[35 Pa.B. 2258]
[Continued from previous Web Page]
CHAPTER 500. ACTIONS FOR THE RECOVERY OF POSSESSION OF REAL PROPERTY Rule 501. Definition.
A. As used in this chapter, ''action'' means an action by a landlord against a tenant for the recovery of possession of real property brought before a magisterial district judge.
B. [As used in this chapter, ''complaint'' shall include, where applicable, the attached and completed Recovery of Real Property Hearing Notice form.] Rescinded.
Official Note: Distress for rent will not be covered in rules of civil procedure for magisterial district judges, for it is not an action or proceeding before a magisterial district judge and any constable carrying out the ''landlord's warrant'' is acting as an agent of the landlord and not as an officer serving process of a magisterial district judge. See § 302 of the Landlord and Tenant Act of 1951, 68 P. S. § 250.302. Actions for rent (§ 301 of the Act, 68 P. S. § 250.307) are not included in this chapter, for these are actions of assumpsit. See also § 572 of the Act, added by Act of May 3, 1968, P. L. 107, No. 56, § 1, 68 P. S. § 250.512. A number of trespass actions are also detailed in the Landlord and Tenant Act of 1951 (see §§ 311--313, 68 P. S. §§ 250.311--250.313), and these would be brought under the rules pertaining to trespass actions. Consequently, this chapter will be concerned only with the action for the recovery of possession of real property. But see Rules 503C(8) and 508 as to joinder of actions and [cross-complaints] counterclaims.
Rule 502. Venue; Commencement of [the] Action.
A. [The] An action may be brought in and only in the magisterial district where the whole or part of the real property possession of which is sought to be recovered is located.
B. [The] An action [shall] may be commenced by [the] filing [of] a complaint with the magisterial district court.
Official Note: Since only recovery of possession of real property and incidental matters are involved, the reason for the restriction on venue in subdivision A is obvious. Compare Pa.R.C.P. No. 1052.
The complaint must be in writing on a form prescribed by the Court Administrator of Pennsylvania. See Rule 212. The use of a standardized complaint form is intended to promote uniformity, simplification of procedure, and better access by the public to the judicial services of magisterial district courts.
Rule 503. [Form] Contents of Complaint, Verification.
A. [The complaint shall be made in writing on a form which shall be prescribed by the State Court Administrator.] The complaint must set forth the following:
(1) The names and addresses of the parties.
(2) The location and the address, if any, of the real property the possession of which is sought to be recovered.
(3) That the plaintiff is the landlord of that property.
(4) That the plaintiff leased or rented the property to the defendant or to some other person under whom the defendant claims.
(5) That notice to remove was given to the defendant in accordance with law, or that no notice was required under the terms of the lease.
(6) That the plaintiff alleges one or more of the following:
(a) The term for which the property was leased or rented is fully ended.
(b) A forfeiture has resulted by reason of a breach of the conditions of the lease.
(c) Rent reserved and due has, upon demand, remained unsatisfied.
(7) That the defendant retains the real property and refuses to give up possession of the property.
(8) The amount of rent, if any, which remains due and unpaid on the date the complaint is filed and whatever additional rent shall remain due and unpaid at the date of the hearing, and the amount of damages, if any, claimed for injury to or unjust detention of the real property.
B. The complaint [shall] must be signed by the plaintiff or plaintiff's agent and verified as follows:
The facts set forth in this complaint are true and correct to the best of my knowledge, information and belief. This statement is made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.
_________________
Signature[C. The complaint shall set forth:
(1) The names and addresses of the parties.
(2) The location and the address, if any, of the real property possession of which is sought to be recovered.
(3) That the plaintiff is the landlord of that property.
(4) That he leased or rented the property to the defendant or to some other person under whom the defendant claims.
(5) That notice to remove was given to the defendant in accordance with law, or that no notice was required under the terms of the lease.
(6) That--
(a) the term for which the property was leased or rented is fully ended, or
(b) a forfeiture has resulted by reason of a breach of the conditions of the lease, or
(c) rent reserved and due has, upon demand, remained unsatisfied.
(7) That the defendant retains the real property and refuses to give up possession of the property.
(8) The amount of rent, if any, which remains due and unpaid on the date the complaint is filed and whatever additional rent shall remain due and unpaid at the date of the hearing, and the amount of damages, if any, claimed for injury to or unjust detention of the real property.]
Official Note: [As in the other rules of civil procedure for magisterial district judges, the complaint will be on a printed form.] As to notice to remove, the [form will] complaint must simply state that [such a] the notice, when required, was given to the defendant in accordance with law. See § 501 of the Landlord and Tenant Act, 68 P. S. § 250.501[, as amended by § 2(a) of the Judiciary Act Repealer Act, Act of April 28, 1978, P. L. 202, No. 53, 42 P. S. § 20002(a)]. [In subdivision C] Under subparagraph A(8) the landlord is permitted to claim, in addition to the specific amount of rent due and unpaid at the date of filing, whatever unspecified amount of rent will remain due and unpaid at the date of the hearing. As to claiming damages for injury to property, compare Pa.R.C.P. No. 1055.
