THE COURTS
Title 246--MINOR COURT CIVIL RULES
PART I. GENERAL
[246 PA. CODE CHS. 200, 400 AND 1000]
Proposed amendments to Rules 206, 402 and 1001--1020 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges
[36 Pa.B. 3981]
[Saturday, July 29, 2006]The Minor Court Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rules 206, 402, and 1001--020 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges to make comprehensive changes to the rules relating to appeals to the courts of common pleas from judgments entered in the magisterial district courts. The Committee has not yet 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
Minor Court Rules Committee
Supreme Court of Pennsylvania
5035 Ritter Road, Suite 700
Mechanicsburg, PA 17055
Fax 717-795-2175
or e-mail to: minorrules@pacourts.usno later than Friday, September 1, 2006.
By the Minor Court Rules Committee
THOMAS E. MARTIN, Jr.,
Chair
Annex A
TITLE 246. MINOR COURT CIVIL RULES
PART I. GENERAL
CHAPTER 200. RULES OF CONSTRUCTION; GENERAL PROVISIONS Rule 206. Costs; Proceedings In Forma Pauperis.
[A.] (A) Except as otherwise provided by law, the costs for filing and service of the complaint shall be paid at the time of filing.
[B.] (B) Recovery of Taxable Costs Generally.
(1) Except as otherwise provided [by subdivision C of] in this rule, the prevailing party in magisterial district court proceedings shall be entitled to recover taxable costs from the unsuccessful party.
(2) Taxable [Such] costs shall consist of all filing, personal service, witness, and execution costs authorized by Act of Assembly or general rule and paid by the prevailing party.
[C. Taxable] (C) Recovery of Taxable Costs on Appeal or Certiorari.
(1) Except as otherwise provided in this paragraph, taxable costs on appeal or certiorari shall be paid by the unsuccessful party[, and a].
(2) A plaintiff who appeals shall be considered an unsuccessful party if he or she does not obtain on appeal a judgment more favorable than that obtained in the magisterial district court proceeding.
(3) A defendant who prevails on certiorari proceedings brought by the defendant or who obtains a favorable judgment upon appeal by either party shall not be liable for costs incurred by the plaintiff in the [preceding] magisterial district court proceeding and may recover taxable costs in that proceeding from the plaintiff.
(4) A plaintiff who is unsuccessful in the magisterial district court proceeding may recover taxable costs in that proceeding from the defendant if the plaintiff is successful on appeal, and in that event the defendant may not recover costs in the magisterial district court proceeding from the plaintiff.
(5) In no case shall an appellant who failed to appear at the hearing in the magisterial district court recover any taxable costs on appeal.
[D.] (D) This rule shall apply to all civil actions and proceedings except actions pursuant to the Protection from Abuse Act.
Official Note: With regard to the establishment of taxable costs in general, see Section 1726 of the Judicial Code, 42 Pa.C.S. § 1726.
Under paragraph (B)(2), ''personal service . . . costs'' refers only to personal service since mail costs are to be borne by the plaintiff in all cases in accordance with Section 1725.1 of the Judicial Code, 42 Pa.C.S. § 1725.1. ''Execution'' costs include those for executing an order for possession.
The items constituting taxable costs in appeal or certiorari proceedings will be governed by law or general rule applicable in the court of common pleas. Paragraph (C)(5) provides, however, that an appellant who did not appear at the hearing in the magisterial district court may not recover taxable costs on appeal. This is intended to discourage the wasting of resources that occurs when one party does not attend the magisterial district court hearing with the intent of filing an appeal. An appellant appeared at the hearing in the magisterial district court if the appellant or the appellant's attorney of record or authorized representative attended the hearing.
[Under subdivision B, ''personal service . . . costs'' refers only to personal service since mail costs are to be borne by the plaintiff in all cases in accordance with Section 1725.1 of the Judicial Code, 42 Pa.C.S. § 1725.1.]
* * * * * [E.] (E) Proceedings in Forma Pauperis
[(i)] (1) A party who is without financial resources to pay the costs of litigation shall be entitled to proceed in forma pauperis.
[(ii)] (2) Except as provided [by subparagraph (iii)] in paragraph (3), the party shall file a petition and affidavit in the form prescribed [ by subparagraph (vi)] in paragraph (6). The petition may not be filed prior to the commencement of an action, which action shall be accepted in the first instance[,] without the payment of filing costs.
Except as prescribed [by subparagraph (iii)] in paragraph (3), the magisterial district judge shall act promptly upon the petition and shall enter a determination within five days from the date of the filing of the petition. If the petition is denied, in whole or in part, the magisterial district judge shall briefly state the reasons therefor. The unsuccessful petitioner may proceed no further so long as such costs remain unpaid.
[(iii)] (3) If the party is represented by an attorney at law, the magisterial district judge shall allow the party to proceed in forma pauperis upon the filing of a praecipe which contains a certification by the attorney that the attorney is providing free legal service to the party and believes the party is unable to pay the costs.
[(iv)] (4) A party permitted to proceed in forma pauperis shall not be required to pay any costs imposed or authorized by Act of Assembly or general rule which are payable to any court or any public officer or employee.
The magisterial district [judge] court shall inform a party permitted to proceed in forma pauperis of the option to serve the complaint by mail in the manner permitted by these rules.
A party permitted to proceed in forma pauperis has a continuing obligation to inform the court of improvement in the party's financial circumstances which will enable the party to pay costs.
