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PA Bulletin, Doc. No. 05-47

THE COURTS

Title 246--MINOR COURT CIVIL RULES

PART I. GENERAL

[246 PA. CODE CH. 400]

Technical Amendments Concerning Execution of Judgments for Money

[35 Pa.B. 245]

   The Minor Court Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rules 410 and 412 of the Rules of Conduct, Office Standards and Civil Procedure for District Justices to make technical amendments concerning the execution of judgments for money. The Committee has not submitted this proposal for review by the Supreme Court of Pennsylvania.

   The following explanatory Report highlights the Committee's considerations in formulating this proposal. The Committee's Report should not be confused with the Committee's Official Notes to the rules. The Supreme Court does not adopt the Committee's Official Notes or the contents of the explanatory reports.

   The text of the proposed changes precedes the Report. Additions are shown in bold; deletions are in bold and brackets.

   We request that interested persons submit written suggestions, comments, or objections concerning this proposal to the Committee through counsel,

Michael F. Krimmel, Counsel
Supreme Court of Pennsylvania
Minor Court Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, PA 17055
Fax 717-795-2175
 
or e-mail to: minorrules@pacourts.us

   no later than Monday, February 21, 2005.

By the Minor Court Rules Committee

THOMAS E. MARTIN, Jr.,   
Chair

Annex A

TITLE 246. MINOR COURT CIVIL RULES

PART I. GENERAL

CHAPTER 400. EXECUTION OF JUDGMENTS FOR THE PAYMENT OF MONEY

Rule 410. [Bond for] Stay of Execution Generally.

   Execution shall be stayed as to the property of the defendant upon the occurrence of any of the following:

   (1)  Upon written direction of the plaintiff to the executing officer.

   (2)  Upon the entry of [If the defendant, or any person or party in interest, enters] a bond with the district justice by any person or party in interest, with security approved by [him] the district justice, in the amount of the plaintiff's judgment, including probable interest and costs, or in such lesser amount as the district justice may direct, [the district justice shall stay execution as to the property of the defendant. The bond shall name] naming the Commonwealth of Pennsylvania as the obligee, and [shall be] conditioned to pay the amount due within [ninety (90)] 90 days of the entry of the bond, unless the time for payment is extended by the district justice. [This rule does not apply to judgments obtained for wages for manual labor.]

   Official Note: Compare Pa.R.C.P. No. 3121(a)[(2)]. Other rules in this chapter may also provide for a stay in specific circumstances covered by those rules.

Rule 412. Notice of Sale.

   A. (1)  The executing officer shall give notice of the sale of personal property at least six days prior to the sale [by handbills posted in the office of the district justice from which the order of execution issued, at the place of sale and, if different from the place of sale, at the place of levy and by mailing a copy of the handbill to the defendant at his last known address and to the plaintiff].

   (2)  The executing officer shall give notice of the sale in the following manner:

   (a)  By handbill posted in the office of the district justice from which the order of execution issued and, if different from the office from which the order issued, in the office of the district justice in whose magisterial district the place of the sale is located.

   (b)  By handbill posted at the place of sale and, if different from the place of sale, at the place of levy.

   (c)  By mailing a copy of the handbill to the plaintiff and to the defendant at his or her last known address.

   B.  The notice of sale shall include a notice that all claims to the property must be filed before sale in the office of the district justice from which the order of execution issued and that all claims to the proceeds must be filed in that office before distribution; that a proposed schedule of distribution will be filed in that office on a date specified not later than five [(5)] days after the sale; and that distribution will be made in accordance with the proposed schedule unless exceptions are filed within ten [(10)] days thereafter. No further notice of the filing of the schedule of distribution need be given.

*      *      *      *      *

   Official Note: Compare Pa.R.C.P. No. 3128. See Section 8151 of the Judicial Code, [§ 8151,] 42 Pa.C.S. § 8151, [added by § 10(96) of the Judiciary Act Repealer Act, Act of April 28, 1978, P. L. 202, No. 53,] as to giving notice to the Department of Revenue[, at least twenty days prior to sale, a report or return concerning the property to be sold, unless exempted by regulation].