See Act of January 24, 1966, P. L. (1965) 1534, § 1, as amended by Act of August 11, 1967, P. L. 204, No. 68, § 1, Act of June 11, 1968, P. L. 159, No. 89, § 2, 35 P. S. § 1700-1, which states that ''no tenant shall be evicted for any reason whatsoever while rent is deposited in escrow'' because the dwelling in question has been certified as unfit for human habitation by the appropriate city or county agency. It seems appropriate to leave the matter of evidencing or pleading such a certification or lack thereof to local court of common pleas rules.
[Explanatory Note The amendment to subdivision c(6)(c) of Rule 503 and the note to the rule deletes the former requirement of pleading, when the action is based on failure to pay rent, that there is not on the premises property subject to distress adequate to satisfy rent in arrears. See also the amendment to Rule 582(1).]
Rule 504. Setting the Date for Hearing; Delivery for Service; Notice to Defendant.
A. The magisterial district judge, at the time the complaint is filed, shall:
(1) Set a hearing date and time which [shall] must be not less than [seven (7)] 7 or more than [fifteen (15)] 15 days from the date the complaint is filed.
(2) [Insert the] Prepare a hearing notice with the hearing time and date and the address of the magisterial district's [judge's magisterial district in the complaint form] district court.
(3) Deliver a copy of the complaint [form with hearing time and date thereon] and hearing notice to the plaintiff or the plaintiff's agent.
(4) Deliver a copy of the complaint [form with] and hearing [time and date thereon] notice for service as hereinafter set forth[, which copy shall contain the following notice:
(a) If you have a defense to this complaint, you may present it at the hearing.
(b) If you have a claim against the plaintiff arising out of the occupancy of the premises, which is within magisterial district court jurisdiction and which you intend to assert at the hearing, you must file it on a complaint form at this office before the time set for the hearing.
(c) IF YOU DO NOT APPEAR AT THE HEARING, a judgment for possession and costs, and for damages and rent if claimed, may nevertheless be entered against you. A judgment against you for possession may result in YOUR EVICTION from the premises].
B. (1) Every complaint filed by a plaintiff must include a notice to defendant in substantially the form set forth in subparagraph (2). No other notice to plead to a complaint is required.
(2)
Notice To Defendant YOU HAVE BEEN SUED BY YOUR LANDLORD IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE COMPLAINT, YOU MUST APPEAR AND PRESENT YOUR DEFENSE AT THE HEARING. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT FURTHER NOTICE FOR POSSESSION OF THE LEASED PREMISES AND ANY MONEY CLAIMED IN THE COMPLAINT. A JUDGMENT AGAINST YOU FOR POSSESSION MAY RESULT IN YOUR EVICTION FROM THE PREMISES, AND YOU MAY ALSO LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU.
If you have a counterclaim against the plaintiff arising out of the occupancy of the premises you must file it on the Counterclaim form included with this complaint and notice before the time set for the hearing.
If you are disabled and require a reasonable accommodation to gain access to the magisterial district court and its services, please contact the court at the address or telephone number listed on the complaint form. The court is unable to provide transportation.
Official Note: The hearing date in [subdivision] subparagraph A(1) of this rule is required to be set not less than seven days from the filing of the complaint because of the requirement in Rule 506(B) that service be made at least five days before the hearing. It was thought that the requirement that the hearing be held not more than [fifteen] 15 days from the filing of the complaint should provide ample time to make the type of service required in these cases.
This rule was amended in 2005 to provide for a more thorough notice to defendant. The notice [for the defendant], set forth in [subdivision (4)] subparagraph B(2) of this rule, varies somewhat from the notice required in civil actions under Rule 305. There are a number of reasons for this. First, there can be no default judgment in these possessory actions [and, secondly it was thought that cross-complaints of defendants]. In all cases the plaintiff must appear and give testimony to prove the complaint, even when the defendant fails to appear for the hearing. It is not necessary, therefore, for the defendant to file an answer or notice of intention to defend before the hearing date is set. Secondly, because of the expedited nature of these cases, the defendant may file a counterclaim any time before the hearing. Counterclaims in these cases [should be] are limited to those arising out of the occupancy of the premises.
As to the defendant's counterclaim, see Rule 508.
Rule 506. Service [of Complaint] Generally; Failure of Service.
A. (1) The magisterial district judge shall serve the complaint by mailing a copy of it to the defendant by first class mail and by delivering a copy of it for service to the sheriff of, or any certified constable in, the county in which the office of the magisterial district judge is situated. If this service is not available to the magisterial district judge, service may be made by any certified constable of the Commonwealth.
(2) The officer receiving the [copy] complaint shall serve it by handing it to the defendant or to an adult [person] in charge for the time being of the premises possession of which is sought to be recovered or, if none of the above is found, by posting it conspicuously on those premises.
B. (1) The [copy shall] complaint must be served at least five days before the hearing.
(2) If the complaint is not served at least five days before the hearing as required by subparagraph (1) and the defendant does not appear in person or by representative or file a claim in the case, the magisterial district judge shall continue the case, set a new hearing date, and serve the complaint in accordance with Rule 504 and this rule.
C. Except as otherwise provided in these rules, all notices and legal papers other than the complaint filed in an action shall be served by first class mail.
D. As used in this rule ''complaint'' includes the complaint form specified in Rule 502, the hearing notice and notice to defendant specified in Rule 504, and the blank Counterclaim form specified in Rule 508.
Official Note: Under subdivision A of this rule, service must be made both by first class mail and delivery for service in the manner prescribed.