[(v)] (5) If there is a monetary recovery by judgment or settlement in favor of the party permitted to proceed in forma pauperis, the exonerated costs shall be taxed as costs and paid to the magisterial district [judge] court by the party paying the monetary recovery. In no event shall the exonerated costs be paid to the indigent party.
[(vi)] (6) The petition for leave to proceed in forma pauperis and affidavit shall be substantially in the following form:
* * * * * Official Note: This Rule substantially follows Pa.R.C.P. No. 240. Under [subparagraph E(iv)] paragraph (E)(4), ''any costs'' includes all filing, service, witness, and execution costs.
CHAPTER 400. ENFORCEMENT OF JUDGMENTS RENDERED BY MAGISTERIAL DISTRICT JUDGES FOR THE PAYMENT OF MONEY Rule 402. Request for Order of Execution. Entry of Judgment in Court of Common Pleas.
[A.] (A) Execution of a judgment for the payment of money rendered by a magisterial district judge may be ordered by a magisterial district judge in whose [office] court the judgment was rendered or entered, provided the [plaintiff files in that office
(1) not before the expiration of 30 days from the date the judgment is entered by the magisterial district judge, and
(2) within five years of that date,
a request for an order of execution] judgment holder files a request for an order of execution in that court not before the expiration of 30 days from the date the judgment is entered and within five years of that date.
[B.] (B) The request form shall be attached to the order, return and other matters required by these rules.
[C.] (C)(1) The [plaintiff] judgment holder may enter the judgment, for the purpose of requesting an order of execution thereon, in [an office of] a magisterial district [judge] court other than that in which it was rendered only if levy is to be made outside the county in which the judgment was rendered and the [office] court in which the judgment is entered for execution [is that of the magisterial district judge whose magisterial district] is situated in the county in which levy is to be made.
(2) The [plaintiff] judgment holder may enter the judgment in such other [office] court by filing therein a copy of the record of the proceedings containing the judgment, certified to be a true copy by the magisterial district judge in whose existing [office] court the judgment was rendered or by any other official custodian of the record.
[D.] (D)(1) The [plaintiff] judgment holder may enter the judgment in the court of common pleas in any county. When so entered, the indexing, revival and execution of the judgment shall be in accordance with procedures applicable in the court of common pleas.
(2) The judgment [may] shall be entered in the court of common pleas [by filing with the prothonotary a copy of the record of the proceedings containing the judgment, certified to be a true copy by the magisterial district judge in whose office the judgment was rendered or by any other official custodian of the record.] in the following manner:
(a) The judgment holder shall file with the prothonotary a Praecipe to Enter the Magisterial District Court Judgment in the Court of Common Pleas along with a copy of the notice of judgment certified to be a true copy by the magisterial district judge in whose court the judgment is entered or by any other official custodian of the record.
(b) The praecipe filed under paragraph (a) shall
(i) Identify the parties to the judgment and the magisterial district court in which the judgment is entered and that court's docket number associated with the judgment.
(ii) Direct the prothonotary to enter the judgment upon the proper docket and in the judgment index of the court of common pleas.
(iii) Direct the prothonotary to serve the defendant with notice of the entry of the judgment in the court of common pleas by mailing a copy of the praecipe in accordance with paragraph (c).
(iv) Direct the magisterial district court to transmit to the prothonotary the original record of the proceedings in accordance with paragraph (d).
(c)(i) When filing the praecipe under paragraph (a), the judgment holder shall provide to the prothonotary a first class postage paid envelope pre-addressed to the magisterial district court in which the judgment is entered and a first class postage paid envelope pre-addressed to the defendant at the address as listed on the complaint filed in the magisterial district court or as otherwise appearing in the records of that court. The prothonotary shall thereupon send by ordinary mail a copy of the praecipe to the magisterial district court and the defendant, and shall note such service and any return on the docket.
(ii) Failure to serve the defendant with the notice as required by paragraph (i) shall not affect the lien of the judgment.
(d) The magisterial district court to which the praecipe is directed shall, within ten days after receipt of the praecipe, transmit to the prothonotary the original record of the proceedings including but not limited to the following items:
(i) The original complaint.
(ii) All original documents related to service filed in the case.
(iii) Any original exhibits or other evidence retained by the magisterial district court.
(iv) The notice of judgment.
(v) Such other original documents that the magisterial district court deems pertinent to the record.
(e) The original record of the magisterial district court proceedings shall thereafter be retained by the prothonotary. The magisterial district court shall note in the case file that the original record was transmitted to the prothonotary, and shall retain in the case file a duplicate copy of all documents so transmitted.
(3) The judgment may be entered in the court of common pleas only after 30 days from the date the judgment is entered [by] in the magisterial district [judge] court. The judgment may not be entered in the court of common pleas after five years from the date the judgment is entered [by] in the magisterial district [judge] court.
(4) Except as provided in [subparagraph D] paragraph (D)(5) of this rule, once the judgment is entered in the court of common pleas all further process must come from the court of common pleas and no further process may be issued by the magisterial district [judge] court.
(5) The magisterial district [judge] court shall enter satisfaction on the docket of the magisterial district court proceedings upon the filing by any party in interest of a certified copy of the docket entries of the court of common pleas showing the judgment and satisfaction have been entered in the court of common pleas.
Official Note: Under [subdivision A] paragraph (A) of this rule, the execution proceedings are commenced by requesting an ''order of execution.'' The request may not be filed before the expiration of 30 days after the date the judgment is entered [by] in the magisterial district [judge] court. This will give the defendant an opportunity to obtain a supersedeas within the appeal period. The request must be filed within five years of the date the judgment is entered [by] in the magisterial district [judge] court. No provision has been made for revival of a judgment in magisterial district court proceedings.
