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PA Bulletin, Doc. No. 96-92

THE COURTS

Title 246--MINOR COURT CIVIL RULES

PART I.  GENERAL

[246 PA. CODE CHS. 500 AND 1000]

Proposed Changes to Rules of Civil Procedure Governing Actions and Proceedings Before District Justices

[26 Pa.B. 312]

Introduction

   The Minor Court Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend the following Rules of Civil Procedure Governing Actions and Proceedings Before District Justices (''Pa.R.C.P.D.J.''), to wit: Nos. 504, 514, 515, 517, 519, 520, 1002 and 1008. The proposed amendments are intended to establish a more streamlined procedure in the process and management of landlord complaints for the recovery of possession of real property, and to conform to existing Legislation the time for taking appeals from judgments. The recommendations for amendment were prompted by amendments to the Landlord and Tenant Act of 1951 promulgated by Acts 33 and 36 of 1995, both approved July 6, 1995. The proposed amendments would, it is believed, establish a sound basis upon which the Legislative amendments to the Landlord/Tenant Act of 1951 can be implemented, insofar as is procedurally consistent with existing Rules and standards of due process.

   The text of the proposed amendment follows:

   We request that interested persons submit suggestions, comments, or objections concerning these proposals to the Committee through its Chair.

   Carl G. Wass, Esquire, CALDWELL & KEARNS, 3631 North Front Street, Harrisburg, PA 17110, no later than Wednesday, February 14, 1996.

By the Minor Court Rules Committee

CARL G. WASS,   
Chair

Annex A

TITLE 246.  MINOR COURT CIVIL RULES

PART I.  GENERAL

CHAPTER 500.  ACTIONS FOR THE RECOVERY OF POSSESSION OF REAL PROPERTY

Rule 504.  Setting the Date for Hearing; Delivery for Service.

   The district justice, at the time the complaint is filed, shall:

   (1)  Set a hearing date which shall be not less than seven (7) or more than [twenty (20)] fifteen (15) days from the date the complaint is filed.

*      *      *      *      *

   Offical Note:  The hearing date in subdivision (1) of this rule was required to be set not less than seven days from the filing of the complaint because of the requirement of Rule 506C that service be made at least five days before the hearing. It was thought that the requirement that the complaint be served not more than [twenty] fifteen days from the filing of the complaint should provide ample time to make the type of service required in these cases. However, the complaint may be reinstated upon written request of the plaintiff as in trespass and assumpsit cases. See Rule 314E and the note to Rule 314.

   The notice for the defendant set forth in subdivision (4) of this rule varies somewhat from the notice required in trespass and assumpsit actions under Rule 305. There are a number of reasons for this. First, there can be no default judgment in these possessory actions and, secondly, it was thought that cross-complaints of defendants in these cases should be limited to those arising out of the occupancy of the premises.

   Amended Oct. 17, 1975, effective in 90 days; June 30, 1982, effective 30 days after July 17, 1982; amended ______ , effective ______ .

Rule 514.  Judgment.

*      *      *      *      *

   C.  Judgment shall be given at the conclusion of the hearing or within [five (5)] three (3) days thereafter and shall be entered on the original complaint form. The district justice shall promptly give written notice of the judgment to all parties, but if any party has an attorney of record named in the complaint form the written notice shall be given to the attorney instead of to the party. Notice of judgment shall contain advice as to the right of the parties to appeal, the time within which the appeal must be taken, and that the appeal is to the court of common pleas.

   Official Note:  Subdivision B of this rule makes provision for a money judgment for the defendant if he prevails in a greater amount on his cross-complaint.

   Amended April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; amended effective Dec. 1, 1983; amended March 27, 1992, effective June 25, 1992; amended ______ , effective ______ .

Rule 515.  Request for Order for Possession.

   If the district justice has rendered a judgment that the real property be delivered up to the plaintiff, the plaintiff may, [on or] after the [sixteenth (16th)] tenth (10th) day following the date of the judgment, file with the district justice a request for an order for possession on a form which shall be prescribed by the State Court Administrator. The request form shall be attached to the order, including a statement of the judgment amount, return and other matters required by these rules.