As to subdivision B, see Rule 507B regarding waiver of defect in service. The continuance for lack of service provided for in subparagraph B(2) is solely for the purpose of rescheduling the hearing date and redelivering the complaint for service, which should occur as quickly as practicable. This continuance will not be charged against either party (see Rule 209C(1)), and will not be considered for purposes of the 30 day limitation on continuances (see Rule 209C(2)(b)).
Rule 507. Notation and Return of Service; Waiver of Service.
A. (1) The magisterial district judge shall note on the [complaint form] docket the date on which he or she mailed a service copy of the complaint to the defendant[, and the].
(2) The sheriff or constable serving [a copy of] the complaint shall, at or before the time [of] set for the hearing, make [proof] a return of service [on the form provided, which shall show the manner of service and the day, hour and place thereof].
(3) The return of service must set forth the following:
(a) The manner of service.
(b) The date, time, and place of service.
(c) If the complaint was handed to an adult, the name and relationship to the defendant or title of that adult.
(d) Any other facts necessary for the magisterial district judge to determine whether proper service has been made.
(4) The return of service must be filed with the original complaint.
B. The appearance of a defendant in person or by representative or the filing by [him] a defendant of a claim in the case shall be deemed a waiver of any defect in service but not a waiver of a defect in venue.
Official Note: This rule [parallels] is similar to the provisions of Rule 314A and C of the [trespass and assumpsit] civil action rules.
Rule 508. Claim by Defendant.
A. (1) At any time before the hearing, the defendant may file a [cross-complaint on the form prescribed for civil complaints,] counterclaim asserting any claim against the plaintiff [which] that arises out of the occupancy of the premises and [which] that is within the jurisdiction of the magisterial district judge.
(2) The counterclaim must be in writing on the Counterclaim form prescribed by the Court Administrator of Pennsylvania.
B. If the defendant files [such] a [cross-complaint] counterclaim, the magisterial district judge shall [set a time and date for the hearing of] hear both complaints together[, which shall not be less than 7 or more than 15 days from the filing of the defendant's complaint] at a consolidated hearing.
C. The magisterial district judge shall serve the defendant's [cross-complaint shall be served] counterclaim on the plaintiff [at least five days before the hearing. At the option of the defendant, the magisterial district judge shall serve the cross-complaint by mailing a copy of it to the plaintiff. If the defendant does not request service by mail, the magisterial district judge shall deliver a copy of the cross-complaint for service to the sheriff of, or any certified constable in, the county in which the office of the magisterial district judge is located. If this service is not available to the magisterial district judge, service may be made by any certified constable of the Commonwealth. The officer receiving the copy shall serve it by handing it to the plaintiff or to an adult person in charge for the time being of the plaintiff's residence or usual place of business] by handing a copy of the counterclaim to the plaintiff or the plaintiff's representative in person at the time of the hearing scheduled in accordance with Rule 504, and shall note on the docket that service was made in this manner.
D. (1) Upon being served with the defendant's counterclaim, the plaintiff may elect to proceed immediately with the consolidated hearing of both complaints or to request a continuance.
(2) If a continuance is granted, the magisterial district court shall give or mail to the parties written notice of the time and date of the continued hearing, which must be not more than ten days from the grant of the continuance.
E. Although a separate award on each claim and counterclaim may be rendered, one single consolidated net money judgment for the plaintiff or for the defendant, but not for both, shall be entered with respect to counterclaims, any lesser amount found due on the claim asserted in one being set off from the greater amount found due on the claim asserted in the other.
Official Note: Because of the expedited nature of these cases, and because there is no requirement that the defendant file an answer or notice of intention to defend before the hearing is scheduled, the defendant may file a counterclaim any time before the hearing. The counterclaim must be in writing on the Counterclaim form prescribed by the Court Administrator of Pennsylvania. See Rules 212 and 504.
As to subdivision A of this rule, see the Note to Rule 504. See also 42 Pa.C.S. § 1515(a)(3), as to waiver of jurisdictional limits, the defendant filing a [cross-complaint] counterclaim being considered a ''plaintiff'' as to the [cross complaint] counterclaim within the meaning of this statute.
Subdivision B [sets forth the time limits for setting hearings when a cross-complaint is filed. These limits recognize the need for reasonable expedition in these cases] requires that the magisterial district judge hear the plaintiff's complaint and the defendant's counterclaim together at a consolidated hearing.
This rule was amended in 2005 to provide a more streamlined procedure for service of a defendant's counterclaim. These changes were intended to reduce delay caused by the necessity of continuing the original hearing to allow for service of the counterclaim.
Subdivision C [contains provisions] provides for service of the [cross-complaint. Mail service need not be by certified or registered mail] counterclaim by the magisterial district judge simply handing a copy of the counterclaim to the plaintiff or the plaintiff's representative at the hearing scheduled in accordance with Rule 504. Because the defendant may file the counterclaim any time before the hearing, it may not be practicable to make service of the counterclaim upon the plaintiff before the hearing.
Because the plaintiff may wish to avoid any delay in the recovery of possession of the premises, subdivision D gives the plaintiff the option of proceeding with the scheduled hearing after being served with a counterclaim, or requesting a continuance if needed to prepare a defense. Under these circumstances, it would be highly unusual for the magisterial district judge to deny the continuance request. Because both claims are necessarily related to the occupancy of the premises, however, the plaintiff may be prepared to proceed immediately, and hearing both claims together should not take excessive time.