[Subdivision C] Paragraph (C) provides for entering the judgment, for the purpose of requesting an order of execution, in [an office of] a magisterial district [judge] court other than that in which the judgment was rendered when levy is to be made outside the county in which the judgment was rendered. Compare Pa.R.C.P. No. 3002.
As to [subdivision D] paragraph (D), see Section 1516 of the Judicial Code, 42 Pa.C.S. § 1516. The 30 day limitation in the rule [appears to be required by] is consistent with this Section. [Certification by the magisterial district judge should not be done before the expiration of 30 days after the date of entry of the judgment.]
Paragraph (D) was substantially amended in 2006 to provide a new procedure for entering a judgment in the court of common pleas. The rule requires that the judgment holder file with the prothonotary a Praecipe to Enter the Magisterial District Court Judgment in the Court of Common Pleas along with a certified copy of the notice of judgment from the magisterial district court. This praecipe serves a number of purposes. First, it directs the prothonotary to enter the magisterial district court judgment upon the proper docket and in the judgment index of the court of common pleas. Second, by the prothonotary sending a copy of it to the defendant, the praecipe serves as notice to the defendant that the judgment has been entered in the court of common pleas. Finally, the praecipe directs the magisterial district court to transmit the original case file to be filed with and retained by the prothonotary.
It is necessary for the prothonotary to retain the original case documents because they may be needed if the judgment is renewed and the jurisdiction of the magisterial district court is subsequently challenged by a writ of certiorari under Rule 1009(A)(1)(a). Because there is no time limit on raising a question of jurisdiction by certiorari, the original case documents must be retained so long as the judgment remains in effect. Since magisterial district court judgments cannot be revived like judgments entered in the court of common pleas, after five years there would be no possibility of filing a writ of certiorari relating to a magisterial district court judgment unless the judgment were entered in the court of common pleas.
The rule requires that the magisterial district court retain a duplicate of the case documents transmitted to the prothonotary, but this duplicate may be destroyed in accordance with the applicable records retention schedule.
The Praecipe to Enter the Magisterial District Court Judgment in the Court of Common Pleas shall be on a form prescribed by the Court Administrator of Pennsylvania. See Rule 212.
Paragraph (D)(2)(c)(ii) makes clear that failure to serve the defendant with notice of the entry of the judgment, including a return of the ordinary mail as undeliverable, shall not affect the lien of the judgment.
Under paragraph (D)(2)(d)(ii), ''original documents related to service'' includes certified mail return receipt cards, returned envelopes with notations from the postal service, and any proof or return of service filed with the court.
The only method available to renew a magisterial district court judgment would be to record the judgment in the [Prothonotary's] prothonotary's office prior to the expiration of the five-year period and then follow the applicable Rules of Civil Procedure for the revival of judgments. See Pa.R.C.P. No. 3025 et seq. Also, [subdivision D] paragraph (D) makes clear that when the judgment is entered in the court of common pleas, all further process shall come from the court of common pleas and that no further process shall be issued by the magisterial district judge[except that the magisterial district judge], but he or she shall enter on the magisterial district court docket proof of satisfaction of a judgment that had been entered in the court of common pleas and subsequently satisfied in that court. This exception is necessary so that procedures exist for entering satisfaction of all judgments with the magisterial district court, regardless of whether the judgment has been certified to and satisfied in the court of common pleas.
CHAPTER 1000. APPEALS
APPELLATE PROCEEDINGS WITH RESPECT TO JUDGMENTS AND OTHER DECISIONS OF MAGISTERIAL DISTRICT JUDGES IN CIVIL [MATTERS] AND POSSESSORY ACTIONS Rule 1001. Definitions.
As used in this chapter:
[(1) Judgment--A judgment rendered by a magisterial district judge under Rule 319, 322 or 514.
(2) Appeal--An appeal from a judgment to the court of common pleas.
(3) Certiorari--An examination by the court of common pleas of the record of proceedings before a magisterial district judge to determine questions raised under Rule 1009A.
(4) Supersedeas--A prohibition against any further execution processes on the judgment affected thereby.
(5) Court of common pleas--The court of common pleas of the judicial district in which is located the magisterial district wherein the questioned action of the magisterial district judge took place.
(6) Claimant--Includes a defendant with respect to a defendant's cross-complaint or supplementary action filed pursuant to Rule 342 in the action before the magisterial district judge.
(7) Defendant--Includes a plaintiff with respect to the defendant's cross-complaint or supplementary action filed pursuant to Rule 342 in the action before the magisterial district judge.
(8) Service by certified or registered mail--The mailing of properly addressed certified or registered mail.
(9) Proof of service--A verified written statement that service was made by personal service or by certified or registered mail, with the sender's receipt for certified or registered mail attached thereto if service was made by mail. ]
''appeal'' means an appeal to the court of common pleas from a judgment entered by the magisterial district court;
''certiorari'' means an examination by the court of common pleas of the record of proceedings before the magisterial district court to determine questions raised under Rule 1009(A);
''court of common pleas'' means the court of common pleas of the judicial district in which is located the magisterial district wherein the questioned action of the magisterial district court took place;
''judgment'' means a judgment entered by a magisterial district court under Rule 319, 322, or 514;
''proof of service'' means a verified written statement that service was made by personal service or by certified mail, with the sender's receipt for certified mail attached thereto if service was made by certified mail;
''service by certified mail'' means the mailing of properly addressed certified mail;
''supersedeas'' means a prohibition against any further execution processes on the judgment affected thereby.
