THE COURTS

[246 PA. CODE CH. 400]

Order Amending Rule 420 of the Rules of Conduct, Office Standards and Civil Procedure for District Justices; No. 208 Magisterial Doc. No. 1

[34 Pa.B. 2465]

   The Minor Court Rules Committee has prepared a Final Report explaining the amendments to Rule 420 of the Rules of Conduct, Office Standards and Civil Procedure for District Justices, effective July 1, 2004. These rule changes provide clarification regarding the relief a district justice may grant in connection with obligations to levy. The changes also provide for technical or ''housekeeping'' amendments to the rule. The Final Report follows the Court's Order.

Order

Per Curiam:

   And Now, this 22nd day of April, 2004, upon the recommendation of the Minor Court Rules Committee; the proposal having been published before adoption at 32 Pa.B. 5046 (October 12, 2002), and a Final Report to be published with this Order:

   It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Pa. R.C.P.D.J. No. 420 is amended in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective July 1, 2004.

Annex A

TITLE 246.  MINOR COURT CIVIL RULES

PART I.  GENERAL

CHAPTER 400.  EXECUTION OF JUDGMENTS FOR THE PAYMENT OF MONEY

Rule 420.  Determination of Property Claims and Disputes.

*      *      *      *      *

   B.  In acting under subdivision A of this rule, the district justice may:

   (1)  Reappraise or redesignate property appraised or designated by the executing officer, or order inclusion in the levy of property set aside by that officer.

   (2)  [Stay or order] Order the abandonment of the levy in whole or part, or release property from the levy.

*      *      *      *      *

   Official Note:  [Subdivisions] Subdivision A [and B] of this rule [set] sets forth the various disputes concerning the execution [which] that, along with property claims, [the district justice is to hear and determine and what he may do in connection therewith] may be brought before the district justice. Subdivision B sets forth the relief that the district justice may grant in connection with these disputes. The [subsections of A and B should] provisions of this rule can be compared with the Pennsylvania Rules of Civil Procedure as follows:

*      *      *      *      *

   This rule does not provide for a preliminary determination by the executing officer as to the merits of a property claim by a third party (see Pa. R.C.P. Nos. 3206, 3207), for it was considered that the district justice should be readily available for this purpose and that it would not be desirable to allow constables to make any such determination. Also, it was thought to be permissible to require the district justice to make the determinations and to take the actions mentioned in this rule as an exercise of power ancillary to [his] the district justice's general power to order execution of the judgment. Subdivision C of the rule is based on Pa. R.C.P. No. 3132.

FINAL REPORT¹

Amendment to Pa. R.C.P.D.J. No. 420

Clarification Regarding the Relief a District Justice May Grant in Connection with Objections to Levy

   On April 22, 2004, effective July 1, 2004, upon recommendation of the Minor Court Rules Committee,² the Supreme Court of Pennsylvania amended Rule 420 of the Rules of Conduct, Office Standards and Civil Procedure for District Justices.³

   The Committee reviewed Pa. R.C.P.D.J. No. 420 when, in the course of designing and revising forms relating to other rule changes, it was brought to the Committee's attention that the language in Rule 420B(2) was causing confusion about the relief that a district justice may grant in connection with an objection to levy. Specifically, Rule 420B(2), prior to this amendment, referred to a ''[s]tay . . .  of the levy . . . .'' The Committee noted that a stay issued in accordance with Rule 410, a supersedeas, or a bankruptcy stay, will stay the entire execution. And, the Committee further noted that such a stay may take effect prior to the executing officer making a levy upon the defendant's property. However, the Committee could not contemplate any procedural occurrence in which the limited relief of staying the levy itself would be necessary or appropriate. The Committee also noted that, as a form of relief in connection with an objection to levy, a stay of the levy is procedurally impossible. In order for an objection to a levy to be raised, the levy must necessarily have already occurred. In such a situation, the appropriate relief may be a stay of the sale, which is provided for in Rule 420B(3).

   Accordingly, the Committee recommended that Rule 420B(2) be amended to delete the reference to a stay, and thus remove any confusion about the relief that a district justice may grant in connection with an objection to levy.

   In addition, the Committee recommended other minor revisions to the Official Note to address gender neutrality issues and to enhance clarity.

______

¹ The Committee's Final Report should not be confused with the Official Notes to the Rules. Also, the Supreme Court of Pennsylvania does not adopt the Committee's Official Notes or the contents of the explanatory Final Reports.

² Recommendation No. 6 Minor Court Rules 2003.

³ Supreme Court of Pennsylvania Order No. 208, Magisterial Docket No. 1, (April 22, 2004).

[Pa.B. Doc. No. 04-805. Filed for public inspection May 7, 2004, 9:00 a.m.]

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