of Rule 4009.21(a) is not applicable to a subpoena issued under Rule 234.1 in connection with a deposition. The provision of Rule 4007.1(d)(2) that materials subpoenaed in connection with a deposition ''shall be produced at the deposition and not earlier, except upon the consent of all parties to the action, '' serves the same purpose as the notice requirement under Rule 4009.21(a).

(b) A subpoena may be used to command a person to attend and to produce documents or things only at

(1) a trial or hearing in an action or proceeding pending in the court, or
(2) the taking of a deposition in an action or proceeding pending in the court.

(c) A subpoena may not be used to compel a person to appear or to produce documents or things ex parte before an attorney, a party or a representative of the party.

(d) A subpoena shall be served reasonably in advance of the date upon which attendance is required.

Explanatory Comment

The Supreme Court of Pennsylvania has amended Rule 234.1 governing subpoenas to attend and testify. The amendment remedies a discrepancy between service of a subpoena on a non-party witness and service of a notice to attend on a party. Current Rule 234.3 provides that a party shall be served a notice to attend reasonably in advance of the date the party is required to attend and testify. Current Rule 234.1, on the other hand, is silent as to when a non-party witness should be served a subpoena before attendance is required. The result is that a party who is aware of and involved in litigation is entitled to reasonable notice, but a non-party witness who has no prior knowledge of a trial and no forewarning that he or she may be called to testify can be subpoenaed with no notice. The amendment of Rule 234.1 requires that a non-party witness be served a subpoena reasonably in advance of the date the witness is required to attend and testify.


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