   Official Note:  [The fifteen days in this rule plus the fifteen days in Rule 519 will give the defendant time to obtain a supersedeas within the appeal period. See Rules 1002, 1008, 1009 and 1013.] The 1995 amendment to § 513 of the Landlord/Tenant Act (Act No. 1995-33) established a ten day period of time for an appeal from a judgment for possession of real estate; therefore, the filing of the request for order for possession is not permitted until after the period of time for appeal has expired.

   Amended June 1, 1971; amended April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; March 27, 1992, effective June 25, 1992; amended ______ , effective ______ .

Rule 517.  Notation of Time of Receipt; Service of Order.

*      *      *      *      *

   If you, and all occupants of this property not authorized by the owner to be present thereon, do not vacate this property within [fifteen (15)] ten (10) days after the date of this notice, the law authorizes me to use, and I must use, such force as may be necessary to enter upon the property, by the breaking in of any door or otherwise, and to eject you and all unauthorized occupants.

   The date of the notice shall be the same as the date of the service.

   Official Note:  Under this rule, service must be made both by first class mail and delivery for service in the manner prescribed.

   Amended Oct. 17, 1975, effective in 90 days; April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; March 27, 1992, effective June 25, 1992; amended ______ , effective ______ .

Rule 519.  Forcible Entry and Ejectment.

   A.  If, on or after the [sixteenth (16th)] eleventh (11th) day following the service of the order for possession, the defendant or any unauthorized occupant remains on the real property, the officer executing the order for possession shall use such force as may be necessary to enter upon property, by the breaking in of any door or otherwise, and to eject the defendant and any unauthorized occupant and shall deliver possession of the real property to the plaintiff or his agent.

*      *      *      *      *

   Official Note:  Subdivision B of this Rule will permit the reinstatement, upon written request of the plaintiff of an order for possession which has not been executed on or after sixty (60) days following its issuance. The written request for reinstatement may be in any form and may consist of a notation on the permanent copy of the order for possession form ''Reinstatement of order requested,'' subscribed by the plaintiff. The district justice shall mark all copies of the reinstated order for possession ''Order Reinstated. Request for reinstatement filed on______ (Date).'' If it is necessary to use a new form or new form sets for the reinstated order for possession, the reinstated order for possession, except for service portions thereof, shall be an exact copy of the original order for possession, although signatures may be typed with the mark ''/s/'' indicating an actual signature. Since a reinstated order for possession is merely a continuation of the original action, there is no filing fee for reinstating an order for possession.

   Amended April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; March 27, 1992, effective June 25, 1992; amended ______ , effective ______ .

Rule 520.  Officer's Return.

   [The] Within five (5) business days following delivery of possession to the plaintiff or satisfaction by payment of rent in arrears and costs, the officer executing the order for possession shall make a return on the order for possession form. The return shall show:

*      *      *      *      *

   Official Note:  Amended July 30, 1982, effective 30 days after July 17, 1982; amended ______ , effective ______ .

Rule 581.  Acts of Assembly Suspended.

   All Acts of Assembly or parts thereof inconsistent with the rules governing practice and procedure in actions before district justices for the recovery of possession of real property are suspended to the extent of such inconsistency.

THE FOLLOWING ACTS OF ASSEMBLY ARE SUSPENDED INSOFAR AS THEY ARE INCONSISTENT WITH THE FOREGOING RULES:

   (1)  Act of July 6, 1995, amending the Act of April 6, 1951 (P. L. 69, No. 20), known as Act 33 of 1995;

   (2)  Act of July 6, 1995, amending the Act of April 6, 1951 (P. L. 69, No. 20), known as Act 36 of 1995.

   Official Note:  Amended June 30, 1982, effective 30 days after July 17, 1982; ______ , 1996, effective 30 days after ______ , 1996.

CHAPTER 1000.  APPEALS

Rule 1002.  Time and Method of Appeal.

   A.  Except as provided in subdivision B of this Rule, [A] a party aggrieved by a judgment for money may appeal therefrom within thirty (30) days after the date 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. The prothonotary shall not accept an appeal from an aggrieved party which is presented for filing more than thirty (30) days after the date of judgment without leave of court and upon good cause shown.

