response to motion to dismiss for failure to state a claim

#Response to motion to dismiss for failure to state a claim serial
#Response to motion to dismiss for failure to state a claim trial

In all civil cases, whether tried by a jury or before the court without a jury, the presiding judge shall have a right to adjudge the cost.

#Response to motion to dismiss for failure to state a claim serial

Immediately preceeding text appears at serial pages (392298) and (390271) to (390272). The provisions of this Rule 587 amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1701(d), the filing of a petition for review does not affect the judges power to proceed further in the case while the petition for review is pending.

#Response to motion to dismiss for failure to state a claim trial

We believe that a defendant may choose to proceed to trial and if convicted, still challenge the propriety of the pretrial motion to dismiss on double jeopardy grounds on appeal. (footnote omitted)).įor the procedures for challenging the denial of the motion to dismiss on double jeopardy grounds when the judge makes a finding that the motion is frivolous, see Pa.R.A.P. For whatever reason, however, appellant proceeded to trial without first appealing the double jeopardy question. 1980) (Unquestionably, appellant could have sought immediate appellate review of the question involved. A mere adverse decision of the case does not mean the matter is frivolous.Īlthough the judge is required to advise the defendant of his or her appellate rights in subdivisions (b)(5) and (b)(6) upon dismissing the motion, nothing in this rule is intended to preclude the defendant from proceeding to trial without first appealing the double jeopardy question. 1989) (√ frivolous claim is a claim clearly and palpably without merit it is a claim which presents no debatable question.). The judge should expressly cite on-point controlling case law that would make the claim frivolous. Subdivision (b)(4) requires the judge to make a specific finding whether the motion is being dismissed as frivolous. See Rule 115 for the procedures for the recording and transcribing of the hearing. Hearing, as used in subdivision (b)(2) includes the taking of testimony, or the hearing of argument, or both. See the Comment to Rule 502 (Instituting Proceedings in Court Cases). In any case in which a summary offense is joined with a misdemeanor, felony, or murder charge, and therefore is part of the court case, a dismissal of the prosecution pursuant to subdivision (a)(1) would include the dismissal of the summary offense. 1901 concerning termination of inactive cases.Ī motion filed pursuant to this rule must comply with the provisions of Rule 575 (Motions and Answers) and Rule 576 (Filing and Service by Parties). (6) If the judge denies the motion but does not find it frivolous, the judge shall advise the defendant on the record that the denial is immediately appealable as a collateral order.Ĭf. 1311(a)(3) within 30 days of the order denying the motion. (5) If the judge makes a finding that the motion is frivolous, the judge shall advise the defendant on the record that a defendant has a right to file a petition for review of that determination pursuant to Pa.R.A.P.

(4) In a case in which the judge denies the motion, the findings of fact shall include a specific finding as to frivolousness. (3) At the conclusion of the hearing, the judge shall enter on the record a statement of findings of fact and conclusions of law and shall issue an order granting or denying the motion. The hearing shall be conducted on the record in open court. (2) A hearing on the motion shall be scheduled in accordance with Rule 577 (Procedures Following Filing of Motion). (1) A motion to dismiss on double jeopardy grounds shall state specifically and with particularity the basis for the claim of double jeopardy and the facts that support the claim. (2) The attorney for the Commonwealth shall be afforded an opportunity to respond. (1) Upon motion and a showing that an information has not been filed within a reasonable time, the court may order dismissal of the prosecution, or in lieu thereof, make such other order as shall be appropriate in the interests of justice.