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PA Bulletin, Doc. No. 08-1091

THE COURTS

Title 246--MINOR
COURT CIVIL RULES

PART I. GENERAL

[ 246 PA. CODE CH. 500 ]

Order Amending Note to Rule 506 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges; No. 243, Magisterial Doc. No. 1

[38 Pa.B. 3239]
[Saturday, June 14, 2008]

Order

Per Curiam:

   And Now, this 2nd day of June, 2008, upon the recommendation of the Minor Court Rules Committee; the proposal having been published before adoption at 37 Pa.B. 6905 (December 29, 2007), 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 the note to Pa.R.C.P.M.D.J. No. 506 be, and hereby is, amended in the attached form.

   This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective June 9, 2008.

Annex A

TITLE 246. MINOR COURT CIVIL RULES

PART I. GENERAL

CHAPTER 500. ACTIONS FOR RECOVERY OF POSSESSION OF REAL PROPERTY

Rule 506. Service of Complaint.

*      *      *      *      *

   B.  The copy shall be served at least five days before the hearing.

   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. In actions where wage garnishment may be sought under Pa.R.C.P. No. 3311, the plaintiff may authorize the sheriff or constable to make personal service upon a tenant/defendant. If a tenant/defendant is not present at the property the sheriff or constable is authorized to post the complaint so that the underlying landlord-tenant action may proceed. The plaintiff may authorize the sheriff or constable to make additional attempts to effectuate personal service upon the tenant/defendant so the plaintiff can later prove such service if attempting to garnish wages under Pa.R.C.P. No. 3311. Additional service attempts by the sheriff or constable may result in additional fees.

   Adopted Oct. 15, 1969, effective Jan. 1, 1970. Amended July 8, 1975, imd. effective; Oct. 17, 1975, effective in 90 days; Jan. 29, 1976, effective in 30 days; April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; July 16, 2001, effective Aug. 1, 2001; Jan 6, 2005, effective Jan. 29, 2005. Amended June 2, 2008, effective June 9, 2008.

FINAL REPORT1

Amendment to the Note to Rule 506 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges

Change to the Note: Reference to Wage Garnishment

   On June 2, 2008, effective June 9, 2008, upon recommendation of the Minor Court Rules Committee,2 the Supreme Court of Pennsylvania approved amendments to the Note to Rule 506 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges.3

I.  INTRODUCTION

   The Committee began reviewing Pa.R.C.P.M.D.J. No. 506 in March 2007 following an inquiry from a magisterial district judge. The judge was concerned that Pa.R.C.P. No. 3311 requires personal service upon a defendant in the original action if wage attachment is to be sought at a later time. However, Pa.R.C.P.M.D.J. No. 506 did not make any reference to this restriction in the Rules of Civil Procedure.

II.  PROPOSED CHANGE TO THE NOTE TO RULE 506

   The Committee amended the Note to M.D.J. Rule 506 to specify that if wage attachment is to be sought at a later time, personal service must be effectuated. The additional language of the Note provides concrete examples of how this personal service would play out in a landlord-tenant case. For instance, the new language specifies that if a defendant is not present at the rental unit to be personally served, the property may be posted for the underlying landlord-tenant action to proceed, but the sheriff/constable would need to return to personally serve the defendant prior to the hearing in order to satisfy Pa.R.C.P. No. 3311.

   The new Note language references Pa.R.C.P. No. 3311 twice, to underscore that section's relevance and direct litigants to review the section. Pa.R.C.P. No. 3311 requires a plaintiff judgment creditor/landlord to certify, inter alia, '' . . . that the defendant appeared or filed papers in the action or that the complaint was served by handing a copy to the defendant.'' See Pa.R.C.P. No. 3311, Certification by Judgment Creditor--Landlord Form, No. 8(b).

   Finally, the Note highlights that more than one service attempt by the sheriff/constable could result in additional fees.

[Pa.B. Doc. No. 08-1091. Filed for public inspection June 13, 2008, 9:00 a.m.]

_______

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

2  Minor Court Rules Committee Recommendation 3-2008.

3  Supreme Court of Pennsylvania Order No. 243, Magisterial Docket No. 1 (June 2, 2008).


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