THE COURTS
Title 231—RULES OF CIVIL PROCEDURE
PART I. GENERAL
[ 231 PA. CODE CHS. 200 AND 1500 ]
Proposed Amendment of Pa.R.C.P. Nos. 216, 227.1, 234.6, 1558, 1559, 1565, 1569, 1571, 1572, 1573 and 1574
[51 Pa.B. 4262]
[Saturday, August 7, 2021]The Civil Procedural Rules Committee is considering proposing to the Supreme Court of Pennsylvania the amendment of Rules 216, 227.1, 234.6, 1558, 1559, 1565, 1569, 1571, 1572, 1573, and 1574 for the reasons set forth in the accompanying explanatory report. Pursuant to Pa.R.J.A. 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 will neither constitute a part of the rules nor be officially adopted by the Supreme Court.
Additions to the text of the proposal are bolded and underlined; deletions to the text are bolded and bracketed.
The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:
Karla M. Shultz, Counsel
Civil Procedural Rules Committee
Supreme Court of Pennsylvania
Pennsylvania Judicial Center
PO Box 62635
Harrisburg, PA 17106-2635
FAX: 717-231-9526
civilrules@pacourts.usAll communications in reference to the proposal should be received by September 24, 2021. 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 Civil Procedural
Rules CommitteeJOHN J. HARE,
Chair
Annex A
TITLE 231. RULES OF CIVIL PROCEDURE
PART I. GENERAL
CHAPTER 200. BUSINESS OF COURTS Rule 216. Grounds for Continuance.
[(A)] (a) The following are grounds for continuance:
(1) Agreement of all parties or their attorneys, if approved by the Court;
(2) Illness of counsel of record, a material witness, or a party. If requested a certificate of a physician shall be furnished, stating that such illness will probably be of sufficient duration to prevent the ill person from participating in the trial;
(3) Inability to subpoena or to take testimony by deposition, commission, or letters rogatory, of any material witness, shown by affidavit which shall state:
[(a)] (i) The facts to which the witness would testify if present or if deposed;
[(b)] (ii) The grounds for believing that the absent witness would so testify;
[(c)] (iii) The efforts made to procure the attendance or deposition of such absent witness; and
[(d)] (iv) The reasons for believing that the witness will attend the trial at a subsequent date, or that the deposition of the witness can and will be obtained.
(4) Such special ground as may be allowed in the discretion of the court;
(5) The scheduling of counsel to appear at any proceeding under the Pennsylvania Rules of Disciplinary Enforcement, whether:
[(a)] (i) as counsel for a respondent-attorney before a hearing committee, [special master] hearing officer, the Disciplinary Board or the Supreme Court;
[(b)] (ii) as a [special master] hearing officer or member of a hearing committee; or
[(c)] (iii) as a member of the Disciplinary Board;
(6) The scheduling of counsel to appear at any proceeding involving the discipline of a justice, judge or magisterial district judge under Section 18 of Article V of the Constitution of Pennsylvania, whether:
[(a)] (i) as counsel for a justice, judge, or magisterial district judge before the special tribunal provided for in 42 Pa.C.S. § 727, the Court of Judicial Discipline, the Judicial Conduct Board or any hearing committee or other arm of the Judicial Conduct Board; or
[(b)] (ii) as a member of the Court of Judicial Discipline, the Judicial Conduct Board or any hearing committee or other arm of the Judicial Conduct Board.
[(B)] (b) Except for cause shown in special cases, no reason above enumerated for the continuance of a case shall be of effect beyond one application made in behalf of one party or group of parties having similar interests.
[(C)] (c) No application for a continuance shall be granted if based on a cause existing and known at the time of publication or prior call of the trial list unless the same is presented to the court at a time fixed by the court, which shall be at least one week before the first day of the trial period. Applications for continuances shall be made to the court, or filed in writing with the officer in charge of the trial list, after giving notice of such application by mail, or otherwise, to all parties or their attorneys. Each court may, by local rule, designate the time of publication of the trial list for the purposes of this rule.
[(D)] (d) No continuance shall be granted due to the absence from court of a witness duly subpoenaed, unless:
(1) Such witness will be absent because of facts arising subsequent to the service of the subpoena and which would be a proper ground for continuance under the provisions of Rule [216(A)] 216(a); or
(2) On the day when the presence of such witness is required a prompt application is made for the attachment of such absent witness; or
(3) The witness, having attended at court has departed without leave, and an application for attachment is made promptly after the discovery of the absence of such witness; or the court is satisfied that the witness has left court for reasons which would be a proper ground for continuance under Rule [216(A)] 216(a).
[(E)] (e) Each Court may adopt local rules providing for the temporary passing of cases or governing applications for continuance because of the absence of a witness, not a party, who has not been served with a subpoena.