Official Note: Although one of the purposes of the definitions in this rule is to avoid needless repetition throughout these appellate rules, some of the definitions are intended to state or clarify the law as well.
In connection with the definition of ''appeal'' [in subdivision (2),] see also Rule 1007 and the note thereto. Upon appeal to the court of common pleas, a possessory action brought under Chapter 500 may proceed in the same manner as an appeal of a civil action brought under Chapter 300, including being heard by a board of arbitrators.
[Under subdivision (3), certiorari] Certiorari under these rules is restricted to an examination of the record of the proceedings before the magisterial district [judge, which will appear on the complaint forms prescribed by the State Court Administrator] court. See Flaherty v. Atkins, 189 Pa. Super. 550, 152 A.2d 280 (1959). This is a narrow form of certiorari, both with respect to procedure and the matters which can be considered under Rule [1009A] 1009(A). Since an aggrieved party will be entitled to a broad form of appeal de novo under these rules, there seems to be no justification for providing also for a broad form of certiorari. These restrictions on the writ of certiorari are authorized by § 26 of the Schedule to Article V of the 1968 Constitution. The writ of error, which at common law was probably available only to review the proceedings of a court of record (see Beale v. Dougherty, 3 Binn. 432 (1811)), is not a form of appellate process permitted by these rules. See also County of Carbon v. Leibensperger, 439 Pa. 138, 266 A.2d 632 (1970) (court of common pleas cannot issue writ of prohibition).
The definition of supersedeas [in subdivision (4) points out the proper office and] reflects the limited nature of a supersedeas. See also Rules 1008 and 1013 and the notes thereto.
Under [subdivision (9),] the definitions of ''proof of service'' and ''service by certified mail,'' there is no requirement that the sender's receipt for certified mail be postmarked. There is no return receipt requirement for certified [or registered] mail. It is no longer necessary that the proof of service be under oath or affirmation; however, the statement is now made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.
APPEAL Rule 1002. Time and Method of Appeal.
[A. A] (A)(1) Except as otherwise provided in paragraph (B), a party aggrieved by a judgment [for money, or a judgment affecting the delivery of possession of real property arising out of a nonresidential lease,] may appeal therefrom within [thirty (30)] 30 days after the date of the entry of the judgment by filing with the prothonotary of the court of common pleas a notice of appeal [on a form which shall be prescribed by the State Court Administrator together with a copy of the Notice of Judgment issued by the magisterial district judge]. The Prothonotary shall not accept [an] a notice of appeal [from an aggrieved party] which is presented for filing under this paragraph more than [thirty (30)] 30 days after the date of entry of judgment without leave of [Court] court and upon good cause shown.
(2) An appeal from only the money portion of a judgment in a case arising out of a residential lease is governed by paragraph (A)(1).
[B.] (B) A party aggrieved by a judgment for the delivery of possession of real property in a case arising out of a residential lease may appeal therefrom within ten [(10)] days after the date of the entry of judgment by filing with the prothonotary of the court of common pleas a notice of appeal [on a form which shall be prescribed by the State Court Administrator, together with a copy of the Notice of Judgment issued by the magisterial district judge]. The prothonotary shall not accept [an] a notice of appeal [from an aggrieved party] which is presented for filing under this paragraph more than ten [(10)] days after the date of entry of judgment without leave of court and upon good cause shown.
(C) In all cases, the party filing the notice of appeal shall file a copy of the notice of judgment issued by the magisterial district court together with the notice of appeal. In cases involving counterclaims filed pursuant to Rule 315 or Rule 508, the party filing the notice of appeal shall file a copy of all notices of judgment relating to the original complaint and all counterclaims.
Official Note: The [Thirty] 30 day [limitation in subdivision A] appeal period provided for in paragraph (A) of this rule is [the same as that found in the Judicial Code § 5571(b)] derived from Section 5571(b) of the Judicial Code, 42 Pa.C.S. § 5571(b)[, as amended by § 10(67) of the Judiciary Act Repealer Act, Act of April 28, 1978, P. L. 202, No. 53]. The ten day [limitation in subdivision B1] appeal period provided for in paragraph (B) of this rule is [designed to implement the time for appeal set forth in § 513 of the Landlord and Tenant Act of 1951 (Act No. 1995-33, approved July 6, 1995) (Act No. 1995-33 was suspended by the Pa. Supreme Court on March 28, 1996 by Order of Court insofar as the Act is inconsistent with Rules of Civil Procedure Governing Actions and Proceedings Before Magisterial District Judges, as adopted by that Order.)] derived from Section 513 of the Landlord and Tenant Act of 1951 as amended, 68 P. S. § 250.513.
[The two subdivisions of this rule] Paragraphs (A) and (B) are intended to [clarify] specify that only where the right of possession of residential real estate is at issue, the shorter ten day appeal period [for appeal] applies; where the appeal is taken from any other judgment [for money, or a judgment affecting a nonresidential lease,] under these rules, the thirty day appeal period [of time for appeal] applies. [A party may appeal the money portion of a judgment only within the thirty day appeal period specified in subsection A of this rule. It] Thus, an appeal from only the money portion of a judgment in a case arising from a residential lease is subject to the 30 day appeal period applicable to money judgments in general. In addition, it is the intent of this rule that where the right of possession of residential real estate is at issue no supersedeas under [Pa.R.C.P.D.J. No.] Rule 1008(B) shall be issued by the [Prothonotary] prothonotary after the ten [(10)] day period for filing an appeal, unless by order of court.
