THE COURTS
PART I. GENERAL
[246 PA. CODE CH. 1200]
Emergency Relief under the Protection from Abuse Act
[29 Pa.B. 6331]
Introduction The Minor Court Rules Committee is planning to recommend that the Supreme Court of Pennsylvania adopt these proposed amendments to the following Rules of Conduct, Office Standards and Civil Procedure for District Justices: Rule 1201 (Applicability) and the Note following the Rule, to clarify that a District Justice has jurisdiction to grant emergency relief from abuse under 23 Pa.C.S. § 6110; Rule 1202 (Definitions) and the Note following the Rule, to clarify that the meanings of the words ''abuse,'' ''adult,'' and ''family or household member'' are the same as set forth in 23 Pa.C.S. § 6102. In the ,definition of the word ''Court,'' the phrase ''district justice'' is replaced with ''hearing officer''; Rule 1203 (Limitation on Jurisdiction) and the Note following the Rule, to clarify that a District Justice has jurisdiction under 23 Pa.C.S. § 6110 to grant emergency relief from abuse when the Court is unavailable; Rule 1204 (Venue) and the Note following the Rule, to set forth that a proceeding for emergency relief may only be brought within the county in which the plaintiff resides or where the abuse occurred; however, if the relief sought includes possession of the residence or household to the exclusion of the defendant, the action shall only be brought in the county in which the residence or household is located; Rule 1205 (Persons who may seek emergency relief) and the Note following the Rule, to clarify that a person who may seek emergency relief includes but is not limited to an adult, an emancipated minor, a guardian ad litem, or a guardian of an incapacitated person (as defined in 20 Pa.C.S. Chapter 55); Rule 1206 (Commencement of Proceedings) and the Note following the Rule, to set forth that the petition for emergency relief from abuse shall be filed and served without prepayment of fees; the Note following Rule 1207 (Hearing) to make some editorial corrections to various citations; Rule 1208 (Findings and Protection Orders) and the Note following the Rule, to clarify that a District Justice may grant emergency relief in accordance with 23 Pa.C.S. § 6110(a); Rule 1209 (Execution of Protection Orders) and the Note following the Rule, to set forth the procedure for serving and executing a protection order upon a defendant; Rule 1210 (Duration of Protection Orders) and the Note following the Rule, to clarify that an emergency protection order issued by a District Justice expires at the end of the next business day the Court deems itself available; Rule 1211 (Certification to Court) and the Note following the Rule, to set forth that a District Justice may certify to the Court any emergency protection order it issued together with any supporting documentation.
These proposals have not been submitted for review by the Supreme Court of Pennsylvania. In addition, the Supreme Court does not adopt the Committee's Comments.
We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through: Michael F. Krimmel, Special Court Administrator, Berks County Courthouse, 633 Court Street, Reading, PA 19601, no later than Friday, January 28, 2000.
By the Minor Court Rules Committee
FRED A. PIERANTONI, III,
Chair
Annex A
TITLE 246. MINOR COURT CIVIL RULES
PART I. GENERAL
CHAPTER 1200. EMERGENCY RELIEF UNDER THE PROTECTION FROM ABUSE ACT Rule 1201. Applicability.
The rules in this chapter apply to the exercise by a hearing officer of jurisdiction under Section 6110[, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6110, to grant emergency relief from abuse.
Official Note: See the Protection From Abuse Act set forth in the Domestic Relations Code, 23 Pa.C.S.[A., Section] § 6101 et seq.
Rule 1202. Definitions.
As used in these rules:
(1) Abuse, adults and family or household members shall have the meanings given to those words in Section 6102 [, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6102.
(2) Court means the court of common pleas of the judicial district in which the office of the [district justice] hearing officer taking action under these rules is located.
* * * * *
[Official Note: The definition of ''court'' varies somewhat from the definition in Section 6102, Title 23 of the Protection from Abuse Act, which merely defines ''court'' as ''the court of common pleas,'' since under 6110(c), orders issued by the hearing officer must be certified to ''the court'' and it was thought necessary to define more particularly the court of common pleas to which the order will be certified.]
Rule 1203. Limitation on jurisdiction.
The hearing officer may grant relief under these rules only when the court is unavailable to do so pursuant to the provisions of Section 6110[, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6110, or local rule of court.
Official Note: The limitation in this rule is taken from Section 6110[, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6110
Rule 1204. Venue.
A. Except as provided in subdivision B, [A] a proceeding for emergency relief [shall] may be brought in [the] a magisterial district within the county in which [the abuse for which relief is requested occurred]
(1) the plaintiff resides, either temporarily or permanently, or
(2) the abuse occurred.
B. If the relief sought includes possession of the residence or household to the exclusion of the defendant, the action shall be brought only in a magisterial district within the county in which the residence or household is located.
Official Note: [In view of the nature of the proceedings and the type of relief that may be granted, it was thought best to limit venue to the magisterial district in which the abuse occurred.] This rule is consistent with Pa.R.C.P. No. 1901.1 and provides the necessary flexibility to a plaintiff who may have to flee the county of permanent residence to escape further abuse. A proceeding is considered to have been brought in a magisterial district even if it is before a hearing officer serving temporarily in that district, or before a hearing officer who has been invested by local rule with temporary county-wide jurisdiction.
Rule 1205. Persons who may seek emergency relief.