[(F)] (f) Rule [216(B)—(E)] 216(b)—(e) and Rule 217 shall not be applicable to a continuance granted for any of the reasons set forth in Rule [216(A)(5) or (6)] 216(a)(5) or (6).
Rule 227.1. Post-Trial Relief.
(a) After trial and upon the written Motion for Post-Trial Relief filed by any party, the court may
(1) order a new trial as to all or any of the issues; or
(2) direct the entry of judgment in favor of any party; or
(3) remove a nonsuit; or
(4) affirm, modify or change the decision; or
(5) enter any other appropriate order.
Official Note: The motion for post-trial relief replaces the following motions and exceptions: motion for new trial, motion for judgment notwithstanding the verdict, motion upon the whole record after disagreement of a jury, motion in arrest of judgment, motion to remove a nonsuit and exceptions following the decision of the judge in a trial without jury.
The following rules provide for the filing of exceptions, e.g., Equity Rule 1534 (exceptions to a fiduciary's account), Partition Rule 1569 (exceptions to a [master's] hearing officer's report) and Divorce Rule 1920.55-2 (exceptions to a [master's] hearing officer's report), Support Rule 1910.12(e) (exceptions to a hearing officer's report) and Execution Rule 3136(d) (exceptions to sheriff's schedule of proposed distribution).
* * * * *
EXPLANATORY COMMENT—1983 * * * * * The term ''exceptions'' is used in the rules in contexts other than post-trial practice. No amendment is made to rules using the term in such other contexts. Thus under Rule 227, a party need not take ''exception'' to any ruling of the trial judge. A party must still file ''exceptions'' to an auditor's report under Rule 1530, a [master's] hearing officer's report under Partition Rule 1569, a hearing officer's report under Support Rule 1910.12, a [master's] hearing officer's report under Divorce Rule 1920.55 and a schedule of distribution under Execution Rule 3136.
* * * * * Rule 234.6. Form of Subpoena.
A subpoena issued pursuant to Rule 234.1 shall be substantially in the following form:
Commonwealth of Pennsylvania
County of ______(Caption)
SUBPOENA TO ATTEND AND TESTIFY * * * * * Official Note: This form of subpoena shall be used whenever a subpoena is issuable under Rule 234.1, including hearings in connection with depositions and before arbitrators, [masters] hearing officers, commissioners, etc.
To require the production of documents or things in addition to testimony, complete paragraph 2.
* * * * *
CHAPTER 1500. EQUITABLE RELIEF
Subchapter B. PARTITION OF REAL PROPERTY Rule 1558. Preliminary Conference. Appointment of [Master] Hearing Officer.
(a) The court, after the entry of the order directing partition, shall direct the parties or their attorneys to appear for a preliminary conference to consider
(1) whether the parties can agree upon a plan of partition or sale;
(2) the simplification of the issues;
(3) whether any issues or matters relating to the carrying out of the order of partition shall be referred to a [master] hearing officer; and
(4) such other matters as may aid in the disposition of the action.
(b) The court, at any time after the preliminary conference, may appoint a [master] hearing officer to hear the entire matter or to conduct any sale, or to act upon only specified issues or matters relating to the carrying out of the order of partition.
Official Note: adopted April 26, 1955, effective November 1, 1955.
Rule 1559. [Master] Hearing Officer. Hearing.
A [master] hearing officer who is appointed by the court shall make such examinations and hold such hearings as may be necessary, giving reasonable notice thereof. The [master] hearing officer may employ appraisers and, with the authorization of the court, such other experts as are necessary to enable the [master] hearing officer to perform [his or her] the duties of the appointment.
Rule 1565. Retention of Undivided Interests. Election. Parties not Appearing.
(a) The court shall permit the shares of any two or more co-tenants to remain undivided between them if they so elect by writing filed within such time as the court or [master] hearing officer shall direct.
(b) The court may permit the shares of any two or more co-tenants who do not appear in the action to remain undivided between them.
Official Note: adopted April 26, 1955, effective November 1, 1955.
Rule 1569. [Master's] Hearing Officer's Report. Exceptions.
(a) A [master] hearing officer who is appointed by the court shall file a report with respect to the matters submitted. The report shall follow the form of decision in Rule 1570, insofar as the scope of the reference to the [master] hearing officer permits.
(b) The [master] hearing officer shall give all persons in interest written notice of the date on which [he or she] the hearing officer intends to file the report and proposed order and shall specify an address within the county where they may be examined. The [master] hearing officer may change the report and proposed order as [he or she] the hearing officer deems proper before filing them, but if any changes are made written notice thereof shall be given to all parties.
