THE COURTS
Title 246—MINOR
COURT CIVIL RULES
PART I. GENERAL
[ 246 PA. CODE CHS. 200 AND 1200 ]
Order Amending Rules 1201, 1205, 1206 and 1208 and the Official Note to Rule 206 of the Rules of Civil Procedure before Magisterial District Judges; No. 403 Magisterial Rules Doc.
[46 Pa.B. 7165]
[Saturday, November 12, 2016]
Order Per Curiam
And Now, this 28th day of October, 2016, upon the recommendation of the Minor Court Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. No. 103(a)(3):
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rules 1201, 1205, 1206, 1208 and the Official Note to Rule 206 of the Pennsylvania Rules of Civil Procedure before Magisterial District Judges are amended in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective December 31, 2016.
Chief Justice Saylor would approve the Minor Court Rules Committee's recommendation as submitted, which, in relevant part, tracked the statutory terms of 42 Pa.C.S. § 62A09(a) (providing that a minor judiciary hearing officer may grant emergency relief ''to protect the victim upon good cause shown in an ex parte proceeding'' (emphasis added)).
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.
* * * * * D. This rule shall apply to all civil actions and proceedings except actions pursuant to the Protection from Abuse Act or 42 Pa.C.S. §§ 62A01—62A20.
Official Note: ''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.
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.
This rule does not provide for the assessment of filing costs against an unsuccessful plaintiff who has been permitted to proceed in forma pauperis and who remains indigent. See Brady v. Ford, 451 Pa. Super. 363, 679 A.2d 837 (1996).
For special provisions governing actions pursuant to the Protection From Abuse Act, see Sections 6106(b) and (c) of the Domestic Relations Code, 23 Pa.C.S. §§ 6106(b) and (c). For special provisions governing actions seeking relief [from] for victims of sexual violence or intimidation, see 42 Pa.C.S. §§ 62A01—62A20.
E. Proceedings in Forma Pauperis
* * * * *
CHAPTER 1200. [EMERGENCY RELIEF FROM ABUSE, SEXUAL VIOLENCE OR INTIMIDATION] ACTIONS FOR EMERGENCY PROTECTIVE RELIEF Rule 1201. Applicability.
The rules in this chapter apply to the exercise by a hearing officer of jurisdiction under:
(1) Section 6110 of the Protection From Abuse Act, 23 Pa.C.S. § 6110, granting emergency relief from abuse, and
(2) Section 62A09 of Title 42, 42 Pa.C.S. § 62A09, [to grant emergency relief from abuse,] granting emergency relief in connection with claims of sexual violence or intimidation.
* * * * * Rule 1205. Persons Who May Seek Emergency Relief.
[An] A. In actions brought pursuant to Section 6110 of the Protection From Abuse Act, 23 Pa.C.S. § 6110, an adult or an emancipated minor may seek emergency relief from abuse[, sexual violence or intimidation] for himself or herself. Also, any parent, adult household member or guardian ad litem may seek emergency relief from abuse[, sexual violence or intimidation] on behalf of minor children. In addition, a guardian of the person of an incapacitated person as defined in 20 Pa.C.S. § 5501 may seek emergency relief on behalf of the incapacitated person.
B. In actions brought pursuant to Section 62A09 of Title 42, 42 Pa.C.S. § 62A09 (providing for protection in connection with claims of sexual violence and intimidation), an adult or emancipated minor may seek emergency relief for himself or herself. Also, any parent, adult household member or guardian ad litem may seek emergency relief on behalf of a minor child. In addition, a guardian of the person of an incapacitated person as defined in 20 Pa.C.S. § 5501 may seek emergency relief on behalf of the incapacitated person.
Official Note: This rule is derived from Section 6106 of the Protection From Abuse Act, 23 Pa.C.S. § 6106, as well as 42 Pa.C.S. § 62A05.
Rule 1206. Commencement of Proceedings.
A. A proceeding for emergency relief
(1) from abuse, or
(2) in connection with claims of sexual violence or intimidation
shall be commenced by the filing of a petition by the plaintiff with the hearing officer on a form [which] that shall be prescribed by the State Court Administrator. The petition shall be signed by the plaintiff and shall set forth the names and addresses of the plaintiff and the defendant and the names, addresses and ages of any person on whose behalf the plaintiff is seeking relief. The plaintiff shall also allege in the petition, in general terms, the cause for seeking emergency relief [from abuse, sexual violence or intimidation].
B. Upon issuance of an emergency order, the hearing officer shall provide the plaintiff with instructions regarding the commencement of proceedings in the court of common pleas and regarding the procedures for initiating a contempt charge should the defendant violate the emergency order. The hearing officer shall also advise the plaintiff of the existence of rape crisis centers in the county or in nearby counties in the case of sexual violence, as well as programs for victims of domestic or sexual violence in the county or in nearby counties and inform the plaintiff of the availability of legal assistance without cost if the plaintiff is unable to pay therefor.
C. The petition shall be filed and service shall be made without prepayment of costs.
Official Note: [Subdivision] Paragraph B is added to assure compliance with the requirement of Section 6110(d) of the Protection From Abuse Act, 23 Pa.C.S. § 6110(d), as well as 42 Pa.C.S. § 62A09(d). Practice varies among the judicial districts as to what procedures the plaintiff must follow to continue in effect a protection order in the court of common pleas upon the certification of an emergency protection order to the court of common pleas. 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 1210 and Note and Rule 1211 and Note. [Subdivision] Paragraph C is derived from Section 6106(b) of the Protection From Abuse Act, 23 Pa.C.S. § 6106(b), as well as 42 Pa.C.S. § 62A05(b), and reflects the practice when a temporary order is issued at the common pleas level.
Rule 1208. Findings and Protection Orders.