The method of appeal is by filing with the prothonotary a written ''notice of appeal'' on a form [to be] prescribed by the [State] Court Administrator of Pennsylvania. [Copies of this same form will be used for service under Pa.R.C.P.D.J. No. 1005. This permits use of the same form for filing and service. No useful purpose would be served by having two forms, one called an ''appeal'' for filing and another called a ''notice of appeal'' for service.] See Rule 212. The current version of the notice of appeal form is available on Pennsylvania's Unified Judicial System website, www.courts.state.pa.us. This same form is used for service and proof of service under Rule 1005.
[The 1990 amendment is intended to encourage the complete utilization of the hearing process available before the magisterial district judge.
A copy of the Notice of Judgment must be filed since it will contain the separate entries required by Pa.R.C.P.M.D.J. No. 514.A and will be needed by the Prothonotary. ]
Paragraph (C) requires that the appellant file a copy of the notice of judgment together with the notice of appeal. When the case involves counterclaims, the appellant must file copies of all notices of judgment together with the notice of appeal. See Rule 1004(C) and Official Note. The notice of judgment will contain the separate entries required by Rule 514(A) and other information needed by the prothonotary to process the appeal. When entering a judgment for the delivery of possession of real property the magisterial district judge must make a determination as to the amount of monthly rent, even if no money judgment is sought or entered. The prothonotary must have this information to calculate the amount due under Rule 1008(B).
With regard to costs on appeal, see Rule 206.
* * * * * Rule 1003. Bond for Appeal.
No bond or other security shall be required for appeal.
Official Note: No bond or other security is required for taking an appeal. Such a requirement would seem to be contrary to Article V, § 9, of the Constitution, although this section of the Constitution would not prevent requiring a bond for a supersedeas. See Rule 1008.
With regard to costs on appeal, see Rule 206.
Rule 1004. [Filing Complaint or Praecipe] Pleadings on Appeal. Appeals Involving [Cross-Complaints] Counterclaims.
[A. If the appellant was the claimant in the action before the magisterial district judge, he shall file a complaint within twenty (20) days after filing his notice of appeal.] (A) Except as otherwise provided by this rule, the pleadings in an action appealed to the court of common pleas from a magisterial district court shall be as prescribed by the rules of civil procedure governing a civil action in the court of common pleas.
(B)(1) An appellant who was the original plaintiff in the action in the magisterial district court shall file a complaint within 20 days after filing the notice of appeal.
[B. If the] (2) An appellant who was the original defendant in the action [before] in the magisterial district [judge he shall file with his notice of appeal a praecipe requesting the prothonotary to enter a rule as of course upon the appellee to file a complaint within twenty (20) days after service of the rule or suffer entry of a judgment of non pros] court shall file with the prothonotary a copy of the complaint filed in the magisterial district court, either together with the notice of appeal required by Rule 1002 or within ten days after filing the notice of appeal. The action shall thereafter proceed as provided in paragraph (a) or paragraph (b).
(a) Within 20 days of filing the notice of appeal, the appellant shall file an answer to the complaint, which may also include a new matter, a counterclaim, or both. No further pleading is required. The action shall proceed in the court of common pleas upon the complaint and answer so filed except that
(i) An appellant who has filed a counterclaim in the action in the court of common pleas may seek an order to compel the appellee to file an answer to the counterclaim, but otherwise the allegations in the counterclaim shall be deemed denied.
(ii) An appellant may file preliminary objections in accordance with Pa.R.C.P. No. 1028 within 20 days after filing the notice of appeal. Preliminary objections filed under this paragraph are limited to the following grounds:
(1) lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue, or improper service of a complaint;
(2) lack of capacity to sue or nonjoinder of a necessary party;
(3) pendency of a prior action or agreement for alternative dispute resolution;
(4) failure to exercise or exhaust a statutory remedy, and
(5) full, complete and adequate non-statutory remedy at law.
(b) Within 20 days of filing the notice of appeal by the appellant, the appellee may file a complaint in the form prescribed by the rules of civil procedure governing a civil action in the court of common pleas. If the appellee files this complaint, all subsequent pleadings shall be in the form prescribed by the rules of civil procedure governing a civil action in the court of common pleas.
[C. When judgments have been rendered on complaints of both the appellant and the appellee and the appellant appeals from the judgment on his complaint or on both complaints, the appellee may assert his claim in the court of common pleas by pleading it as a counterclaim if it can properly be so pleaded in that court. If the appellant appeals only from the judgment on his complaint, the appellee may appeal from the judgment on his complaint at any time within thirty (30) days after the date on which the appellant served a copy of his notice of appeal upon the appellee.] (C) An appeal by any party shall be deemed an appeal by all parties as to all judgments and all issues unless otherwise stipulated in writing by all parties.
Official Note: [The twenty days allowed the claimant-appellant under subdivision A will give him time to consider, among other things, matters under Rule 1007B. The procedure upon failure to file a complaint pursuant to a rule to do so entered under subdivision B will be governed by the Rules of Civil Procedure (Pa.R.C.P. No. 1037(a)).] This rule was substantially amended in 2006 in a number of respects. First, to alleviate the burden previously put on the plaintiff to file a complaint in the form usually required by the rules of civil procedure governing civil actions in the court of common pleas when an appeal is taken by the defendant from a judgment in a magisterial district court, the rule permits the plaintiff to use the complaint filed in the magisterial district court.