Subdivision E makes that clear that only one money judgment is to be entered for either the plaintiff or the defendant. Nothing in this subdivision is intended to prevent, however, the entry of a separate judgment for possession in favor of the plaintiff/landlord, even if the plaintiff/landlord is not entitled to a money judgment after the set-off.
Since a [cross-complaint] counterclaim is in the nature of a responsive pleading there is no fee for filing it.
REPORT
Proposed Amendments to Rules 209, 301, 303--305, 307, 313--315, 318--319, 501--504, and 506--508 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges
Form and Content of Civil and Landlord/Tenant Complaints; Notice to Defendant and Defendant's Answer and Counterclaim in Civil Action; Notice to Defendant and Defendant's Counterclaim in Landlord Tenant Action; Setting Hearing Date I. Introduction and Background
The Minor Court Rules Committee (the Committee) is proposing significant amendments to the rules of procedure governing civil and landlord/tenant actions before magisterial district judges that would substantially change practice in the magisterial district courts. Most notably, the Committee is proposing that the rules require the defendant in a civil action to file a simplified answer to the plaintiff's complaint, and to file any counterclaim, before an initial hearing date is set in the case. Existing procedure requires the magisterial district court to set a hearing date immediately upon the filing of the plaintiff's complaint,3 and does not require any responsive pleading or formal notice of intention to defend by the defendant.4 In addition, existing counterclaim procedures usually necessitate a continuance of the initial hearing date.5 The Committee learned, as will be explained below, that these existing procedures require unnecessarily scheduled hearings and continuances, with the end result often being a default judgment because the defendant does not appear and defend.
The Committee initiated this project partly in response to a survey that it circulated to all magisterial district judges in 2002. The purpose of the Committee's survey was to collect samples of ''cover sheets'' or instructions that magisterial district judges send to parties at the time of service of civil and landlord/tenant complaints. The Committee had contemplated developing standardized civil and landlord/tenant cover sheets that would provide parties with general information about court procedures and what to expect at a magisterial district court hearing. More than 150 magisterial district judges responded to the Committee's survey, and provided copies of civil and landlord/tenant cover sheet forms used in their district courts. Some cover sheets appear to have been adopted countywide, but most were developed by individual judges and are unique to one district court. Some cover sheets provide only very basic information such as directions to the district court. Other cover sheets are very comprehensive, providing details on the conduct of hearings, court dress codes, continuance polices, and other information. It is apparent that many magisterial district judges use these cover sheets to provide information to litigants and to provide answers to frequently asked questions so as to make the court process run as smoothly as possible.
In reviewing the sample cover sheets, the Committee noticed one practice used by a significant number of district courts that raised concerns with the Committee. As noted above, existing procedures require that the magisterial district court set a hearing date immediately upon the filing of the plaintiff's complaint, and require that the court send a hearing notice along with the complaint when it is served on the defendant.6 The Committee noticed that many district courts, while technically complying with the requirement that a hearing date be set immediately, are including instructions on their cover sheets that the hearing date on the hearing notice is, in essence, a default date, and the parties are not to appear on that date. The cover sheets further provide that the defendant is to inform the court of his or her intention to defend by the date on the hearing notice, and if the defendant does notify the court by the prescribed date that he or she intends to defend, that the court will notify the parties of an actual hearing date on which they are to appear and present their cases. If the defendant fails to notify the court by the prescribed date, however, a default judgment is entered without the plaintiff having to appear in court. Under this procedure, therefore, the hearing date required by Rule 305 becomes a de facto fictitious date, and only after the defendant notifies the court of his or her intention to defend, is the ''real'' hearing date set.
It became obvious to the Committee that many magisterial district judges are using this informal procedure as a case management tool to avoid setting hearing dates in cases that may result in a default judgment. After making inquiries about the use of this informal procedure, the Committee heard reports from judges who claim the procedure works very well, enabling the court to schedule its hearing time with greater certainty, to dispose of cases more efficiently, and to avoid unnecessary court appearances by parties.
The Committee acknowledges that courts should employ all proper means to manage and expedite case flow and enhance the administration of justice. Nonetheless, the Committee has concerns about the use of an informal procedure that is not contemplated by or sanctioned under existing rules. The Committee does not suggest that there is anything inherently improper about this procedure, nor does the Committee suggest that the rules of procedure should be so rigid or inflexible so as to quash the ability of individual judges to adopt practices and policies designed to meet the unique needs of their courts. Rather, the Committee's concerns center on the widespread use of an informal procedure that is arguably inconsistent with the official procedural scheme set forth in the general rules, and the confusion that can occur as a result of using this informal procedure in some, but not all, magisterial district courts.7
The Committee's primary concern is that the computer generated hearing notice form that is sent to the plaintiff and served on the defendant along with the complaint states, as to the hearing date entered on the form, that ''you must appear at the hearing and present your defense.''8 Therefore, in courts that use the informal ''default date'' procedure, the instructions on the official hearing notice form are inconsistent with the instructions on the local court-generated cover sheet, which is likely to cause confusion. To make their cover sheet instructions clear, some courts use brightly colored paper or stickers to inform the parties that they are to disregard the date on the hearing notice form. The Committee is also concerned that many, but not all, courts have adopted this informal procedure, thereby resulting in inconsistent practice from court-to-court. In addition, even those courts that use the informal procedure have inconsistent procedures. For example, some cover sheets reviewed by the Committee require the defendant to notify the court of an intention to defend within a certain number of days, others require notice only by the prescribed date; some cover sheets require written notice, others provide for notice by telephone. Because these procedures are developed by individual magisterial district judges, the Committee found numerous inconsistencies. The statewide general rules are intended to make practice in the magisterial district courts consistent and predictable. While the rules should allow enough flexibility for individual judges to adopt practices or policies that they find necessary to account for local needs and conditions, ''local rules'' of this nature are not contemplated by or provided for in the general rules.