[A.] A.(1) If the hearing officer, upon good cause shown, finds it necessary to protect the plaintiff[, minor children, or victim from abuse, sexual violence or intimidation,] or minor children from abuse the hearing officer may grant relief in accordance with Section 6110(a) of the Protection From Abuse Act, 23 Pa.C.S. § 6110(a) [or 42 Pa.C.S. § 62A09(a)], and make any protection orders necessary to effectuate that relief. Immediate and present danger of abuse[, sexual violence or intimidation to the plaintiff, minor children, or victim] to the plaintiff or minor children shall constitute good cause.
(2) If the hearing officer, upon good cause shown, finds it necessary to protect the plaintiff or another individual in connection with claims of sexual violence or intimidation, the hearing officer may grant relief in accordance with 42 Pa.C.S. § 62A09(a), and make any protection orders necessary to effectuate that relief. Immediate and present danger posed by the defendant to the plaintiff or another individual shall constitute good cause.
B. The hearing officer shall enter on the petition form the findings and any protection orders made or other action taken.
Official Note: [Subdivision A of this rule is derived from Section 6110(a) of the Protection From Abuse Act, 23 Pa.C.S. § 6110(a), which permits the hearing officer to grant limited relief in accordance with 23 Pa.C.S. § 6108(a)(1), (2) and (6) or (1) and (6) (relating to relief), as well as 42 Pa.C.S. § 62A07(b).] Subparagraph A(1) of this rule permits the hearing officer to grant limited relief in accordance with 23 Pa.C.S. § 6108(a)(1), (2) and (6) or (1) and (6). Subparagraph A(2) of this rule permits the hearing officer to grant limited relief to plaintiffs in accordance with 42 Pa.C.S. § 62A07(b).
FINAL REPORT1
Recommendation 3-2016, Minor Court Rules Committee
Amendment of Rules 1201, 1205-1206 and 1208,
and of the Official Note to Rule 206 of the Pennsylvania Rules of Civil Procedure before Magisterial District Judges
Emergency Protective Orders in Connection with Claims of Sexual Violence or Intimidation I. Introduction
The Minor Court Rules Committee (''Committee'') recommended amendments to Rules 1201, 1205-1206 and 1208, and to the Official Note to Rule 206 of the Pennsylvania Rules of Civil Procedure before Magisterial District Judges (''Rules''). The amendments clarify the nature of the emergency relief available in connection with claims of sexual violence or intimidation, as provided for in recent legislation.
II. Background and Discussion
In 2014, the Committee learned of enacted legislation that permits a victim of sexual violence or intimidation to petition a court for protection from a defendant. See Act of Mar. 21, 2014, P.L. 365, No. 25, 42 Pa.C.S. §§ 62A01—62A20 (''Act''). The Act provides for emergency protective orders in connection with claims of sexual violence and intimidation, in much the same manner as existing emergency protection from abuse orders. The new law took effect July 1, 2015.
The Committee compared the provisions of the Act with the Protection From Abuse Act, 23 Pa.C.S. §§ 6101—6122, as well as current Rules 1201—1211, and drafted and recommended amendments to incorporate the new protective order provisions within existing Rules 1201—1211. The Court adopted the recommendation on June 29, 2015, and it took effect on July 1, 2015.2
After the adoption of the rule changes, the Committee was queried whether the allegation of harm required by the petition was stricter than that required by the Act. Specifically, the emergency petition contained a provision that ''[e]mergency relief from sexual violence or intimidation is required because there is immediate and present danger of sexual violence or intimidation by the defendant to me and the above listed minor (child)(children) (incapacitated person).''
The Act's general provision on commencement of proceedings provides that a person may seek relief ''by filing a petition with the court alleging the need for protection from the defendant with respect to sexual violence or intimidation.'' 42 Pa.C.S. § 62A05(a). Additionally, the provision of the Act addressing emergency relief by the minor judiciary provides that a hearing officer may grant relief ''if the hearing officer deems it necessary to protect the victim upon good cause shown in an ex parte proceeding. Immediate and present danger posed by the defendant to the victim shall constitute good cause for the purposes of this subsection.'' 42 Pa.C.S. § 62A09(a).
Upon further examination of the Act, the Committee agreed that its intent was to provide protection in connection with claims of sexual violence or intimidation, and that the protection granted is not be limited to providing protection from further acts of sexual violence or intimidation. Applying a narrow reading of 42 Pa.C.S. § 62A05(a), and requiring an allegation of immediate and present danger of further sexual violence or intimidation, could have the unintended consequence of denying protective relief to a person who may not fear further sexual violence or intimidation by the defendant, but rather bodily injury or death. The Committee agreed that the showing required by 42 Pa.C.S. § 62A09(a), ''[i]mmediate and present danger'' is the appropriate standard for emergency protective relief under the Act.
III. Rule Changes
The amendments clarify that the protective relief is in connection with claims of sexual violence and intimidation, and is not specifically protection from further sexual violence or intimidation. In Rules 1201, 1205-1206 and 1208, additional subparagraphs have been added to distinguish relief available under the Protection From Abuse Act, set forth in the Domestic Relations Code, 23 Pa.C.S. § 6101—6122, from relief available in connection with claims of sexual violence and intimidation under the Act. The Official Note to Rule 206 is amended to clarify that the general relief available under the Act is for victims of sexual violence or intimidation, and not specifically relief from further sexual violence or intimidation. Additionally, while the content of the petition and order forms are not contained within the Rules, those forms are being modified consistent with the changes described above.
[Pa.B. Doc. No. 16-1941. Filed for public inspection November 10, 2016, 9:00 a.m.] _______
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 Order, see No. 387 Magisterial Rules Docket (June 29, 2015).
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