(c) Within ten days after notice of the filing of the report exceptions may be filed by any party to rulings on evidence, to findings of fact, to conclusions of law and to the proposed order. The court may, with or without taking testimony, remand the report, or enter a decision in accordance with Rule 1570 which may incorporate by reference the findings and conclusions of the [master] hearing officer in whole or in part.
Rule 1571. Trustees to Satisfy Liens and Charges.
(a) The court, upon motion of any party or person in interest, or upon recommendation of the [master] hearing officer, may appoint a trustee to receive payment of
(1) any sum due any party or person in whose favor a lien exists and who is unknown or cannot be found;
(2) a principal sum necessary to secure the payment of any amount charged upon property to be partitioned;
(3) the purchase price of any property sold in partition which is subject to a life estate and remainder.
(b) The trustee shall, upon entry of such security as the court shall direct and upon payment of the sums decreed, be authorized to satisfy of record any lien, whereupon the property shall be freed and discharged from such lien.
Official Note: adopted April 26, 1955, effective November 1, 1955.
Rule 1572. Sale not Confined to Parties.
(a) A sale not confined to the parties shall be conducted in such manner and upon such terms as the court shall direct by local rule or in the order of sale. It shall be subject to the power of the court to order a resale because of inadequacy of price.
(b) A public sale shall be held at such time and place as the court may direct. It shall be advertised in each county where any part of the property lies.
(c) A purchaser who is a party or a lien holder whose lien is discharged by the sale shall be allowed a credit equal to the amount of his or her distributive interest in the purchase price, less any charges assessed against him or her. The excess of the bid shall be paid in cash.
(d) If the court directs a [master] hearing officer to conduct the sale, the [master] hearing officer before accepting payment for the property shall file a bond in double the amount of the payment or in such lesser amount as shall be fixed by the court.
Rule 1573. Return of Sale and Schedule of Distribution.
(a) Where the sale has been conducted by a [master] hearing officer, the [master] hearing officer shall promptly file with the prothonotary a return of sale together with a proposed order which shall
(1) confirm the sale;
(2) authorize the [master] hearing officer to execute and deliver to the purchaser all necessary deeds and other instruments of title;
(3) contain appropriate provisions for the protection of life tenants, unborn and unascertained remaindermen, persons whose whereabouts are unknown, or other persons in interest and for the release or discharge of such interests;
(4) direct distribution of the proceeds to the persons or parties entitled; and
(5) provide for the payment of costs.
(b) The [master] hearing officer shall give all persons in interest written notice of the date on which [he or she] the hearing officer intends to file the return of sale and proposed order and shall specify an address within the county where they may be examined. The [master] hearing officer may change the return of sale and proposed order as [he or she] the hearing officer deems proper before filing them, but if any changes are made written notice thereof shall be given to all parties.
(c) If the court approves the return of sale in whole or in part, the court shall enter an appropriate order. Any part of the order as to which a motion for post-trial relief is not filed within ten days shall become final.
Rule 1574. Costs and Counsel Fees.
Costs shall be paid by the parties in proportion to their interests in the property. The compensation of appraisers, the [master's] hearing officer's fee and compensation of experts authorized by the court shall be taxed as part of the costs. Reasonable counsel fees may be charged against the property or fund resulting therefrom, and apportioned among the parties and their counsel in such amount and manner as the court shall deem equitable.
Official Note: adopted April 26, 1955, effective November 1, 1955; amended September 1, 1958, effective forthwith.
PUBLICATION REPORT Pursuant to multiple requests, the Civil Procedural Rules Committee is considering proposing amendments of the Rules of Civil Procedure that replace the terms ''master'' and ''special master'' with ''hearing officer.'' They include Pa.R.C.P. Nos. 216, 227.1, 234.6, 1558, 1559, 1565, 1569, 1571, 1572, 1573, and 1574.
The purpose of the proposed amendments is to two-fold. First, while the term ''master'' has traditionally identified a quasi-judicial officer and is considered neutral in legal proceedings, a pejorative connotation has been ascribed to the term in modern parlance outside of court. Second, the term has been either already replaced or proposed to be replaced in other bodies of rules. See 47 Pa.B. 2313 (April, 22, 2017) (amendments to the Rules of Juvenile Court Procedure) and 51 Pa.B. 1006 (February 27, 2021) (proposed amendments to the Rules of Civil Procedure Governing Domestic Relations proceedings). In addition, the Committee has observed that a number of judicial districts have also changed this terminology in their local rules.
The Committee invites all comments, objections, concerns, and suggestions regarding this proposed rulemaking.
[Pa.B. Doc. No. 21-1229. Filed for public inspection August 6, 2021, 9:00 a.m.]
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