[The landlord's complaint in an appeal from a judgment concerning the possession of real property will contain the same material averments as those required under Rule 503C, an averment that the tenant claims possession of the property being substituted for an averment that he retains it if he has vacated the property or has been ejected from it. See, as to this general requirement of pleading, Palethorp v. Schmidt, 12 Pa. Super. 214 (1900). See also the note to Rule 1081(30).
Subdivision C permits the appellee, when there were cross-complaints in the action before the magisterial district judge and the appellant appeals from the judgment on his complaint or on both complaints, to assert his claim by way of a counterclaim in the court of common pleas if the claim is cognizable as a counterclaim in that court. However, even when this procedure is permissible, the appellee must, if he desires to use it, still give a notice of appeal under Rule 1002, with the time extension allowed by subdivision C (see the Judicial Code, § 5571(f) 42 Pa.C.S. § 5571(f)), if he intends to appeal from the judgment on his complaint and the appellant has not appealed from that judgment, although in such a case subdivision A of Rule 1004 will not be applicable. If the appellee can and intends to avail himself of the procedure permitted by subdivision C, he need not obey any rule to file a complaint served upon him under subdivision B.
All judgments entered must be appealed to preserve all issues, if such issue can be properly pleaded in the court of common pleas. This is of particular importance under subdivision C, where both complaints must be appealed to preserve all issues. See Borough of Downingtown v. Wagner, 702 A.2d 593 (Pa. Cmwlth. 1997).]
Paragraph (B)(2) provides that upon an appeal by a party who was the original defendant in the action in the magisterial district court, the appellee (who was the original plaintiff in the action in the magisterial district court) has the choice of either (1) filing no pleading and proceeding on the complaint filed in the magisterial district court or (2) filing a complaint in the form required for a civil action in the court of common pleas. If the appellee proceeds by filing a complaint as in a common pleas civil action, the appellant must respond by filing a responsive pleading as in a common pleas civil action.
With regard to paragraph (B)(2)(a)(ii), consistent with the policy of promoting simplified procedures in magisterial district court actions, it was thought desirable to limit the grounds upon which preliminary objections could be filed in appeals from judgments in such actions. The second major change to the rule under the 2006 amendments involves appeals in cases involving counterclaims and in cases involving multiple parties. Paragraph (C) now provides that an appeal by any party is deemed an appeal by all parties as to all judgments and all issues. This includes all judgments in cases involving counterclaims. Further, such appeals require the filing of only a single notice of appeal. See American Appliance v. E.W. Real Estate Management, Inc., 564 Pa. 473, 769 A.2d 444 (2001). See also Rule 1002(C) and Official Note. Compare Pa.R.C.P. No. 1309 (with regard to appeals from compulsory arbitration awards).
* * * * * Rule 1005. Service of Notice of Appeal and Other Papers.
[A.] (A)(1) The appellant shall, by personal service or by certified [or registered] mail, serve a copy of [his] the notice of appeal upon the appellee [and upon the magisterial district judge in whose office the judgment was rendered. If required by Rule 1004B to request a rule upon the appellee to file a complaint, he shall also serve the rule by personal service or by certified or registered mail upon the appellee]. The address of the appellee for the purpose of service shall be [his] the address as listed on the complaint [form] filed in [the office of] the magisterial district [judge] court or as otherwise appearing in the records of that [office] court. [If the appellee has an attorney of record named in the complaint form filed in the office of the magisterial district judge, the service upon the appellee may be made upon the attorney of record instead of upon the appellee personally.]
(2) When filing the notice of appeal the appellant shall provide to the prothonotary a first class postage paid envelope pre-addressed to the magisterial district court in which the judgment was entered. The prothonotary shall thereupon send by ordinary mail a copy of the notice of appeal to the magisterial district court, and shall note such service and any return on the docket.
[B.] (B) The appellant shall file with the prothonotary proof of service of copies of [his] the notice of appeal[, and proof of service of a rule upon the appellee to file a complaint if required to request such a rule by Rule 1004B,] within ten [(10)] days after filing the notice of appeal.
[C.] (C) In lieu of service and proof of service [pursuant to subparagraphs A. and B. of this Rule] under paragraphs (A)(1) and (B), the court of common pleas may, by local rule, permit or require that the appellant file with the notice of appeal a [stamped] first class postage paid envelope pre-addressed to the appellee at [his] the address as listed on the complaint [form] filed in [the office of] the magisterial district [judge] court or as otherwise appearing in the records of that [office, or the attorney of record, if any, of the appellee, and a stamped envelope pre-addressed to the magisterial district judge in whose office the judgment was rendered. Copies of the notice of appeal, and Rule pursuant to 1004B, if applicable, shall thereupon be mailed by the prothonotary or court by first class mail, with such service and any return being noted on the court's docket] court. The prothonotary shall thereupon send by ordinary mail a copy of the notice of appeal to the appellee, and shall note such service and any return on the docket.
[D. The party filing] (D) An appellee who elects to file a complaint under Rule 1004(B)(2)(b) shall forthwith serve it upon the opposite party in the appeal by leaving a copy for or mailing a copy to [him at his] the opposite party at the address as shown in the magisterial district court records mentioned in [subdivision A] paragraph (A)(1) of this rule. [If the opposite party has an attorney of record either in the magisterial district court or court of common pleas proceeding, service upon the opposite party may be made upon the attorney of record instead of upon the opposite party personally.]
[E.] (E) Service and proof of service may be made by attorney or other agent.