Given its concerns about the widespread use of this informal procedure, the Committee considered ways in which the use of the procedure could be discouraged so as to maintain consistency in practice in the district courts and promote compliance with the procedural scheme set forth in the general rules. This effort eventually led to the current proposal that will be described in detail below, and which, as stated above, would result in substantial changes in existing practice.
II. Discussion
The Committee's first inclination was to consider rule changes that would ''tighten'' the existing procedural scheme so as to prevent the use of informal local procedures that, arguably, circumvent the general rules. In the course of its discussions, however, the Committee was reminded that the judges who employ the informal ''default date'' procedure do so for good reasons - to avoid unnecessarily scheduled hearings, continuances, and inconvenience to the parties. In addition, the informal procedure - although it interjects into the existing procedure the additional step of waiting for the defendant's notice of intention to defend before scheduling the ''real'' hearing date - allows courts to schedule their hearing time more efficiently and with more certainty, which is advantageous to the courts, counsel, and litigants. The Committee's discussions, therefore, eventually evolved into a proposal to incorporate the concept of this informal procedure into the general rules so as to take advantage of the benefits of the procedure while promoting system wide consistency of practice.9
To implement this, the Committee developed a proposal that would eliminate the requirement (currently in Rule 305) that the court set a hearing date immediately upon the filing of the plaintiff's complaint. Instead, the revised procedural scheme would require service of the complaint and an enhanced ''Notice to Defendant'' on the defendant, with clear instructions that the defendant must file a simple answer to the complaint if he or she wishes to defend. In keeping with the traditional user-friendly nature of district court proceedings, the answer would be on a short, MDJS-generated form with easy-to-understand instructions and check-off boxes for the defendant to complete the required information. Also, in keeping with the expedited nature of district court proceedings, the rules would require that the answer be filed within ten days of the date of service. Thereafter, if the defendant answers and gives notice of his or her intention to defend, the court would schedule a hearing date and notify the parties. If the defendant fails to file an answer or indicates that he or she does not intend to defend, the rules would provide for the entry of judgment for the amount claimed in the complaint without the necessity for a hearing. In addition, if the defendant has a counterclaim that he or she wishes to assert in the action, the counterclaim would need to be filed along with the answer, thereby notifying the court and the plaintiff of the counterclaim before the initial hearing date is set.
In addition to the major rule changes discussed above, numerous correlative rule changes would be needed to fully implement the new procedural scheme. For example, the time frames established for service, continuances, and the filing of counterclaims must be altered. The Notice to Defendant must be enhanced to clearly set forth the requirement that the defendant file an answer. And, of course, the procedures for setting the hearing date must be revised. In addition, the Committee has included in this proposal a number of changes to the Chapter 500 landlord/tenant action rules. These changes, which are tangentially related to the new procedural scheme for civil cases, primarily provide for an enhanced Notice to Defendant and a more streamlined procedure for service of a defendant's counterclaim in a landlord/tenant action. The new requirement that a defendant file an answer in a civil action would not apply to landlord/tenant actions. No answer or other notice of intention to defend is required in landlord/tenant actions because the plaintiff must always appear in these cases and give testimony to prove the claim.10 The proposed amendments to the landlord/tenant action rules are intended only to revise and modernize the notice and counterclaim provisions in a way that is consistent with the changes proposed to the civil action rules.
III. Proposed Rule Changes
A. Rule Changes to Implement the Requirement of a Defendant's Answer
1. Rule 305
As discussed above, Rule 305 currently requires, among other things, that a hearing date be set immediately upon the filing of the plaintiff's complaint. Under the proposed new procedural scheme, the setting of the hearing would occur later in the judicial process, only after the defendant properly files an answer and gives notice of his or her intention to defend. Therefore, the existing provisions of Rule 305 would be deleted entirely, and would be replaced with provisions for an enhanced Notice to Defendant that would accompany the complaint when served on the defendant. The title of the rule would be changed to ''Notice to Defendant; Form.'' The enhanced Notice to Defendant would be loosely based on the notice required by Pa.R.C.P. No. 1018.1 for civil actions in the courts of record. The notice would inform the defendant that he or she must file an answer with the magisterial district court within ten days in order to defend against the claim, or else suffer judgment by default, and that the court would set a hearing date if the answer is properly filed. In addition, the notice would provide instructions regarding the filing of a counterclaim, which would need to be filed along with the answer. Finally, the notice would contain a general statement regarding accommodations under the federal Americans With Disabilities Act.
