How to Handle a Bench Warrant or Failure to Appear in Pennsylvania

If you're a party to a civil lawsuit, a defendant in a criminal case, or even a witness under subpoena in any case, failing to appear in court as ordered can result in the issuance of an arrest warrant.

How to Handle a Bench Warrant or Failure to Appear in Pennsylvania

Courts in Pennsylvania can issue bench warrants for failure to appear or to comply with a subpoena in both criminal and civil cases. A bench warrant is a warrant that directs law enforcement to arrest the person and bring him before the court. A person arrested on a bench warrant in a civil case can be held in contempt of court. A defendant in a criminal case also can be charged with the additional crime of "default in required appearance" if he fails to appear in court when required or ordered to do so.

Failure to Appear in a Civil Case

According to a Pennsylvania civil court rule, if a party or a witness in a civil case is ordered to appear for a court conference or hearing and fails to appear as ordered, the court can issue a bench warrant and charge and punish the person for contempt of court. Pa. R.C.P. 1910.13-1. A person can also be held in contempt when he fails to obey a valid order of the court. The bench warrant must be issued within 60 days of the date the person fails to appear.

A bench warrant can be issued only if the person who was required to appear had actual notice of the conference or hearing, or there is sufficient proof that notice was sent by mail and not returned. Actual notice can be established by different forms of proof:

  • The party signed a receipt for a court order containing notice of a court date.
  • A court employee handed the order to the party, or
  • A “competent adult” who is not a party to the case and not an employee or relative of a party handed the order to the party.

The court also can issue a bench warrant if a person fails to comply with a subpoena ordering the person to provide documents or other materials, except for a subpoena directing a person to appear for a physical or mental examination. Pa. R.C.P. 234.5. The failure to comply with a subpoena must be willful. A subpoena must be served in person or by mail. If the subpoena is mailed, the court cannot issue a bench warrant unless the person returned a signed form acknowledging receipt. As a consequence for failing to comply with a subpoena, the court can impose punishment for contempt, or impose other non-criminal sanctions, such as requiring the person to pay a certain amount of money to the court or opposing party.

Failure to Appear in a Criminal Case

If a defendant in a criminal case fails to appear for court, Pennsylvania law permits the court to issue a bench warrant and, in some circumstances, to charge the person with the crime of "default in required in appearance," which can be a misdemeanor or even a felony.

Failure to Appear in a Summary Case

In Pennsylvania, the most minor criminal offenses, such as loitering, harassment, and disorderly conduct, are categorized as summary offenses. If a person fails to appear for trial in a summary offense case, the judge will decide whether the trial can be conducted without the defendant present. If the trial cannot be conducted without the defendant present, the court will issue a bench warrant. Pa. R.Crim.P. 430(B). However, the court can issue the warrant only if the court determines that the defendant was given notice in person or by mail that failure to appear could result in a bench warrant. If the defendant in a summary case does not appear for trial and is found guilty without being present, the court also can issue a bench warrant based on the conviction.

Failure to Appear for a Preliminary Hearing

If a person is charged with a misdemeanor or felony crime in Pennsylvania, the court must conduct a preliminary hearing to determine whether there is sufficient evidence to form probable cause to believe the person committed the crime charged. If the defendant does not appear for the preliminary hearing, a bench warrant can be issued, depending on the circumstances. Pa. R.Crim.P. 543(D).

If the judge determines that the defendant failed to appear for good cause – because of an emergency such as being in the hospital, a motor vehicle accident, or a death in the immediate family – the judge should reschedule the preliminary hearing. If the judge determines that the defendant received no notice of the preliminary hearing because the notice was mailed and returned as undelivered, a bench warrant will be issued so authorities can locate the defendant.

If the judge determines that the defendant failed to appear without good cause, the defendant is considered to have waived his appearance at the preliminary hearing and the hearing will proceed without him. If the judge reschedules the hearing for some other reason, a bench warrant will be issued. If the judge proceeds with the hearing and finds probable cause, a bench warrant will be issued.

Failure to Appear in the Trial Phase of Misdemeanor and Felony Cases

After the preliminary hearing, if the defendant in a misdemeanor or felony case is released from jail on a bond or on his own recognizance (a promise to appear) and does not appear for trial or another court proceeding where his appearance is required, the court will issue a bench warrant. Pa. R.Crim.P 430(B). This includes failing to appear to serve a sentence – for instance, when a judge allows a defendant to turn himself in at a jail, prison, or booking location, rather than taking him into custody immediately. If the underlying case involves misdemeanor charges, the defendant can be charged with a second degree misdemeanor for default in required appearance. If the underlying case is a felony case, the defendant can be charged with a third degree felony. 18 Pa. C.S. §5124.

A conviction for misdemeanor default in required appearance requires proof that the defendant failed to appear without a lawful excuse. A lawful excuse is synonymous with good cause and refers to serious emergencies that a person could not have anticipated, such as serious illness or injury, child birth, a serious motor vehicle accident, or a death in the immediate family. What constitutes a lawful excuse may vary from judge to judge, as some are more lenient than others.

A conviction for felony default in required appearance requires proof that the defendant failed to appear because the defendant went into hiding or fled to avoid trial, punishment, or being taken into custody.

Penalties for Default in Required Appearance

As a misdemeanor of the second degree, the crime of default in required appearance is punishable in Pennsylvania by up to two years imprisonment and a fine up to $5000. 101 Pa. C.S. §15.66(a)(6) and (b)(7). As a felony of the third degree, the crime of default in required appearance is punishable by up to seven years in prison and a fine up to $15,000. 101 Pa. C.S. §15.66(a)(4) and (b)(5).

What Happens When a Person is Arrested on a Bench Warrant?

In both civil and criminal cases, if a judge is not available right away to see a person who has been arrested on a bench warrant, the person will be placed in jail until a hearing is held. Pa. R.C.P. 1910.13-1; Pa. R.Crim.P. 150. A hearing must be held within 72 hours or the warrant expires and the person must be released. If the 72 hours ends on a non-business day, the person can be held until the end of the next business day. The court can set bail and allow the person to post the bail, get out of jail, and appear for the hearing whenever it is scheduled. After the hearing, the court must vacate the bond.

What to Do If You Fail to Appear or Learn a Bench Warrant Has Been Issued

A bench warrant is a warrant for your arrest, which allows the police to take you into custody, anywhere and at any time. The police can come to your home, your work or place of business, or a social event, and arrest you. You also can be arrested if a police officer discovers the warrant during a traffic stop for even a minor traffic violation.

If you learn that a court has issued a bench warrant for your arrest, you should contact an attorney immediately for legal advice. An experienced criminal defense attorney can contact the court on your behalf, and possibly arrange for you to appear in front of the judge rather than be taken into custody. An experienced lawyer can help you in prepare a defense to the charge, and suggest ways to address sentencing if you are formally charged with default in required appearance.

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