(F) If a party subject to service under this rule had an attorney of record or authorized representative in the proceedings in the magisterial district court, or if there is an attorney of record in the appellate proceeding in the court of common pleas, a copy of the document to be served upon the party shall also be served upon the attorney of record or authorized representative in the same manner that it is to be served upon the party.
Official Note: [Subdivision A] Paragraph (A)(2) requires service of a copy of the notice of appeal upon the magisterial district [judge as well as upon the appellee, or his attorney of record] court. This copy, when received by the magisterial district [judge] court, may operate as a supersedeas under Rule 1008.
[As to subdivision B] With regard to paragraph (B), there is no return receipt requirement for service by certified [or registered] mail and consequently no [such] receipt need be filed with the prothonotary, although if service is by certified [or registered] mail the sender's receipt must be attached to the proof of service. See Rule 1001[(9) and the last paragraph of the note to Rule 1001]. The notice of appeal and the proof of service may be filed simultaneously. See also Rule 1006 [and its note].
With regard to proof of service when the local option under paragraph (C) is used, see Breza v. Don Farr Moving & Storage Co., 828 A.2d 1131 (Pa. Super. Ct. 2003).
[Subdivision C prescribes] Paragraph (D) provides for a pleading type service of the complaint, which may be made by ordinary mail, upon the opposite party in the appeal [or his attorney of record].
With regard to paragraph (F), see the definitions of ''attorney of record'' in Rule 202 and Pa.R.C.P. No. 76. See also Rule 207 regarding representation by an authorized representative.
Rule 1006. Striking Appeal.
Upon failure of the appellant to comply with Rule [1004A or Rule 1005B] 1004(B) or Rule 1005(B), the prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record. The court of common pleas may reinstate the appeal upon good cause shown.
Official Note: This rule is intended to provide sanctions for failing to act within the time limits prescribed.
If an appeal is stricken pursuant to this rule, any supersedeas based on it shall be terminated. See Rule 1008(C). If this occurs, and the court of common pleas does not reinstate the appeal upon good cause shown, the judgment holder may proceed with execution of the judgment entered in the magisterial district court.
Rule 1007. Procedure on Appeal.
[A.] (A) The proceeding on appeal shall be conducted de novo [in accordance with the Rules of Civil Procedure that would be applicable if the action was initially commenced in the court of common pleas].
[B.] (B) Except as otherwise provided in [subdivision C] paragraph (C), the action upon appeal may not be limited with respect to amount in controversy, joinder of causes of action or parties, counter-claims, added or changed averments or otherwise because of the particulars of the action before the magisterial district judge.
[C.] (C) When an appeal is taken from a supplementary action filed pursuant to Rule 342, only those issues arising from the Rule 342 action are to be considered.
(D) The prothonotary shall promptly give the magisterial district court written notice of the disposition of the proceeding on appeal.
Official Note: As under earlier law, the proceeding on appeal is conducted de novo, but the former rule that the proceeding would be limited both as to jurisdiction and subject matter to the action before the magisterial district judge (see Crowell Office Equipment v. Krug, 213 Pa. Super. 261, 247 A.2d 657 (1968)) has not been retained. Under [subdivision B] paragraph (B), the court of common pleas on appeal can exercise its full jurisdiction and all parties will be free to treat the case as though it had never been before the magisterial district judge, subject of course to the Rules of Civil Procedure. The only limitation on this is contained in [subdivision C] paragraph (C), which makes clear that an appeal from a supplementary action filed pursuant to Rule 342 is not intended to reopen other issues from the underlying action that were not properly preserved for appeal.
Upon appeal to the court of common pleas, a possessory action brought under Chapter 500 may proceed in the same manner as an appeal of a civil action brought under Chapter 300, including being heard by a board of arbitrators.
Paragraph (D) requires that the prothonotary give the magisterial district court written notice of the disposition of the proceeding on appeal. Disposition may include the entry a judgment, the striking of the appeal pursuant to Rule 1006, the voluntary termination of the appeal, or other disposition in the court of common pleas. If the appeal is stricken or voluntarily terminated, the judgment holder may be able to proceed with execution of the judgment entered in the magisterial district court; it is, therefore, important that the magisterial district court receive prompt official notice of the disposition of the appeal since the judgment holder may wish to execute in that court.
Rule 1008. Appeal as Supersedeas.
[A. Receipt] (A) Except as otherwise provided in paragraph (B), receipt by the magisterial district [judge] court of the copy of the notice of appeal [from the judgment] shall operate as a supersedeas[, except as provided in subdivision B of this rule].
[B.] (B)(1) When an appeal is from a judgment for the possession of real property, receipt by the magisterial district [judge] court of the copy of the notice of appeal shall operate as a supersedeas only if the appellant at the time of filing the appeal[,] deposits with the prothonotary a sum of [money (] cash, or a bond[,] with surety approved by the prothonotary[)], equal to the lesser of three [(3)] months' rent or the rent actually in arrears on the date of the filing of appeal, based upon the magisterial district judge's order of judgment, and, thereafter, deposits cash or bond with the prothonotary in a sum equal to the monthly rent which becomes due during the period of time the proceedings upon appeal are pending in the court of common pleas, such additional deposits to be made within [thirty (30)] 30 days following the date of the appeal, and each successive [thirty (30)] 30 day period thereafter.
(2) Only when a deposit of cash or bond is made in accordance with paragraph (1) at the time of filing the appeal, the prothonotary shall make upon the notice of appeal and its copies a notation that it will operate as a supersedeas when received by the magisterial district court.