2. Rule 318
Rule 318 currently provides for informing the plaintiff if the defendant notifies the court of his or her intention to defend. Under the proposed new procedural scheme, these provisions would be unnecessary because the plaintiff would be notified after the complaint is served that either the defendant has filed an answer and a hearing date has been set, or that the defendant has not filed an answer and a default judgment has been entered. Therefore, the existing provisions of Rule 318 would be deleted entirely, and the title of the rule would be changed to ''Defendant's Answer and Counterclaim; Time for Filing Answer and Counterclaim; Judgment by Consent and Judgment by Default.'' Subdivision A of the amended rule would provide that the defendant must file an answer within ten days of service of the complaint, and that ''[t]he time period for filing the answer may not be extended except by the magisterial district judge for good cause shown.'' This latter provision was deemed necessary because of the common practice in the courts of record of attorneys informally agreeing to extensions of the time period for filing responsive pleadings. As the proposed Official Note to Rule 318 points out, however, ''[t]his restriction is necessary because under these rules a default judgment may be entered against the defendant for failure to file a timely answer by operation of law without the need for a praecipe by the plaintiff.''
Subdivision B of the amended rule would make clear that the answer must be in writing on an official form, and would set forth the contents of the answer. Among the contents of the answer would be a statement by the defendant in which he or she would (1) deny the claim entirely and request a hearing, (2) deny the claim in part and request a hearing, or (3) not contest the claim and not request a hearing. The Committee anticipates that this portion of the answer form would be in an easy-to-understand check-off format.
Subdivision D of the amended rule would provide for the entry of judgment by consent if the defendant files an answer in which he or she does not contest the claim, and judgment by default if the defendant fails to file a timely answer.
3. Rule 319
Rule 319 currently provides only for what action is to be taken when a party fails to appear for the hearing. While failure to appear at the hearing would still be addressed in amended Rule 319, these provisions would be substantially changed to conform to the new procedural scheme. In addition, the rule would be expanded to include provisions for scheduling the hearing date upon the timely filing of an answer by the defendant. Therefore, the existing provisions of Rule 319 would be deleted entirely, and the title of the rule would be changed to ''Setting the Date for Hearing; Notice; Failure of a Party to Appear at the Hearing.'' Subdivision A of the amended rule would provide for the setting of the hearing date within 12 to 30 days. The 30 day outside limit in this provision is shorter than the 60 day limit currently provided for in Rule 305, however under the new procedural scheme many fewer hearings would need to be scheduled because hearings would be scheduled only after the defendant files an answer requesting a hearing. In addition, under the new scheme the hearing notice would be sent by regular mail because service of original process would have already been made. District courts, therefore, should have no difficulty complying with the shortened time frame for scheduling hearings. Also under subdivision A, the plaintiff would be provided with a copy of the defendant's answer and counterclaim, if any.
Subdivision B of the amended rule would provide for three scenarios in which one or both parties fail to appear at the hearing: (1) where the plaintiff does not appear but the defendant does, judgment would be entered for the defendant; (2) where the defendant does not appear but the plaintiff does, judgment would be entered for the plaintiff, or; (3) where neither party appears, the complaint would be dismissed without prejudice. Under all three scenarios, the magisterial district judge would also have the option to continue the case for good cause shown. These three scenarios provide clearer outcomes than do the current provisions of Rule 319B because the question of whether or not the plaintiff had notice of the defendant's intention to defend is not a concern under the proposed new procedural scheme.
B. Correlative Changes to Rule 315 (Claim by Defendant)
As noted above, under the proposed new procedural scheme, a defendant who intends to assert a counterclaim11 in an action would be required to do so in conjunction with the answer filed pursuant to amended Rule 318. To implement this change, the Committee proposes numerous amendments to Rule 315. Subdivision A of the amended rule would remain substantially the same with only minor editorial changes. The existing provisions of subdivision B would be deleted entirely, and replaced with two new provisions: (1) cross-referencing Rule 318, and (2) providing that ''[a] counterclaim is deemed denied by the plaintiff and no responsive pleading is required.'' The latter provision was added to define a cut-off point for pleadings in district court civil actions in keeping with the simplified and expedited nature of these actions.
Subdivision C of the amended rule would also be significantly altered. New subparagraph C(1) would provide that both the plaintiff's complaint and the defendant's counterclaim would be heard ''together at a consolidated hearing.'' New subparagraph C(2) would provide that a properly filed counterclaim may proceed to hearing even if the plaintiff voluntarily withdraws the original complaint. This provision was added in response to an inquiry from a magisterial district judge who pointed out that the current rules do not provide for such an occurrence. Subparagraph C(3) contains the existing provisions of Rule 315C, but the wording has been enhanced to clarify that only one money judgment, for the plaintiff or the defendant, but no for both, is to be entered in cases involving counterclaims. This provision has created some confusion in district court practice, and the amended wording is intended to clarify the Committee's position that only one judgment should be entered in these cases.
Finally, the existing subdivision D would be deleted entirely as it is no longer necessary under the proposed new procedural scheme.
C. Correlative Changes to Service Rules 307, 313, and 314
The proposed new procedural scheme requiring the defendant to file an answer before an initial hearing date is scheduled would necessitate fundamental changes to the rules relating to service. Under the current rules, in which the hearing date is set before service is made, the time frame for making service on the defendant is based upon service being made by a specified number of days before the scheduled hearing. Under the proposed rules, in which the hearing date would not be set until after service is made and the defendant answers, the time frame for making service would be based upon service being made within a specified number of days after the filing of the plaintiff's complaint.