REPORT

Proposed Amendments to Pa.R.C.P.D.J. Nos.
410 and 412

Technical Amendments Concerning Execution of Judgments for Money

   The Minor Court Rules Committee (hereinafter the Committee) is proposing technical amendments to Rules 410 and 412 of the Rules of Conduct, Office Standards, and Civil Procedure for District Justices to address two separate issues concerning the execution of judgments for money.

   The Committee reviewed Pa.R.C.P.D.J. No. 410 in response to an inquiry from a constable who asked if execution of a money judgment could be stayed upon request of the plaintiff. The Committee noted that the district justice rules governing execution of money judgments do make provision for a stay of execution in certain circumstances,1 but not specifically at the direction of the plaintiff. The Committee further noted that the Rules of Civil Procedure governing actions in the courts of record do provide for a stay of execution ''upon written direction of the plaintiff.''2

   The Committee believed it advisable to incorporate a provision into the district justice rules to allow for stay upon written direction of the plaintiff. The Committee reasoned that post-judgment settlement negotiations may affect a plaintiff's desire to move forward with execution once commenced, and believed that a plaintiff should have the ability to stay execution by contacting the executing officer directly.

   Accordingly, the Committee proposes that Rule 410 be amended to provide for the stay of execution upon written direction of the plaintiff to the executing officer. To accomplish this, the Committee proposes that Rule 410 be tabulated into an introductory clause and two subparagraphs containing the provisions as to when execution shall be stayed, including the new provision regarding a stay at the direction of the plaintiff. In addition, the Committee proposes that the current provision regarding the inapplicability of the rule to judgments obtained for wages for manual labor be deleted. This provision was based on a prior law3 that was repealed by the Judiciary Act Repealer Act,4 and was not expressly codified in the Judicial Code (Title 42, Pennsylvania Consolidated Statutes).

   The Committee reviewed Pa.R.C.P.D.J. No. 412 in response to an inquiry from a constable who suggested that executing officers be required to post notice of a sale in the office of the district justice in whose magisterial district the place of sale is located if different from the office from which the order of execution issued.5 It was suggested that this requirement would aid in informing an executing officer of other levies that may have been made upon the same property that is the subject of his or her levy and sale. This information is needed so that an executing officer will know if there is an existing levy by another executing officer that has priority over his or her levy.

   The Committee agreed that the proposed notice requirement would be helpful. Accordingly, the Committee proposes that Rule 412A be divided into two subparagraphs. Subparagraph (1) would contain the existing provision that notice of the sale be given at least six days prior to the sale. Subparagraph (2) would contain the requirements as to how notice is to be given, including the new provision discussed above.

   In addition, the Committee proposes other minor revisions to the rules and notes to address gender neutrality issues and to enhance clarity.

[Pa.B. Doc. No. 05-47. Filed for public inspection January 7, 2005, 9:00 a.m.]

_______

1  See Pa.R.C.P.D.J. No. 410 (providing for stay of execution upon entry of bond), Pa.R.C.P.D.J. No. 413 (providing for stay of sale of property because of objection to levy or other property claim), and Pa.R.C.P.D.J. No. 420 (providing for relief in cases of property claims and disputes).

2  Pa.R.C.P. No. 3121(a)(1).

3  The Act of May 14, 1874, P. L. 145, No. 79, § 1, 12 P. S. § 2207.

4  The Act of April 28, 1978, P. L. 202, No. 53, § 2, 42 Pa.C.S. § 20002(a) [ 640 ] as affected by the Act of Oct. 5, 1980, P. L. 693, No. 142, § 324(b).

5  Rule 412 already requires the posting of a handbill in the office of the district justice from which the order of execution issued. This proposal would not change that requirement, but would require that the notice be posted in a second district justice office if the place of sale is located in a different magisterial district.


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