[A person] An adult or an emancipated minor may seek emergency relief from abuse for himself or herself. Also, any parent [or], adult household member or guardian ad litem may seek emergency relief from abuse on behalf of minor children. In addition, a guardian of the person of an [incompetent adult] incapacitated person as defined in 20 Pa.C.S. Chapter 55 may seek emergency relief on behalf of the [incompetent adult] incapacitated person.
Official Note: This rule [was taken] is derived from Section 6106[, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6110.
Rule 1206. Commencement of Proceedings
* * * * * C. The petition shall be filed and service shall be made without prepayment of fees.
Official Note: It was thought desirable to require the petition to be on a simple, prescribed form since this is an emergency proceeding and the plaintiff is apt to be in an excited state at the time of the filing. Subdivision B is added to assure compliance with the requirement of Section 6110(d) [, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6110(d). Subdivision C is consistent with Section 6106(b) of the Act, 23 Pa.C.S. § 6106(b).
Rule 1207. Hearing.
* * * * * Official Note: Under Section 6110(a)[, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6110(a), the hearing is ex parte, and under Section 6110(b)[, Title 23] of the Act, 23 Pa.C.S. § 6110(b), the emergency orders issued by the hearing officer as a result of the hearing are of short duration. Accordingly, there are no provisions in these rules for notice to the defendant prior to hearing. The hearing need not be held at the office of the hearing officer. The last phrase was added to insure compliance with Section 6112[, Title 23] of the Act, 23 Pa.C.S. § 6112.
Rule 1208. Findings and protection orders.
A. If the hearing officer, upon good cause shown, finds it necessary to protect the plaintiff or minor children from abuse, he may grant relief in accordance with Section [6108(a)] 6110(a) [, Title 23] of the Protection from Abuse Act, 23 Pa.C.S. § 6110(a), and make any protection orders necessary to effectuate that relief. Immediate and present danger of abuse to the plaintiff or minor children shall constitute good cause.
* * * * * Official Note: Subdivision A of this rule is [taken] derived from Section 6110(a)[, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6110(a), which permits the hearing officer to grant limited relief in accordance with Section 6108(a)(1), (2) and (6) or (1) and (6) of the Act (relating to relief).
Rule 1209. Service and [Execution] execution of emergency protection orders.
The hearing officer shall provide to the plaintiff a copy of a protection order made under Rule 1208. The hearing officer or, when necessary, the plaintiff shall immediately deliver a service copy of any protection order made under Rule 1208 to a police officer, police department, sheriff or certified constable for service upon the defendant and execution. [If the defendant is present at the time the protection order is executed, the executing officer shall serve a copy of the petition form containing the order upon the defendant. Otherwise,] After making reasonable effort, if the executing officer is unable to serve the protection order upon the defendant in a timely fashion, the executing officer [shall] may leave [the] a service copy of the petition form containing the order with the plaintiff for service upon the defendant.
Official Note: The hearing officer should provide the plaintiff with at least one copy of a protection order, but more than one copy may be needed. For example, the plaintiff may wish to serve the order upon multiple police departments when the plaintiff lives and works in different police jurisdictions, etc. If it is necessary for the plaintiff to deliver the protection order to the executing officer, the hearing officer should make sure that the plaintiff fully understands the process and what must be done to have the order served upon the defendant. Due to the emergency nature of these protection orders and the fact that to be meaningful they must be served and executed at night or on a weekend, the hearing officer should have the authority to use police officers as well as sheriffs and certified constables to serve and execute these orders. See Section 6109(a)[, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6109(a).
Service shall be made without prepayment of fees. See Rule 1206(C).
Service of protection orders upon the defendant at the time of execution may not be possible under some circumstances.
Rule 1210. Duration of emergency protection orders.
Protection orders issued under Rule 1208 shall expire [as of the resumption of business of the court at the beginning of the next business day] at the end of the next business day the court deems itself available.
Official Note: This rule is [taken] derived from Section 6110(b)[, Title 23] of the Protection From Abuse Act, 23 Pa.C.S. § 6110(b). Practice varies among the judicial districts as to what procedures the plaintiff must follow to seek a temporary protection order from the Court of Common Pleas upon the expiration of an emergency protection order. The hearing officer should provide clear instructions to the plaintiff as to what must be done to continue in effect the protection order in the Court of Common Pleas. See Rule 1211 and Note.
Rule 1211. Certification to court.
A. Any protection order issued under Rule 1208, together with any documentation in support thereof, [shall immediately] may be certified to the court by the hearing officer.
B. Certification under subdivision A of this Rule [shall] may be accomplished by sending to the prothonotary of the court by first class mail or messenger a certified [true] copy of the petition form containing the order, with any supporting documentation attached.
Official Note: [Certification under subdivision A of this rule is required by Section 6110(c), Title 23 of the Protection From Abuse Act.] This rule is consistent with Pa.R.C.P. No. 1901.3(b) which permits commencement of an action by filing with the prothonotary a certified copy of an emergency protection order. However, practice varies among the judicial districts as to how this is accomplished. For example, some judicial districts may require that the plaintiff appear in person to commence an action in the Court of Common Pleas. Others may automatically commence an action in the Court of Common Pleas upon receipt of a certified copy of the emergency order from the hearing officer. See Rule 1210 and Note.
[At the request of the plaintiff, the hearing officer may appoint] Depending on local practice, the plaintiff or the plaintiff's representative [to] may act as a messenger under subdivision B of this rule.
[Pa.B. Doc. No. 99-2124. Filed for public inspection December 17, 1999, 9:00 a.m.]
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