1. Rule 307
The existing provisions of Rule 307 would remain largely intact with a few notable changes and additions. First, as discussed above, subdivision A would be amended to provide that service within the Commonwealth must be made within 40 days of the filing or reinstatement12 of the plaintiff's complaint. The 40 day time period is intended to allow sufficient time for either personal service or service by certified or registered mail.
Secondly, a new subdivision D would be added to make clear that ''all notices and legal papers other than the complaint filed in an action shall be served by first class mail.'' This provision merely clarifies and codifies existing practice.
Finally, a new subdivision E would be added to define the term ''complaint'' as including the complaint form, the notice to defendant, and the blank Answer/Counterclaim form to make clear that all of these documents must be served on the defendant.
2. Rule 313
The service provisions in Rule 313 would remain largely intact, except that a new subdivision A would provide that service outside the Commonwealth must be made within 60 days of the filing or reinstatement of the plaintiff's complaint. The 60 day time frame is intended to allow sufficient time for any of the options for service outside the Commonwealth. In addition, a new subdivision C would be added to define the term ''complaint'' as including the complaint form, the notice to defendant, and the blank Answer/Counterclaim form to make clear that all of these documents must be served on the defendant.
3. Rule 314
The provisions in Rule 314 would remain largely intact, except that the contents of the return of service would be more specifically defined. In addition, the Committee proposes other minor editorial changes to conform to the proposed new procedural scheme.
D. Other Conforming Amendments--Rules 209, 301, 303, and 304
1. Rule 209
In order to fully implement the proposed new procedural scheme, the provisions of Rule 209 (Continuances)13 would require amendment. Under the current rule, which is based on the hearing date being set immediately upon filing of the plaintiff's complaint, the allowable time frames for continuances in civil actions run from the date of filing the complaint. Under the amended rule, in which the civil action hearing date is set only after the defendant's answer is filed, the allowable time frames for continuances would run from the hearing date. As to civil actions, the amended rule would provide that the aggregate of all continuances shall not extend beyond 30 days from the hearing date. This limitation was thought to be sufficient given the expedited nature of these proceedings and the greater certainty in scheduling that would come with the new scheme.14 The existing provisions relating to continuances in landlord/tenant actions would not be affected.
2. Rules 301, 303, and 304
The Committee proposes only minor editorial amendments to Rules 301, 303, and 304 to conform to the proposed new procedures.
E. Correlative Amendments to the Landlord/Tenant Action Rules
As noted above, the proposed new procedures requiring the defendant to file an answer in a civil action would not apply to landlord/tenant actions under the Chapter 500 rules. The Committee is, however, proposing a number of correlative amendments to these rules to promote consistency between the civil and landlord/tenant rules, and to address other tangentially related issues.
1. Rule 504
The Committee proposes that the Notice to Defendant required by Rule 504 be revised to substantially mirror and be consistent with the notice required by civil action Rule 305.
2. Service Rules 506 and 507
The Committee proposes mostly minor correlative changes to Rules 506 and 507 to make them consistent with their counterparts in the civil action rules. There is, however, one notable new provision. In Rule 506, the Committee proposes a new subparagraph B(2) to provide that if the landlord/tenant complaint is not served at least five days before the hearing date the case shall be continued, a new hearing date shall be set, and proper service would be reattempted. In the course of developing this proposal, the Committee discovered that the rules do not specify what is to occur if service is not made as required by existing Rule 506B.
3. Rule 508
The most significant changes to the landlord/tenant rules under this proposal are found in Rule 508 relating to counterclaims. The Committee has received numerous complaints from magisterial district judges who are dissatisfied with the current rule relating to counterclaims in landlord/tenant proceedings because the rule allows a defendant to file a counterclaim at any time before the hearing. This is necessary, of course, because of the very expedited nature of landlord/tenant proceedings, and because no notice of the defendant's intention to defend is required in these cases.15 This procedure does, however, often frustrate the prompt disposition of these cases because the filing of a counterclaim invariably results in a continuance of the hearing. The existing procedure requires service of the defendant's counterclaim in accordance with the service rules for regular civil actions, and such service cannot be accomplished in time for the initial hearing date, especially when the defendant files the counterclaim immediately before the initial hearing. To rectify this problem while maintaining the existing procedures for scheduling hearings, the Committee proposes changes to the manner in which landlord/tenant counterclaims are served on the plaintiff. Specifically, the Committee proposes that service of the counterclaim be accomplished by the magisterial district judge simply handing a copy of the counterclaim to the plaintiff or the plaintiff's representative at the hearing. Thereafter, because the plaintiff may wish to avoid any delay in the recovery of possession of the premises, a new subdivision D would give the plaintiff the option of proceeding with the scheduled hearing after being served with the counterclaim, or requesting a continuance if needed to prepare a defense. Under these circumstances, it would be highly unusual for the magisterial district judge to deny the continuance request. Because both claims are necessarily related to the occupancy of the premises, however, the plaintiff may be prepared to proceed immediately, and hearing both claims together should not take excessive time.