   B.  A party aggrieved by a judgment affecting the delivery of possession of real property may appeal therefrom within ten (10) days after the date 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. The prothonotary shall not accept an appeal from an aggrieved party which is presented for filing more than ten (10) days after the date of judgment without leave of Court and upon good cause shown.''

   Official Note:  The thirty day limitation in subdivision A of this rule is the same as that found in the Judicial Code, § 5571(b), 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 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). The two subdivisions of this rule are intended to clarify that where the right of possession of real estate is at issue, the shorter, ten day period for appeal applies; where the judgment from which the appeal is taken is a judgment only for money under these rules, the thirty day period of time for appeal applies.

   The method of appeal is by filing with the prothonotary a ''notice of appeal'' on a form to be prescribed by the State Court Administrator. Copies of this same form will be used for service under Rule 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. No transcript of the record of the proceedings before the district justice is to be filed on appeal, for the proceedings on appeal are de novo.

   The 1990 amendment is intended to encourage the complete utilization of the hearing process available before the district justice.

   Adopted June 1, 1971. Amended April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; March 27, 1992, effective June 25, 1992; amended ______ , effective ______ .

Rule 1008.  Appeal as Supersedeas.

*      *      *      *      *

   B.  When an appeal is from a judgment for the possession of real property, receipt by the district justice of the copy of the notice of appeal shall operate as a supersedeas only if the appellant [files with the prothonotary a bond, with surety approved by the prothonotary, conditioned for the payment of any judgment for rent and for damages growing out of occupancy of or injury to the premises rendered against the appellant on appeal. In lieu of such a bond, the court of common pleas may, by local rule applicable to certain classes of cases, permit rental payments becoming due during the court of common pleas proceedings to be deposited in an escrow account in a bank or trust company approved by the court, such deposits to be applied to the payment of any judgment of the kind mentioned above rendered on appeal. If the appellant files such a bond or is permitted to deposit rental payments in escrow in lieu of a bond], at the time of filing the appeal, deposits with the prothonotary a sum of money (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 the appeal, 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) days following the date of the appeal, and each successive thirty (30) day period thereafter. In the event the appellant fails to deposit the sums of money, or bond, required by this rule, within ten (10) days following the date when such deposits are due, the prothonotary, upon praecipe filed by the appellee, shall terminate the supersedeas. Where the deposit of money or bond is made 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 district justice.

*      *      *      *      *

   Official Note:  Subdivision A provides for an automatic supersedeas in appeals from trespass and assumpsit actions upon receipt by the district justice of a copy of the notice of appeal. 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, however, does require a bond, or an escrow deposit of rent if permitted by local rule, as a condition for supersedeas with respect to appeals from judgments for the possession of real property. The provision for local rules permitting an escrow deposit of rent in certain cases is intended to authorize local machinery for the handling of special categories of landlord and tenant problems. See the statute cited in Rule 1082(1).] Subdivision 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.

   The money judgment portion of a landlord and tenant judgment (see Rules 514 and 521) would be governed by subdivision A.

   Adopted June 1, 1971. Amended April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; amended ______ , effective ______ .

Rule 1081.  Acts of Assembly Suspended.

   All Acts of Assembly or parts thereof inconsistent with the rules governing appellate proceedings with respect to judgments and other decisions of district justices in civil actions are suspended to the extent of such inconsistency.

THE FOLLOWING ACTS OF ASSEMBLY ARE SUSPENDED INSOFAR AS THEY ARE INCONSISTENT WITH THE FOREGOING RULES:

   (1)  Act of July 6, 1995, amending the Act of April 6, 1951 (P. L. 69, No. 20), known as Act 33 of 1995;

   (2)  Act of July 6, 1995, amending the Act of April 6, 1951 (P. L. 69, No. 20), known as Act 36 of 1995.

   Adopted June 1, 1971. Amended April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; ______ , 1996, effective 30 days after ______ , 1996.

[Pa.B. Doc. No. 96-92. Filed for public inspection January 26, 1996, 9:00 a.m.]


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