[Upon application by the landlord, the court] (3)(a) Except as otherwise provided in paragraph (b), the prothonotary shall release [appropriate sums] to the landlord funds from the escrow account [on a continuing basis] within five days of the funds being collected while the appeal is pending [to compensate the landlord for the tenant's actual possession and use of the premises during the pendency of the appeal].
(b) Upon application by the tenant and for good cause shown, the court of common pleas may impound the funds in the escrow account and direct the prothonotary not to release funds except upon order of court.
(4) In the event the appellant fails to deposit the sums of money, or bond, required by this rule when such deposits are due, the prothonotary, upon praecipe filed by the appellee, shall terminate the supersedeas but not the underlying appeal. [Notice of the termination of the supersedeas shall be forwarded via first class mail to all parties, but if any party has an attorney of record named in the complaint form or other filings with the court, notice shall be given to the attorney instead of to the party. Notice to a party that does not have an attorney of record is sufficient if mailed to the party's last known address of record.
Where the deposit of money or bond is made pursuant to the Rule at the time of filing the appeal, the prothonotary shall make upon the notice of appeal and its copies a notation that it will operate as a supersedeas when received by the magisterial district judge.]
[C.] (C) If an appeal is stricken or voluntarily terminated, any supersedeas based on it shall terminate. The prothonotary shall [pay the deposits of rental to the party who sought possession of the real property] thereupon release to the landlord any remaining funds paid in accordance with paragraph (B)(1).
(D) If a supersedeas is terminated in accordance with any provision of this rule, the prothonotary shall send notice of the termination of the supersedeas via first class ordinary mail to all parties. If a party subject to notice under this paragraph had an attorney of record or authorized representative in the proceedings in the magisterial district court, or if there is an attorney of record in the appellate proceeding in the court of common pleas, a copy of the notice shall also be sent to the attorney of record or authorized representative via first class ordinary mail.
Official Note: [Subdivision A] Paragraph (A) provides for an automatic supersedeas in appeals from [trespass and assumpsit actions] money judgments upon receipt by the magisterial district judge of a copy of the notice of appeal. An appeal from only the money portion of a landlord and tenant judgment would also be governed by paragraph (A). See Rules 514 and 521. It did not seem worthwhile to require bond or other security for costs as a condition for supersedeas in trespass and assumpsit appeals.
[Subdivision B] Paragraph (B), however, does require the deposit of money or approved bond as a condition for supersedeas where the appeal is from a judgment for the possession of real property. This provision substantially [incorporates the purpose and intent of the Legislative provision contained in Act No. 1995-33, approved July 6, 1995. The 1996 amendment provides a uniform, Statewide procedure (except Philadelphia County; See: Philadelphia Municipal Court Rules of Civil Procedure), and establishes a mechanism for the application of a supersedeas or the termination thereof without the need for any local court rule or order.] implements the legislative changes to the Landlord and Tenant Act of 1951 contained in the Act of July 6, 1995, P. L. 253, No. 33.
A supersedeas issued under this rule remains in effect during the pendency of the appeal unless terminated in accordance with this rule. Paragraphs (B) and (C) provide in part for the termination of a supersedeas under certain circumstances. Only if a supersedeas is terminated pursuant to these provisions may the judgment holder proceed with execution of the judgment entered in the magisterial district court. A judgment holder who intends to proceed with execution of the judgment entered in the magisterial district court should provide the magisterial district court with a copy of the notice sent in accordance with paragraph (D). Paragraph (B)(4) makes clear that the underlying appeal may proceed even if the supersedeas is terminated.
The request for termination of the supersedeas, upon the praecipe filed with the prothonotary, may simply state: ''Please terminate the supersedeas in the within action for failure of the appellant to pay monthly rental as required by Pa.R.C.P.M.D.J. No. 1008 for a period in excess of [thirty (30)] 30 days'' and will be signed by appellee. The prothonotary will then note upon the praecipe: ''Upon confirmation of failure of the appellant to deposit the monthly rent for more than [thirty (30)] 30 days, the supersedeas is terminated,'' and the prothonotary will sign and clock the praecipe. A copy of the praecipe may thereupon be displayed to the magisterial district judge who rendered the judgment, and a request for issuance of an order for possession under [Pa. R.A.P.D.J. No.] Rule 515 may be made.
When entering a judgment for the delivery of possession of real property the magisterial district judge must make a determination as to the amount of monthly rent, even if no money judgment is sought or entered. See Rule 514(A). The prothonotary must have this information to calculate the amount due under paragraph (B)(1). The deposit of rent required hereunder is intended to apply in all cases, irrespective of the reasons which caused the filing of the complaint before the magisterial district judge in the first instance. [Disposition of the monthly rental deposits will be made by the court of common pleas following its de novo hearing of the matter on appeal.] Under the 2006 amendments to the rule, the prothonotary must release funds from the escrow account, within five days of the funds being collected, to the landlord during the pendency of the appeal unless otherwise directed by the court of common pleas in accordance with paragraph (B)(3)(b). This is intended to compensate the landlord for the tenant's actual possession and use of the premises during the pendency of the appeal. There is no requirement that the landlord make application for the release of funds under paragraph (B)(3)(a). This is a significant change from the former procedure.
[The money judgment portion of a landlord and tenant judgment (see Pa.R.C.P.D.J. Nos. 514 and 521) would be governed by subdivision A.]
With regard to paragraph (D), see the definitions of ''attorney of record'' in Rule 202 and Pa.R.C.P. No. 76. See also Rule 207 regarding representation by an authorized representative.
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