4. Rules 501, 502, and 503
The Committee proposes only minor editorial amendments to Rules 501, 502, and 503 to promote consistency between these rules and their counterparts in the Chapter 300 civil action rules.
[Pa.B. Doc. No. 05-696. Filed for public inspection April 15, 2005, 9:00 a.m.] _______
3 Pa. R.C.P.M.D.J. No. 305 (Setting the Date for Hearing; Delivery for Service) (''The magisterial district judge, at the time the complaint is filed, shall: (1) Set a hearing date which shall be not less than 12 or more than 60 days from the date the complaint is filed. . . . (4) Deliver a copy of the complaint form with the hearing time and date thereon for service on the defendant.'').
4 Id. (Rule 305(4)(a) provides an instruction to the defendant that ''[i]f you intend to enter a defense to this complaint, you should notify this office immediately.'' In addition, Pa. R.C.P.M.D.J. No. 318 (Informing Plaintiff of Notice of Intention to Defend) provides for notice to the plaintiff if the defendant gives notice of intention to defend. Neither rule, however, expressly requires the defendant to give the notice, and there is no penalty for the defendant who appears at the scheduled hearing without having given prior notice of intention to defend. In fact, a defendant appearing at the hearing without giving notice builds into the system automatic delay of the proceedings, because doing so often results in a continuance. See Pa. R.C.P.M.D.J. No. 319A (Failure of a Party to Appear at the Hearing).)
5 Pa. R.C.P.M.D.J. No. 315 (Claim by Defendant) (Rule 315B provides in part, ''[t]he magisterial district judge shall set a date and time for the hearing of both complaints together that shall not be less than 12 or more than 30 days from the filing of the defendant's complaint.'').
6 Pa. R.C.P.M.D.J. No. 305, supra n. 1.
7 See Pa. R.C.P.M.D.J. No. 204 (Purpose and Intent of Rules) (''The purpose and intent of these rules is to provide a complete and exclusive procedure for every action or proceeding to which they are applicable.'' (emphasis added)).
8 Civil Action Hearing Notice, Form AOPC 308B-05. (This form, like most forms used in the magisterial district courts, is produced by the Magisterial District Judge System (MDJS), the statewide computer system, developed and maintained by the Administrative Office of Pennsylvania Courts, that automates all case processing and accounting functions of the magisterial district courts. This form is used to satisfy the requirements of Pa. R.C.P.M.D.J. No. 305, supra n. 1.)
9 The Committee did not adopt this approach lightly. The Committee notes that the current procedural scheme has been in existence, with relatively little change, since 1970. The Committee acknowledges, with great respect and admiration, the original drafters of these rules whose vision and work have withstood the test of time. The Committee believes this new approach to scheduling hearings is a natural progression for the magisterial district courts as jurisdictional limits have increased and practice has become more sophisticated. The new approach is intended, however, to remain true to the original drafters' intent as espoused in their 1970 Explanatory Comment preceding the Chapter 300 Rules: ''[i]n drafting these rules, the guiding policy was to provide a framework, insofar as the Pennsylvania constitutional system would permit, for a modern, workable small claims procedure, realizing that many magisterial district judges would not be lawyers and that members of the public using the system would be largely unrepresented by legal counsel. Thus, an attempt was made throughout these rules to achieve simplicity of phraseology, uncomplicated administration and as much standardization in the handling of civil actions by magisterial district judges as is possible.'' Pa. R.C.P.M.D.J., Ch. 300, Explanatory Comment.
10 See Pa. R.C.P.M.D.J. No. 512 (Hearings and Evidence) and Official Note (''[T]his rule is intended to make clear that the magisterial district judge may not enter a default judgment in a possessory action, including a judgment for money only. The plaintiff must appear and give testimony to prove the complaint even when the defendant fails to appear for the hearing.'' Pa. R.C.P.M.D.J. No. 512, Official Note.); Pa. R.C.P.M.D.J. No. 514 (Judgment) and Official Note.
11 The rules of civil procedure governing actions before magisterial district judges have heretofore used the term ''cross-complaint'' to describe a complaint filed by the defendant against the plaintiff. With these amendments, the Committee proposes that ''cross-complaint'' be substituted with the term ''counterclaim'' in Rule 315 and throughout the rules. The Committee believes that counterclaim more accurately describes ''a claim by a defendant against the plaintiff used as an offset against the original claim.'' Bryan A. Garner, A Dictionary of Modern Legal Usage 238 (2d ed. 1995).
12 As to reinstatement, see Pa. R.C.P.M.D.J. No. 314E (Return, Waiver, and Failure of Service; Reinstatement).
13 Rule 209 was recently amended by the Supreme Court (Supreme Court of Pennsylvania Order No. 213, Magisterial Docket No. 1, December 16, 2004) effective July 1, 2005. This proposal would amend the Rule as amended by the Court's December 16, 2004 Order.
14 In establishing the allowable time frame for continuances in civil cases, the Committee was mindful that, when allowing for service and the defendant's answer under the new scheme, as many as 80-100 days may pass between the filing of the complaint and the initial hearing date. While this may seem substantially longer than the existing time frame for scheduling civil hearings (no more than 60 days after the filing of the complaint), it was considered to be an acceptable trade off for the greater certainty in scheduling and the smaller number of hearings that would actually need to be scheduled under the proposed new procedural scheme.
15 See supra n. 8.
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