THE COURTS
Title 246—MINOR COURT CIVIL RULES
PART I. GENERAL
[ 246 PA. CODE CH. 300 ]
Proposed Amendment of Pa.R.C.P.M.D.J. No. 314
[47 Pa.B. 4082]
[Saturday, July 29, 2017]The Minor Court Rules Committee is planning to propose to the Supreme Court of Pennsylvania the amendment of Pa.R.C.P.M.D.J. No. 314, providing that a complaint may not be reinstated under certain circumstances, for the reasons set forth in the accompanying explanatory report. Pursuant to Pa.R.J.A. No. 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to submission to the Supreme Court.
Any reports, notes, or comments in the proposal have been inserted by the Committee for the convenience of those using the rules. They neither will constitute a part of the rules nor be officially adopted by the Supreme Court.
Additions to the text of the proposal are bolded; deletions to the text are bolded and bracketed.
The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:
Pamela S. Walker, Counsel
Minor Court Rules Committee
Supreme Court of Pennsylvania
Pennsylvania Judicial Center
PO Box 62635
Harrisburg, PA 17106-2635
FAX: 717-231-9526
minorrules@pacourts.usAll communications in reference to the proposal should be received by September 11, 2017. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail. The Committee will acknowledge receipt of all submissions.
By the Minor Court Rules Committee
ANTHONY W. SAVEIKIS,
Chair
Annex A
TITLE 246. MINOR COURT CIVIL RULES
PART I. GENERAL
CHAPTER 300. CIVIL ACTION Rule 314. Return, Waiver and Failure of Service; Reinstatement.
A. The person serving the complaint shall, at or before the time of the hearing, make proof of service which shall show (1) the manner of service, (2) the date, time, and place of service and, (3) the name and relationship or title, if any, of the person on whom the complaint was served. The proof of service shall be filed with the original complaint.
B. When service is made by certified mail or comparable delivery method resulting in a return receipt in paper or electronic form, the return receipt shall be filed with the original complaint.
C. The appearance of a defendant in person or by representative or the filing by a defendant of a claim in the case shall be deemed a waiver of any defect in service but not a waiver of a defect in venue.
D. If the complaint is not served on the defendant in time to permit holding a hearing within 60 days of the filing of the complaint, the magisterial district judge shall dismiss the complaint without prejudice.
[E. Upon written request of the plaintiff, a complaint that has been dismissed without prejudice for failure to make service pursuant to subdivision D of this rule may be reinstated at any time and any number of times.] E.(1) When the complaint is dismissed without prejudice for failure to make service pursuant to paragraph D of this rule as to all defendants, upon written request of the plaintiff the complaint may be reinstated at any time and any number of times. The date of reinstatement shall be the date upon which the request for reinstatement is filed.
(2) When the complaint has been filed against multiple defendants and subsequently dismissed without prejudice for failure to make service pursuant to paragraph D of this rule as to less than all defendants, any further action against an unserved defendant after a hearing on the merits or the entry of a default judgment must be initiated by the filing of a new complaint.
Official Note: The provision concerning appearance not being a waiver of venue was inserted in [subdivision] paragraph C of this rule to prevent the concentration of business in the office of a favorable magisterial district judge. Also, the public cannot generally be expected to be aware of venue provisions. See Rule 302H regarding improper venue.
[Subdivision] Paragraph D is intended to prevent the accumulation of stale claims in the office of the magisterial district judge.
[Subdivision E] Subparagraph E(1) provides for the reinstatement, upon written request of the plaintiff, of a complaint that has been dismissed without prejudice for failure to make service under [subdivision D] paragraph D against all defendants. Compare Pa.R.C.P. No. 401(b). The written request for reinstatement may be in any form and may consist of a notation on the permanent copy of the complaint form, ''Reinstatement of complaint requested,'' subscribed by the plaintiff. The magisterial district judge shall mark all copies of the reinstated complaint, ''Complaint reinstated. Request for reinstatement filed on ______ (date).'' If it is necessary to use a new form for the reinstated complaint, the reinstated complaint, except for service portions thereof, shall be an exact copy of the original complaint, although signatures may be typed or printed with the mark ''/s/'' indicating an actual signature. The language in [subdivision E] subparagraph E(1) that a complaint may be reinstated ''at any time'' will permit reinstatement after a faulty service without waiting for further proceedings in the case. Reinstatement must occur within the period of the statute of limitations from the date of the last filing or reinstatement. The cost for reinstating a complaint is specified in Section 1725.1 of the Judicial Code, 42 Pa.C.S. § 1725.1. In addition, there may be additional server costs for service of the reinstated complaint.
Subparagraph E(2) addresses the scenario involving multiple defendants when timely service is not made upon all defendants, resulting in a dismissal without prejudice as to some defendants. Subparagraph E(2) clarifies that the plaintiff may not reinstate the complaint after the hearing or entry of a default judgment in this circumstance, but must initiate an entirely new action by filing a new complaint, subject to the applicable fees and costs for a new filing.
REPORT
Proposed Amendment of Pa.R.C.P.M.D.J. No. 314
Reinstatement of Complaint I. Introduction
The Minor Court Rules Committee (''Committee'') is planning to propose the amendment of Pa.R.C.P.M.D.J. No. 314 to the Supreme Court of Pennsylvania. The rule addresses, among other things, reinstatement of a complaint following a dismissal without prejudice for failure to make timely service upon a defendant. The Committee is proposing to distinguish the procedure for cases when the complaint is dismissed as to all defendants from dismissal for only some of the defendants.
II. Discussion
Rule 314 addresses matters relating to service, including the return of service, dismissal of the complaint without prejudice for failure to make timely service on the defendant, and reinstatement of the complaint following a dismissal without prejudice for failure to make timely service.
The Committee received an inquiry regarding dismissal without prejudice and the ability to reinstate the complaint when the complaint names multiple defendants, not all defendants have been served, the complaint is dismissed as to the unserved defendant(s), but the case moves forward against the served defendant(s), and proceeds to a hearing or a default judgment. A concern arises when the plaintiff later locates an unserved defendant and requests reinstatement of the complaint pursuant to Rule 314E. The rule does not address how to handle this scenario, and reinstating an adjudicated case to proceed against the previously unserved defendants raises concerns with maintaining the integrity of the court's original judgment, including the appeal period applicable to the parties.
The Committee discussed the inquiry, and agreed that it would be appropriate to amend the procedures set forth in Rule 314E to distinguish between scenarios when the complaint has been dismissed as to all defendants and when the complaint has been dismissed as to less than all defendants.
III. Proposed Changes
The Committee plans to propose the amendment of Rule 314 by expanding Rule 314E to contain two subparagraphs. Subparagraph E(1) provides that when the complaint is dismissed without prejudice as to all defendants for failure to make timely service, the complaint may be reinstated. Subparagraph E(2), in contrast, provides that when the complaint has been dismissed without prejudice for failure to make timely service as to less than all defendants, any further action against an unserved defendant must be initiated by filing a new complaint. The Official Note provides that the new action in subparagraph E(2) is subject to all applicable fees and costs for a new filing.
The Committee also proposes minor stylistic changes throughout Rule 314.
[Pa.B. Doc. No. 17-1244. Filed for public inspection July 28, 2017, 9:00 a.m.]
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